Exhibit 4(a)
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CNH WHOLESALE MASTER NOTE TRUST
as Issuer
and
JPMORGAN CHASE BANK
as Indenture Trustee
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INDENTURE
dated as of [ ], 2003
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THIS INDENTURE between CNH WHOLESALE MASTER NOTE TRUST, a statutory trust
organized under the laws of the State of Delaware (the "Issuer"), having its
principal office at [ ], [Wilmington], Delaware [ ], and JPMORGAN CHASE BANK, a
New York banking corporation, in its capacity as Indenture Trustee (the
"Indenture Trustee"), is made and entered into as of [ ], 2003.
RECITALS OF THE ISSUER
The Issuer has duly authorized the execution and delivery of this Indenture
to provide for the issuance of its notes to be issued in one or more fully
registered or bearer Series or Classes. All things necessary to make this
Indenture a valid agreement of the Issuer, in accordance with its terms, have
been done.
GRANTING CLAUSE
The Issuer hereby grants to the Indenture Trustee for the benefit and
security of (a) the Noteholders, (b) each Enhancement Provider to an Enhancement
Agreement entered into in connection with the issuance of a Class of Notes that
expressly states in the related Indenture Supplement that such Enhancement
Provider is entitled to the benefit of the Collateral and (c) the Indenture
Trustee, in its individual capacity (each, a "Secured Party"), a security
interest in all of its right, title and interest, whether now owned or hereafter
acquired, in and to:
(i) the Receivables;
(ii) Collections and Recoveries related to and all money, instruments,
investment property and other property distributed or distributable in respect
of (together with all earnings, dividends, distributions, income, issues, and
profits relating to) the Receivables pursuant to the terms of the Transfer and
Servicing Agreement, this Indenture and any Indenture Supplement;
(iii) all Eligible Investments and all money, investment property,
instruments and other property on deposit from time to time in, credited to or
related to the Collection Account, the Series Accounts, the Excess Funding
Account and the Backup Servicer Account (including any subaccounts of any such
account), and in all interest, dividends, earnings, income and other
distributions from time to time received, receivable or otherwise distributed or
distributable thereto or in respect thereof (including any accrued discount
realized on liquidation of any investment purchased at a discount);
(iv) all rights, remedies, powers, privileges and claims of Issuer under
or with respect to any Enhancement and the Transfer and Servicing Agreement
(whether arising pursuant to the terms of the related Enhancement Agreement or
the Transfer and Servicing Agreement or otherwise available to Issuer at law or
in equity), including the rights of Issuer to enforce such Enhancement Agreement
or the Transfer and Servicing Agreement, and to give or withhold any and all
consents, requests, notices, directions, approvals, extensions or waivers under
or with respect to such Enhancement Agreement or the Transfer and Servicing
Agreement to the same extent as Issuer could but for the assignment and security
interest granted to Indenture Trustee for the benefit of the Noteholders;
(v) all Insurance Proceeds;
(vi) all proceeds of any derivative contracts between Issuer and a
counterparty, as described in any Indenture Supplement;
(vii) all money, accounts, general intangibles, chattel paper,
instruments, documents, goods, investment property, deposit accounts, letters of
credit, letter-of-credit rights and oil, gas, and other minerals consisting of,
arising from or related to the foregoing;
(viii) all other property of Issuer;
(ix) all present and future claims, demands, causes and choses in action
in respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds, products, rents, receipts or profits of the
conversion, voluntary or involuntary, into cash or other property, all cash and
non-cash proceeds, and other property consisting of, arising from or relating to
all or any part of any of the foregoing; and
(x) any proceeds of the foregoing (collectively, the "COLLATERAL").
The Security Interest in the Collateral is granted to secure the Notes
(and, to the extent specified in the applicable Indenture Supplement or
Enhancement Agreement, the obligations under any applicable Enhancement
Agreements) equally and ratably without prejudice, priority or distinction
between any Note and any other Note by reason of difference in time of issuance
or otherwise, except as otherwise expressly provided in this Indenture or in the
Indenture Supplement which establishes any Class of Notes, and to secure (i) the
payment of all amounts due on such Notes (and, to the extent so specified, the
obligations under any applicable Enhancement Agreements) in accordance with
their terms, (ii) the payment of all other sums payable by the Issuer under this
Indenture or any Indenture Supplement and (iii) compliance by the Issuer with
the provisions of this Indenture or any Indenture Supplement. This Indenture is
a security agreement within the meaning of the UCC.
The Indenture Trustee acknowledges the grant of such Security Interest, and
accepts the Collateral in trust hereunder in accordance with the provisions
hereof and agrees to perform the duties herein to the end that the interests of
the Secured Parties may be adequately and effectively protected.
Particular Notes and Enhancement Agreements shall benefit from the Security
Interest to the extent (and only to the extent) collections on and proceeds of
the Collateral are allocated for their benefit pursuant to this Indenture and
the applicable Indenture Supplement.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms and
conditions upon which the Notes are and are to be authenticated, issued and
delivered, and in consideration of the premises and the purchase of Notes by the
Holders thereof, it is mutually agreed as follows, for the equal and
proportionate benefit of all Holders of the Notes or of a Series or Class
thereof, as the case may be:
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LIMITED RECOURSE
The obligation of the Issuer to make payments of principal, interest and
other amounts on the Notes and to make payments on Enhancement Agreements is
limited in recourse as set forth in Section 7.11.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. DEFINITIONS. For all purposes of this Indenture and of any
Indenture Supplement, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act or in the
related Indenture Supplement, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder means such accounting principles as are
generally accepted in the United States of America at the date of such
computation;
(4) all references in this Indenture to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles, Sections and
other subdivisions of this Indenture as originally executed. The words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(5) "including" and words of similar import shall be deemed to
be followed by "without limitation."
"Accounts" means, collectively, the Collection Account, the Excess Funding
Account and any Supplemental Account, in each case including any Sub-Accounts
therein.
"Accumulation Period," with respect to any Series or Class of Notes, has
the meaning assigned in the related Indenture Supplement.
"Accumulation Period Commencement Date," with respect to any Series or
Class of Notes, has the meaning assigned in the related Indenture Supplement.
"Act," when used with respect to any Noteholder, is defined in Section
1.04(a).
"Action," when used with respect to any Noteholder, is defined in Section
1.04(a).
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"Adjusted Outstanding Dollar Principal Amount," with respect to any Series
or Class of Notes, has the meaning assigned in the related Indenture Supplement.
"Adjusted Pool Balance" is defined in the Transfer and Servicing Agreement.
"Administration Agreement" means the Administration Agreement, dated as of
[ ], 2003, between and among the Issuer, Case Credit, as Administrator and the
Indenture Trustee.
"Administrator" means Case Credit, in its capacity as Administrator
pursuant to the terms of the Administration Agreement.
"Adverse Effect" means, whenever used in this Indenture with respect to any
Series or Class of Notes with respect to any action, that such action shall (a)
at the time of its occurrence or at any future date result in the occurrence of
an Early Amortization Event or Event of Default relating to such Series or
Class, as applicable, (b) adversely affect the amount of funds available to be
distributed to the Noteholders of any such Series or Class pursuant to this
Indenture or the timing of such distributions, or (c) adversely affect the
security interest of the Indenture Trustee in the Collateral.
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means, with respect to any Holders of Notes, has the meaning
specified in the related Indenture Supplement.
"Applicable Investment Category" with respect to any Series or Class of
Notes, has the meaning assigned in the related Indenture Supplement.
"Authenticating Agent" means any Person authorized by the Indenture Trustee
to authenticate Notes under Section 8.14.
"Authorized Newspaper" means, with respect to any Class of Notes,
publication in the newspaper of record specified in the applicable Indenture
Supplement for that Class, or if and so long as Notes of that Class are listed
on any securities exchange and that exchange so requires, in the newspaper of
record required by the applicable securities exchange, printed in any language
specified in the applicable Indenture Supplement or satisfying the requirements
of such exchange.
"Authorized Officer" means, with respect to (i) the Issuer, any officer of
the Owner Trustee who is authorized to act for the Owner Trustee in matters
relating to the Issuer and who is identified on the list of Authorized Officers
delivered by the Owner Trustee to the Indenture Trustee on the Closing Date (as
such list may be modified or supplemented from time to time thereafter), (ii)
the Administrator, so long as the Administration Agreement is in effect, any
Assistant Treasurer or more senior officer of the Administrator who is
authorized to act for the
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Administrator in matters relating to the Issuer and to be acted upon by the
Administrator pursuant to the Administration Agreement and who is identified on
the list of Authorized Officers delivered by the Administrator to the Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter) and (iii) the Transferor, any Assistant Treasurer or
more senior officer of the Transferor who is authorized to act for the
Transferor in matters relating to the Transferor and who is identified on the
list of Authorized Officers delivered by the Transferor to the Indenture Trustee
on the Closing Date (as such list may be modified or supplemented from time to
time thereafter).
"Available Interest Amount" with respect to any Series of Notes, has the
meaning specified in the related Indenture Supplement.
"Available Principal Amount" with respect to any Series of Notes, has the
meaning specified in the related Indenture Supplement.
"Available Subordinated Amount" with respect to any Series of Notes, has
the meaning specified in the related Indenture Supplement.
"Backup Servicer" means the institution that is engaged by the Issuer or
the Servicer on its behalf to act as a backup servicer under the Sale and
Servicing Agreement and that satisfies all of the requirements of a Successor
Servicer under Section 6.02 of the Transfer and Servicing Agreement.
"Backup Servicer Account" means the account designated as such, established
and maintained pursuant to Section 4.02(e).
"Backup Servicer Account Initial Deposit" means $750,000.00.
"Backup Servicer Account Required Amount" means, initially, the Backup
Servicer Account Initial Deposit, PROVIDED, HOWEVER, the Backup Servicer Account
Required Amount may be reduced by the Servicer with the consent of Moody's as
evidenced by written affirmation that such reduction will not result in a
downgrade or withdrawal by Moody's of its then current rating of any Class or
Series of Notes.
"Backup Servicer Account Shortfall Amount" means the excess of Backup
Servicer Fees and Expenses over amounts on deposit in the Backup Servicer
Account.
"Backup Servicer Fees Expenses" means all reasonable costs, fees and
expenses (including attorneys' fees) incurred in connection with the engagement
of a Backup Servicer, including any engagement fees, travel expenses or due
diligence costs).
"Bearer Note" means a Note in bearer form.
"Beneficiary" means the holders of the Transferor Interest.
"Business Day," unless otherwise specified in the Indenture Supplement for
any Class of Notes, means any day other than (a) a Saturday or Sunday or (b) any
other day on which national banking associations or state banking institutions
in Racine, Wisconsin, New York, New York or
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Wilmington, Delaware, are authorized or obligated by law, executive order or
governmental decree to be closed.
"Case Credit" means Case Credit Corporation, a Delaware Corporation.
"Class" means, with respect to any Note, the Class designated for such Note
in the applicable Indenture Supplement.
"Collateral" is defined in the Granting Clause.
"Collateral Amount" means, with respect to any Outstanding Class of Notes,
an amount determined in accordance with the applicable Indenture Supplement.
"Collection Account" is defined in Section 4.02(a).
"Collections" is defined in Section 4.01.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Corporate Trust Office" means the principal office of the Indenture
Trustee in New York, New York at which at any particular time its corporate
trust business shall be principally administered, which office at the date
hereof is located at [ ], New York, New York [ ].
"CWRI" means CNH Wholesale Receivables Inc.
"Depository" means a U.S. Depository or a Foreign Depository, as the case
may be.
"Discount Note" means a Note that provides for an amount less than the
Stated Principal Amount (but not less than the Initial Dollar Principal Amount)
thereof to be due and payable upon the occurrence of an Early Amortization Event
or other optional or mandatory redemption or the occurrence of an Event of
Default and the acceleration of such Note, in each case before the Scheduled
Final Payment Date of the applicable Note.
"Dollar" means (a) United States dollars or (b) denominated in United
States dollars.
"Early Amortization Event" is defined in Section 12.01.
"Early Amortization Period" is defined in the related Indenture Supplement.
"Effective Date" means the date on which this Indenture is executed and
delivered by the parties hereto.
"Enhancement" is defined in the Transfer and Servicing Agreement.
"Enhancement Agreement" is defined in the Transfer and Servicing Agreement.
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"Enhancement Provider" is defined in the Transfer and Servicing Agreement.
"Entity" means any Person other than an individual or government (including
any agency or political subdivision thereof).
"ERISA" means the Employee Retirement Income Security Act of 1974, as the
same may be amended from time to time.
"Event of Default" is defined in Section 7.01.
"Excess Funded Amount" with respect to any Series of Notes, has the meaning
specified in the related Indenture Supplement.
"Excess Funding Account" is defined in Section 2.04(c).
"Exchange Date" means, with respect to any Class of Notes, the latest of:
(a) in the case of exchanges of beneficial interests in Temporary
Global Notes for beneficial interests in Permanent Global Notes in registered
form, any date that is after the related issuance date;
(b) in the case of exchanges of beneficial interests in Temporary
Global Notes for beneficial interests in Permanent Global Notes in bearer form,
the date of presentation of certification of non-United States beneficial
ownership (as described in Section 2.05); and
(c) the earliest date on which such an exchange of a beneficial
interest in a Temporary Global Note for a beneficial interest in a Permanent
Global Note is permitted by applicable law.
"FDIC" means the Federal Deposit Insurance Corporation or any successor
thereto.
"Federal Bankruptcy Code" means Title 11 of the United States Code, as
amended from time to time.
"Fitch" means Fitch, Inc., or any successor thereto.
"Foreign Currency" means (a) a currency other than Dollars or (b)
denominated in a currency other than Dollars.
"Foreign Depository" means the Person specified in the applicable Indenture
Supplement, in its capacity as depository for the accounts of any clearing
agencies located outside the United States.
"Global Note" means any Note issued pursuant to Section 2.04.
"Holder," when used with respect to any Note, means a Noteholder.
"Indenture" or "this Indenture" means this Indenture as originally executed
and as amended, supplemented, restated or otherwise modified from time to time
by one or more
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indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, and shall include the terms of particular Series or Classes
of Notes created as contemplated by Section 3.01.
"Indenture Supplement" means, with respect to any Series of Notes, a
supplement to this Indenture, executed and delivered in conjunction with the
issuance of such Notes pursuant to Section 10.01, together with any applicable
terms document related to such Indenture Supplement and any amendment to the
Indenture Supplement executed pursuant to Section 10.01 or 10.02, and, in either
case, including all amendments thereof and supplements thereto.
"Indenture Trustee" means the Person named as the Indenture Trustee in the
first paragraph of this Indenture until a successor Indenture Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Indenture Trustee" means and includes each Person who is then an
Indenture Trustee hereunder. If at any time there is more than one such Person,
"Indenture Trustee" as used with respect to the Notes of any Series or Class
means the Indenture Trustee with respect to Notes of that Series or Class.
"Indenture Trustee Authorized Officer," when used with respect to the
Indenture Trustee, means any vice president, any assistant vice president, the
treasurer, any assistant treasurer, any senior trust officer or trust officer,
or any other officer of the Indenture Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Initial Dollar Principal Amount" means (a) unless otherwise specified in
the applicable Indenture Supplement, with respect to Classes of Dollar
Interest-bearing Notes, the aggregate initial principal amount of the
Outstanding Notes of such Class, and (b) with respect to Classes of Discount
Notes and foreign currency Notes, the amount specified in the applicable
Indenture Supplement as the Initial Dollar Principal Amount thereof.
"Insurance Proceeds" is defined in the Transfer and Servicing Agreement.
"Interest-bearing Note" means a Note that bears interest at a stated or
computed rate on the principal amount thereof. A Note may be both an
Interest-bearing Note and a Discount Note.
"Interest Payment Date" means, with respect to any Series or Class of
Notes, the scheduled due date of any payment of interest on such Notes, as
specified in the applicable Indenture Supplement, or if such day is not a
Business Day, the next following Business Day, unless such day is in the next
calendar month, in which case the Interest Payment Date, unless otherwise
specified in the related Indenture Supplement, shall be the last Business Day of
the current calendar month; provided, however, that upon the acceleration of a
Series or Class of Notes following an Event of Default or upon the occurrence of
an Early Amortization Event, or other optional or mandatory redemption of that
Series or Class of Notes, each Monthly Principal Accrual Date shall be an
Interest Payment Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time.
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"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Investor Default Amount" with respect to any Series of Notes, has the
meaning specified in the related Indenture Supplement.
"Investor Uncovered Dilution Amounts" with respect to any Series of Notes,
has the meaning specified in the related Indenture Supplement.
"Issuer" is defined in the first paragraph of this Indenture.
"Issuer Authorized Officer" means (a) an authorized signatory of the Owner
Trustee or (b) the chairman or vice-chairman of the board of directors, chairman
or vice-chairman of the executive committee of the board of directors, the
president, any vice-president, the secretary, any assistant secretary, the
treasurer, or any assistant treasurer, in each case of the Beneficiary or the
Administrator, any other officer or employee of the Beneficiary or Administrator
who is authorized to act on behalf of the Issuer.
"Issuer Certificate" means a certificate (including an Officer's
Certificate) signed in the name of an Issuer Authorized Officer, or the Issuer
by an Issuer Authorized Officer, and in each case delivered to the Indenture
Trustee relating to, among other things, the issuance of a new Class of Notes.
Wherever this Indenture requires that an Issuer Certificate be signed also by an
accountant or other expert, such accountant or other expert (except as otherwise
expressly provided in this Indenture) may be in the employ of the Beneficiary.
"Legal Final Maturity Date" means, with respect to a Series or Class of
Notes, the date specified in the Indenture Supplement, for such Note as the
fixed date on which the principal of such Series or Class of Notes is due and
payable.
"Majority Holders" means, with respect to any Series or Class of Notes or
all Outstanding Notes, the Holders of a majority in Outstanding Dollar Principal
Amount of the Outstanding Notes of that Series or Class or of all Outstanding
Notes, as the case may be, or as otherwise defined for such Series in the
Indenture Supplement for such Series.
"Monthly Interest Accrual Date" means, with respect to any Outstanding
Series or Class of Notes:
(a) each Interest Payment Date for such Series or Class, and
(b) for any Monthly Period in which no Interest Payment Date for such
Series or Class occurs, the date in such Monthly Period corresponding
numerically to the next Interest Payment Date for such Series or Class of Notes,
or in the case of a Series or Class of Discount Notes, the Scheduled Final
Payment Date for that Series or Class, or as otherwise specified in the
applicable Indenture Supplement for such Series or Class of Notes; provided,
however, that
(i) for the Monthly Period in which a Series or Class of Notes
is issued, the date of issuance of such Series or Class shall be the first
Monthly Interest Accrual Date for such Monthly Period for such Series or
Class of Notes,
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(ii) for the Monthly Period next following the Monthly Period in
which a Series or Class of Notes is issued, unless otherwise indicated in
the related Indenture Supplement, the first day of such Monthly Period
shall be the first Monthly Interest Accrual Date in such next following
Monthly Period for such Series or Class of Notes,
(iii) any date on which proceeds from a sale of Receivables
following an Event of Default and acceleration of any Class of Notes are
deposited into the interest funding account for such Notes shall be a
Monthly Interest Accrual Date for such Class of Notes,
(iv) if there is no such numerically corresponding date in such
Monthly Period, then the Monthly Interest Accrual Date shall be the last
Business Day of such Monthly Period, and
(v) if such numerically corresponding date in such Monthly
Period is not a Business Day, then the Monthly Interest Accrual Date shall
be the next following Business Day (unless such Business Day would fall in
the following Monthly Period in which case the Monthly Interest Accrual
Date shall be the last Business Day of such earlier month).
"Monthly Noteholders' Statement" means a report substantially in the form
of Exhibit B, as the same may be supplemented as set forth in the related
Indenture Supplement.
"Monthly Period" means a calendar month, except as otherwise specified for
a Series of Notes in its Indenture Supplement. The Monthly Period with respect
to a Transfer Date or Payment Date is the Monthly Period that ends immediately
prior to such date.
"Monthly Principal Accrual Date" means, with respect to any Outstanding
Series or Class of Notes:
(a) for any Monthly Period in which an Scheduled Final Payment Date for
such Series or Class occurs, such Scheduled Final Payment Date, or as otherwise
specified in the applicable Indenture Supplement for such Series or Class of
Notes, and
(b) for any Monthly Period in which no Scheduled Final Payment Date for
such Series or Class occurs, the date in such Monthly Period corresponding
numerically to the next Scheduled Final Payment Date for such Series or Class of
Notes (or for any month following the last Scheduled Final Payment Date, the
date in such month corresponding numerically to the preceding Scheduled Final
Payment Date for such Series or Class of Notes), or as otherwise specified in
the applicable Indenture Supplement, for such Class of Notes; provided, however,
that:
(i) any date on which prefunded excess amounts are released
from any principal funding subaccount and deposited into the principal
funding subaccount of any Class of Notes on or after the Scheduled Final
Payment Date for such Class of Notes shall be a Monthly Principal Accrual
Date for such Class of Notes,
(ii) any date on which proceeds from a sale of Receivables
following an Event of Default and acceleration of any Series or Class of
Notes are deposited into the
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Principal Funding Account for such Notes shall be a Monthly Principal
Accrual Date for such Class of Notes,
(iii) if there is no numerically corresponding date in such
Monthly Period, then the Monthly Principal Accrual Date shall be the last
Business Day of such Monthly Period, and
(iv) if such numerically corresponding date in such Monthly
Period is not a Business Day, the Monthly Principal Accrual Date shall be
the next following Business Day (unless such Business Day would fall in the
following month in which case the Monthly Principal Accrual Date shall be
the last Business Day of such earlier Monthly Period).
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor thereto.
"Non-Performing," with respect to an Enhancement Agreement, means not
Performing.
"Note" or "Notes" means any note or notes of any Series or Class
authenticated and delivered from time to time under this Indenture.
"Note Owner" means the beneficial owner of an interest in a Global Note.
"Note Register" is defined in Section 3.05.
"Note Registrar" means the Person who keeps the Note Register specified in
Section 3.05.
"Noteholder" means a Person in whose name a Note is registered in the Note
Register or the bearer of any Bearer Note (including a Global Note in bearer
form), as the case may be.
"Officer's Certificate" means a certificate signed by the Beneficiary or
the Owner Trustee and delivered to the Indenture Trustee. Wherever this
Indenture requires that an Officer's Certificate be signed also by an accountant
or other expert, such accountant or other expert (except as otherwise expressly
provided in this Indenture) may be in the employ of the Beneficiary.
"Opinion of Counsel" means a written opinion of counsel reasonably
acceptable to the Indenture Trustee, who may, without limitation, and except as
otherwise expressly provided in this Indenture, be an employee of or of counsel
to the Issuer, the Beneficiary or any of their Affiliates, the Note Registrar
and the Issuer, as applicable.
"Originator" is defined in the Transfer and Servicing Agreement.
"Outstanding," when used with respect to a Note or with respect to Notes of
any Series or Class means, as of the date of determination, all such Notes
theretofore authenticated and delivered under this Indenture, except:
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(a) any Notes theretofore canceled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation, or canceled by the Issuer,
CWRI or any Affiliate thereof pursuant to Section 3.09;
(b) any [non-revolving] Notes for whose full payment (including
principal and interest) or redemption money in the necessary amount has been
theretofore deposited with the Indenture Trustee or any Paying Agent in trust
for the Holders of such Notes; provided that, if such Notes are to be redeemed,
notice of such redemption has been duly given if required pursuant to this
Indenture, the related Indenture Supplement, or provision therefor satisfactory
to the Indenture Trustee has been made;
(c) any Notes which are deemed to have been paid in full pursuant to
Section 5.06; and
(d) any such Notes in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture, or which shall have
been paid pursuant to the terms of Section 3.06 (except with respect to any such
Note as to which proof satisfactory to the Indenture Trustee is presented that
such Note is held by a person in whose hands such Note is a legal, valid and
binding obligation of the Issuer).
For purposes of determining the amounts of deposits, allocations,
reallocations or payments to be made, unless the context clearly requires
otherwise, references to "Notes" shall be deemed to be references to
"Outstanding Notes." In determining whether the Holders of the requisite
principal amount of such Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, and for purposes
of Section 9.04, Notes beneficially owned by the Issuer or CWRI or any Affiliate
of the Issuer or CWRI shall be disregarded and deemed not to be Outstanding. In
determining whether the Indenture Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Notes which an Indenture Trustee Authorized Officer knows to be owned by the
Issuer or CWRI or any Affiliate of the Issuer or CWRI shall be so disregarded.
Notes so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee demonstrates to the reasonable satisfaction of the
Indenture Trustee (i) the pledgee's right to act as owner with respect to such
Notes and (ii) that the pledgee is not the Issuer, CWRI or any other obligor
upon the Notes or any Affiliate of the Issuer, CWRI or such other obligor.
"Outstanding Dollar Principal Amount" means at any time,
(a) with respect to any Series or Class of non-Discount Notes, the
aggregate Initial Dollar Principal Amount of the Outstanding Notes of such
Series or Class at such time, less the amount of any withdrawals from the
Principal Funding Account or Principal Funding sub-Account for such Class of
Notes for payment of principal to the Holders of such Series or Class or to the
applicable Enhancement Provider pursuant to the related Indenture Supplement,
and
(b) with respect to any Series or Class of Discount Notes, an amount of
the Outstanding Notes of such Series or Class calculated by reference to the
applicable formula set forth in the applicable Indenture Supplement, taking into
account the amount and timing of payments of principal made to the Holders of
such Series or Class or to the applicable
12
Enhancement Provider and accretions of principal, each pursuant to the related
Indenture Supplement.
"Owner Trustee" means The Bank of New York, not in its individual capacity
but solely as owner trustee of the Issuer, and each of its successors and
assigns.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of or interest on any Notes on behalf of the Issuer, which shall
initially be the Indenture Trustee.
"Payment Date" means, with respect to any Series or Class of Notes, the
applicable Principal Payment Date or Interest Payment Date.
"Payment Instruction" means an instruction substantially in the form of
Exhibit A, or such other form as the Issuer may determine, as the same may be
supplemented as set forth in the related Indenture Supplement.
"Performing" means, with respect to any Enhancement Agreement, no payment
default or repudiation of performance by a Enhancement Provider has occurred,
and such Enhancement Agreement has not been terminated.
"Permanent Global Note" is defined in Section 2.05.
"Permitted Investments" means, unless otherwise provided in the Indenture
Supplement with respect to any Series of Notes:
(a) instruments, investment property or other property consisting of:
(i) obligations of or fully guaranteed by the United States of
America;
(ii) time deposits or certificates of deposit of any depository
institution or trust company incorporated under the laws of the United
States of America or any state thereof (or domestic branches of foreign
depository institutions or trust companies) and subject to supervision and
examination by federal or state banking or depository institution
authorities; provided, however, that at the time of the Indenture Trustee's
investment or contractual commitment to invest therein, the certificates of
deposit or short-term deposits of such depository institution or trust
company shall have a credit rating from Xxxxx'x and S&P of P-1 and A-1+,
respectively, and, if rated by Fitch, F1+ from Fitch;
(iii) commercial paper (including but not limited to asset backed
commercial paper) having, at the time of the Indenture Trustee's investment
or contractual commitment to invest therein, a rating from Xxxxx'x and S&P
of P-1 and A-1+, respectively, and, if rated by Fitch, F1+ from Fitch;
(iv) bankers' acceptances issued by any depository institution
or trust company described in clause (a)(ii) above; and
(v) investments in money market funds rated AAA-m or AAA-mg by
S&P and Aaa by Xxxxx'x (including money market funds for which the
Indenture Trustee in
13
its individual capacity or any of its Affiliates is investment manager or
adviser or from which the Indenture Trustee in its individual capacity or
any of its Affiliates charges or collects fees and expenses for services
rendered) or otherwise approved in writing by each Rating Agency;
(b) demand deposits in the name of the Indenture Trustee in any
depository institution or trust company referred to in clause (a)(ii) above;
(c) uncertificated securities that are registered in the name of the
Indenture Trustee upon books maintained for that purpose by the issuer thereof
and identified on books maintained for that purpose by the Indenture Trustee as
held for the benefit of the Noteholders, and consisting of shares of an open end
diversified investment company which is registered under the Investment Company
Act, and which (i) invests its assets exclusively in obligations of or
guaranteed by the United States of America or any instrumentality or agency
thereof having in each instance a final maturity date of less than one year from
their date of purchase or other Permitted Investments, (ii) seeks to maintain a
constant net asset value per share, (iii) has aggregate net assets of not less
than $100,000,000 on the date of purchase of such shares and (iv) with respect
to which each Rating Agency confirms in writing that such investment shall not
cause a Ratings Effect; and
(d) any other investment if each Rating Agency confirms in writing that
such investment shall not cause a Ratings Effect.
"Person" means any individual, corporation, estate, partnership, limited
liability company, limited liability partnership, joint venture, association,
joint-stock company, business trust, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" means, with respect to any Class of Notes issued
hereunder, the city or political subdivision so designated with respect to such
Class of Notes in accordance with the provisions of Section 3.01.
"Predecessor Notes" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.06 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Principal Funding Account" with respect to any Series of Notes, has the
meaning specified in the related Indenture Supplement.
"Principal Payment Date" means, with respect to any Series or Class of
Notes, each Scheduled Final Payment Date, or upon the acceleration of such
Series or Class of Notes following an Event of Default or upon the occurrence of
an Early Amortization Event, or other optional or mandatory redemption of such
Series or Class of Notes, each Monthly Principal Accrual Date.
14
"Qualified Account" means either (a) a segregated account (including a
securities account) with a Qualified Institution or (b) a segregated
non-interest bearing trust account with the corporate trust department of a
depository institution organized under the laws of the United States of America
or any one of the States thereof or the District of Columbia (or any domestic
branch of a foreign bank), having corporate trust powers and acting as trustee
for funds deposited in such account, so long as any of the securities of such
depository institution shall have a credit rating from each Rating Agency in one
of its generic rating categories which signifies investment grade.
"Qualified Institution" means (a) a depository institution, which may
include the Indenture Trustee or the Owner Trustee (so long as it is a paying
agent under the Indenture), organized under the laws of the United States of
America or any one of the States thereof or the District of Columbia, the
deposits in which are insured by the FDIC and which at all times has a
short-term unsecured debt rating in the applicable investment category of each
Rating Agency or (b) a depository institution acceptable to each Rating Agency.
"Rating Agency" means, with respect to any Outstanding Series or Class of
Notes, each statistical rating agency selected by the Issuer to rate such Notes.
"Ratings Effect" means a reduction, qualification or withdrawal of any then
current rating of the Notes.
"Reallocated Yield Percentage" is defined in the Transfer and Servicing
Agreement.
"Receivables" is defined in the Transfer and Servicing Agreement.
"Receivables Purchase Agreement" means each Receivables Purchase Agreement
between an Originator, as seller and the Transferor, as Purchaser.
"Record Date" for the interest or principal payable on any Note on any
applicable Payment Date means the last day of the month before the related
Interest Payment Date or Principal Payment Date, as applicable, unless otherwise
specified in the applicable Indenture Supplement.
"Registered Note" means a Note issued in registered form.
"Registered Noteholder" means a holder of a Registered Note.
"Required Subordinated Amount" means, with respect to any Class of a senior
Class of Notes, the amount specified in the related Indenture Supplement.
"S&P" means Standard & Poor's Ratings Services or any successor thereto.
"Scheduled Final Payment Date" means, with respect to any Series or Class
of Notes, the scheduled due date of any payment of principal on such Notes, as
specified in the related Indenture Supplement, or if such day is not a Business
Day, the next following Business Day, unless such day is in the next calendar
month, in which case such Scheduled Final Payment Date,
15
unless otherwise specified in the related Indenture Supplement, shall be the
last Business Day of the current calendar month.
"Secured Party" is defined in the Granting Clause.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Security Interest" means the security interest granted pursuant to the
Granting Clause.
"Senior Class," with respect to a Class of Notes of any Series, has the
meaning specified in the related Indenture Supplement.
"Series" means, with respect to any Note, the Series specified in the
applicable Indenture Supplement.
"Series Accounts" is defined in the Transfer and Servicing Agreement.
"Series Available Interest Amount Shortfalls," has the meaning specified in
the related Indenture Supplement.
"Series Available Principal Amount Shortfalls," has the meaning specified
in the related Indenture Supplement.
"Series Collateral Amount," with respect to any Series of Notes, has the
meaning specified in the related Indenture Supplement.
"Series Floating Allocation Percentage" means, for any Series of Notes with
respect to any Monthly Period and the related Transfer Date, the percentage
equivalent, which shall never exceed 100%, of a fraction, the numerator of which
is the Series Security Amount for such Series as of the last day of the
immediately preceding Monthly Period and the denominator of which is the greater
of (a) the Adjusted Pool Balance as of the last day of the immediately preceding
Monthly Period and (b) the sum of the Series Security Amounts for all Series of
Notes on that day.
"Series Principal Allocation Percentage" means, for a Series of Notes with
respect to any Monthly Period and the related Transfer Date, the percentage
equivalent, which shall never exceed 100%, of a fraction the numerator of which
is the Series Security Amount for such Series as of the last day of the Monthly
Period prior to the commencement of an Early Amortization Period or the
Accumulation Period, and the denominator of which is the greater of (a) the
Adjusted Pool Balance as of the last day of the immediately preceding Monthly
Period and (b) the sum of the Series Security Amounts for all Series of Notes as
of the last day of the Monthly Period prior to the commencement of any Early
Amortization Period or Accumulation Period; provided, however, that for any
Series that is in its Accumulation Period or an Early Amortization Period, the
Series Security Amount of that Series shall be the Series Security
16
Amount as of the last day of the Monthly Period prior to the commencement of
such Accumulation Period or Early Amortization Period.
"Series Security Amount," with respect to any Series of Notes, has the
meaning specified in the related Indenture Supplement.
"Servicer" is defined in the Transfer and Servicing Agreement.
"Stated Principal Amount," with respect to any Note, has the meaning
specified in the related Indenture Supplement.
"Sub-Account" means each portion of an Account designated as such pursuant
to this Indenture or the related Indenture Supplement.
"Subordinated Class," with respect to a Class of Notes of any Series, has
the meaning specified in the related Indenture Supplement.
"Subordinated Notes" means Notes of a Subordinated Class of a Series.
"Subordinated Percentage" with respect to any Series, has the meaning
specified in the related Indenture Supplement.
"Supplemental Account" means the trust account or accounts designated as
such and established pursuant to Section 4.02(a).
"Tax Opinion" means, with respect to any action, an Opinion of Counsel to
the effect that, for federal income tax purposes, (a) such action shall not
adversely affect in any material respect the tax characterization as debt of any
Outstanding Series or Class of Notes that were characterized as debt at the time
of their issuance, (b) following such action the Issuer shall not be treated as
an association (or publicly traded partnership) taxable as a corporation, (c)
such action shall not cause or constitute an event in which a gain or loss would
be recognized by any Holder of any such Notes, and (d) except as otherwise
provided in the related Indenture Supplement, where such action is the issuance
of a Series or Class of Notes, following such action such Series or Class of
Notes shall be properly characterized as debt.
"Temporary Global Note" is defined in Section 2.05.
"Transaction Documents" means the Indenture, the Indenture Supplements, the
Transfer and Servicing Agreement, the Receivables Purchase Agreements, the Trust
Agreement and the Administration Agreement.
"Transfer and Servicing Agreement" means the Transfer and Servicing
Agreement, dated as of [ ], 2003, among CWRI, as Transferor, Case Credit
Corporation, as Servicer, and The Bank of New York, as owner trustee, as
amended, restated and supplemented from time to time.
"Transfer Date" means the Business Day preceding each Payment Date.
17
"Transferor" means CWRI in its capacity as Transferor under the Transfer
and Servicing Agreement.
"Transferor Amount" means, on any Determination Date, the Adjusted Pool
Balance minus the aggregate Collateral Amounts for all outstanding Series.
"Transferor Interest" means the interest of the Transferor or its assigns
in the Issuer and the Receivables, which entitles Transferor or its assigns to
receive the various amounts specified in the Transaction Documents to be paid or
transferred to the holder(s) of the Transferor Interest.
"Trust Agreement" means the Trust Agreement, dated as of [ ], 2003, between
CWRI, as Transferor, and The Bank of New York, as Owner Trustee, as amended,
supplemented or restated from time to time.
"Trust Available Subordinated Amount" is defined in the Transfer and
Servicing Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, as in force at the date as of which this
Indenture was executed except as provided in Section 10.05.
"UCC" means, unless the context otherwise requires, the Uniform Commercial
Code, as in effect in the relevant jurisdiction.
"U.S. Depository" means, unless otherwise specified by the Issuer pursuant
to either Section 2.04, 2.06, or 3.01, with respect to Notes of any Class
issuable or issued as Global Note within the United States, The Depository Trust
Company, New York, New York, or any successor thereto registered as a clearing
agency under the Securities Exchange Act, or other applicable statute
regulation.
Section 1.02. COMPLIANCE CERTIFICATES AND OPINIONS. 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 and (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
The Indenture Trustee may rely, as to authorization by the Issuer of any
Class of Notes, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Section 3.10 and this Section, as applicable, in
connection with the first authentication of Notes of such Class.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for the written statement
required by Section 11.04) shall include:
18
(a) a statement that each individual signing such certificate
or opinion has 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 such individual has made such examination
or investigation as is necessary to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE. In any case
where several matters are required to be certified by, or covered by an opinion
of, one or more specified Persons, one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
the other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of the Issuer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless the Issuer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations are erroneous.
Any such certificate or opinion of, or representation by, counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, the Issuer stating that the information with respect to such
factual matters is in the possession of the Issuer, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations 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.
19
Section 1.04. ACTS OF NOTEHOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action (collectively, "Action") provided by this
Indenture to be given or taken by Noteholders of any Series or Class may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such 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, where it is hereby expressly required, to the Issuer.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Noteholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 8.01) conclusive in favor of
the Indenture Trustee and the Issuer, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership, on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the Indenture
Trustee deems reasonably sufficient.
(c) (i) The ownership of Registered Notes shall be proved by
the Note Register.
(ii) The ownership of Bearer Notes or coupons shall be proved by
the production of such Bearer Notes or coupons or by a certificate,
satisfactory to the Issuer, executed by any bank, trust company or
recognized securities dealer, wherever situated, satisfactory to the
Issuer. Each such certificate shall be dated and shall state that on the
date thereof a Bearer Note or coupon bearing a specified serial number was
deposited with or exhibited to such bank, trust company or recognized
securities dealer by the Person named in such certificate. Any such
certificate may be issued in respect of one or more Bearer Notes or coupons
specified therein. The holding by the Person named in any such certificate
of any Bearer Note specified therein shall be presumed to continue for a
period of one year from the date of such certificate unless at the time of
any determination of such holding (A) another certificate bearing a later
date issued in respect of the same Bearer Note or coupon produced, (B) the
Bearer Note or coupon specified in such certificate is produced by some
other Person or (C) the Bearer Note or coupon specified in such certificate
has ceased to be Outstanding.
(iii) If the Issuer shall solicit from the Holders any action,
the Issuer may, at its option, by an Officer's Certificate, fix in advance
a record date for the determination of Holders entitled to give such
action, but the Issuer shall have no obligation to do so. If the Issuer
does not so fix a record date, such record date shall be the later of
thirty (30) days
20
before the first solicitation of such action or the date of the most recent
list of Noteholders furnished to the Indenture Trustee pursuant to Section
9.01 before such solicitation. Such action may be given before or after the
record date, but only the Holders of record at the close of business on the
record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Notes Outstanding have
authorized or agreed or consented to such action, and for that purpose the
Notes Outstanding shall be computed as of the record date; provided that no
such authorization, agreement or consent by the Holders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record
date.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Note shall bind the Holder
of every Note issued upon the transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon whether or not notation of
such action is made upon such Note.
Section 1.05. NOTICES, ETC., TO INDENTURE TRUSTEE AND ISSUER. Any action of
Noteholders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(a) the Indenture Trustee by any Noteholder or by the Issuer
shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Indenture Trustee at its Corporate Trust Office,
or
(b) the Issuer by the Indenture Trustee or by any Noteholder
shall be sufficient for every purpose hereunder (except as provided in Section
7.01(c)) if in writing and mailed, first-Class postage prepaid, to the Issuer
addressed to it at the address of its principal office specified in the first
paragraph of this Indenture or at any other address previously furnished in
writing to the Indenture Trustee by the Issuer.
Section 1.06. NOTICES TO NOTEHOLDERS; WAIVER.
(a) Where this Indenture, any Indenture Supplement or any
Registered Note provides for notice to Registered Noteholders of any event, such
notice shall be sufficiently given (unless otherwise herein, in such Indenture
Supplement or in such Registered Note expressly provided) if in writing and
mailed, first-class postage prepaid, sent by facsimile, sent by electronic
transmission or personally delivered to each Holder of Registered Note affected
by such event, at such Noteholder's address as it appears in the Note Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Registered
Noteholders is given by mail, facsimile, electronic transmission or delivery
neither the failure to mail, send by facsimile, electronic transmission or
deliver such notice, nor any defect in any notice so mailed, to any particular
Noteholders shall affect the sufficiency of such notice with respect to other
Noteholders and any notice that is mailed, sent by facsimile, electronic
transmission or delivered in the manner herein provided shall conclusively have
been presumed to have been duly given.
21
Where this Indenture, any Indenture Supplement or any Registered Note
provides for notice in any manner, such notice may be waived in writing by the
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
Registered 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.
(b) In case, by reason of the suspension of regular mail
service as a result of a strike, work stoppage or otherwise, it shall be
impractical to mail notice of any event to any Holder of a Registered Note when
such notice is required to be given pursuant to any provision of this Indenture,
then any method of notification as shall be reasonably satisfactory to the
Indenture Trustee and the Issuer shall be deemed to be a sufficient giving of
such notice.
(c) No notice shall be given by mail, facsimile, electronic
transmission or otherwise delivered to a Holder of Bearer Notes or coupons in
bearer form. In the case of any Class with respect to which any Bearer Notes are
Outstanding, any notice required or permitted to be given to Holders of such
Bearer Notes shall be published in an Authorized Newspaper within the time
period prescribed in this Indenture or the applicable Indenture Supplement.
(d) With respect to any Class of Notes, the applicable
Indenture Supplement may specify different or additional means of giving notice
to the Holders of the Notes of such Class.
(e) Where this Indenture provides for notice to any Rating
Agency, failure to give such notice shall not affect any other rights or
obligations created hereunder and shall not under any circumstance constitute an
Adverse Effect.
Section 1.07. CONFLICT WITH TRUST INDENTURE ACT. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of, Sections 310 to 318, inclusive, of the Trust
Indenture Act, such imposed duties or incorporated provision shall control. If
any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or excluded, as the case may
be.
Section 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.09. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Indenture by the Issuer shall bind its successors and assigns, whether so
expressed or not. All covenants and agreements of the Indenture Trustee in this
Indenture shall bind its successors, co-trustees and agents of the Indenture
Trustee.
Section 1.10. SEPARABILITY. In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
22
Section 1.11. BENEFITS OF INDENTURE. Nothing in this Indenture or in any
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any Authenticating Agent or Paying Agent,
the Note Registrar, Enhancement Providers (to the extent specified in the
applicable Enhancement Agreement) and the Holders of Notes (or such of them as
may be affected thereby), any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 1.12. GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 1.13. COUNTERPARTS. This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
Section 1.14. INDENTURE REFERRED TO IN THE TRUST AGREEMENT. This is the
Indenture referred to in the Trust Agreement.
ARTICLE II
NOTE FORMS
Section 2.01. FORMS GENERALLY. The Notes shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or the applicable Indenture Supplement and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon, as may be required to comply with applicable laws
or regulations or with the rules of any securities exchange, or as may,
consistently herewith, be determined by the Issuer, as evidenced by the Issuer's
execution of such Notes. Any portion of the text of any Note may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of the
Note.
The definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders) or may be produced in any other manner, all as determined by
the Issuer, as evidenced by the Issuer's execution of such Notes, subject, with
respect to the Notes of any Series or Class, to the rules of any securities
exchange on which such Notes are listed.
Section 2.02. FORMS OF NOTES. Each Note shall be in one of the forms
approved from time to time by or pursuant to an Indenture Supplement. Before the
delivery of a Note to the Indenture Trustee for authentication in any form
approved by or pursuant to an Issuer Certificate, the Issuer shall deliver to
the Indenture Trustee the Issuer Certificate by or pursuant to which such form
of Note has been approved, which Issuer Certificate shall have attached thereto
a true and correct copy of the form of Note which has been approved thereby or,
if an Issuer Certificate authorizes a specific officer or officers of the
Beneficiary to approve a form of Note, a certificate
23
of such officer or officers approving the form of Note attached thereto. Any
form of Note approved by or pursuant to an Issuer Certificate must be acceptable
as to form to the Indenture Trustee, such acceptance to be evidenced by the
Indenture Trustee's authentication of Notes in that form or a certificate signed
by an Indenture Trustee Authorized Officer and delivered to the Issuer.
Section 2.03. FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of Indenture Trustee's Certificate of Authentication for any Note
issued pursuant to this Indenture shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Series or Class designated therein referred
to in the within-mentioned Indenture.
JPMorgan Chase Bank,
as Indenture Trustee,
By:
-----------------------------------
Authorized Signatory
Dated:
---------------------------------
Section 2.04. NOTES ISSUABLE IN THE FORM OF A GLOBAL NOTE.
(a) If the Issuer establishes pursuant to Sections 2.02 and
3.01 that the Notes of a particular Series or Class are to be issued in whole or
in part in the form of one or more Global Notes, then the Issuer shall execute
and the Indenture Trustee or its agent shall, in accordance with Section 3.03
and the Issuer Certificate delivered to the Indenture Trustee or its agent
thereunder, authenticate and deliver, such Global Note or Notes, which, unless
otherwise provided in the applicable Indenture Supplement (i) shall represent,
and shall be denominated in an amount equal to the aggregate Stated Principal
Amount (or in the case of Discount Notes, the aggregate Stated Principal Amount
at the Scheduled Final Payment Date of such Notes) of the Outstanding Notes of
such Series or Class to be represented by such Global Note or Notes, or such
portion thereof as the Issuer shall specify in an Issuer Certificate, (ii) in
the case of Registered Notes, shall be registered in the name of the Depository
for such Global Note or Notes or its nominee, (iii) shall be delivered by the
Indenture Trustee or its agent to the Depository or pursuant to the Depository's
instruction, (iv) if applicable, shall bear a legend substantially to the
following effect: "Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any note
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), any transfer, pledge or other use hereof for value or
otherwise by or to any person is wrongful inasmuch as the registered owner
hereof, Cede & Co., has an interest herein" and (v) may bear such other legend
as the Issuer, upon advice of counsel, deems to be applicable.
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(b) Notwithstanding any other provisions of this Section 2.04
or of Section 3.05, and subject to the provisions of paragraph (c) below, unless
the terms of a Global Note or the applicable Indenture Supplement expressly
permit such Global Note to be exchanged in whole or in part for individual
Notes, a Global Note may be transferred, in whole but not in part and in the
manner provided in Section 3.05, only to a nominee of the Depository for such
Global Note, or to the Depository, or a successor Depository for such Global
Note selected or approved by the Issuer, or to a nominee of such successor
Depository.
(c) With respect to Notes issued within the United States,
unless otherwise specified in the applicable Indenture Supplement, or with
respect to Notes issued outside the United States, if specified in the
applicable Indenture Supplement:
(i) If at any time the Depository for a Global Note notifies
the Issuer that it is unwilling or unable to continue as Depository for
such Global Note or if at any time the Depository for the Notes for such
Series or Class ceases to be a clearing agency registered under the
Securities Exchange Act, or other applicable statute or regulation, the
Issuer shall appoint a successor Depository with respect to such Global
Note. If a successor Depository for such Global Note is not appointed by
the Issuer within ninety (90) days after the Issuer receives such notice or
becomes aware of such ineligibility, the Issuer shall execute, and the
Indenture Trustee or its agent, upon receipt of an Issuer Certificate
requesting the authentication and delivery of individual Notes of such
Series or Class in exchange for such Global Note, shall authenticate and
deliver, individual Notes of such Series or Class of like tenor and terms
in an aggregate Stated Principal Amount equal to the Stated Principal
Amount of the Global Note in exchange for such Global Note.
(ii) The Issuer may at any time and in its sole discretion
determine that the Notes of any Series or Class or portion thereof issued
or issuable in the form of one or more Global Notes shall no longer be
represented by such Global Note or Notes. In such event the Issuer shall
execute, and the Indenture Trustee, upon receipt of an Issuer Certificate
for the authentication and delivery of individual Notes of such Series or
Class in exchange in whole or in part for such Global Note, shall
authenticate and deliver individual Notes of such Series or Class of like
tenor and terms in definitive form in an aggregate Stated Principal Amount
equal to the Stated Principal Amount of such Global Note or Notes
representing such Series or Class or portion thereof in exchange for such
Global Note or Notes.
(iii) If specified by the Issuer pursuant to Sections 2.02 and
3.01 with respect to Notes issued or issuable in the form of a Global Note,
the Depository for such Global Note may surrender such Global Note in
exchange in whole or in part for individual Notes of such Series or Class
of like tenor and terms in definitive form on such terms as are acceptable
to the Issuer and such Depository. Thereupon the Issuer shall execute, and
the Indenture Trustee or its agent shall authenticate and deliver, without
service charge, (A) to each Person specified by such Depository a new Note
or Notes of the same Series or Class of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate Stated
Principal Amount equal to and in exchange for such Person's beneficial
interest in the Global Note; and (B) to such Depository a new Global Note
of
25
like tenor and terms and in an authorized denomination equal to the
difference, if any, between the Stated Principal Amount of the surrendered
Global Note and the aggregate Stated Principal Amount of Notes delivered to
the Holders thereof.
(iv) If any Event of Default has occurred with respect to such
Global Notes, and Holders of Notes evidencing not less than 50% of the
unpaid Outstanding Dollar Principal Amount of the Global Notes of that
Class advise the Indenture Trustee and the Depository that a Global Note is
no longer in the best interest of the Noteholders, the Holders of Global
Notes of that Class may exchange such Notes for individual Notes.
(v) In any exchange provided for in any of the preceding three
paragraphs, the Issuer shall execute and the Indenture Trustee or its agent
shall authenticate and deliver individual Notes in definitive registered
form in authorized denominations. Upon the exchange of the entire Stated
Principal Amount of a Global Note for individual Notes, such Global Note
shall be canceled by the Indenture Trustee or its agent. Except as provided
in the preceding paragraphs, Notes issued in exchange for a Global Note
pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depository for such Global Note, pursuant
to instructions from its direct or indirect participants or otherwise,
shall instruct the Indenture Trustee or the Note Registrar in writing. The
Indenture Trustee or the Note Registrar shall deliver such Notes to the
Persons in whose names such Notes are so registered.
Section 2.05. TEMPORARY GLOBAL NOTES AND PERMANENT GLOBAL NOTES.
(a) If specified in the applicable Indenture Supplement for any
Series or Class, all or any portion of a Global Note may initially be issued in
the form of a single temporary Global Bearer Note or Registered Note (the
"Temporary Global Note"), without interest coupons, in the denomination of the
entire aggregate principal amount of such Series or Class and substantially in
the form set forth in the exhibit with respect thereto attached to the
applicable Indenture Supplement. The Temporary Global Note shall be
authenticated by the Indenture Trustee upon the same conditions, in
substantially the same manner and with the same effect as the Notes in
definitive form. The Temporary Global Note may be exchanged as described below
or in the applicable Indenture Supplement for permanent global Bearer Notes or
Registered Notes (the "Permanent Global Notes").
(b) Unless otherwise provided in the applicable Indenture
Supplement, exchanges of beneficial interests in Temporary Global Notes for
beneficial interests in Permanent Global Notes shall be made as provided in this
clause. The Beneficiary shall, upon its determination of the date of completion
of the distribution of the Notes of such Series or Class, so advise the
Indenture Trustee, the Issuer, the Foreign Depository, and each foreign clearing
agency forthwith. Without unnecessary delay, but in any event not prior to the
Exchange Date, the Issuer shall execute and deliver to the Indenture Trustee at
its London office or its designated agent outside the United States Permanent
Global Notes in bearer or registered form (as specified in the applicable
Indenture Supplement) in an aggregate principal amount equal to the entire
aggregate principal amount of such Series or Class. Bearer Notes so issued and
delivered may have coupons attached. The Temporary Global Note may be exchanged
for an equal aggregate principal amount of Permanent Global Notes only on or
after the Exchange Date. A United
26
States Person may exchange the portion of the Temporary Global Note beneficially
owned by it only for an equal aggregate principal amount of Permanent Global
Notes in registered form bearing the applicable legend set forth in the form of
Registered Note attached to the applicable Indenture Supplement and having a
minimum denomination of $500,000, which may be in temporary form if the Issuer
so elects. The Issuer may waive the $500,000 minimum denomination requirement if
it so elects. Upon any demand for exchange for Permanent Global Notes in
accordance with this clause, the Issuer shall cause the Indenture Trustee to
authenticate and deliver the Permanent Global Notes to the Holder (x) outside
the United States, in the case of Bearer Notes and (y) according to the
instructions of the Holder, in the case of Registered Notes, but in either case
only upon presentation to the Indenture Trustee of a written statement
substantially in the form of Exhibit D-1 (or such other form as the Issuer may
determine) with respect to the Temporary Global Note, or portion thereof being
exchanged, signed by a foreign clearing agency and dated on the Exchange Date or
a subsequent date, to the effect that it has received in writing or by tested
telex a certification substantially in the form of (i) in the case of beneficial
ownership of the Temporary Global Note, or a portion thereof being exchanged, by
a United States institutional investor pursuant to this clause, the certificate
in the form of Exhibit D-2 (or such other form as the Issuer may determine)
signed by the Beneficiary which sold the relevant Notes or (ii) in all other
cases, the certificate in the form of Exhibit D-3 (or such other form as the
Issuer may determine), the certificate referred to in this clause (ii) being
dated on the earlier of the first payment of interest in respect of such Note
and the date of the delivery of such Note in definitive form. Upon receipt of
such certification, the Indenture Trustee shall cause the Temporary Global Note
to be endorsed in accordance with clause (d). Any exchange as provided in this
Section shall be made free of charge to the Holders and the beneficial owners of
the Temporary Global Note and to the beneficial owners of the Permanent Global
Note issued in exchange, except that a person receiving the Permanent Global
Note must bear the cost of insurance, postage, transportation and the like in
the event that such Person does not receive such Permanent Global Note in person
at the offices of a foreign clearing agency.
(c) The delivery to the Indenture Trustee by a foreign clearing
agency of any written statement referred to above may be relied upon by the
Issuer and the Indenture Trustee as conclusive evidence that a corresponding
certification or certifications has or have been delivered to such foreign
clearing agency pursuant to the terms of this Indenture.
(d) Upon any such exchange of all or a portion of the Temporary
Global Note for a Permanent Global Note or Notes, such Temporary Global Note
shall be endorsed by or on behalf of the Indenture Trustee to reflect the
reduction of its principal amount by an amount equal to the aggregate principal
amount of such Permanent Global Note or Notes. Until so exchanged in full, such
Temporary Global Note shall in all respects be entitled to the same benefits
under this Indenture as Permanent Global Notes authenticated and delivered
hereunder except that the beneficial owners of such Temporary Global Note shall
not be entitled to receive payments of interests on the Notes until they have
exchanged their beneficial interests in such Temporary Global Note for Permanent
Global Notes.
Section 2.06. BENEFICIAL OWNERSHIP OF GLOBAL NOTES. Until definitive Notes
have been issued to the applicable Noteholders pursuant to Section 2.04 or as
otherwise specified in any applicable Indenture Supplement,
27
(a) the Issuer and the Indenture Trustee may deal with the
applicable clearing agency and the clearing agency's participants for all
purposes (including the making of distributions) as the authorized
representatives of the respective Note Owners; and
(b) the rights of the respective Note Owners shall be exercised
only through the applicable clearing agency and the clearing agency's
participants and shall be limited to those established by law and agreements
between such Note Owners and the clearing agency and/or the clearing agency's
participants. Pursuant to the operating rules of the applicable clearing agency,
unless and until Notes in definitive form are issued pursuant to Section 2.04,
the clearing agency shall make book-entry transfers among the clearing agency's
participants and receive and transmit distributions of principal and interest on
the related Notes to such clearing agency's participants.
For purposes of any provision of this Indenture requiring or permitting
actions with the consent of, or at the direction of, Noteholders evidencing a
specified percentage of the aggregate unpaid principal amount of Outstanding
Notes, such direction or consent may be given by Note Owners (acting through the
clearing agency and the clearing agency's participants) owning interests in
Notes evidencing the requisite percentage of principal amount of Notes.
Section 2.07. NOTICES TO DEPOSITORY. Whenever any notice or other
communication is required to be given to Noteholders with respect to which
book-entry Notes have been issued, unless and until Notes in definitive form
shall have been issued to the related Note Owners, the Indenture Trustee shall
give all such notices and communications to the applicable Depository.
ARTICLE III
THE NOTES
Section 3.01. GENERAL TITLE; GENERAL LIMITATIONS; ISSUABLE IN SERIES; TERMS
OF A SERIES OR CLASS.
(a) The aggregate Stated Principal Amount of Notes which may be
authenticated and delivered and Outstanding under this Indenture is not limited.
(b) The Notes may be issued in one or more Series or Classes up
to an aggregate Stated Principal Amount of Notes as from time to time may be
authorized by the Issuer. All Notes of each Series or Class under this Indenture
shall in all respects be equally and ratably entitled to the benefits hereof
with respect to such Series or Class without preference, priority or distinction
on account of the actual time of the authentication and delivery or the
Scheduled Final Payment Date or Legal Final Maturity Date of the Notes of such
Series or Class, except as specified in the applicable Indenture Supplement for
such Series or Class.
(c) Each Note issued must be part of a Series or Class of Notes
for purposes of allocations pursuant to Article V. A Series of Notes is created
pursuant to an Indenture Supplement. A Class of Notes of that Series is created
pursuant to such Indenture Supplement.
(d) Each Series of Notes may, but need not be, subdivided into
multiple Classes. Unless the context otherwise requires, references herein to a
Class of Notes include a
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Series of Notes that has not been subdivided into multiple Classes. Notes
belonging to a Class in any Series may be entitled to specified payment
priorities over other Classes of Notes in that Series.
(e) There shall also be established in or pursuant to an
Indenture Supplement or pursuant to an Issuer Certificate or terms document
related to the applicable Indenture Supplement before the initial issuance of
Notes of each such Series or Class, provision for:
(i) the Series designation;
(ii) the Stated Principal Amount of the Notes;
(iii) whether such Notes are of a particular Class of Notes;
(iv) the Required Subordinated Amount (if any) for such Class of
Notes;
(v) the currency or currencies in which such Notes shall be
denominated and in which payments of principal of, and interest on, such
Notes shall or may be payable;
(vi) if the principal of or interest, if any, on such Notes are
to be payable, at the election of the Issuer or a Holder thereof, in a
currency or currencies other than that in which the Notes are stated to be
payable, the period or periods within which, and the terms and conditions
upon which, such election may be made;
(vii) if the amount of payments of principal of or interest, if
any, on such Notes may be determined with reference to an index based on
(A) a currency or currencies other than that in which the Notes are stated
to be payable, (B) changes in the prices of one or more other securities or
groups or indexes of securities or (C) changes in the prices of one or more
commodities or groups or indexes of commodities, or any combination of the
foregoing, the manner in which such amounts shall be determined;
(viii) the price or prices at which the Notes shall be issued;
(ix) the times at which such Notes may, pursuant to any optional
or mandatory redemption provisions, be redeemed, and the other terms and
provisions of any such redemption provisions;
(x) the rate per annum at which such Notes shall bear interest,
if any, or the formula or index on which such rate shall be determined,
including all relevant definitions, and the date from which interest shall
accrue;
(xi) each Interest Payment Date, Scheduled Final Payment Date
and Legal Final Maturity Date for such Notes;
(xii) the Initial Dollar Principal Amount of such Notes, and the
means for calculating the Outstanding Dollar Principal Amount of such
Notes;
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(xiii) whether or not application shall be made to list such Notes
on any securities exchange;
(xiv) any Events of Default or Early Amortization Events with
respect to such Notes, if not set forth herein and any additions, deletions
or other changes to the Events of Default or Early Amortization Events set
forth herein that shall be applicable to such Notes (including a provision
making any Event of Default or Early Amortization Event set forth herein
inapplicable to the Notes of that Series or Class);
(xv) the appointment by the Indenture Trustee of an
Authenticating Agent in one or more places other than the location of the
office of the Indenture Trustee with power to act on behalf of the
Indenture Trustee and subject to its direction in the authentication and
delivery of such Notes in connection with such transactions as shall be
specified in the provisions of this Indenture or in or pursuant to the
applicable Indenture Supplement creating such Series or Class;
(xvi) if such Notes shall be issued in whole or in part in the
form of a Global Note or Global Notes, the terms and conditions, if any,
upon which such Global Note or Global Notes may be exchanged in whole or in
part for other individual Notes; and the Depository for such Global Note or
Global Notes (if other than the Depository specified in Section 1.01);
(xvii) if such Notes shall be issued in whole or in part as
Registered Notes, Bearer Notes or both, whether such Notes are to be issued
with or without coupons or both;
(xviii) the subordination of such Notes to any other indebtedness
of the Issuer, including without limitation, the Notes of any other Series
or Class;
(xix) if such Notes are to have the benefit of any Enhancement
Agreement, the terms and provisions of such agreement;
(xx) the Record Date for any Payment Date of such Notes, if
different from the last day of the month before the related Payment Date;
(xxi) the controlled accumulation amount, if any, the controlled
amortization amount, if any, or other principal amortization amount, if
any, scheduled for such Notes; and
(xxii) any other terms of such Notes which shall not be
inconsistent with the provisions of this Indenture;
all upon such terms as may be determined in or pursuant to an Indenture
Supplement with respect to such Series or Class.
(f) The form of the Notes of each Series or Class shall be
established pursuant to the provisions of this Indenture and the related
Indenture Supplement creating such Series or Class. The Notes of each Series or
Class shall be distinguished from the Notes of each other
30
Series or Class in such manner, reasonably satisfactory to the Indenture
Trustee, as the Issuer may determine.
(g) Unless otherwise provided with respect to Notes of a
particular Series or Class, the Notes of any particular Series or Class shall be
issued in registered form, without coupons.
(h) Any terms or provisions in respect of the Notes of any
Series or Class issued under this Indenture may be determined pursuant to this
Section by providing in the applicable Indenture Supplement for the method by
which such terms or provisions shall be determined.
(i) The Notes of each Series or Class may have such Scheduled
Final Payment Date or Dates or Legal Final Maturity Date or Dates, be issuable
at such premium over or discount from their face value, bear interest at such
rate or rates (which may be fixed or floating), from such date or dates, payable
in such installments and on such dates and at such place or places to the
Holders of Notes registered as such on such Record Dates, or may bear no
interest, and have such terms, all as shall be provided for in or pursuant to
the applicable Indenture Supplement.
Section 3.02. DENOMINATIONS. The Notes of each Class shall be issuable in
such denominations and currency as shall be provided in the provisions of this
Indenture or in or pursuant to the applicable Indenture Supplement. In the
absence of any such provisions with respect to the Registered Notes of any
Class, the Registered Notes of that Class shall be issued in denominations of
$1,000 and multiples thereof. In the absence of any such provisions with respect
to the Bearer Notes of any Class, the Bearer Notes of that Class shall be issued
in denominations of 1,000, 5,000, 50,000 and 100,000 units of the applicable
currency.
Section 3.03. EXECUTION, AUTHENTICATION AND DELIVERY AND DATING.
(a) The Notes shall be executed on behalf of the Issuer by an
Issuer Authorized Officer. The signature of any officer of the Beneficiary or
the Owner Trustee on the Notes may be manual or facsimile.
(b) Notes bearing the manual or facsimile signatures of
individuals who were at any time an Issuer Authorized Officer shall bind the
Issuer, notwithstanding that such individuals or any of them have ceased to hold
such offices before the authentication and delivery of such Notes or did not
hold such offices at the date of issuance of such Notes.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer
to the Indenture Trustee for authentication; and the Indenture Trustee shall,
upon request by an Officer's Certificate, authenticate and deliver such Notes as
in this Indenture provided and not otherwise.
(d) Before any such authentication and delivery, the Indenture
Trustee shall be entitled to receive, in addition to any Officer's Certificate
and Opinion of Counsel required to be furnished to the Indenture Trustee
pursuant to Section 1.02, the Issuer Certificate and any
31
other opinion or certificate relating to the issuance of the Series or Class of
Notes required to be furnished pursuant to Section 2.02 or Section 3.10.
(e) The Indenture Trustee shall not be required to authenticate
such Notes if the issue thereof shall adversely affect the Indenture Trustee's
own rights, duties or immunities under the Notes and this Indenture.
(f) Unless otherwise provided in the form of Note for any
Series or Class, all Notes shall be dated the date of their authentication.
(g) No Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Note a certificate of authentication substantially in the form provided for
herein executed by the Indenture Trustee by manual signature of an authorized
signatory, and such certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder.
Section 3.04. TEMPORARY NOTES.
(a) Pending the preparation of definitive Notes of any Class,
the Issuer may execute, and, upon receipt of the documents required by Section
3.03, together with an Officer's Certificate, the Indenture Trustee shall
authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the Issuer may determine, as evidenced by the Issuer's execution
of such Notes.
(b) If temporary Notes of any Class are issued, the Issuer
shall cause definitive Notes of such Class to be prepared without unreasonable
delay. After the preparation of definitive Notes, the temporary Notes of such
Class shall be exchangeable for definitive Notes of such Class upon surrender of
the temporary Notes of such Class at the office or agency of the Issuer in a
Place of Payment, without charge to the Holder; and upon surrender for
cancellation of any one or more temporary Notes the Issuer shall execute and the
Indenture Trustee shall authenticate and deliver in exchange therefor a like
Stated Principal Amount of definitive Notes of such Class of authorized
denominations and of like tenor and terms. Until so exchanged the temporary
Notes of such Class shall in all respects be entitled to the same benefits under
this Indenture as definitive Notes of such Class.
Section 3.05. REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Issuer shall keep or cause to be kept a register
(herein sometimes referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of Registered Notes, or of Registered Notes of a particular Class,
and for transfers of Registered Notes or of Registered Notes of such Class. Any
such register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. At all reasonable times
the information contained in such register or registers shall be available for
inspection by the Indenture Trustee at the office or agency to be maintained by
the Issuer as provided in Section 11.02.
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(b) Subject to Section 2.04, upon surrender for transfer of any
Registered Note of any Class at the office or agency of the Issuer in a Place of
Payment, if the requirements of Section 8-401(a) of the UCC are met, the Issuer
shall execute, and, upon receipt of such surrendered note, the Indenture Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Notes of such Class of any authorized
denominations, of a like aggregate Stated Principal Amount, Scheduled Final
Payment Date and Legal Final Maturity Date and of like terms.
(c) Subject to Section 2.04, at the option of the Holder, Notes
of any Class may be exchanged for other Notes of such Class of any authorized
denominations, of a like aggregate Stated Principal Amount, Scheduled Final
Payment Date and Legal Final Maturity Date and of like terms, upon surrender of
the Notes to be exchanged at such office or agency. Registered Notes, including
Registered Notes received in exchange for Bearer Notes, may not be exchanged for
Bearer Notes. At the option of the Holder of a Bearer Note, subject to
applicable laws and regulations, Bearer Notes may be exchanged for other Bearer
Notes or Registered Notes (of the same Class) of authorized denominations of
like aggregate fractional undivided interests in the Noteholders' interest, upon
surrender of the Bearer Notes to be exchanged at an office or agency of the Note
Registrar located outside the United States. Each Bearer Note surrendered
pursuant to this Section shall have attached thereto all unmatured coupons;
provided, however, that any Bearer Note, so surrendered after the close of
business on the last day of the month preceding the relevant Payment Date need
not have attached the coupon relating to such Payment Date. Whenever any Notes
are so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver (in the case of Bearer Notes, outside the United
Sates), the Notes which the Noteholders making the exchange are entitled to
receive.
(d) By acquiring a Note, each purchaser and transferee shall be
deemed to represent and warrant that either (a) it is not acquiring the Note
with the plan assets of an "employee benefit plan" as defined in Section 3(3) of
ERISA, which is subject to Title I of ERISA, a "plan" as defined in Section 4975
of the Code, an entity deemed to hold the plan assets of any of the foregoing by
reason of investment by an employee benefit plan or plan in such entity, or a
governmental plan subject to applicable law that is substantially similar to the
fiduciary responsibility provisions of ERISA or Section 4975 of the Code, or (b)
the acquisition and holding of the Note will not give rise to a non-exempt
prohibited transaction under Section 406 of ERISA of Section 4975 of the Code
(or, in the case of a governmental plan, any substantially similar applicable
law).
(e) All Notes issued upon any transfer or exchange of Notes
shall be the valid and legally binding obligations of the Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such transfer or exchange.
(f) Every Note presented or surrendered for transfer or
exchange shall (if so required by the Issuer or the Indenture Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Note Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
(g) Unless otherwise provided in the Note to be transferred or
exchanged, no service charge shall be made on any Noteholder for any transfer or
exchange of Notes, but the
33
Issuer may (unless otherwise provided in such Note) require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Notes, other than exchanges pursuant
to Section 3.04 or 10.06 not involving any transfer.
(h) None of the Issuer, the Indenture Trustee, any agent of the
Indenture Trustee, any Paying Agent or the Note Registrar shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Note or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
(i) The Issuer initially appoints the Indenture Trustee to act
as Note Registrar for the Registered Notes on its behalf. The Issuer may at any
time and from time to time authorize any Person to act as Note Registrar in
place of the Indenture Trustee with respect to any Class of Notes issued under
this Indenture.
(j) Registration of transfer of Notes containing the following
legend or to which the following legend is applicable:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER
THIS NOTE NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD
EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF
THE SECURITIES ACT AND ANY APPLICABLE PROVISIONS OF ANY
STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.
THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN
CONDITIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN.
shall be effected only if such transfer is made pursuant to an effective
registration statement under the Securities Act, or is exempt from the
registration requirements under the Securities Act. In the event that
registration of a transfer is to be made in reliance upon an exemption from the
registration requirements under the Securities Act other than Rule 144A under
the Securities Act or Rule 903 or Rule 904 of Regulation S under the Securities
Act, the transferor or the transferee shall deliver, at its expense, to the
Issuer and the Indenture Trustee, an investment letter from the transferee,
substantially in the form of the investment letter attached hereto as Exhibit C
or such other form as the Issuer may determine, and no registration of transfer
shall be made until such letter is so delivered.
Notes issued upon registration or transfer of, or Notes issued in exchange
for, Notes bearing the legend referred to above shall also bear such legend
unless the Issuer, the Indenture Trustee and the Note Registrar receive an
Opinion of Counsel, satisfactory to each of them, to the effect that such legend
may be removed.
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Whenever a Note containing the legend referred to above is presented to the
Note Registrar for registration of transfer, the Note Registrar shall promptly
seek instructions from the Issuer regarding such transfer and shall be entitled
to receive an Issuer Certificate prior to registering any such transfer. The
Issuer hereby agrees to indemnify the Note Registrar and the Indenture Trustee
and to hold each of them harmless against any loss, liability or expense
incurred without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by them in relation to any such
instructions furnished pursuant to this clause.
Section 3.06. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
(a) If (i) any mutilated Note (together, in the case of Bearer
Notes, with all unmatured coupons, if any, appertaining thereto) is surrendered
to the Indenture Trustee, or the Issuer and the Indenture Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Note,
and (ii) there is delivered to the Issuer and the Indenture Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Issuer or the Indenture Trustee that such
Note has been acquired by a protected purchaser, the Issuer shall execute and
upon its request the Indenture Trustee shall authenticate and deliver (in the
case of Bearer Notes, outside the United States), in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Note, a new Note of like tenor,
Series or Class, Scheduled Final Payment Date, Legal Final Maturity Date and
Stated Principal Amount, bearing a number not contemporaneously Outstanding.
(b) In case any such mutilated, destroyed, lost or stolen Note
has become or is about to become due and payable, the Issuer in its discretion
may, instead of issuing a new Note, pay such Note.
(c) Upon the issuance of any new Note under this Section, the
Issuer 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) connected
therewith.
(d) Every new Note issued pursuant to this Section in lieu of
any destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes of the same Series or Class duly issued hereunder.
(e) The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Unless otherwise provided with respect to such Note
pursuant to Section 3.01, interest payable on any Registered Note shall be paid
to the Person in whose name that Note (or one or more Predecessor Notes) is
registered at the close of business on the most recent Record Date and interest
payable on any Bearer Note shall be paid to the bearer of that Note (or the
applicable coupon).
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(b) Subject to clause (a), each Note delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Note shall
carry the rights to interest accrued or principal accreted and unpaid, and to
accrue or accrete, which were carried by such other Note.
Section 3.08. PERSONS DEEMED OWNERS. The Issuer, the Indenture Trustee, the
Owner Trustee, the Beneficiary and any agent of the Issuer, the Indenture
Trustee, the Owner Trustee, or the Beneficiary may treat the Person who is
proved to be the owner of such Note pursuant to Section 1.04(c) as the owner of
such Note for the purpose of receiving payment of principal of and (subject to
Section 3.07) interest on such Note and for all other purposes whatsoever,
whether or not such Note be overdue, and neither the Issuer, the Indenture
Trustee, the Owner Trustee, nor any agent of the Issuer, the Indenture Trustee,
the Owner Trustee, or the Beneficiary shall be affected by notice to the
contrary.
Section 3.09. CANCELLATION. All Notes surrendered for payment, redemption,
transfer, conversion or exchange shall, if surrendered to any Person other than
the Indenture Trustee, be delivered to the Indenture Trustee and, if not already
canceled, shall be promptly canceled by it. The Issuer may at any time deliver
to the Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Issuer may have acquired in any manner whatsoever,
and all Notes so delivered shall be promptly canceled by the Indenture Trustee.
No Note shall be authenticated in lieu of or in exchange for any Notes canceled
as provided in this Section, except as expressly permitted by this Indenture.
The Indenture Trustee shall dispose of all canceled Notes in accordance with its
customary procedures and shall deliver a certificate of such disposition to the
Issuer.
Section 3.10. NEW ISSUANCES OF NOTES.
(a) The Issuer may issue new Notes of any Series or Class, so
long as the following conditions precedent are satisfied:
(i) on or before the third Business Day before the date that
the new issuance is to occur, the Issuer gives the Indenture Trustee , the
Agents and the Rating Agencies written notice of the issuance;
(ii) on or prior to the date that the new issuance is to occur,
the Issuer delivers to the Indenture Trustee and each Rating Agency an
Issuer Certificate to the effect that:
(A) the Issuer reasonably believes that the new issuance
shall not at the time of its occurrence or at a future date cause
an Adverse Effect on any Outstanding Notes;
(B) all instruments furnished to the Indenture Trustee
conform to the requirements of this Indenture and constitute
sufficient authority hereunder for the Indenture Trustee to
authenticate and deliver such Notes;
(C) the form and terms of such Notes have been
established in conformity with the provisions of this Indenture;
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(D) all laws and requirements with respect to the
execution and delivery by the Issuer of such Notes have been
complied with, the Issuer has the trust power and authority to
issue such Notes and such Notes have been duly authorized and
delivered by the Issuer and, assuming due authentication and
delivery by the Indenture Trustee, constitute legal, valid and
binding obligations of the Issuer enforceable in accordance with
their terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
and legal principles affecting creditors' rights generally from
time to time in effect and to general equitable principles, whether
applied in an action at law or in equity) and entitled to the
benefits of this Indenture, equally and ratably with all other
Notes, if any, of such Series or Class Outstanding, subject to the
terms of this Indenture and each Indenture Supplement; and
(E) such other matters as the Indenture Trustee may
reasonably request;
(iii) on or before the date that the new issuance is to occur,
the Issuer shall have delivered to the Indenture Trustee and the Rating
Agencies a Tax Opinion with respect to such issuance;
(iv) on or before the date that the new issuance is to occur,
the Issuer shall have delivered to the Trustee an Indenture Supplement and,
if applicable, the Issuer Certificate or terms document relating to the
applicable Series, Class or Classes of Notes;
(v) in the case of foreign currency Notes, the Issuer shall
have appointed one or more Paying Agents in the appropriate countries;
(vi) the Rating Agencies have provided written confirmation that
such issuance shall not have a Ratings Effect;
(vii) the conditions specified herein or in Section 3.11 are
satisfied; and
(viii) any other conditions specified herein in the applicable
Indenture Supplement;
provided, however, that any one of the aforementioned conditions (other than
clauses (iii) and (iv)) may be eliminated or modified as a condition precedent
to any new issuance of a Series or Class of Notes if the Issuer has obtained
written confirmation from each Rating Agency that there shall be no Ratings
Effect with respect to any Outstanding Notes as a result of a new issuance of
Notes.
(b) The Issuer and the Indenture Trustee shall not be required
to obtain the consent of any Noteholder of any Outstanding Series or Class to
issue any additional Notes of any Series or Class.
(c) There are no restrictions on the timing or amount of any
additional issuance of Notes of an Outstanding Class of a multiple issuance
Series, so long as the conditions described in paragraph (a) are met. As of the
date of any additional issuance of Notes of an
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Outstanding Class of Notes, the Stated Principal Amount, Outstanding Dollar
Principal Amount and Collateral Amount of that Class shall be increased to
reflect the principal amount of the additional Notes. If the additional Notes
are a Class of Notes that has the benefit of an Enhancement Agreement, the
Issuer shall enter into an Enhancement Agreement for the benefit of the
additional Notes. The targeted deposits, if any, to the interest funding
sub-account and principal funding sub-account shall be increased proportionately
to reflect the principal amount of the additional Notes.
When issued, the additional Notes of a Class shall be identical in all
respects to the other Outstanding Notes of that Class and shall be equally and
ratably entitled to the benefits of the Indenture and the related Indenture
Supplement as the other Outstanding Notes of that Class without preference,
priority or distinction.
Section 3.11. SPECIFICATION OF REQUIRED SUBORDINATED AMOUNT AND OTHER TERMS
WITH RESPECT TO EACH CLASS.
(a) The applicable Indenture Supplement for each Class of Notes
shall specify a Required Subordinated Amount, if any, of each subordinated Class
of Notes, if any.
(b) The Issuer may change the Required Subordinated Amount for
any Class of Notes at any time without the consent of any Noteholders so long as
the Issuer has (i) received confirmation from the Rating Agencies that have
rated any Outstanding Notes of that Series that the change in the Required
Subordinated Amount shall not result in a Ratings Effect with respect to any
Outstanding Notes in that Series and (ii) delivered to the Indenture Trustee and
the Rating Agencies a Tax Opinion.
Section 3.12. REALLOCATION OF AVAILABLE INTEREST AMOUNTS. Available
Interest Amounts and other specified amounts allocated to each Series shall be
reallocated to cover interest and expenses related to each Series as specified
in each related Indenture Supplement. The reallocation provisions of the
Indenture Supplement for each Series are required to be identical in all
material respects.
Section 3.13. EXCESS AVAILABLE INTEREST AMOUNTS SHARING. The Issuer shall
reallocate and redistribute certain excess Available Interest Amounts to cover
Series Available Interest Amount Shortfalls incurred by other Series as
specified in the related Indenture Supplements.
Section 3.14. EXCESS AVAILABLE PRINCIPAL AMOUNTS SHARING. The Issuer shall
reallocate and redistribute certain excess Available Principal Amounts to cover
Series Available Principal Amount Shortfalls incurred by other Series as
specified in the related Indenture Supplements.
Section 3.15. EXCESS FUNDING AMOUNTS. The Issuer shall allocate and
distribute Excess Funding Amounts as specified in the related Indenture
Supplements.
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ARTICLE IV
ACCOUNTS AND INVESTMENTS
Section 4.01. COLLECTIONS. Except as otherwise expressly provided herein,
the Indenture Trustee may demand payment or delivery of, and shall receive and
collect, directly and without intervention or assistance from any fiscal agent
or other intermediary, all money and other property payable to or receivable by
the Indenture Trustee pursuant to this Indenture including, without limitation,
all funds and other property payable to the Indenture Trustee in connection with
the Collateral (collectively, the "Collections"). The Indenture Trustee shall
hold all such money and property received by it as part of the Collateral and
shall apply it as provided in this Indenture.
Section 4.02. ACCOUNTS.
(a) Accounts; Deposits to and Distributions from Accounts. On
or before the Effective Date, the Issuer shall cause to be established and
maintained three or more Qualified Accounts (the "Collection Account", the
"Excess Funding Account" and the "Backup Servicer Account") in the name of the
Indenture Trustee, each bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Indenture Trustee, the
Noteholders and any applicable Enhancement Provider. From time to time in
connection with the issuance of a Series or Class of Notes, the Indenture
Trustee may establish one or more Qualified Accounts denominated as
"Supplemental Accounts" in the name of the Indenture Trustee. The Collection
Account, Excess Funding Account and Backup Servicer Account shall be under the
sole dominion and control of the Indenture Trustee for the benefit of the
Secured Parties. If, at any time, the institution holding the Collection Account
ceases to be a Qualified Institution, the Issuer shall within ten (10) Business
Days (or such longer period, not to exceed thirty (30) calendar days, as to
which each Rating Agency may consent in writing) establish a new Collection
Account, Excess Funding Account or Backup Servicer Account that is a Qualified
Account and shall transfer any cash and/or investments to such new Collection
Account or new Excess Funding Account, as the case may be. From the date such
new Collection Account or new Excess Funding Account is established, it shall be
the "Collection Account", the "Excess Funding Account" or "Backup Servicer
Account", as the case may be. Supplemental Accounts shall be created as
specified in the applicable Indenture Supplement. Any Supplemental Account shall
receive deposits as set forth in the applicable Indenture Supplement. All
payments to be made from time to time by or on behalf of the Indenture Trustee
to Noteholders (or in respect of Backup Servicer Fees and Expenses, to the
Person entitled thereto) out of funds in the Accounts pursuant to this Indenture
shall be made by or on behalf of the Indenture Trustee to the Paying Agent not
later than 12:00 noon New York City time on the applicable Payment Date or
earlier, if necessary, or as otherwise provided in Article V or the applicable
Indenture Supplement but only to the extent of available funds in the applicable
Supplemental Account or Sub-Account.
(b) Except as otherwise provided in Section 4.02(c) or the
terms of any Indenture Supplement, the Servicer shall deposit Collections into
the Collection Account as promptly as possible after the Date of Processing of
such Collections, but in no event later than the second Business Day after such
Date of Processing. Notwithstanding anything in this Agreement to the contrary,
for so long as (i) Case Credit remains the Servicer hereunder, (ii) no
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Servicer Default has occurred and is continuing and (iii) (x) Case Credit
maintains a short-term rating of at least A-1 by S&P and P-1 by Xxxxx'x (and for
five Business Days following any reduction of either such rating), (y) Case
Credit arranges for and maintains a letter of credit or other form of
Enhancement in respect of the Servicer's obligations to make deposits of
collections on the Receivables in the Collection Account that is acceptable in
form and substance to each Rating Agency and any Agents or (z) Case Credit
otherwise obtains the Rating Agency confirmations described below, then, subject
to any limitations in the confirmations described below, the Servicer need not
make the daily deposits of Collections into the Collection Account as provided
in Section 4.01, but may make a single deposit into the Collection Account in
same-day or next-day funds not later than 11:00 A.M., New York City time, on the
Payment Date in a net amount equal to the amount which would have been on
deposit with respect to the immediately preceding Collection Period in the
Collection Account; provided, however, that prior to ceasing daily deposits as
described above the Transferor shall have delivered to the Indenture Trustee
written confirmation from each of the Rating Agencies that the failure by Case
Credit to make daily deposits shall not result in a reduction or withdrawal of
the rating of any outstanding Series or Class.
(c) With respect to any Collection Period, whether the Servicer
is required to make deposits of Collections pursuant to paragraph (a) or (b)
above, (i) the Servicer shall only be required to deposit Collections into the
Collection Account up to the aggregate amount of Collections required to be
deposited into any Series Account or, without duplication, distributed on the
related Payment Date to Noteholders, to any Agent or to any Enhancement Provider
pursuant to the terms of any Indenture Supplement or Enhancement Agreement and
(ii) if at any time prior to such Payment Date the amount of Collections
deposited in the Collection Account exceeds the amount required to be deposited
pursuant to clause (i) above, the Servicer shall be permitted to withdraw the
excess from the Collection Account.
(d) Unless otherwise directed by Servicer, upon direction of
the Servicer funds on deposit in the Excess Funding Account shall be withdrawn
and paid to Transferor on any day to the extent that the Transferor Amount
exceeds the Trust Available Subordinated Amount on such day. On any Transfer
Date on which one or more Series is in an Amortization Period, Servicer shall
determine the aggregate amounts of Principal Shortfalls, if any, with respect to
each such Series (after giving effect to the allocation and payment provisions
in the Indenture Supplement with respect to each such Series), and Servicer
shall instruct Indenture Trustee in writing to withdraw such amount from the
Excess Funding Account (up to an amount equal to the lesser of (x) the amount on
deposit in the Excess Funding Account after application of the preceding
sentence on that day and (y) the amount, if any, by which the Transferor Amount
would be less than zero if there were no funds on deposit in the Excess Funding
Account on that day) on such Transfer Date and allocate such amount among each
such Series as specified in each related Indenture Supplement.
(e) On each Payment Date to the extent that any Backup Servicer
Fees are then due and payable, the Servicer will instruct the Indenture Trustee
in writing to withdraw from the Backup Servicer Account an amount equal to such
Backup Servicer Fees then due and payable, and distribute such amount to the
Person entitled thereto. If the amount on deposit in the Backup Servicer Account
on any Payment Date (after giving effect to the withdrawal therefrom for the
payment of Backup Servicer Fees for such Payment Date) is greater than the
Backup
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Servicer Account Required Amount, the excess will be released to the Transferor.
The Transferor (and any of its transferees and assignees) shall in no event be
required to refund any amounts properly distributed to it pursuant to this
Section 4.02(e). To the extent a Backup Servicer Account Shortfall Amount exists
on any Payment Date, the Servicer agrees, within thirty days of demand thereof,
to deliver to the Indenture Trustee for deposit in the Backup Servicer Account,
such Backup Servicer Account Shortfall Amount.
Section 4.03. INVESTMENT OF FUNDS IN THE ACCOUNTS.
(a) Funds on deposit in the Accounts shall be invested and
reinvested by the Indenture Trustee at the written direction of the Issuer in
one or more Permitted Investments. The Issuer may authorize the Indenture
Trustee to make specific investments pursuant to written instructions, in such
amounts as the Issuer shall specify. Notwithstanding the foregoing, funds held
by the Indenture Trustee in any of the Accounts shall be invested in Permitted
Investments that shall mature in each case no later than the date on which such
funds in the Accounts are scheduled to be transferred or distributed by the
Indenture Trustee pursuant to this Indenture (or as necessary to provide for
timely payment of principal or interest on the applicable Principal Payment Date
or Interest Payment Date).
(b) All funds deposited from time to time in the Accounts
pursuant to this Indenture and all investments made with such funds shall be
held by the Indenture Trustee in the Accounts as part of the Collateral as
herein provided, subject to withdrawal by the Indenture Trustee for the purposes
set forth herein.
(c) Funds and other property in any of the Accounts shall not
be commingled with any other funds or property of the Issuer or the Indenture
Trustee. The Indenture Trustee shall: (i) hold each Permitted Investment (other
than those described in clause (c) of the definition thereof) that constitutes
investment property through a securities intermediary, which securities
intermediary shall agree with the Indenture Trustee that (A) such investment
property at all times shall be credited to a securities account of the Indenture
Trustee, (B) all property credited to such securities account shall be treated
as a financial asset, (C) such securities intermediary shall treat the Indenture
Trustee as entitled to exercise the rights that comprise each financial asset
credited to such securities account, (D) such securities intermediary shall
comply with entitlement orders originated by the Indenture Trustee without the
further consent of any other person or entity, (E) such securities intermediary
shall not agree with any person or entity other than the Indenture Trustee to
comply with entitlement orders originated by any person or entity other than the
Indenture Trustee, (F) such securities account and all property credited thereto
shall not be subject to any lien, security interest, right of set-off, or
encumbrance in favor of such securities intermediary or anyone claiming through
such securities intermediary (other than the Indenture Trustee), and (G) such
agreement between such securities intermediary and the Indenture Trustee shall
be governed by the laws of the State of New York; (ii) maintain possession of
each other Permitted Investment not described in clause (i) above (other than
those described in clause (c) of the definition thereof) in the State of New
York separate and apart from all other property held by the Indenture Trustee;
and (iii) cause each Permitted Investment described in clause (c) of the
definition thereof to be registered in the name of the Indenture Trustee by the
issuer thereof; provided, that, other than following an Event of Default and
acceleration pursuant to Section 7.02, no Permitted Investment shall be disposed
of prior to its
41
maturity. Notwithstanding any other provision of this Indenture, the Indenture
Trustee shall not hold any Permitted Investment through an agent except as
expressly permitted by this Section 4.03(c). Each term used in this Section
4.03(c) and defined in the New York UCC shall have the meaning set forth in the
New York UCC.
(d) On each Transfer Date, all interest and earnings (net of
losses and investment expenses) accrued since the preceding Transfer Date on
funds on deposit in the Collection Account and the Excess Funding Account shall
be treated as Available Interest Amounts and applied pursuant to Section 5.01
for such Transfer Date. Unless otherwise stated in the related Indenture
Supplement, for purposes of determining the availability of funds or the balance
in the Accounts for any reason under this Indenture or any Indenture Supplement,
investment earnings on such funds shall be deemed not to be available or on
deposit.
Subject to Section 8.01(c), the Indenture Trustee shall not in any way be
held liable by reason of any insufficiency in such Accounts resulting from any
loss on any Permitted Investment included therein except for losses attributable
to the Indenture Trustee's failure to make payments on such Permitted
Investments issued by the Indenture Trustee, in its commercial capacity, in
accordance with their terms.
(e) Funds on deposit in the Accounts shall be invested and
reinvested by the Indenture Trustee to the fullest extent practicable, in such
manner as the Indenture Trustee shall from time to time determine, but only in
one or more Permitted Investments, upon the occurrence of any of the following
events:
(i) the Issuer shall have failed to give investment directions
to the Indenture Trustee; or
(ii) an Event of Default shall have occurred and is continuing
but no Notes have been declared due and payable pursuant to Section 7.02.
ARTICLE V
ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 5.01. ALLOCATIONS OF AVAILABLE INTEREST AMOUNTS. With respect to
each Monthly Period, the Indenture Trustee shall allocate to each Series of
Notes its portion of the Available Interest Amount for such Monthly Period in an
amount equal to the product of (i) the Series Floating Allocation Percentage for
such Series times (ii) the Available Interest Amount for such Monthly Period.
Section 5.02. ALLOCATIONS OF AVAILABLE PRINCIPAL AMOUNTS. With respect to
each Monthly Period, the Indenture Trustee shall allocate to each Series of
Notes its portion of the Available Principal Amount for such Monthly Period in
an amount equal to the product of (i) the Series Principal Allocation Percentage
for such Series times (ii) the Available Principal Amount for such Monthly
Period.
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Section 5.03. ALLOCATIONS OF INVESTOR DEFAULT AMOUNTS. With respect to each
Monthly Period, the Indenture Trustee shall allocate to each Series of Notes its
portion of the Investor Default Amounts for such Monthly Period in an amount
equal to the product of (i) the Series Floating Allocation Percentage for such
Series times (ii) the Investor Default Amount for such Monthly Period.
Section 5.04. ALLOCATIONS OF INVESTOR UNCOVERED DILUTION AMOUNTS. With
respect to each Monthly Period, the Indenture Trustee shall allocate to each
Series of Notes its portion of the Investor Uncovered Dilution Amounts for such
Monthly Period in an amount equal to the product of (i) the Series Floating
Allocation Percentage for such Series times (ii) the Investor Uncovered Dilution
Amount for such Monthly Period.
Section 5.05. ALLOCATIONS TO THE EXCESS FUNDING ACCOUNT AND THE TRANSFEROR.
Unless otherwise specified in the applicable Indenture Supplement, with respect
to each Monthly Period, the Servicer shall distribute to the Transferor an
amount equal to the excess of the Trust Available Subordinated Amount over the
Transferor Amount; PROVIDED that, if the Transferor Amount (determined after
giving effect to the transfer of Principal Receivables to the Issuer on such
date) is less than the Trust Available Subordinated Amount or if the Adjusted
Pool Balance is less than the Required Pool Balance, Servicer shall not allocate
to Transferor any amounts that would otherwise be allocated to Transferor, but
shall instead deposit such funds in an amount equal to such deficiency in the
Excess Funding Account. Unless otherwise stated in any Indenture Supplement,
neither Servicer nor Transferor need deposit any amounts allocated to Transferor
into the Collection Account and shall pay, or be deemed to pay, such amounts as
collected to Transferor.
Section 5.06. FINAL PAYMENT. Each Class of Notes shall be considered to be
paid in full, the Holders of such Class of Notes shall have no further right or
claim, and the Issuer shall have no further obligation or liability with respect
to such Class of Notes, on the earliest to occur of:
(a) the date of the payment in full of the Stated Principal
Amount of and all accrued interest on that Class of Notes [(which date
shall follow the termination of any revolving period for such Series of
Notes)];
(b) the date on which the Outstanding Dollar Principal Amount
of such Notes, after giving effect to all deposits, allocations,
reallocations, sales of Receivables and payments to be made on such date,
is reduced to zero, and all accrued interest on such Notes is paid in full
[following the termination of any revolving period of such Series of
Notes]; or
(c) on the Legal Final Maturity Date of such Notes, after
giving effect to all deposits, allocations, reallocations, sales of
Receivables and payments to be made on such date.
Section 5.07. PAYMENTS WITHIN A SERIES OR CLASS. All payments of principal,
interest or other amounts to Holders of the Notes of a Series or Class shall be
made in accordance with the related Indenture Supplement.
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ARTICLE VI
SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES HELD BY THE ISSUER OR CWRI
Section 6.01. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture shall
cease to be of further effect with respect to any Series or Class of Notes
(except as to any surviving rights of transfer or exchange of Notes of that
Series or Class expressly provided for herein or in the form of Note for that
Series or Class), and the Indenture Trustee, on demand of and at the expense of
the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to that Series or Class, when:
(a) all Notes of that Series or Class theretofore authenticated
and delivered (other than (A) Notes of that Series or Class which have been
destroyed, lost or stolen and which have been replaced or paid as provided
in Section 3.06, and (B) Notes of that Series or Class for whose payment
money has theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or discharged from
that trust, as provided in Section 11.03) have been delivered to the
Indenture Trustee canceled or for cancellation;
(b) the Issuer has paid or caused to be paid all other sums
payable hereunder (including payments to the Indenture Trustee pursuant to
Section 8.07) by the Issuer with respect to the Notes of that Series or
Class; and
(c) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to the Notes of that Series or
Class have been complied with. Notwithstanding the satisfaction and
discharge of this Indenture with respect to any Series or Class of Notes,
the obligations of the Issuer to the Indenture Trustee with respect to that
Series or Class under Section 8.07 and the obligations of the Indenture
Trustee under Sections 6.02 and 11.03 shall survive such satisfaction and
discharge.
Section 6.02. APPLICATION OF TRUST MONEY. All money and obligations
deposited with the Indenture Trustee pursuant to Section 6.01 or Section 6.03
and all money received by the Indenture Trustee in respect of such obligations
shall be held in trust and applied by it, in accordance with the provisions of
the Series or Class of Notes in respect of which it was deposited and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Indenture Trustee
may determine, to the Persons entitled thereto, of the principal and interest
for whose payment that money and obligations have been deposited with or
received by the Indenture Trustee; but that money and obligations need not be
segregated from other funds held by the Indenture Trustee except to the extent
required by law.
Section 6.03. CANCELLATION OF NOTES HELD BY THE ISSUER OR CWRI. If the
Issuer, CWRI or any of their Affiliates holds any Notes, that Holder may,
subject to any provisions of a related Indenture Supplement limiting the
repayment of subordinated Classes of Notes, if any, by notice
44
from that Holder to the Indenture Trustee cause that Note to be canceled,
whereupon the Note shall no longer be Outstanding.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.01. EVENTS OF DEFAULT. "Event of Default," wherever used herein,
means with respect to any Series or Class of Notes 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), unless such event is either expressly
stated to be inapplicable to a particular Series or Class or specifically
deleted or modified in the applicable Indenture Supplement creating such Series
or Class of Notes or in the form of Note for such Series or Class:
(a) with respect to any Class of Notes, a default by the Issuer
in the payment of any interest on such Notes when such interest becomes due
and payable, and continuance of such default for a period of thirty-five
(35) days following the date on which such interest became due and payable;
(b) with respect to any Class of Notes, a default by the Issuer
in the payment of the principal amount of such Notes at the applicable
Legal Final Maturity Date;
(c) a default in the performance, or breach, of any covenant or
warranty of the Issuer in this Indenture in respect of the Notes of such
Series or Class (other than a covenant or warranty in respect of the Notes
of such Series or Class a default in the performance of which or the breach
of which is elsewhere in this Section specifically dealt with), all of such
covenants and warranties in this Indenture which are not expressly stated
to be for the benefit of a particular Series or Class of Notes being deemed
to be in respect of the Notes of all Series or Classes for this purpose,
and continuance of such default or breach for a period of sixty (60) days
after there has been given, by registered or certified mail, to the Issuer
by the Indenture Trustee or to the Issuer and the Indenture Trustee by the
Holders of at least 25% in Outstanding Dollar Principal Amount of the
Outstanding Notes of such affected Series or Class, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder and, as a
result of such default, the interests of the Holders of the Notes of such
affected Series or Class are materially and adversely affected and continue
to be materially and adversely affected during the sixty (60) day period;
(d) the entry of an order for relief against the Issuer under
the Federal Bankruptcy Code by a court having jurisdiction in the premises
or a decree or order by a court having jurisdiction in the premises
adjudging the Issuer a bankrupt or insolvent under any other applicable
Federal or State law, or the entry of a decree or order approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Issuer under the Federal Bankruptcy
Code or any other applicable Federal or State law, or appointing a
receiver, liquidator, assignee,
45
trustee, sequestrator (or other similar official) of the Issuer or of any
substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of ninety (90) consecutive days;
(e) the consent by the Issuer to the institution of bankruptcy
or insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under the Federal
Bankruptcy Code or any other applicable Federal or State law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Issuer or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Issuer in
furtherance of any such action; or
(f) with respect to any Series or Class, any additional Event
of Default specified in the Indenture Supplement for such Series or Class
as applying to such Series or Class, or specified in the form of Note for
such Series or Class.
Section 7.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
(a) If an Event of Default described in clause (a), (b), (c) or
(f) (if the Event of Default under clause (c) or (f) is with respect to less
than all Series and Classes of Notes then Outstanding) of Section 7.01 occurs
and is continuing with respect to any Series or Class, then and in each and
every such case, unless the principal of all the Notes of such Series or Class
shall have already become due and payable, either the Indenture Trustee or the
Majority Holders of the Notes of such Series or Class then Outstanding hereunder
(each such Series or Class acting as a separate Class), by notice in writing to
the Issuer (and to the Indenture Trustee if given by Holders), may declare the
Outstanding Dollar Principal Amount of all the Notes of such Series or Class
then Outstanding and all interest accrued or principal accreted and unpaid (if
any) thereon to be due and payable immediately, and upon any such declaration
the same shall become and shall be immediately due and payable, anything in this
Indenture, the related Indenture Supplement or in the Notes of such Series or
Class to the contrary notwithstanding. Such payments are subject to Article V
and the allocation, deposits and payment sections of the related Indenture
Supplement.
(b) If an Event of Default described in clause (c) or (f) (if
the Event of Default under clause (c) or (f) is with respect to all Series and
Classes of Notes then Outstanding) of Section 7.01 occurs and is continuing,
then and in each and every such case, unless the principal of all the Notes
shall have already become due and payable, either the Indenture Trustee or the
Majority Holders of all the Notes then Outstanding hereunder (treated as one
Class), by notice in writing to the Issuer (and to the Indenture Trustee if
given by Holders), may declare the Outstanding Dollar Principal Amount of all
the Notes then Outstanding and all interest accrued or principal accreted and
unpaid (if any) thereon to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable,
notwithstanding anything in this Indenture, the related Indenture Supplements or
the Notes to the contrary.
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(c) If an Event of Default described in clause (d) or (e) of
Section 7.01 occurs and is continuing beyond the relevant cure period, if any,
then the Notes of all Series and Classes shall automatically be and become
immediately due and payable by the Issuer, without notice or demand to any
Person, and the Issuer shall automatically and immediately be obligated to pay
off the Notes.
(d) At any time after such a declaration of acceleration has
been made with respect to the Notes of any Series or Class and before a judgment
or decree for payment of the money due has been obtained by the Indenture
Trustee as hereinafter in this Article VII provided, the Majority Holders of
such Series or Classes, by written notice to the Issuer and the Indenture
Trustee, may rescind and annul such declaration and its consequences if:
(x) the Issuer has paid or deposited with the Indenture Trustee
a sum sufficient to pay (i) all overdue installments of interest on the
Notes of such Series or Class, (ii) the principal of any Notes of such
Series or Class which have become due otherwise than by such declaration of
acceleration, and interest thereon at the rate or rates prescribed therefor
by the terms of the Notes of such Series or Class, to the extent that
payment of such interest is lawful, (iii) interest upon overdue
installments of interest at the rate or rates prescribed therefore by the
terms of the Notes of such Series or Class to the extent that payment of
such interest is lawful, and (iv) all sums paid by the Indenture Trustee
hereunder and the reasonable compensation, expenses and disbursements of
the Indenture Trustee, its agents and counsel and all other amounts due the
Indenture Trustee under Section 8.07; and
(y) all Events of Default with respect to such Series or Class
of Notes, other than the nonpayment of the principal of the Notes of such
Series or Class which has become due solely by such acceleration, have been
cured or waived as provided in Section 7.16.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 7.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE. The Issuer covenants that if:
(a) the Issuer defaults in the payment of interest on any
Series or Class of Notes when such interest becomes due and payable, or
(b) the Issuer defaults in the payment of the principal of any
Series or Class of Notes at the Legal Final Maturity Date thereof, and any
such default continues beyond any specified grace period provided with
respect to such Series or Class of Notes, the Issuer shall, upon demand of
the Indenture Trustee, pay (subject to the allocation provided in Article
V, this Article VII and any related Indenture Supplement) to the Indenture
Trustee, for the benefit of the Holders of any such Notes of the affected
Series or Class, the whole amount then due and payable on any such Notes
for principal and interest, with interest, to the extent that payment of
such interest shall be legally enforceable, upon the overdue principal and
upon overdue installments of interest, (i) in
47
the case of Interest-bearing Notes, at the rate of interest applicable to
the stated principal amount thereof, unless otherwise specified in the
applicable Indenture Supplement; and (ii) in the case of Discount Notes, as
specified in the applicable Indenture Supplement, and in addition thereto,
shall pay 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, its agents and counsel
and all other amounts due the Indenture Trustee under Section 8.07.
If the Issuer fails to pay such amounts forthwith upon such demand, the
Indenture Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Issuer or any other obligor upon the Notes of such
Series or Class and collect the money adjudged or decreed to be payable in the
manner provided by law out of the Collateral or any other obligor upon such
Notes, wherever situated.
Section 7.04. INDENTURE TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Issuer or any other obligor upon the Notes or the
property of the Issuer or of such other obligor or their creditors, the
Indenture Trustee (irrespective of whether the principal of the 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 on the
Issuer for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceedings or otherwise,
(i) to file and prove a claim for the whole amount of principal
and interest owing and unpaid in respect of the Notes and to file such
other papers or documents as may be necessary and advisable in order to
have the claims of the Indenture Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee, its agents and counsel and all other amounts due the
Indenture Trustee under Section 8.07) and of the Noteholders allowed in
such judicial proceeding, and
(ii) to collect and receive any funds or other property payable
or deliverable on any such claims and to distribute the same; and any
receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each
Noteholder to make such payment to the Indenture Trustee and in the event
that the Indenture Trustee shall consent to the making of such payments
directly to the Noteholders, to pay to the Indenture Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances
of the Indenture Trustee, its agents and counsel, and any other amounts due
the Indenture Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the Indenture Trustee
to authorize or consent to or accept or adopt on behalf of any Noteholder any
plan or reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Indenture Trustee
to vote in respect of the claim of any Noteholder in any such proceeding.
48
Section 7.05. INDENTURE TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
NOTES. All rights of action and claims under this Indenture or the Notes of any
Series or Class may be prosecuted and enforced by the Indenture Trustee without
the possession of any of the Notes of such Series or Class or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Indenture Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Indenture Trustee, its agent and counsel, be for the ratable benefit of the
Holders of the Notes of the Series or Class in respect of which such judgment
has been recovered.
Section 7.06. APPLICATION OF MONEY COLLECTED. Any money or other property
collected by the Indenture Trustee with respect to a Series or Class of Notes
pursuant to this Article VII shall be applied in the following order, at the
date or dates fixed by the Indenture Trustee and, in case of the distribution of
such money on account of principal or interest, upon presentation of the Notes
of such Series or Class and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
(a) first, to the payment of all amounts due and owing to the
Indenture Trustee under Section 8.07(a);
(b) second, to the payment of the amounts then due and unpaid
upon the Notes of that Series or Class for principal and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind (but subject to the
allocation provided in Article V of this Indenture and the related
Indenture Supplements), according to the amounts due and payable on such
Notes for principal and interest, respectively; and
(c) third, to the Issuer.
Section 7.07. INDENTURE TRUSTEE MAY ELECT TO HOLD THE COLLATERAL. Following
an acceleration of any Series or Class of Notes, the Indenture Trustee may elect
to continue to hold the Collateral and apply distributions in accordance with
the regular distribution provisions pursuant to Article V of this Indenture,
except that principal shall be paid on the accelerated Class of Notes to the
extent funds are received from the Collections and allocated to the accelerated
Class, and payment is permitted by the subordination provisions, if any, of the
accelerated Class.
Section 7.08. SALE OF RECEIVABLES FOR ACCELERATED NOTES. In the case of a
Series or Class of Notes that has been accelerated following an Event of
Default, the Indenture Trustee may, and shall, if one of the conditions in
subsections (a), (b) or (c) of this Section 7.08 is met, sell Principal
Receivables and the related Non-Principal Receivables (or interests therein). If
a Series or Class of Notes is accelerated before its Legal Final Maturity Date,
each holder of the accelerated Notes may notify the Indenture Trustee in writing
that it desires to cause the Issuer to sell Principal Receivables and the
related Non-Principal Receivables, or interests in Principal Receivables and the
related Non-Principal Receivables, with respect to the Notes of that Series or
Class. Noteholders of a Series or Class can only cause a sale of receivables if
at least one of the following conditions is met:
49
(a) the Holders of at least 90% of the Outstanding Dollar
Principal Amount of the Notes of that Series or Class have notified the
Indenture Trustee in writing that they desire to cause the issuer to sell
Principal Receivables and the related Non-Principal Receivables, or
interests in Principal Receivables and the related Non-Principal
Receivables, with respect to their Series or Class of Notes;
(b) the Holders of a Majority of the Outstanding Dollar
Principal Amount of the Notes of that Series or Class have notified the
Indenture Trustee in writing that they desire to cause the Issuer to sell
Principal Receivables and the related Non-Principal Receivables, or
interests in Principal Receivables and the related Non-Principal
Receivables, with respect to their Series or Class of Notes and the net
proceeds of the sale of Receivables pursuant to that sale, as described
below, plus amounts on deposit in the Principal Funding Account would be
sufficient to pay all amounts due on the Notes of that Series or Class; or
(c) (1) the Indenture Trustee determines that the funds to be
allocated to the Notes of that Series or Class, including (A) Collections
allocated to that Series or Class and (B) amounts on deposit in the
Principal Funding Account, may not be sufficient on an ongoing basis to
make payments on the Notes of that Series or Class as those payments would
have become due if those obligations had not been declared due and payable
and (2) Holders of at least 66 2/3% of the Outstanding Dollar Principal
Amount of the Notes of that Series or Class have notified the Indenture
Trustee in writing that they desire to cause the Issuer to sell Principal
Receivables and the related Non-Principal Receivables, or interests
Principal Receivables and the related Non-Principal Receivables, with
respect to their Series or Class of Notes.
If any of the conditions in the preceding paragraph are met, the Indenture
Trustee shall cause the Issuer to sell Principal Receivables and the related
Non-Principal Receivables on behalf of all Holders of the Notes of that Series
or Class, whether or not they have actually given notice of their desire to
cause a sale of Receivables or interests in Principal Receivables and the
related Non-Principal Receivables, in the amount specified in the related
Indenture Supplement. The Holders of the accelerated Notes shall maintain their
rights in their Notes until the Holders deliver their Notes to the Issuer as
required in connection with the application of the sale proceeds to payment of
the amounts due on the related Class or Series of Notes.
If an Event of Default occurs relating to the failure to pay principal of
or interest on a Series or Class of Notes in full on the related Legal Final
Maturity Date, the Issuer shall automatically sell Receivables on such date.
Section 7.09. NOTEHOLDERS HAVE THE RIGHT TO DIRECT THE TIME, METHOD AND
PLACE OF CONDUCTING ANY PROCEEDING FOR ANY REMEDY AVAILABLE TO THE INDENTURE
TRUSTEE. The Majority Holders of any accelerated Series or Class of Notes have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Indenture Trustee, or exercising any trust or power
conferred on the Indenture Trustee, in respect of such Series or Class. This
right may be exercised only if the direction provided by the Noteholders does
not conflict with applicable law or this Indenture and does not have a
substantial likelihood of involving the Indenture Trustee in personal liability.
The Holder of any Note will have the right
50
to institute suit for the enforcement of payment of principal of and interest on
their Note on its Legal Final Maturity Date.
Section 7.10. LIMITATION ON SUITS. No Holder of any Note of any Series or
Class 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:
(a) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default with respect to Notes of
such Series or Class;
(b) the Holders of not less than 25% in Outstanding Dollar
Principal Amount of the Outstanding Notes of such Series or Class have made
written request to the Indenture Trustee to institute proceedings in
respect of such Event of Default in its own name as Indenture Trustee
hereunder;
(c) 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 compliance with such request;
(d) the Indenture Trustee for sixty (60) days after its receipt
of such notice, request and offer of indemnity has failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Indenture Trustee during such sixty (60) day period by
the Majority Holders of such Series or Class;
it being understood and intended that no one or more Holders of Notes of such
Series or Class 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 Notes of such Series or Class, or to obtain or to
seek to obtain priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and proportionate benefit of all the Holders of all Notes of such Series
or Class.
Section 7.11. UNCONDITIONAL RIGHT OF NOTEHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST; LIMITED RECOURSE. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest on such Note
on the Legal Final Maturity Date expressed in the related Indenture Supplement
and to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Holder; provided, however,
that notwithstanding any other provision of this Indenture to the contrary, the
obligation to pay principal of or interest on the Notes or any other amount
payable to any Noteholder shall be without recourse to CWRI, the Indenture
Trustee, the Owner Trustee or any affiliate, officer, employee or director of
any of them, and the obligation of the Issuer to pay principal of or interest on
the Notes or any other amount payable to any Noteholder shall be subject to
Article V and the allocation and payment provisions of the Indenture
Supplements.
Section 7.12. RESTORATION OF RIGHTS AND REMEDIES. If the Indenture Trustee
or any Noteholder has instituted any proceeding to enforce any right or remedy
under this Indenture and
51
such proceeding has been discontinued or abandoned for any reason, then and in
every such case the Issuer, the Indenture Trustee and the Noteholders shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Indenture Trustee and the Noteholders shall continue as though
no such proceeding had been instituted.
Section 7.13. RIGHTS AND REMEDIES CUMULATIVE. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 7.14. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Indenture Trustee or of any Holder of any Note to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Indenture Trustee
or to the Noteholders may be exercised from time to time, and as often as may be
deemed expedient, by the Indenture Trustee or by the Noteholders, as the case
may be.
Section 7.15. CONTROL BY NOTEHOLDERS. The Majority Holders of any Series or
Class shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee or exercising
any trust or power conferred on the Indenture Trustee with respect to the Notes
of such Series or Class, provided that:
(a) the Indenture Trustee shall have the right to decline to
follow any such direction if the Indenture Trustee, being advised by
counsel, determines that the action so directed may not lawfully be taken
or would conflict with this Indenture or if the Indenture Trustee in good
faith shall, by an Indenture Trustee Authorized Officer, determine that the
proceedings so directed would involve it in personal liability or be
unjustly prejudicial to the Holders not taking part in such direction, and
(b) the Indenture Trustee may take any other action permitted
hereunder deemed proper by the Indenture Trustee which is not inconsistent
with such direction.
Section 7.16. WAIVER OF PAST DEFAULTS. The Majority Holders of any Series
or Class may on behalf of the Holders of all the Notes of such Series or Class
waive any past default hereunder or under the related Indenture Supplement with
respect to such Series or Class and its consequences, except a default not
theretofore cured:
(a) in the payment of the principal of or interest on any Note
of such Series or Class, or
(b) in respect of a covenant or provision hereof which under
Article X cannot be modified or amended without the consent of the Holder
of each Outstanding Note of such Series or Class.
52
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 7.17. UNDERTAKING FOR COSTS. All parties to this Indenture agree,
and each Holder of any Note by his 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 or omitted by it as Indenture
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against any
party litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Indenture Trustee, to any
suit instituted by any Noteholder, or group of Noteholders, holding in the
aggregate more than 25% in Outstanding Dollar Principal Amount of the
Outstanding Notes of any Series or Class to which the suit relates, or to any
suit instituted by any Noteholders for the enforcement of the payment of the
principal of or interest on any Note on or after the applicable Legal Final
Maturity Date expressed in such Note.
Section 7.18. WAIVER OF STAY OR EXTENSION LAWS. The Issuer covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE VIII
THE INDENTURE TRUSTEE
Section 8.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture with respect to
the Notes of any Series or Classes, and no implied covenants or obligations
shall be read into this Indenture against the Indenture Trustee.
(b) In the absence of bad faith on its part, the Indenture
Trustee may, with respect to Notes of any Series or Class, conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically required
to be furnished to the Indenture Trustee, the Indenture Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture but need
53
not confirm or investigate the accuracy of any mathematical calculations or
other facts stated therein.
(c) In case an Event of Default with respect to any Series or
Class of Notes has occurred and is continuing, the Indenture Trustee shall
exercise with respect to the Notes of such Series or Class 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 fiduciary would exercise or use under the
circumstances in the conduct of such person's own affairs.
(d) 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 willful misconduct, except that:
(i) this clause (d) shall not be construed to limit the effect
of subsection (a) of this Section;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by an Indenture Trustee Authorized Officer,
unless it will be proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Indenture Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Majority Holders of any Series or Class relating
to the time, method and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power
conferred upon the Indenture Trustee, under this Indenture with respect to
the Notes of such Series or Class; and
(iv) no provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or indemnity
satisfactory to the Indenture Trustee against such risk or liability is not
reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Indenture Trustee shall be subject to the
provisions of this Section.
Section 8.02. NOTICE OF DEFAULTS. Within sixty (60) days after the
occurrence of any default hereunder of which an Indenture Trustee Authorized
Officer has actual knowledge or has received written notice thereof with respect
to Notes of any Series or Class,
(a) the Indenture Trustee shall transmit by mail to all
Registered Noteholders of such Series or Class, as their names and addresses
appear in the Note Register, notice of such default hereunder known to the
Indenture Trustee,
54
(b) the Indenture Trustee shall notify all Holders of Bearer
Notes of such Series or Class, by publication of notice of such default in an
Authorized Newspaper, or as otherwise provided in the applicable Indenture
Supplement, and
(c) the Indenture Trustee shall give prompt written
notification thereof to the Rating Agencies, unless such default shall have been
cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of or interest on any Note of such Series or Class, the Indenture
Trustee shall be fully protected in withholding such notice if and so long as
the board of directors, the executive committee or a trust committee of
directors and/or Indenture Trustee Authorized Officers of the Indenture Trustee
in good faith determine that the withholding of such notice is in the interests
of the Noteholders of such Series or Class. For the purpose of this Section, the
term "default," with respect to Notes of any Series or Class, means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Notes of such Series or Class.
Section 8.03. CERTAIN RIGHTS OF INDENTURE TRUSTEE. Except as otherwise
provided in Section 8.01:
(a) the Indenture Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document
(whether in its original or facsimile form) believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein
shall be sufficiently evidenced by an Officer's Certificate;
(c) whenever in the administration of this Indenture the
Indenture Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Indenture Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officer's
Certificate;
(d) the Indenture Trustee may consult with counsel of its own
selection and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Noteholders pursuant to this Indenture,
unless such Noteholders shall have offered to the Indenture Trustee
security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion,
55
report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but the Indenture Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Indenture Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, personally or by agent or
attorney, with reasonable prior written notice to Issuer and during
Issuer's regular business hours;
(g) the Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of
any agent, attorney, custodian or nominee appointed with due care by it
hereunder; and
(h) the Indenture Trustee shall not be responsible for filing
any financing statements or continuation statements in connection with the
Notes, but shall cooperate with the Issuer in connection with the filing of
such financing statements or continuation statements.
Section 8.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES. The
recitals contained herein and in the Notes, except the certificates of
authentication, shall be taken as the statements of the Issuer, and the
Indenture Trustee assumes no responsibility for their correctness. The Indenture
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes. The Indenture Trustee shall not be accountable for
the use or application by the Issuer of Notes or the proceeds thereof.
Section 8.05. MAY HOLD NOTES. The Indenture Trustee, any Paying Agent, the
Note Registrar or any other agent of the Issuer, in its individual or any other
capacity, may become the owner or pledgee of Notes and, subject to Sections 8.08
and 8.13, may otherwise deal with the Issuer with the same rights it would have
if it were not Indenture Trustee, Paying Agent, Note Registrar or such other
agent.
Section 8.06. MONEY HELD IN TRUST. Money held by the Indenture Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Indenture Trustee shall be under no liability for interest
on any money received by it hereunder except as otherwise agreed in writing with
the Issuer.
Section 8.07. COMPENSATION AND REIMBURSEMENT, LIMIT ON COMPENSATION,
REIMBURSEMENT AND INDEMNITY.
(a) The Issuer agrees
(i) to pay to the Indenture Trustee from time to time
reasonable compensation for all services rendered by it hereunder as agreed
to in writing between the Issuer and the Indenture Trustee (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse
the Indenture Trustee upon its request for all reasonable expenses,
disbursements and advances
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incurred or made by the Indenture Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the reasonable
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(iii) to indemnify the Indenture Trustee and its officers,
directors, employees and agents for, and to hold them harmless against, any
and all loss, liability, claim, obligation, damage, injury, judgment or
expense (including the reasonable compensation and the reasonable expenses
and disbursements of its agents and counsel) incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance
or administration of this trust, including the costs and expenses of
defending itself against any claim or liability (whether asserted by the
Issuer, the Servicer, any Holder or any other Person) in connection with
the exercise or performance of any of its powers or duties hereunder.
The Indenture Trustee shall have no recourse to any asset of the Issuer other
than funds available pursuant to Section 7.06 or to any Person other than the
Servicer or the Issuer.
(b) This Section shall survive the termination of this
Indenture and the resignation or replacement of the Indenture Trustee under
Section 8.10.
Section 8.08. DISQUALIFICATION; CONFLICTING INTERESTS. If the Indenture
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Indenture Trustee shall, if so required by the Trust
Indenture Act, either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture. Nothing herein shall prevent the Indenture Trustee from
filing with the Commission the application referred to in the second to last
paragraph of Section 310(b) of the Trust Indenture Act.
Section 8.09. CORPORATE INDENTURE TRUSTEE REQUIRED; ELIGIBILITY. There
shall at all times be an Indenture Trustee hereunder with respect to each Series
or Class of Notes, which Indenture Trustee shall be a corporation organized and
doing business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal or State authority, and having a rating of at least BBB-
by S&P. 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 purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. The
Issuer may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Issuer, serve as Indenture
Trustee. If at any time the Indenture Trustee with respect to any Series or
Class of Notes shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
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(a) No resignation or removal of the Indenture Trustee and no
appointment of a successor Indenture Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Indenture
Trustee under Section 8.11.
(b) The Indenture Trustee may resign with respect to any Series
or Class of Notes at any time by giving written notice thereof to the Issuer. If
an instrument of acceptance by a successor Indenture Trustee shall not have been
delivered to the Indenture Trustee within thirty (30) days after the giving of
such notice of resignation, the resigning Indenture Trustee may petition any
court of competent jurisdiction for the appointment of a successor Indenture
Trustee.
(c) The Indenture Trustee may be removed with respect to any
Series or Class of Notes at any time by Act of the Majority Holders of that
Series or Class, delivered to the Indenture Trustee and to the Issuer.
(d) If at any time:
(i) the Indenture Trustee fails to comply with Section 310(b)
of the Trust Indenture Act with respect to any Series or Class of Notes
after written request therefor by the Issuer or by any Noteholder who has
been a bona fide Holder of a Note of that Series or Class for at least six
(6) months, or
(ii) the Indenture Trustee ceases to be eligible under
Section 8.09 with respect to any Series or Class of Notes and fails to
resign after written request therefor by the Issuer or by any such
Noteholder, or
(iii) the Indenture Trustee becomes incapable of acting with
respect to any Series or Class of Notes, or
(iv) the Indenture Trustee is adjudged bankrupt or insolvent or
a receiver of the Indenture Trustee or of its property is appointed or any
public officer takes charge or control of the Indenture Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Issuer may remove the Indenture Trustee, with
respect to the Series or Class, or in the case of clause (iv), with respect to
all Series or Classes, or (B) subject to Section 7.17, any Noteholder who has
been a bona fide Holder of a Note of such Series, Class and Class for at least
six (6) months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Indenture
Trustee with respect to such Series or Class and the appointment of a successor
Indenture Trustee with respect to the Series or Class, or, in the case of clause
(iv), with respect to all Series and Classes.
(e) If the Indenture Trustee resigns, is removed or becomes
incapable of acting with respect to any Series or Class of Notes, or if a
vacancy shall occur in the office of the Indenture Trustee with respect to any
Series or Class of Notes for any cause, the Issuer shall promptly appoint a
successor Indenture Trustee for that Series or Class of Notes. If, within one
year after such resignation, removal or incapacity, or the occurrence of such
vacancy, a successor Indenture Trustee with respect to such Series or Class of
Notes is appointed by Act of the Majority Holders of such Series or Class
delivered to the Issuer and the retiring Indenture
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Trustee, the successor Indenture Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Indenture Trustee with
respect to such Series or Class and supersede the successor Indenture Trustee
appointed by the Issuer with respect to such Series or Class. If no successor
Indenture Trustee with respect to such Series or Class shall have been so
appointed by the Issuer or the Noteholders of such Series or Class and accepted
appointment in the manner hereinafter provided, any Noteholder who has been a
bona fide Holder of a Note of that Series or Class for at least six (6) months
may, on behalf of itself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Indenture Trustee
with respect to such Series or Class.
(f) The Issuer shall give written notice of each resignation
and each removal of the Indenture Trustee with respect to any Series or Class
and each appointment of a successor Indenture Trustee with respect to any Series
or Class to each Noteholder as provided in Section 1.06 and to each Rating
Agency. Each notice shall include the name of the successor Indenture Trustee
and the address of its principal Corporate Trust Office.
Section 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every successor
Indenture Trustee appointed hereunder shall execute, acknowledge and deliver to
the Issuer and to the predecessor Indenture Trustee an instrument accepting such
appointment, with a copy to the Rating Agencies, and thereupon the resignation
or removal of the predecessor Indenture Trustee shall become effective with
respect to any Series or Class as to which it is resigning or being removed as
Indenture Trustee, and such successor Indenture Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the predecessor Indenture Trustee with respect to any such Series
or Class; but, on request of the Issuer or the successor Indenture Trustee, such
predecessor Indenture Trustee shall, upon payment of its reasonable charges, if
any, execute and deliver an instrument transferring to such successor Indenture
Trustee all the rights, powers and trusts of the predecessor Indenture Trustee,
and shall duly assign, transfer and deliver to such successor Indenture Trustee
all property and money held by such predecessor Indenture Trustee hereunder with
respect to all or any such Series or Class, subject nevertheless to its lien, if
any, provided for in Section 8.07. Upon request of any such successor Indenture
Trustee, the Issuer shall execute any and all reasonably requested instruments,
with terms mutually agreed upon by the Issuer and the successor Indenture
Trustee for more fully and certainly vesting in and confirming to such successor
Indenture Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Indenture Trustee with
respect to the Notes of one or more (but not all) Series or Classes, the Issuer,
the predecessor Indenture Trustee and each successor Indenture Trustee with
respect to the Notes of any applicable Series or Class shall execute and deliver
an Indenture Supplement which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the predecessor Indenture Trustee with respect to the Notes of any Series or
Class as to which the predecessor Indenture Trustee is not being succeeded shall
continue to be vested in the predecessor Indenture Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Indenture Trustee, it being understood that nothing herein or in such Indenture
Supplement shall constitute such Indenture Trustees co- trustees of the same
trust and that each
59
such Indenture Trustee shall be Indenture Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Indenture Trustee.
No successor Indenture Trustee with respect to any Series or Class of Notes
shall accept its appointment unless at the time of such acceptance such
successor Indenture Trustee shall be qualified and eligible with respect to that
Series or Class under this Article.
Section 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Indenture Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Indenture Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Indenture Trustee, shall be the successor of the Indenture
Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. The Issuer shall give
prompt written notice of such merger, conversion, consolidation or succession to
the Rating Agencies. In case any Notes shall have been authenticated, but not
delivered, by the Indenture Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Indenture Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Indenture Trustee had itself authenticated such Notes.
Section 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. If and when
the Indenture Trustee shall be or become a creditor of the Issuer (or any other
obligor upon the Notes), the Indenture Trustee shall be subject to the
provisions of Section 311 of the Trust Indenture Act. An Indenture Trustee who
has resigned or been removed shall be subject to Section 311(a) of the Trust
Indenture Act to the extent provided therein.
Section 8.14. APPOINTMENT OF AUTHENTICATING AGENT. At any time when any of
the Notes remain Outstanding, the Indenture Trustee, with the approval of the
Issuer, may appoint an Authenticating Agent or Agents with respect to one or
more Series or Classes of Notes which shall be authorized to act on behalf of
the Indenture Trustee to authenticate Notes of such Series or Classes issued
upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.06, and Notes so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Indenture Trustee hereunder. Wherever reference is made
in this Indenture to the authentication and delivery of Notes by the Indenture
Trustee or the Indenture Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the
Indenture Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Indenture Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Issuer and shall at all times be
a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under such
laws to act as an Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and, if other than the Issuer itself, subject to
supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in
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its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section. The initial
Authenticating Agent for the Notes of all Series and Classes shall be the
Indenture Trustee.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Indenture Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Indenture Trustee and to the Issuer. The Indenture Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Issuer. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Indenture Trustee, with the approval of the
Issuer, may appoint a successor Authenticating Agent which shall be acceptable
to the Issuer and shall give notice to each Noteholder as provided in Section
1.06. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Indenture Trustee agrees to pay to each Authenticating Agent (other
than an Authenticating Agent appointed at the request of the Issuer from time to
time) reasonable compensation for its services under this Section, and the
Indenture Trustee shall be entitled to be reimbursed for such payments, pursuant
to the provisions of Section 8.07.
If an appointment with respect to one or more Series or Classes is made
pursuant to this Section, the Notes of such Series or Classes may have endorsed
thereon, in addition to the Indenture Trustee's certificate of authentication,
an alternate certificate of authentication in the following form:
This is one of the Notes of the Series or Classes designated therein
referred to in the within-mentioned Indenture.
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JPMorgan Chase Bank,
as Indenture Trustee
By:
---------------------------------
As Authenticating Agent
By:
---------------------------------
Authorized Signatory
Section 8.15. TAX RETURNS. In the event the Issuer shall be required to
file tax returns, the Servicer shall prepare or shall cause to be prepared such
tax returns and shall provide such tax returns to the Owner Trustee or the
Beneficiary for signature at least five (5) days before such tax returns are due
to be filed. The Issuer, in accordance with the terms of each Indenture
Supplement, shall also prepare or shall cause to be prepared all tax information
required by law to be distributed to Noteholders and shall deliver such
information to the Indenture Trustee at least five (5) days prior to the date it
is required by law to be distributed to Noteholders. The Indenture Trustee, upon
written request, shall furnish the Servicer with all such information known to
the Indenture Trustee as may be reasonably requested and required in connection
with the preparation of all tax returns of the Issuer, and shall, upon request,
execute such returns. In no event shall the Indenture Trustee or the Owner
Trustee be personally liable for any liabilities, costs or expenses of the
Issuer or any Noteholder arising under any tax law, including without
limitation, federal, state or local income or excise taxes or any other tax
imposed on or measured by income (or any interest or penalty with respect
thereto arising from a failure to comply therewith).
Section 8.16. REPRESENTATIONS AND COVENANTS OF THE INDENTURE TRUSTEE. The
Indenture Trustee represents, warrants and covenants that:
(i) The Indenture Trustee is a banking corporation duly
organized and validly existing under the laws of the State of New York;
(ii) The Indenture Trustee has full power and authority to
deliver and perform this Indenture and has taken all necessary action to
authorize the execution, delivery and performance by it of this Indenture
and other documents to which it is a party; and
(iii) Each of this Indenture and other documents to which it is a
party has been duly executed and delivered by the Indenture Trustee and
constitutes its legal, valid and binding obligation in accordance with its
terms.
Section 8.17. CUSTODY OF THE COLLATERAL. All Collateral (i) that
constitutes investment property shall be held by the Indenture Trustee through a
securities intermediary, which securities intermediary shall agree with the
Indenture Trustee that (A) such investment property at all times shall be
credited to a securities account of the Indenture Trustee, (B) all property
credited to such securities account shall be treated as a financial asset, (C)
such securities
62
intermediary shall treat the Indenture Trustee as entitled to exercise the
rights that comprise each financial asset credited to such securities account,
(D) such securities intermediary shall comply with entitlement orders originated
by the Indenture Trustee without the further consent of any other person or
entity, (E) such securities intermediary shall not agree with any person or
entity other than the Indenture Trustee to comply with entitlement orders
originated by any person or entity other than the Indenture Trustee, (F) such
securities account and all property credited thereto shall not be subject to any
lien, security interest, right of set-off, or encumbrance in favor of such
securities intermediary or anyone claiming through such securities intermediary
(other than the Indenture Trustee), and (G) such agreement between such
securities intermediary and the Indenture Trustee shall be governed by the laws
of the State of New York; and (ii) not described in clause (i) above shall be
held by the Indenture Trustee in the State of New York separate and apart from
all other property held by the Indenture Trustee. Notwithstanding any other
provision of this Indenture, the Indenture Trustee shall not hold any Collateral
through an agent except as expressly permitted by this Section 8.17 and Section
4.03(c). Each term used in this Section 8.17 and defined in the New York UCC
shall have the meaning set forth in the New York UCC.
Section 8.18. INDENTURE TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE
ISSUER. Any application by the Indenture Trustee for written instructions from
the Issuer may, at the option of the Indenture Trustee, set forth in writing any
action proposed to be taken or omitted by the Indenture Trustee under and in
accordance with this Indenture and the date on and/or after which such action
shall be taken or such omission shall be effective, provided that such
application shall make specific reference to this Section 8.18. The Indenture
Trustee shall not be liable for any action taken by, or omission of, the
Indenture Trustee in accordance with a proposal included in such application on
or after the date specified in such application (which date shall not be less
than five (5) Business Days after the date any officer of the Issuer actually
receives such application, unless any such officer shall have consented in
writing to any earlier date) unless prior to taking any such action (or the
effective date in the case of an omission), the Indenture Trustee shall have
received written instructions in response to such application specifying the
action be taken or omitted.
ARTICLE IX
NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY INDENTURE TRUSTEE, ISSUER
AND BENEFICIARY
Section 9.01. ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF
NOTEHOLDERS. The Issuer shall furnish or cause to be furnished to the Indenture
Trustee:
(a) not more than fifteen (15) days after each Record Date, in
each year in such form as the Indenture Trustee may reasonably require, a
list of the names and addresses of the Registered Noteholders of such
Series or Classes as of such date, and
(b) at such other times as the Indenture Trustee may request in
writing, within thirty (30) days after the receipt by the Issuer of any
such request, a list of similar form and content as of a date not more than
fifteen (15) days before the time such list is
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furnished; provided, however, that so long as the Indenture Trustee is the
Note Registrar, no such list shall be required to be furnished.
Section 9.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO NOTEHOLDERS.
(a) The Indenture Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Registered Noteholders
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 9.01 and the names and addresses of Registered Noteholders received
by the Indenture Trustee in its capacity as Note Registrar. The Indenture
Trustee may destroy any list furnished to it as provided in Section 9.01 upon
receipt of a new list so furnished.
(b) If three (3) or more Holders of Notes of any Series or
Class (hereinafter referred to as "applicants") apply in writing to the
Indenture Trustee, and furnish to the Indenture Trustee reasonable proof that
each such applicant has owned a Note of such Series or Class for a period of at
least six (6) months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Notes of such Series or Class or with the Holders of all Notes with respect
to their rights under this Indenture or under such Notes and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Indenture Trustee shall, within five (5) Business Days
after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Indenture Trustee in accordance with Section 9.02(a), or
(ii) inform such applicants as to the approximate number of
Holders of Notes of such Series or Class or all Notes, as the case may be,
whose names and addresses appear in the information preserved at the time
by the Indenture Trustee in accordance with Section 9.02(a), and as to the
approximate cost of mailing to such Noteholders the form of proxy or other
communication, if any, specified in such application.
If the Indenture Trustee shall elect not to afford such applicants access
to such information, the Indenture Trustee shall, upon the written request of
such applicants, mail to each Holder of a Registered Note of such Series or
Class or to all Registered Noteholders, as the case may be, whose names and
addresses appear in the information preserved at the time by the Indenture
Trustee in accordance with Section 9.02(a), a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Indenture Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless, within five (5) days after such tender, the Indenture Trustee shall mail
to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Indenture Trustee, such mailing would be contrary to the best interests of
the Holders of Notes of such Series or Class or all Noteholders, as the case may
be, or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, the Commission shall
find, after notice and
64
opportunity for hearing, that all the objections so sustained have been met and
shall enter an order so declaring, the Indenture Trustee shall mail copies of
such material to all Registered Noteholders of such Series or Class or all
Registered Noteholders, as the case may be, with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Indenture
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Notes, by receiving and holding the same,
agrees with the Issuer and the Indenture Trustee that neither the Issuer nor the
Indenture Trustee shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders of Notes in
accordance with Section 9.02(b), regardless of the source from which such
information was derived, and that the Indenture Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 9.02(b).
Section 9.03. REPORTS BY INDENTURE TRUSTEE.
(a) The term "reporting date" as used in this Section means
[ ]. Within sixty (60) days after the reporting date in each year, beginning in
2004, the Indenture Trustee shall transmit to Noteholders, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, a brief report
dated as of such reporting date if required by Section 313(a) of the Trust
Indenture Act.
(b) To the extent required by the Trust Indenture Act, the
Indenture Trustee shall mail each year to all Registered Noteholders, with a
copy to the Rating Agencies a report concerning:
(i) its eligibility and qualifications to continue as trustee
under this Indenture;
(ii) any amounts advanced by the Indenture Trustee under this
Indenture;
(iii) the amount, interest rate and maturity date or indebtedness
owing by the Issuer to the Indenture Trustee in the Indenture Trustee's
individual capacity;
(iv) the property and funds physically held by the Indenture
Trustee as Indenture Trustee;
(v) any release or release and substitution of Collateral
subject to the lien of this Indenture which has not previously been
reported; and
(vi) any action taken by the Indenture Trustee that materially
affects the Notes and that has not previously been reported.
(c) The Indenture Trustee shall comply with Sections 313(b) and
313(c) of the Trust Indenture Act.
(d) A copy of each such report shall, at the time of such
transmission to Noteholders, be filed by the Indenture Trustee with each stock
exchange upon which the Notes
65
are listed, and also with the Commission. The Issuer shall notify the Indenture
Trustee in writing when the Notes are admitted to trading on any stock exchange.
Section 9.04. MEETINGS OF NOTEHOLDERS; AMENDMENTS AND WAIVERS.
(a) The Indenture Trustee may call a meeting of the Noteholders
of a Series or Class at any time. The Indenture Trustee shall call a meeting
upon written request of the Issuer or the Holders of at least 10% in aggregate
Outstanding Dollar Principal Amount of the Outstanding Notes of such Series or
Class. In any case, a meeting shall be called after notice is given to the
Noteholders pursuant to Section 1.06.
(b) Except for any consent that must be given by the Holders of
each Outstanding Note affected or any action to be taken by the Issuer as holder
of the Collateral Certificate, any resolution presented at any meeting at which
a quorum is present may be adopted by the affirmative vote of the Majority
Holders of that Series or Class, as the case may be. However, any resolution
with respect to any consent, waiver, request, demand, notice, authorization,
direction or other action which may be given by the Holders of not less than a
specified percentage in aggregate Outstanding Dollar Principal Amount of
Outstanding Notes of a Series or Class or all Notes may be adopted at any
meeting at which a quorum is present only by the affirmative vote of the Holders
of not less than the specified percentage in aggregate Outstanding Dollar
Principal Amount of the Outstanding Notes of that Series or Class or all
Outstanding Notes, as the case may be. Any resolution passed or decision taken
at any meeting of Noteholders duly held in accordance with this Indenture shall
be binding on all Noteholders of the affected Series or Class.
(c) The quorum at any meeting shall be persons holding or
representing the Majority Holders of a Series or Class or all Notes, as the case
may be; provided, however, that if any action is to be taken at that meeting
concerning a consent, waiver, request, demand, notice, authorization, direction
or other action that may be given by the Holders of not less than a specified
percentage in aggregate Outstanding Dollar Principal Amount of the Outstanding
Notes of a Series or Class or all Notes, as applicable, the persons holding or
representing such specified percentage in aggregate Outstanding Dollar Principal
Amount of the Outstanding Notes of such Series or Class or all Notes shall
constitute a quorum.
(d) The ownership of Registered Notes shall be proved by the
Note Register. The Ownership of Bearer Notes shall be proved as provided in
Section 1.04(c)(ii).
(e) The Issuer may make reasonable rules for other matters
relating to action by or a meeting of Noteholders not otherwise covered by this
Section.
(f) Notes held by the Issuer or its Affiliates may not be
deemed outstanding for purposes of voting or calculating quorum at any meeting
of Noteholders.
Section 9.05. REPORTS BY ISSUER TO THE COMMISSION. The Issuer shall:
(a) file with the Indenture Trustee, within fifteen (15) days
after the Issuer is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the
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foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act; or,
if the Issuer is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the Indenture
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) file with the Indenture Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect
to compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(c) transmit by mail to all Registered Noteholders, as their
names and addresses appear in the Note Register, and notify all Holders of
Bearer Notes of such Series or Class, by publication of such notice in an
Authorized Newspaper or as otherwise provided in the applicable Indenture
Supplement, within thirty (30) days after the filing thereof with the
Indenture Trustee, such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to paragraphs (a) and (b) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
Section 9.06. REPORTS BY INDENTURE TRUSTEE. The Indenture Trustee shall
report to the Issuer with respect to the amount on deposit in the Accounts, and
the identity of the investments included therein, as the Issuer may from time to
time reasonably request in writing which, absent the occurrence of an Event of
Default hereunder, shall not occur more often than monthly.
Section 9.07. MONTHLY NOTEHOLDERS' STATEMENT. On each Transfer Date the
Issuer shall, in cooperation with the Servicer, complete and deliver to the
Indenture Trustee (with a copy to each Rating Agency) a Monthly Noteholders'
Statement.
ARTICLE X
INDENTURE SUPPLEMENTS; AMENDMENTS TO THE TRANSFER AND SERVICING
AGREEMENT AND AMENDMENTS TO THE TRUST AGREEMENT
Section 10.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
Without the consent of the Holders of any Notes, the Issuer and the Indenture
Trustee, at any time and from time to time, upon delivery of a Tax Opinion and
upon delivery by the Issuer to the Indenture Trustee of an Officer's Certificate
to the effect that the Issuer reasonably believes that such amendment will not,
and is not reasonably expected to, result in the occurrence of an Early
Amortization Event or Event of Default or will not have an Adverse Effect and is
not reasonably expected to have an Adverse Effect, may amend this Indenture or
any Indenture Supplement or
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enter into one or more supplemental indentures hereto or thereto, in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(a) to evidence the succession of another Entity to the Issuer,
and the assumption by any such successor of the covenants of the Issuer
herein and in the Notes; or
(b) to add to the covenants of the Issuer, or to surrender any
right or power herein conferred upon the Issuer for the benefit of the
Holders of the Notes of any or all Series or Classes (and if such covenants
or the surrender of such right or power are to be for the benefit of less
than all Series or Classes of Notes, stating that such covenants are
expressly being included or such surrenders are expressly being made solely
for the benefit of one or more specified Series or Classes); or
(c) to cure any ambiguity, to correct or 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
(d) to add to this Indenture such provisions as may be
expressly permitted by the Trust Indenture Act, excluding, however, the
provisions referred to in Section 3.16(a)(2) of the Trust Indenture Act as
in effect at the date as of which this Indenture was executed or any
corresponding provision in any similar federal statute hereafter enacted;
or
(e) to establish any form of Note, as provided in Article II,
and to provide for the issuance of any Series or Class of Notes as provided
in Article III and to set forth the terms thereof, and/or to add to the
rights of the Holders of the Notes of any Series or Class; or
(f) to evidence and provide for the acceptance of appointment
of a successor Indenture Trustee hereunder with respect to one or more
Series or Classes of Notes and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Indenture Trustee,
pursuant to Section 8.11; or
(g) if one or more additional Transferors under the Transfer
and Servicing Agreement are added to, or replaced under, the Transfer and
Servicing Agreement, or if one or more additional Originators under the
Receivables Purchase Agreements are added to, or replaced under, the
Receivables Purchase Agreements, or one or more additional Beneficiaries
under the Trust Agreement are added to, or replaced under, the Trust
Agreement, to make any necessary changes to the Indenture or any other
related document; or
(h) to provide for the additions of Collateral and the issuance
of Notes backed by any such additional Collateral; or
(i) to provide for additional or alternative credit enhancement
for any Class of Notes.
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Additionally, notwithstanding any provision of this Article X to the
contrary, this Indenture or any Indenture Supplement may be amended without the
consent of the Indenture Trustee or any of the Noteholders, upon delivery of a
Tax Opinion for the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, this Indenture or any Indenture
Supplement (which provisions do not affect the rights, duties, privileges or
immunities of the Indenture Trustee) or of modifying in any manner the rights of
the Holders of the Notes under this Indenture or any Indenture Supplement;
provided, however, that (i) the Issuer shall deliver to the Indenture Trustee
and the Owner Trustee an Officer's Certificate to the effect that the Issuer
reasonably believes that such amendment shall not result in the occurrence of an
Early Amortization Event or shall not have an Adverse Effect and is not
reasonably expected to have an Adverse Effect and (ii) the Rating Agencies have
provided written confirmation that such amendment shall not have a Ratings
Effect.
With the consent of CWRI, the Indenture or any Indenture Supplement may
also be amended without the consent of the Indenture Trustee or any Noteholders
for the purpose of (a) increasing the Reallocated Yield Percentage up to [ ]% or
(b) decreasing the Reallocated Yield Percentage, but not to less than 0.00%.
Section 10.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS. With
prior notice to each applicable Rating Agency and the consent of not less than
66 2/3% in Outstanding Dollar Principal Amount of each Class or Classes affected
by such amendment of this Indenture or any Indenture Supplement or any
supplemental indenture hereto or thereto by Act of said Holders delivered to the
Issuer and the Indenture Trustee, the Issuer and the Indenture Trustee, upon
delivery of an Tax Opinion, may enter into an amendment of this Indenture or
such Indenture Supplement for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this Indenture
or any Indenture Supplement or of modifying in any manner the rights of the
Holders of the Notes of each such Series or Class under this Indenture or any
Indenture Supplement; provided, however, that no such amendment or supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby:
(a) change the Interest Payment Date on any Note, or change a
Scheduled Final Payment Date or Legal Final Maturity Date of any Note;
(b) reduce the Stated Principal Amount of, or the interest rate
on any Note, or change the method of computing the Outstanding Dollar
Principal Amount, the Adjusted Outstanding Dollar Principal Amount or the
Collateral Amount in a manner that is adverse to the Holder of any Note;
(c) reduce the amount of a [Discount Note][Indexed Note]
payable upon the occurrence of an Early Amortization Event or other
optional or mandatory redemption or upon the acceleration of its Legal
Final Maturity Date;
(d) impair the right to institute suit for the enforcement of
any payment on any Note;
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(e) reduce the percentage in Outstanding Dollar Principal
Amount of the Outstanding Notes of any Series or Class, the consent of
whose Holders is required for any such Indenture Supplement, or the consent
of whose Holders is required for any waiver of compliance with the
provisions of this Indenture or of defaults hereunder and their
consequences, provided for in this Indenture;
(f) modify any of the provisions of this Section or Section
7.18, except to increase any percentage of Holders required to consent to
any such amendment or to provide that other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Note affected thereby;
(g) permit the creation of any Lien or other encumbrance on the
Collateral that secures any Class of Notes that is senior to the Lien in
favor of the Holders of the Notes of such Class;
(h) change any Place of Payment where any principal of, or
interest on, any Note is payable, unless otherwise provided in the
applicable Indenture Supplement;
(i) change the method of computing the amount of principal of,
or interest on, any Note on any date; or
(j) make any other amendment not permitted by Section 10.01.
An amendment of this Indenture or an Indenture Supplement which changes or
eliminates any covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular Series or Class
of Notes, or which modifies the rights of the Holders of Notes of such Series or
Class with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Notes of any other
Series or Class.
It will not be necessary for any Act of Noteholders under this Section to
approve the particular form of any proposed amendment or supplemental indenture,
but it will be sufficient if such Act shall approve the substance thereof.
Section 10.03. EXECUTION OF INDENTURE SUPPLEMENTS. In executing or
accepting the additional trusts created by any amendment of this Indenture or
Indenture Supplement or any supplemental indenture hereto or thereto permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Indenture Trustee shall be entitled to receive, and (subject to
Section 8.01) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such amendment or supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent
thereto have been satisfied. The Indenture Trustee may, but shall not (except to
the extent required in the case of an amendment or supplemental indenture
entered into under Section 10.01(d) or 10.01(f)) be obligated to, enter into any
such amendment or supplemental indenture which affects the Indenture Trustee's
own rights, duties or immunities under this Indenture or otherwise.
Section 10.04. EFFECT OF INDENTURE SUPPLEMENTS. Upon the execution of any
amendment of this Indenture or Indenture Supplement or any supplemental
indenture under this Article, this
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Indenture shall be modified in accordance therewith with respect to each Series
or Class of Notes affected thereby, or all Notes, as the case may be, and such
amendment or supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby to the extent provided therein.
Section 10.05. CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of this
Indenture or Indenture Supplement or any supplemental indenture executed
pursuant to this Article shall conform to the requirements of the Trust
Indenture Act as then in effect.
Section 10.06. REFERENCE IN NOTES TO INDENTURE SUPPLEMENTS. Notes
authenticated and delivered after the execution of any amendment of this
Indenture or Indenture Supplement or any supplemental indenture pursuant to this
Article may, and shall, if required by the Indenture Trustee, bear a notation in
form approved by the Indenture Trustee as to any matter provided for in such
amendment or supplemental indenture. If the Issuer shall so determine, new Notes
so modified as to conform, in the opinion of the Indenture Trustee and the
Issuer, to any such amendment or supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the Indenture Trustee
in exchange for Outstanding Notes.
[Section 10.07. AMENDMENTS TO THE TRANSFER AND SERVICING AGREEMENT. By
their acceptance of a Note, the Noteholders acknowledge that the Transferor, the
Servicer and Issuer may amend the Transfer and Servicing Agreement without the
consent of any Noteholder, so long as such amendment will not, as evidenced by
an Opinion of Counsel, materially adversely affect the interest of any
Noteholders.
The Servicer, the Transferor and the Issuer may amend the Transfer and
Servicing Agreement with the consent of the Holders of Notes evidencing not
less than 66 2/3% of the aggregate Outstanding Dollar Principal Amount of
the Notes of all adversely affected Series for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of the Transfer and Servicing Agreement or of modifying in any
manner the rights of Noteholders. No amendment, however, may:
(a) reduce in any manner the amount of or delay the timing of
distributions the Servicer is required to make to Noteholders or deposits
of amounts to be so distributed without the consent of each affected
Noteholder;
(b) change the definition or the manner of calculating the
interest on any Note without the consent of each affected Noteholder;
(c) reduce the amount available under any Enhancement without
the consent of each affected Noteholder;
(d) adversely affect the rating of any Series or Class by any
Rating Agency without the consent of the Noteholders of the Series or Class
evidencing not less than 66 2/3% of the aggregate Outstanding Dollar
Principal Amount of Notes of the Holders of the Series or Class; or
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(e) reduce that percentage of the Outstanding Dollar Principal
Amount of Notes the Holders of which are required to consent to any
amendment without the consent of each Noteholder.
Promptly following the execution of any amendment to the Transfer and
Servicing Agreement other than an amendment described in the preceding
paragraph, the Indenture Trustee shall notify each Noteholder in writing of the
substance of the amendment.
The Issuer, and Servicer and the Transferor may amend the Transfer and
Servicing Agreement without the consent of any Noteholder in any manner that:
(i) provides that funds in the Collection Account may be
invested in any Eligible Investments;
(ii) provides that the Transferor need not make any deposit to
the Collection Account in respect of the Repurchased Receivables price of
any Designated Receivables repurchased from the Issuer so long as the
Transferor Amount exceeds the Trust Available Subordinated Amount and the
Adjusted Pool Balance and the amounts in the Principal Funding Accounts
exceeds the Required Pool Balance on the date of the repurchase;
(iii) otherwise changes the procedures for removing Receivables
from the Issuer;
(iv) provides that, subject to the limitations set forth in the
Transfer and Servicing Agreement, Case Credit, in its capacity as Servicer,
need not deposit Collections with respect to any Collection Period in the
Collection Account until the related Payment Date;
(v) permits the designation of Automatic Additional Accounts;
or
(vi) provides for the conveyance to the Issuer of undivided
interests in the Receivables rather than the Receivables themselves.
The Transfer and Servicing Agreement may not be amended in any manner which
materially adversely affects the interests of any Enhancement provider without
its prior written consent.
Section 10.08. AMENDMENTS TO THE TRUST AGREEMENT.
(a) Subject to the provisions of the Trust Agreement, without
the consent of the Holders of any Notes or the Indenture Trustee, the Owner
Trustee (at the written direction of the Beneficiary) and the Beneficiary may
amend the Trust Agreement so long as such amendment shall not have an Adverse
Effect and is not reasonably expected to have an Adverse Effect at any time in
the future.
(b) Subject to the provisions of the Trust Agreement, (A) in
the case of a significant change in the permitted activities of the Issuer which
is not materially adverse to
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Holders of the Notes, with the consent of the Majority Holders of each Class or
Classes of Notes affected by such change, and (B) in all other cases, with the
consent of the Holders of not less than 66 2/3% in Outstanding Dollar Principal
Amount of each Class or Classes the Outstanding Notes affected by such
amendment, by Act of said Holders delivered to the Issuer, CWRI, the Servicer
and the Owner Trustee (at the written direction of the Beneficiary) may amend
the Trust Agreement for the purpose of adding, changing or eliminating any
provisions of the Trust Agreement or of modifying the rights of those
Noteholders.
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
Section 11.01. PAYMENT OF PRINCIPAL AND INTEREST. With respect to each
Series or Class of Notes, the Issuer shall duly and punctually pay the principal
of and interest on such Notes in accordance with their terms and this Indenture,
and shall duly comply with all the other terms, agreements and conditions
contained in, or made in this Indenture for the benefit of, the Notes of such
Series or Class.
Section 11.02. MAINTENANCE OF OFFICE OR AGENCY. The Issuer shall maintain
an office, agency or Paying Agent in each Place of Payment where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
transfer or exchange and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer shall give
prompt written notice to the Indenture Trustee of the location, and of any
change in the location, of such office or agency. If at any time the Issuer
shall fail to maintain such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Indenture Trustee, and the Issuer hereby appoints the Indenture Trustee its
agent to receive all such presentations, surrenders, notices and demands.
Section 11.03. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST. The Paying
Agent, on behalf of the Indenture Trustee, shall make distributions to
Noteholders from the Collection Account or other applicable Account pursuant to
the provisions of Article V of this Indenture or any Indenture Supplement and
shall report the amounts of such distributions to the Indenture Trustee. Any
Paying Agent shall have the revocable power to withdraw funds from the
Collection Account or other applicable Account for the purpose of making the
distributions referred to above. 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 has failed to perform its obligations under
this Indenture or any Indenture Supplement in any material respect. The Paying
Agent upon removal shall return all funds in its possession to the Indenture
Trustee.
The Issuer shall cause each Paying Agent (other than the Indenture Trustee)
for any Series or Class of Notes to execute and deliver to the Indenture Trustee
an instrument in which such Paying Agent shall agree with the Indenture Trustee
(and if the Indenture Trustee acts as Paying Agent, it so agrees), subject to
the provisions of this Section, that such Paying Agent shall:
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(a) hold all sums held by it for the payment of principal of or
interest on Notes of such Series or Class 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;
(b) if such Paying Agent is not the Indenture Trustee, give the
Indenture Trustee notice of any default by the Issuer (or any other obligor
upon the Notes of such Series or Class) in the making of any such payment
of principal or interest on the Notes of such Series or Class;
(c) if such Paying Agent is not the Indenture Trustee, 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, if such Paying
Agent is not the Indenture Trustee, forthwith pay to the Indenture Trustee
all sums held by it in trust for the payment of Notes if at any time it
ceases to meet the standards described in this Section required to be met
by a Paying Agent at the time of its appointment; and
(e) comply with all requirements of the Internal Revenue Code
with respect to the withholding from any payments made by it on any Notes
of any applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture with respect to any Series or Class of Notes or
for any other purpose, pay, or by an Officer's Certificate direct any Paying
Agent to pay, to the Indenture Trustee all sums held in trust by the Issuer or
such Paying Agent in respect of each and every Series or Class of Notes as to
which it seeks to discharge this Indenture or, if for any other purpose, all
sums so held in trust by the Issuer in respect of all Notes, such sums to be
held by the Indenture Trustee upon the same trusts as those upon which such sums
were held by the Issuer or such Paying Agent; and, upon such payment by any
Paying Agent to the Indenture Trustee, such Paying Agent shall be released from
all further liability with respect to such money.
Any money deposited with the Indenture Trustee or any Paying Agent, or then
held by the Issuer, in trust for the payment of the principal of or interest on
any Note of any Series or Class and remaining unclaimed for two years after such
principal or interest has become due and payable shall be paid to the Issuer
upon request in an Officer's Certificate, or (if then held by the Issuer) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Issuer for payment thereof, and
all liability of the Indenture Trustee or such Paying Agent with respect to such
trust money, and all liability of the Issuer as trustee thereof, shall thereupon
cease. The Indenture Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Issuer give notice to the Holders
of the Notes as to which the money to be repaid was held in trust, as provided
in Section 1.06, a notice that such funds remain unclaimed and that, after a
date specified in the notice, which shall not be less than thirty (30) days from
the date on which the notice was first mailed or published to the Holders of the
Notes as to which the money to be repaid was held in
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trust, any unclaimed balance of such funds then remaining shall be paid to the
Issuer free of the trust formerly impressed upon it.
The Issuer initially authorizes the Indenture Trustee to act as Paying
Agent for the Notes on its behalf. The Issuer may at any time and from time to
time authorize one or more Persons (including the Indenture Trustee) to act as
Paying Agent in addition to or in place of the Indenture Trustee with respect to
any Series or Class of Notes issued under this Indenture.
Each Paying Agent shall at all times have a combined capital and surplus of
at least $50,000,000 and be subject to supervision or examination by a United
States federal or state authority or be regulated by or subject to the
supervision or examination of a governmental authority of a nation that is
member of the Organization for Economic Co-operation and Development. If such
Paying Agent publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Paying Agent shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition as so published.
Section 11.04. STATEMENT AS TO COMPLIANCE. The Issuer shall deliver to the
Indenture Trustee and the Rating Agencies, on or before April 30 of each year,
beginning in 2004, a written statement signed by an Issuer Authorized Officer
stating that:
(a) a review of the activities of the Issuer during the prior
year and of the Issuer's performance under this Indenture and under the
terms of the Notes has been made under such Issuer Authorized Officer's
supervision; and
(b) to the best of such Issuer Authorized Officer's knowledge,
based on such review, the Issuer has complied in all material respects with
all conditions and covenants under this Indenture throughout such year, or,
if there has been a default in the fulfillment of any such condition or
covenant (without regard to any grace period or requirement of notice),
specifying each such default known to such Issuer Authorized Officer and
the nature and status thereof.
Section 11.05. LEGAL EXISTENCE. The Issuer shall do or cause to be done all
things necessary to preserve and keep in full force and effect its legal
existence.
Section 11.06. FURTHER INSTRUMENTS AND ACTS. Upon request of the Indenture
Trustee, the Issuer shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
Section 11.07. COMPLIANCE WITH LAWS. The Issuer shall comply with the
requirements of all applicable laws, the noncompliance with which would,
individually or in the aggregate, materially and adversely affect the ability of
the Issuer to perform its obligations under the Notes or this Indenture.
Section 11.08. NOTICE OF EVENTS OF DEFAULT. The Issuer agrees to give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder and
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each default on the part of the Servicer or the Transferor of their respective
obligations under the Transfer and Servicing Agreement and any default of an
Enhancement Provider.
Section 11.09. CERTAIN NEGATIVE COVENANTS. The Issuer shall not:
(a) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than amounts
withheld in good faith from such payments under the Internal Revenue Code
or other applicable tax law);
(b) permit the validity or effectiveness of this Indenture to
be impaired, or permit the lien in favor of the Indenture Trustee, the
Noteholders and any applicable Enhancement Provider created by this
Indenture to be amended, hypothecated, subordinated, terminated or
discharged, or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture except as may be
expressly permitted hereby;
(c) permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien in favor of the
Indenture Trustee, the Noteholders and any applicable Enhancement Provider
created by this Indenture) to be created on or extend to or otherwise arise
upon or burden the Collateral or any part thereof or any interest therein
or the proceeds thereof; or
(d) permit the lien in favor of the Indenture Trustee, the
Noteholders and any applicable Enhancement Provider created by this
Indenture not to constitute a valid first priority security interest in the
Collateral; or
(e) voluntarily dissolve or liquidate.
Section 11.10. NO OTHER BUSINESS. The Issuer shall not engage in any
business other than as permitted under the Trust Agreement.
Section 11.11. NO BORROWING. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness for borrowed money except for the Notes.
Section 11.12. RULE 144A INFORMATION. For so long as any of the Notes of
any Series or Class are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Exchange Act, the Issuer agrees to provide to any
Noteholder of such Series or Class and to any prospective purchaser of Notes
designated by such Noteholder, upon the request of such Noteholder 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 Exchange Act.
Section 11.13. PERFORMANCE OF OBLIGATIONS.
(a) The Issuer shall not take any action and shall use its
reasonable best efforts not to permit any action to be taken by others that
would release any Person from any of such Person's material covenants or
obligations under any instrument or agreement included in
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the Collateral or that would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the validity or
effectiveness of, any such instrument or agreement, except as expressly provided
in this Indenture, the Trust Agreement or such other instrument or agreement.
(b) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this Indenture, any Indenture
Supplement, the Trust Agreement and in the instruments and agreements relating
to the Collateral, including but not limited to filing or causing to be filed
all UCC financing statements and continuation statements required to be filed by
the terms of this Indenture and the Trust Agreement in accordance with and
within the time periods provided for herein and therein. Except as otherwise
expressly provided herein or therein, the Issuer shall not waive, amend, modify,
supplement or terminate this Indenture, any Indenture Supplement or the Trust
Agreement or any provision thereof without the consent of the Holders of a
majority of the Outstanding Amount of the Notes of each adversely affected
Series or Class.
(c) 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 (i) that it shall not,
without the prior written consent of the Indenture Trustee and a majority in
Outstanding Amount of the Notes of each affected Series or Class, amend, modify,
waive, supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms of any
Collateral (except to the extent otherwise provided in this Indenture or the
Trust Agreement), or waive timely performance or observance by the Servicer of
its obligations under the Transfer and Servicing Agreement; and (ii) that any
such amendment, modification, waiver, supplement, termination or surrender shall
not (A) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on the Receivables or distributions that
are required to be made for the benefit of the Noteholders or (B) reduce the
aforesaid percentage of the Notes that is required to consent to any such
amendment, modification, waiver, supplement, termination or surrender without
the consent of the Holders of all the Outstanding Notes. If any such amendment,
modification, waiver, supplement, termination or surrender shall be so consented
to by the Indenture Trustee and such Noteholders, the Issuer agrees to execute
and deliver, in its own name and at its own expense, such agreements,
instruments, consents and other documents as are necessary or appropriate in the
circumstances.
Section 11.14. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
(a) The Issuer shall not consolidate or merge with or into any
other Person, unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger (i) shall be a Person
organized and existing under the laws of the United States of
America or any state or the District of Columbia, (ii) shall not be
subject to regulation as an "investment company" under the
Investment Company Act and (iii) shall expressly assume, by an
Indenture Supplement, executed and delivered to the Indenture
Trustee, in a form satisfactory to the Indenture Trustee, the due
and punctual payment of the
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principal of and interest on all Notes and the performance of every
covenant of this Indenture on the part of the Issuer to be
performed or observed;
(ii) immediately after giving effect to such transaction,
no Event of Default or Early Amortization Event shall have occurred
and be continuing;
(iii) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each
stating that (i) such consolidation or merger and such Indenture
Supplement comply with this Section 11.14, (ii) all conditions
precedent in this Section 11.14 relating to such transaction have
been complied with (including any filing required by the Securities
Exchange Act), and (iii) such Indenture Supplement is duly
authorized, executed and delivered and is valid, binding and
enforceable against such person;
(iv) the Issuer shall have received written confirmation
from each Rating Agency that there shall be no Ratings Effect with
respect to any Outstanding Notes as a result of such consolidation
or merger;
(v) the Issuer shall have received an external Opinion
of Counsel (and shall have delivered copies thereof to the
Indenture Trustee) to the effect that such transaction shall not
have any material adverse tax consequence to any Noteholder;
(vi) any action that is necessary to maintain the lien
and security interest created by this Indenture shall have been
taken; and
(vii) such action shall not be contrary to the status of
the Issuer as a qualified special purpose entity under existing
accounting literature.
(b) The Issuer shall not convey or transfer any of its
properties or assets, including those included in the Collateral,
substantially as an entirety to any Person, unless:
(i) the Person that acquires by conveyance or transfer
the properties and assets of the Issuer the conveyance or transfer
of which is hereby restricted shall (A) be a United States citizen
or a Person organized and existing under the laws of the United
States of America or any state, or the District of Columbia, (B)
expressly assume, by an Indenture Supplement, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the due and punctual payment of the principal of
and interest on all Notes and the performance or observance of
every agreement and covenant of this Indenture on the part of the
Issuer to be performed or observed, all as provided herein, (C)
expressly agree by means of such Indenture Supplement that all
right, title and interest so conveyed or transferred shall be
subject and subordinate to the rights of Holders of the Notes, (D)
unless otherwise provided in such Indenture Supplement, expressly
agree to indemnify, defend and hold harmless the Issuer against and
from any loss, liability or expense arising under or related to
this Indenture and the Notes, (E) expressly agree by means of such
Indenture
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Supplement that such Person (or if a group of Persons, then one
specified Person) shall make all filings with the Commission (and
any other appropriate Person) required by the Securities Exchange
Act in connection with the Notes and (F) not be an "investment
company" as defined in the Investment Company Act;
(ii) immediately after giving effect to such transaction,
no Event of Default or Early Amortization Event shall have occurred
and be continuing;
(iii) the Issuer shall have received written confirmation
from each Rating Agency that there shall be no Ratings Effect with
respect to any Outstanding Notes as a result of such conveyance or
transfer;
(iv) the Issuer shall have received an external Opinion
of Counsel (and shall have delivered copies thereof to the
Indenture Trustee) to the effect that such transaction shall not
have any material adverse tax consequence to any Noteholder;
(v) any action that is necessary to maintain the lien
and security interest created by this Indenture shall have been
taken; and
(vi) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each
stating that such conveyance or transfer and such Indenture
Supplement comply with this Section 11.14 and that all conditions
precedent herein provided for relating to such transaction have
been complied with (including any filing required by the Securities
Exchange Act).
Section 11.15. SUCCESSOR SUBSTITUTED. Upon any consolidation or merger, or
any conveyance or transfer of the properties and assets of the Issuer
substantially as an entirety in accordance with Section 11.14 hereof, the Person
formed by or surviving such consolidation or merger (if other than the Issuer)
or the Person to which such conveyance or transfer is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such Person had been named as the
Issuer herein. In the event of any such conveyance or transfer, the Person named
as the Issuer in the first paragraph of this Indenture or any successor which
shall theretofore have become such in the manner prescribed in this Section
11.15 shall be released from its obligations under this Indenture as issued
immediately upon the effectiveness of such conveyance or transfer, provided that
the Issuer shall not be released from any obligations or liabilities to the
Indenture Trustee or the Noteholders arising prior to such effectiveness.
Section 11.16. GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Except as
contemplated by this Indenture or the Trust Agreement, the Issuer shall not make
any loan or advance or credit to, or guarantee (directly or indirectly or by an
instrument having the effect of assuring another's payment or performance on any
obligation or capability of so doing or otherwise), endorse or otherwise become
contingently liable, directly or indirectly, in connection with the obligations,
stocks or dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any stock, obligations, assets or securities of, or any
other interest in, or make any capital contribution to, any other Person.
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Section 11.17. CAPITAL EXPENDITURES. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 11.18. RESTRICTED PAYMENTS. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or security
in or of the Issuer or to the Servicer, (ii) redeem, purchase, retire or
otherwise acquire for value any such ownership or equity interest or security or
(iii) set aside or otherwise segregate any amounts for any such purpose;
provided, however, that the Issuer may make, or cause to be made, (x)
distributions as contemplated by, and to the extent funds are available for such
purpose under, the Trust Agreement and (y) payments to the Indenture Trustee
pursuant to Section 8.07 hereof. The Issuer shall not, directly or indirectly,
make payments to or distributions from the Collection Account except in
accordance with this Indenture or any Indenture Supplement.
Section 11.19. REPRESENTATIONS AND WARRANTIES AS TO THE SECURITY INTEREST
OF THE INDENTURE TRUSTEE IN THE Collateral. The Issuer makes the following
representations and warranties to the Indenture Trustee. The representations and
warranties speak as of the execution and delivery of this Indenture and as of
the issuance date of each Series of Notes and shall survive the pledge of the
Collateral to the Indenture Trustee pursuant to this Indenture.
(a) This Indenture creates a valid and continuing security
interest (as defined in the UCC) in the Collateral in favor of the Indenture
Trustee, which security interest is prior to all other liens and security
interests, and is enforceable as such as against creditors of and purchasers
from the Issuer.
(b) The Issuer owns and has good and marketable title to the
Collateral free and clear of any Lien, claim or encumbrance of any Person (other
than the Indenture Trustee).
(c) The Issuer has caused or shall have caused, within ten days
after the date of execution of this Indenture, the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest in
the Collateral granted to the Issuer hereunder.
(d) Other than the security interest granted to the Indenture
Trustee pursuant to this Indenture, the Issuer has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Collateral. The
Issuer has not authorized the filing of and is not aware of any financing
statements against the Issuer that include a description of collateral covering
the Collateral other than any financing statement relating to the security
interest granted to the Indenture Trustee hereunder or that has been terminated.
The Issuer is not aware of any judgment or tax lien filings against it.
ARTICLE XII
EARLY REDEMPTION OF NOTES
Section 12.01. APPLICABILITY OF ARTICLE. Unless otherwise specified in the
applicable Indenture Supplement related to a Series or Class of Notes, pursuant
to the terms of this Article,
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the Issuer shall pay, provided that funds are available, Monthly Principal to
Holders of each affected Series or Class of Notes upon the occurrence of any
Early Amortization Event. Unless otherwise specified in the applicable Indenture
Supplement relating to a Series or Class of Notes, or in the form of Notes for
such Series or Class, the following are "Early Amortization Events":
(a) the occurrence of an Insolvency Event relating to the
Transferor or an Originator;
(b) the Issuer or the Transferor becomes an investment company
within the meaning of the Investment Company Act; or
(c) with respect to any Series or Class of Notes, any
additional Early Amortization Event specified in the Indenture Supplement
for such Series or Class as applying to such Series or Class.
On each Monthly Principal Accrual Date following the end of the Monthly
Period in which the Early Amortization Event occurs, Monthly Principal payments
on such Class of Notes shall thereafter be made on each following Monthly
Principal Accrual Date until the Outstanding Dollar Principal Amount of such
Class, plus all accrued and unpaid interest, is paid in full or the Legal Final
Maturity Date occurs, whichever is earlier, subject to Article V, Article VII
and the allocations, deposits and payments provisions of the related Indenture
Supplement. Any funds in any Supplemental Account for a redeemed Class shall be
applied to make the principal and interest payments on that Class on the
redemption date, subject to Article V, Article VII and the allocations, deposits
and payments sections of the related Indenture Supplement. Principal payments on
redeemed Classes shall be made first to the senior-most Notes until paid in
full, then to the subordinated Notes, if any, until paid in full.
Section 12.02. OPTIONAL REPURCHASE. Unless otherwise provided in the
applicable Indenture Supplement for a Series or Class of Notes, the Servicer has
the right, but not the obligation, to redeem a Series or Class of Notes in whole
but not in part on any day on or after the day on which the aggregate Collateral
Amount of such Series or Class is reduced to less than 10% of its Initial Dollar
Principal Amount; provided, however, that if such Series or Class of Notes is of
a subordinated Class, the Servicer shall not redeem such Notes if the provisions
of the related Indenture Supplement would prevent the payment of such
subordinated Note until a level of prefunding of the principal funding
sub-accounts for the senior Classes of Notes for that Series has been reached
such that the amount of such deficiency in the required subordination of a
senior Class of Notes is no longer required to provide subordination protection
for the senior Classes of that Series. If the Servicer elects to redeem a Series
or Class of Notes, it shall cause the Issuer to notify the Holders of such
redemption at least thirty (30) days prior to the redemption date. The
redemption price of a Series or Class so redeemed shall equal the Outstanding
Dollar Principal Amount of such Class, plus interest accrued and unpaid or
principal accreted and unpaid on such Class to but excluding the date of
redemption, the payment of which shall be subject to Article V, Article VII and
the allocations, deposits and payments provisions of the related Indenture
Supplement.
If the [Servicer] is unable to pay the redemption price in full on the
redemption date, monthly payments on such Class of Notes shall thereafter be
made until the Outstanding Dollar
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Principal Amount of such Class, plus all accrued and unpaid interest, is paid in
full or the Legal Final Maturity Date occurs, whichever is earlier, subject to
Article V, Article VII and the allocations, deposits and payments provisions of
the related Indenture Supplement. Any funds in any Supplemental Account for a
redeemed Class shall be applied to make the principal and interest payments on
that Class on the redemption date in accordance with the related Indenture
Supplement. Principal payments on redeemed Classes shall be made in accordance
with the related Indenture Supplement.
Section 12.03. NOTICE. Promptly after the occurrence of a redemption
pursuant to Section 12.02, the Issuer shall notify the Indenture Trustee and the
Rating Agencies in writing of the identity, Stated Principal Amount and
Outstanding Dollar Principal Amount of the affected Series or Class of Notes to
be redeemed. Notice of redemption shall promptly be given as provided in Section
1.06. All notices of redemption shall state (a) the date on which the redemption
of the applicable Series or Class of Notes pursuant to this Article shall begin,
which shall be the Principal Payment Date next following the end of the Monthly
Period in which the applicable redemption pursuant to Section 12.02 occurs, (b)
the redemption price for such Series or Class of Notes, which shall be equal to
the Outstanding principal amount of such Series or Class plus interest accrued
or principal accreted and unpaid (if any), the payment of which shall be subject
to Article V, Article VII and the allocations, deposits and payments provisions
of the related Indenture Supplement and (c) the Series or Class of Notes to be
redeemed pursuant to this Article.
ARTICLE XIII
COLLATERAL
Section 13.01. RECORDING, ETC.
(a) The Issuer intends the Security Interest granted pursuant
to this Indenture in favor of the Indenture Trustee to be prior to all other
liens in respect of the Collateral. Subject to Section 13.03, the Issuer shall
take all actions necessary to obtain and maintain a perfected lien on and
security interest in the Collateral in favor of the Indenture Trustee. The
Issuer shall from time to time execute or authorize and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
all as prepared by the Issuer, and shall take such other action necessary or
advisable to:
(i) grant a Security Interest more effectively in all or any
portion of the Collateral;
(ii) maintain or preserve the Security Interest (and the
priority thereof) created by this Indenture or carry out more effectively
the purposes hereof;
(iii) perfect, publish notice of or protect the validity of any
grant made or to be made by this Indenture;
(iv) enforce the Enhancement Agreements and each other
instrument or agreement included in the Collateral;
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(v) preserve and defend title to the Collateral and the rights
of the Indenture Trustee in such Collateral against the claims of all
persons and parties; or
(vi) pay all taxes or assessments levied or assessed upon the
Collateral when due.
(b) The Issuer shall from time to time promptly pay and
discharge all financing and continuation statement recording and/or filing fees,
charges and taxes relating to this Indenture, any amendments thereto and any
other instruments of further assurance. The Issuer hereby designates the
Indenture Trustee its agent and attorney- in-fact to execute upon the Issuer's
failure to do so, any financing statement, continuation statement or other
instrument required by the Indenture Trustee pursuant to this Section.
(c) Without limiting the generality of clauses (a)(ii) or
(a)(iii):
(i) The Issuer shall cause this Indenture, all amendments and
supplements hereto and/or all financing statements and continuation
statements and any other necessary documents covering the Indenture
Trustee's right, title and interest to the Collateral to be promptly
recorded, registered and filed, and at all times to be kept, recorded,
registered and filed, all in such manner and in such places as may be
required by law fully to preserve and protect the right, title and interest
of the Indenture Trustee to all property comprising the Collateral. The
Issuer shall deliver to the Indenture Trustee file-stamped copies of, or
filing receipts for, any document recorded, registered or filed as provided
above, as soon as available following such recording, registration or
filing.
(ii) Within 30 days after the Issuer makes any change in its
name, identity or corporate structure which would make any financing
statement or continuation statement filed in accordance with paragraph
(d)(i) seriously misleading within the meaning of Section 9-506, 9-507 or
9-508 (or any comparable provision) of the UCC, the Issuer shall give the
Indenture Trustee notice of any such change and shall file such financing
statements or amendments as may be necessary to continue the perfection of
the Indenture Trustee's security interest in the Collateral.
(iii) The Issuer shall give the Indenture Trustee prompt notice
of any relocation of its chief executive office, place of business or State
of location, and any change in the jurisdiction of its organization, and
whether, as a result of such relocation or change, the applicable provision
of the UCC would require the filing of any amendment of any previously
filed financing or continuation statement or of any new financing statement
and shall file such financing statements or amendments as may be necessary
to perfect or to continue the perfection of the Indenture Trustee's
security interest in the Collateral. The Issuer shall at all times maintain
its chief executive office within the United States.
(b) The duty of the Indenture Trustee to execute any instrument
required pursuant to this Section shall arise only if the Indenture Trustee
has knowledge of the type described in Section 7.01(c) of any default of
the Issuer in complying with the provisions of this Section.
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Section 13.02. TRUST INDENTURE ACT REQUIREMENTS. The release of any
Collateral from the lien created by this Indenture or the release of, in whole
or in part, such liens, shall not be deemed to impair the Security Interests in
contravention of the provisions hereof if and to the extent the Collateral or
liens are released pursuant to the terms hereof. The Indenture Trustee and each
of the Noteholders and any applicable Enhancement Provider acknowledge that a
release of Collateral or liens in accordance with the terms hereof shall not be
deemed for any purpose to be an impairment of the Security Interests in
contravention of the terms of this Indenture. To the extent applicable, without
limitation, the Issuer and each other obligor on the Notes shall cause Trust
Indenture Act Section 314(d) relating to the release of property or securities
from the liens hereof to be complied with. Any certificate or opinion required
by Trust Indenture Act Section 314(d) may be made by an officer of the
appropriate obligor, except in cases in which Trust Indenture Act Section 314(d)
requires that such certificate or opinion be made by an independent person.
Section 13.03. SUITS TO PROTECT THE COLLATERAL. Subject to the provisions
of this Indenture, the Indenture Trustee shall have power to institute and to
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral by any acts which may be unlawful or in violation
of this Indenture, and such suits and proceedings as the Indenture Trustee may
deem expedient to preserve or protect the interests of the Noteholders and any
applicable Enhancement Provider and the interests of the Indenture Trustee and
the Holders of the Notes in the Collateral (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance with
any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the Security Interests or be
prejudicial to the interests of the Holders of the Notes or the Indenture
Trustee). No counterparties to an Enhancement Agreement may direct the Indenture
Trustee to enforce the Security Interest. Each Enhancement Provider's rights
consist solely of the right to receive collections allocated for its benefit
pursuant to the related Indenture Supplement.
Section 13.04. PURCHASER PROTECTED. In no event shall any purchaser in good
faith of any property purported to be released hereunder be bound to ascertain
the authority of the Indenture Trustee to execute the release or to inquire as
to the satisfaction of any conditions required by the provisions hereof for the
exercise of such authority or to see to the application of any consideration
given by such purchaser or other transferee; nor shall any purchaser or other
transferee of any property or rights permitted by this Article to be sold be
under any obligation to ascertain or inquire into the authority of the Issuer or
any other obligor, as applicable, to make any such sale or other transfer.
Section 13.05. POWERS EXERCISABLE BY RECEIVER OR TRUSTEE. In case the
Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article upon the Issuer or any other
obligor, as applicable, with respect to the release, sale or other disposition
of such property may be exercised by such receiver or trustee, and an instrument
signed by such receiver or trustee shall be deemed the equivalent of any similar
instrument of the Issuer or any other obligor, as applicable, or of any officer
or officers thereof required by the provisions of this Article.
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Section 13.06. DETERMINATIONS RELATING TO COLLATERAL. In the event (i) the
Indenture Trustee shall receive any written request from the Issuer or any other
obligor for consent or approval with respect to any matter or thing relating to
any Collateral or the Issuer's or any other obligor's obligations with respect
thereto or (ii) there shall be due to or from the Indenture Trustee under the
provisions hereof any performance or the delivery of any instrument or (iii) the
Indenture Trustee shall become aware of any nonperformance by the Issuer or any
other obligor of any covenant or any breach of any representation or warranty of
the Issuer or any other obligor set forth in this Indenture, then, in each such
event, the Indenture Trustee shall be entitled to hire experts, consultants,
agents and attorneys to advise the Indenture Trustee on the manner in which the
Indenture Trustee should respond to such request or render any requested
performance or response to such nonperformance or breach (the expenses of which
shall be reimbursed to the Indenture Trustee pursuant to Section 8.07). The
Indenture Trustee shall be fully protected in the taking of any action
recommended or approved by any such expert, consultant, agent or attorney or
agreed to by the Majority Holders of the Outstanding Notes.
Section 13.07. RELEASE OF COLLATERAL.
(a) Subject to the payment of its fees and expenses pursuant to
Section 8.07, the Indenture Trustee shall, at the request of the Issuer or when
otherwise 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 which are
not inconsistent with the provisions of this Indenture. No party relying upon an
instrument executed by the Indenture Trustee as provided in this Article shall
be bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any funds.
(b) Upon delivery of an Officer's Certificate certifying that
the Issuer's obligations under this Indenture have been satisfied and discharged
by complying with the provisions of this Article, the Indenture Trustee shall
(i) execute and deliver such releases, termination statements and other
instruments (in recordable form, where appropriate) as the Issuer or any other
obligor, as applicable, may reasonably request evidencing the termination of the
Security Interests created by this Indenture and (ii) not to be deemed to hold
the Security Interests for the benefit of the Indenture Trustee, the Noteholders
and any applicable Enhancement Provider.
(c) CWRI and the Noteholders shall be entitled to receive at
least ten (10) days written notice of any action pursuant to clause (a),
accompanied by copies of any instruments involved, and the Indenture Trustee
shall also be entitled to require, as a condition to such action, an Opinion of
Counsel, stating the legal effect of any such action, outlining the steps
required to complete the same, and concluding that all conditions precedent to
the taking of such action have been complied with. 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.
Section 13.08. CERTAIN ACTIONS BY INDENTURE TRUSTEE. Any action taken by
the Indenture Trustee pursuant to this Article in respect of the release of
Collateral shall be taken by the
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Indenture Trustee as its interest in such Collateral may appear, and no
provision of this Article is intended to, or shall, excuse compliance with any
provision hereof.
Section 13.09. OPINIONS AS TO COLLATERAL.
(a) On the Effective Date, the Issuer shall furnish to the
Indenture Trustee an Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the recording and
filing of this Indenture, 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 perfect
and maintain the perfection of the Security Interest granted by this Indenture
in favor of the Indenture Trustee and reciting the details of such action, or
stating that, in the opinion of such counsel, no such action is necessary to
make such lien and security interest perfected.
(b) On or before March 31 in each calendar year, beginning in
2004, the Issuer shall furnish to the Indenture Trustee an external Opinion of
Counsel with respect to each Uniform Commercial Code financing statement which
has been filed by the Issuer either stating that, (i) in the opinion of such
counsel, such action has been taken with respect to the recording, filing,
re-recording and refilling of this Indenture, any indentures supplemental hereto
and any other requisite documents and with respect to the execution and filing
of any financing statements and continuation statements as is necessary to
maintain the first priority lien and Security Interest created by this Indenture
and reciting the details of such action or (ii) in the opinion of such counsel
no such action is necessary to maintain such lien and Security Interest. Such
Opinion of Counsel shall also describe the recording, filing, re-recording and
refilling of this Indenture, any indentures supplemental hereto and any other
requisite documents and the execution and filing of any financing statements and
continuation statements that shall, in the opinion of such counsel, be required
to maintain the lien and Security Interest of this Indenture until March 31 in
the following calendar year.
Section 13.10. DELEGATION OF DUTIES. The Issuer may contract with or
appoint other Persons (including CWRI and its Affiliates) 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
shall be deemed to be action taken by the Issuer.
ARTICLE XIV
MISCELLANEOUS
Section 14.01. NO PETITION. The Indenture Trustee, by entering into this
Indenture, each Enhancement Provider, by designating that the obligations of the
Issuer pursuant to the applicable Enhancement Agreement, as applicable are
secured by the Collateral, and each Noteholder, by accepting a Note, agrees that
it shall not at any time institute against CWRI or the Issuer, or join in any
institution against CWRI or 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 Notes, this Indenture or any Enhancement
Agreement.
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Section 14.02. TRUST OBLIGATIONS. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer on the Notes or under
this Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) the Owner Trustee in its individual capacity,
(ii) any owner of a beneficial interest in the Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director, employee or agent of the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer or the Owner Trustee or of any successor or assign of the Owner Trustee
in its individual capacity, except as any such Person may have expressly agreed
(it being understood that the Owner Trustee has no such obligations in its
individual capacity).
Section 14.03. LIMITATIONS ON LIABILITY.
(a) It is expressly understood and agreed by the parties hereto
that (i) this Indenture is executed and delivered by the Beneficiary not
individually or personally but solely as Beneficiary, in the exercise of the
powers and authority conferred and vested in it, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as a personal representation, undertaking or
agreement by the Beneficiary but is made and intended for the purpose of binding
only the Issuer, (iii) nothing herein contained shall be construed as creating
any liability on the Beneficiary individually or personally, to perform any
covenant of the Issuer either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties to this Indenture and
by any Person claiming by, through or under them and (iv) under no circumstances
shall the Beneficiary be personally liable for the payment of any indebtedness
or expenses of the Issuer or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
Issuer under this Indenture or any related documents.
(b) None of the Indenture Trustee, the Owner Trustee, CWRI or
any other beneficiary of the Issuer or any of their respective officers,
directors, employers or agents shall have any liability with respect to this
Indenture, and recourse may be had solely to the Collateral pledged to secure
the Notes issued by the Issuer.
Section 14.04. TAX TREATMENT. The Issuer and the Noteholders agree that the
Notes are intended to be debt of the Issuer for federal, state and local income,
franchise and single business tax purposes and agree to treat the Notes
accordingly for all such purposes, unless otherwise required by a taxing
authority.
Section 14.05. ACTIONS TAKEN BY THE ISSUER. Any and all actions that are to
be taken by the Issuer may be taken by either the Beneficiary or the Owner
Trustee on behalf of the Issuer.
Section 14.06. TERMINATION OF ISSUER. The Issuer and the respective
obligations and responsibilities of the Indenture Trustee created hereby (other
than the obligation of the Indenture Trustee to make payments to Noteholders as
hereinafter set forth) shall terminate, except with respect to the duties
described in Section 14.08(b), as provided in the Trust Agreement.
Section 14.07. FINAL DISTRIBUTION.
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(a) The Servicer shall give the Indenture Trustee at least
thirty (30) days prior written notice of the Payment Date on which the
Noteholders of any Series or Class may surrender their Notes for payment of the
final distribution on and cancellation of such Notes. Not later than the fifth
day of the month in which the final distribution in respect of such Series or
Class is payable to Noteholders, the Indenture Trustee shall provide notice to
Noteholders of such Series or Class specifying (i) the date upon which final
payment of such Series or Class shall be made upon presentation and surrender of
Notes of such Series or Class at the office or offices therein designated, (ii)
the amount of any such final payment and (iii) that the Record Date otherwise
applicable to such payment date is not applicable, payments being made only upon
presentation and surrender of such Notes at the office or offices therein
specified (which, in the case of Bearer Notes, shall be outside the United
States). The Indenture Trustee shall give such notice to the Note Registrar and
the Paying Agent at the time such notice is given to Noteholders.
(b) Notwithstanding a final distribution to the Noteholders of
any Series or Class (or the termination of the Issuer), except as otherwise
provided in this paragraph, all funds then on deposit in any Account allocated
to such Noteholders shall continue to be held in trust for the benefit of such
Noteholders, and the Paying Agent or the Indenture Trustee shall pay such funds
to such Noteholders upon surrender of their Notes, if certificated. In the event
that all such Noteholders shall not surrender their Notes for cancellation
within six (6) months after the date specified in the notice from the Indenture
Trustee described in paragraph (a), the Indenture Trustee shall give a second
notice to the remaining such Noteholders to surrender their Notes for
cancellation and receive the final distribution with respect thereto (which
surrender and payment, in the case of Bearer Notes, shall be outside the United
States). If within one year after the second notice all such Notes shall not
have been surrendered for cancellation, the Indenture Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining such Noteholders concerning surrender of their Notes, and the cost
thereof shall be paid out of the funds in the Collection Account or any
Supplemental Account held for the benefit of such Noteholders. The Indenture
Trustee and the Paying Agent shall pay to the Issuer any monies held by them for
the payment of principal or interest that remains unclaimed for two (2) years.
After payment to the Issuer, Noteholders entitled to the money must look to the
Issuer for payment as general creditors unless an applicable abandoned property
law designates another Person.
Section 14.08. TERMINATION DISTRIBUTIONS. Upon the termination of the
Issuer pursuant to the terms of the Trust Agreement, the Indenture Trustee shall
release, assign and convey to the Beneficiary or any of its designees, without
recourse, representation or warranty, all of its right, title and interest in
the Collateral, whether then existing or thereafter created, all monies due or
to become due and all amounts received or receivable with respect thereto
(including all moneys then held in any Account) and all proceeds thereof, except
for amounts held by the Indenture Trustee pursuant to Section 14.08(b). The
Indenture Trustee shall execute and deliver such instruments of transfer and
assignment as shall be provided to it, in each case without recourse, as shall
be reasonably requested by the Beneficiary to vest in the Beneficiary or any of
its designees all right, title and interest which the Indenture Trustee had in
the Collateral and such other property.
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Section 14.09. ENHANCEMENT PROVIDER AS THIRD-PARTY BENEFICIARY. Each
Enhancement Provider is a third-party beneficiary of this Indenture to the
extent specified in the applicable Enhancement Agreement or Indenture
Supplement.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
CNH WHOLESALE MASTER NOTE TRUST, by
The Bank of New York, as Owner Trustee
By:
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as Indenture Trustee
and not in its
individual capacity
By:
-----------------------------------
Name:
Title:
Acknowledged and Accepted:
CASE CREDIT CORPORATION,
as Servicer
By:
--------------------------------
Name:
Title:
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION....................................3
ARTICLE II NOTE FORMS................................................................................23
ARTICLE III THE NOTES.................................................................................28
ARTICLE IV ACCOUNTS AND INVESTMENTS..................................................................39
ARTICLE V ALLOCATIONS, DEPOSITS AND PAYMENTS........................................................42
ARTICLE VI SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES HELD BY THE ISSUER OR CWRI..............44
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES............................................................45
ARTICLE VIII THE INDENTURE TRUSTEE.....................................................................53
ARTICLE IX NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY INDENTURE TRUSTEE, ISSUER AND BENEFICIARY........63
ARTICLE X INDENTURE SUPPLEMENTS; AMENDMENTS TO THE TRANSFER AND SERVICING AGREEMENT AND
AMENDMENTS TO THE TRUST AGREEMENT.........................................................67
ARTICLE XI REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER.......................................73
ARTICLE XII EARLY REDEMPTION OF NOTES.................................................................80
ARTICLE XIII COLLATERAL................................................................................82
ARTICLE XIV MISCELLANEOUS.............................................................................86
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