iv
151252.12
EXECUTION COPY
____________________________________________________________
HOUSEHOLD AUTOMOBILE REVOLVING TRUST I
Issuer
INDENTURE
Dated as of November 1, 1998
HOUSEHOLD FINANCE CORPORATION
Master Servicer
THE CHASE MANHATTAN BANK
Trustee
____________________________________________________________
TABLE OF CONTENTS
Page
ARTICLE I. Definitions and Incorporation by Reference 1
SECTION 1.1 Definitions 1
SECTION 1.2 Incorporation by Reference of the
Trust Indenture Act 6
SECTION 1.3 Rules of Construction 7
SECTION 1.4 Action by or Consent of Noteholders
and Certificateholders 7
SECTION 1.5 Conflict with TIA 7
ARTICLE II. The Notes 7
SECTION 2.1 Form; Amount Limited; Issuable in
Series 7
SECTION 2.2 Execution, Authentication and Delivery 8
SECTION 2.3 Temporary Notes 9
SECTION 2.4 Registration; Registration of Transfer
and Exchange 9
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen
Notes 11
SECTION 2.6 Persons Deemed Owner 12
SECTION 2.7 Payment of Principal and Interest;
Defaulted Interest 13
SECTION 2.8 Cancellation 14
SECTION 2.9 Release of Collateral 14
SECTION 2.10 Book-Entry Notes 14
SECTION 2.11 Notices to Clearing Agency 15
SECTION 2.12 Definitive Notes 15
SECTION 2.13 Final Distribution 16
ARTICLE III. Covenants 17
SECTION 3.1 Payment of Principal and Interest 17
SECTION 3.2 Maintenance of Office or Agency 17
SECTION 3.3 Money for Payments to be Held in Trust 17
SECTION 3.4 Existence 19
SECTION 3.5 Protection of Trust Property 19
SECTION 3.6 Opinions as to Trust Property 20
SECTION 3.7 Performance of Obligations; Servicing
of Receivables 20
SECTION 3.8 Negative Covenants 21
SECTION 3.9 Annual Statement as to Compliance 22
SECTION 3.10 Issuer May Consolidate, Etc. Only on
Certain Terms 22
SECTION 3.11 Successor or Transferee 24
SECTION 3.12 No Other Business 24
SECTION 3.13 No Borrowing 25
SECTION 3.14 Master Servicer's Obligations 25
SECTION 3.15 Guarantees, Loans, Advances and Other
Liabilities 25
SECTION 3.16 Capital Expenditures 25
SECTION 3.17 Compliance with Laws 25
SECTION 3.18 Restricted Payments 25
SECTION 3.19 Notice of Events of Default 26
SECTION 3.20 Further Instruments and Acts 26
SECTION 3.21 Amendments of Master Sale and
Servicing Agreement and Trust
Agreement 26
SECTION 3.22 Income Tax Characterization 26
SECTION 3.23 No Borrowing 26
SECTION 3.24 Guarantees, Loans, Advances and Other
Liabilities 26
SECTION 3.25 Capital Expenditures 26
SECTION 3.26 Restricted Payments 26
ARTICLE IV. Satisfaction and Discharge 27
SECTION 4.1 Satisfaction and Discharge of
Indenture 27
SECTION 4.2 Application of Trust Money 28
SECTION 4.3 Repayment of Monies Held by Note
Paying Agent 28
ARTICLE V. Remedies 28
SECTION 5.1 Events of Default 28
SECTION 5.2 Collection of Indebtedness and Suits
for Enforcement by Trustee 28
SECTION 5.3 Limitation of Suits 30
SECTION 5.4 Unconditional Rights of Noteholders To
Receive Principal and Interest 31
SECTION 5.5 Restoration of Rights and Remedies 31
SECTION 5.6 Rights and Remedies Cumulative 31
SECTION 5.7 Delay or Omission Not a Waiver 32
SECTION 5.8 Control by Noteholders 32
SECTION 5.9 Waiver of Past Defaults 32
SECTION 5.10 Undertaking for Costs 32
SECTION 5.11 Waiver of Stay or Extension Laws 33
SECTION 5.12 Action on Notes 33
SECTION 5.13 Performance and Enforcement of Certain
Obligations 33
ARTICLE VI. The Trustee 34
SECTION 6.1 Duties of Trustee 34
SECTION 6.2 Rights of Trustee 36
SECTION 6.3 Individual Rights of Trustee 37
SECTION 6.4 Trustee's Disclaimer 37
SECTION 6.5 Notice of Defaults 38
SECTION 6.6 Reports by Trustee to Holders 38
SECTION 6.7 Compensation and Indemnity 38
SECTION 6.8 Replacement of Trustee 39
SECTION 6.9 Successor Trustee by Merger 40
SECTION 6.10 Appointment of Co-Trustee or Separate
Trustee 41
SECTION 6.11 Eligibility: Disqualification 42
SECTION 6.12 Preferential Collection of Claims
Against Issuer 42
SECTION 6.13 Representations and Warranties of the
Trustee 42
SECTION 6.14 Waiver of Setoffs 43
SECTION 6.15 No Consent to Certain Acts of Seller 43
ARTICLE VII. Noteholders' Lists and Reports 43
SECTION 7.1 Issuer To Furnish To Trustee Names and
Addresses of Noteholders 43
SECTION 7.2 Preservation of Information;
Communications to Noteholders 43
SECTION 7.3 Reports by Issuer 44
SECTION 7.4 Reports by Trustee 44
ARTICLE VIII. Accounts, Disbursements and Releases 44
SECTION 8.1 Collection of Money 44
SECTION 8.2 Release of Trust Property 45
SECTION 8.3 Opinion of Counsel 45
ARTICLE IX. Amendments; Series Supplements 46
SECTION 9.1 Amendments Without Consent of
Noteholders 46
SECTION 9.2 Amendments With Consent of Noteholders 47
SECTION 9.3 Supplements Authorizing a Series of
Notes 48
SECTION 9.4 Execution of Series Supplements 49
SECTION 9.5 Effect of Series Supplement 49
SECTION 9.6 Conformity With Trust Indenture Act 49
SECTION 9.7 Reference in Notes to Series
Supplements 49
ARTICLE X. Reserved 49
ARTICLE XI. Miscellaneous 49
SECTION 11.1 Compliance Certificates and Opinions,
etc. 49
SECTION 11.2 Form of Documents Delivered to Trustee 51
SECTION 11.3 Acts of Noteholders 52
SECTION 11.4 Notices, etc., to Trustee, Issuer and
Rating Agencies 53
SECTION 11.5 Notices to Noteholders; Waiver 53
SECTION 11.6 Alternate Payment and Notice
Provisions 54
SECTION 11.7 Conflict with Trust Indenture Act 54
SECTION 11.8 Effect of Headings and Table of
Contents 54
SECTION 11.9 Successors and Assigns 54
SECTION 11.10 Separability 54
SECTION 11.11 Benefits of Indenture 55
SECTION 11.12 Legal Holidays 55
SECTION 11.13 Governing Law 55
SECTION 11.14 Counterparts 55
SECTION 11.15 Recording of Indenture 55
SECTION 11.16 Trust Obligation 55
SECTION 11.17 No Petition 56
SECTION 11.18 Inspection 56
SECTION 11.19 Limitation of Liability 56
INDENTURE dated as of November 1, 1998, between
HOUSEHOLD AUTOMOBILE REVOLVING TRUST I, a Delaware business
trust (the "Issuer"), HOUSEHOLD FINANCE CORPORATION, a
Delaware corporation (the "Master Servicer") and THE CHASE
MANHATTAN BANK, a New York banking corporation, as trustee
(the "Trustee").
In consideration of the mutual agreements
contained herein, and of other good and valuable
consideration the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
GRANTING CLAUSE
In order to secure the due and punctual payment of
the principal of and interest on the Notes of the related
Series when and as the same shall become due and payable,
whether as scheduled, by declaration of acceleration,
prepayment or otherwise, according to the terms of this
Indenture, the related Series Supplement and the related
Notes, the Issuer, pursuant to the related Series
Supplement, shall pledge the related Series Trust Estate to
the Trustee, all for the benefit of the Trustee for the
benefit of the Holders of the related Series.
ARTICLE I.
Definitions and Incorporation by Reference
SECTION 1.1 Definitions
. Except as otherwise specified herein, the
following terms have the respective meanings set forth below
for all purposes of this Indenture.
"Act" has the meaning specified in Section
11.3(a).
"Authorized Officer" means, with respect to the
Issuer and the Master Servicer, any officer or agent acting
pursuant to a power of attorney of the Owner Trustee or the
Master Servicer, as applicable, who is authorized to act for
the Owner Trustee or the Master Servicer, as applicable, in
matters relating to the Issuer and who is identified on the
list of Authorized Officers delivered by each of the Owner
Trustee and the Master Servicer to the Trustee on the
Closing Date (as such list may be modified or supplemented
from time to time thereafter).
"Book Entry Notes" means any beneficial interest
in the Notes, ownership and transfers of which shall be made
through book entries by a Clearing Agency as described in
Section 2.10.
"Certificate of Trust" means the certificate of
trust of the Issuer substantially in the form of Exhibit B
to the Trust Agreement.
"Class" means, with respect to any Series, all the
Notes of such Series having the same specified payment terms
and priority of payment.
"Class SV Preferred Stock" means the preferred
stock of the Seller.
"Clearing Agency" means an organization registered
as a "clearing agency" pursuant to Section 17A of the
Exchange Act.
"Clearing Agency Participant" means a broker,
dealer, bank, other financial institution or other Person
for whom from time to time a Clearing Agency effects book-
entry transfers and pledges of securities deposited with the
Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, and Treasury Regulations
promulgated thereunder.
"Corporate Trust Office" means the principal
office of the Trustee at which at any particular time its
corporate trust business shall be administered which office
at date of the execution of this Agreement is located at 000
Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Structured Finance Services or at such other
address as the Trustee may designate from time to time by
notice to the Noteholders, the Master Servicer and the
Issuer, or the principal corporate trust office of any
successor Trustee (the address of which the successor
Trustee will notify the Noteholders and the Issuer).
"Default" means any occurrence that is, or with
notice or the lapse of time or both would become, an Event
of Default.
"Definitive Notes" has the meaning specified in
Section 2.12.
"Event of Default" has the meaning specified in
Section 5.1.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended.
"Executive Officer" means, with respect to any
corporation, the Chief Executive Officer, Chief Operating
Officer, Chief Financial Officer, President, Executive Vice
President, any Vice President, the Secretary, the Treasurer,
or any Assistant Treasurer of such corporation.
"Grant" means mortgage, pledge, bargain, sell,
warrant, alienate, remise, release, convey, assign,
transfer, create, xxxxx x xxxx upon and a security interest
in and right of set-off against, deposit, set over and
confirm pursuant to this Indenture. A Grant of a Series
Trust Estate or of any other agreement or instrument shall
include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the
immediate and continuing right to claim for, collect,
receive and give receipt for principal and interest payments
in respect of a Series Trust Estate and all other monies
payable thereunder, to give and receive notices and other
communications, to make waivers or other agreements, to
exercise all rights and options, to bring proceedings in the
name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be
entitled to do or receive thereunder or with respect
thereto.
"Holder" or "Noteholder" means the Person in whose
name a Note is registered on the Note Register.
"Indebtedness" means, with respect to any Person
at any time, (a) indebtedness or liability of such Person
for borrowed money whether or not evidenced by bonds,
debentures, notes or other instruments, or for the deferred
purchase price of property or services (including trade
obligations); (b) obligations of such Person as lessee under
leases which should have been or should be, in accordance
with generally accepted accounting principles, recorded as
capital leases; c current liabilities of such Person in
respect of unfunded vested benefits under plans covered by
Title IV of ERISA; (d) obligations issued for or liabilities
incurred on the account of such Person; (e) obligations or
liabilities of such Person arising under acceptance
facilities; (f) obligations of such Person under any
guarantees, endorsements (other than for collection or
deposit in the ordinary course of business) and other
contingent obligations to purchase, to provide funds for
payment, to supply funds to invest in any Person or
otherwise to assure a creditor against loss; (g) obligations
of such Person secured by any lien on property or assets of
such Person, whether or not the obligations have been
assumed by such Person; or (h) obligations of such Person
under any interest rate or currency exchange agreement.
"Independent" means, when used with respect to any
specified Person, that the person (a) is in fact independent
of the Issuer, any other obligor upon the Notes, the Seller
and any Affiliate of any of the foregoing persons, (b) does
not have any direct financial interest or any material
indirect financial interest in the Issuer, any such other
obligor, the Seller or any Affiliate of any of the foregoing
Persons and c is not connected with the Issuer, any such
other obligor, the Seller or any Affiliate of any of the
foregoing Persons as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing
similar functions.
"Independent Certificate" means a certificate or
opinion to be delivered to the Trustee under the
circumstances described in, and otherwise complying with,
the applicable requirements of Section 11.1, prepared by an
Independent appraiser or other expert appointed pursuant to
an Issuer Order and approved by the Trustee in the exercise
of reasonable care, and such opinion or certificate shall
state that the signer has read the definition of
"Independent" in this Indenture and that the signer is
Independent within the meaning thereof.
"Issuer Order" and "Issuer Request" means a
written order or request signed in the name of the Issuer by
any one of its Authorized Officers and delivered to the
Trustee.
"Master Sale and Servicing Agreement" means the
Master Sale and Servicing Agreement dated as of March 1,
1998, among the Issuer, the Seller, the Master Servicer and
the Trustee, as the same may be amended or supplemented from
time to time.
"Note" means any Note authenticated and delivered
under this Indenture.
"Note Owner" means, with respect to a Book-Entry
Note, the person who is the owner of such Book-Entry Note,
as reflected on the books of the Clearing Agency, or on the
books of a Person maintaining an account with such Clearing
Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the
rules of such Clearing Agency).
"Note Paying Agent" means the Trustee or any other
Person that meets the eligibility standards for the Trustee
specified in Section 6.11 and is authorized by the Issuer to
make payments to and distributions from the Master
Collection Account and the Note Distribution Account,
including payment of principal of or interest on the Notes
on behalf of the Issuer.
"Note Register" and "Note Registrar" have the
respective meanings specified in Section 2.4.
"Officer's Certificate" means a certificate signed
by any Authorized Officer of the Issuer, under the
circumstances described in, and otherwise complying with,
the applicable requirements of Section 11.1 and TIA 314,
and delivered to the Trustee. Unless otherwise specified,
any reference in this Indenture to an Officer's Certificate
shall be to an Officer's Certificate of any Authorized
Officer of the Issuer. Each certificate with respect to
compliance with a condition or covenant provided for in this
Agreement shall include (1) a statement that the Authorized
Officer signing the certificate has read such covenant or
condition; (2) a brief statement as to the nature and scope
of the examination or investigation upon which the
statements contained in such certificate are based; (3) a
statement that in the opinion of such person, he has made
such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a
statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
"Outstanding" means, as of the date of
determination, all Notes theretofore authenticated and
delivered under this Indenture except:
(i) Notes theretofore canceled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which
money in the necessary amount has been theretofore
deposited with the Trustee or any Note Paying Agent in
trust for the Holders of such Notes (provided, however,
that if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to a Series
Supplement or provision therefor, satisfactory to the
Trustee, has been made); and
(iii) Notes in exchange for or in lieu of other Notes
which have been authenticated and delivered pursuant to
this Indenture unless proof satisfactory to the Trustee
is presented that any such Notes are held by a bona fide
purchaser;
provided, however, that in determining whether the
Holders of the requisite Outstanding Amount of the Notes
have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or under any Basic
Document, Notes owned by the Issuer, any other obligor upon
the Notes, the Seller or any Affiliate of any of the
foregoing Persons shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Notes that a Responsible Officer of the Trustee either
actually knows to be so owned or has received written notice
thereof shall be so disregarded. Notes so owned that have
been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Notes and
that the pledgee is not the Issuer, any other obligor upon
the Notes, the Seller or any Affiliate of any of the
foregoing Persons.
"Outstanding Amount" means the aggregate principal
amount of all Notes, or Class of Notes, as applicable,
Outstanding at the date of determination.
"Predecessor Note" means, with respect to any
particular Note, every previous Note evidencing all or a
portion of the same debt as that evidenced by such
particular Note; and, for the purpose of this definition,
any Note authenticated and delivered under Section 2.5 in
lieu of a mutilated, lost, destroyed or stolen Note shall be
deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Note.
"Proceeding" means any suit in equity, action at
law or other judicial or administrative proceeding.
"Record Date" means, with respect to a
Distribution Date, the close of business on the Business Day
immediately preceding such Distribution Date.
"Registration Statement" has the meaning specified
therefor in the Securities Act.
"Responsible Officer" means, with respect to the
Trustee or the Owner Trustee (as defined in the Trust
Agreement), any officer within the Corporate Trust Office of
the Trustee or the Owner Trustee, as the case may be,
including any Vice President, Assistant Vice President,
Assistant Treasurer, Assistant Secretary, Financial Services
Officer or any other officer of the Trustee or the Owner
Trustee, as the case may be, customarily performing
functions similar to those performed by any of the above
designated officers and having direct responsibility for the
administration of this Indenture.
"Securities Act" means the Securities Act of 1933, as
amended.
"Series Termination Date" with respect to a
Series, has the meaning ascribed in the related Series
Supplement.
"State" means any one of the 50 states of the
United States of America or the District of Columbia.
"Support Default" with respect to a Series, shall
have the meaning assigned to such term and the related
Series Supplement.
"Tranche" means all of the Notes of a Series (or a
Class within a Series) having the same date of
authentication.
"Trust Property" means all money, instruments,
rights and other property that are subject or intended to be
subject to the lien and security interest of this Indenture
for the benefit of the Noteholders (including all property
and interests Granted to the Trustee), including all
proceeds thereof.
"Trust Indenture Act" or "TIA" means the Trust
Indenture Act of 1939, as amended and as in force on the
date hereof, unless otherwise specifically provided.
"Trustee" means, initially, The Chase Manhattan
Bank, a New York banking corporation, not in its individual
capacity but as trustee under this Indenture, or any
successor trustee under this Indenture.
"Trustee Fee" means the fees due to the Trustee,
as may be set forth in that certain fee letter, dated as of
the date hereof between the Master Servicer and The Chase
Manhattan Bank.
"UCC" means, unless the context otherwise
requires, the Uniform Commercial Code, as in effect in the
relevant jurisdiction, as amended from time to time.
"Unregistered Note" means a Note which is not
being offered for sale hereunder pursuant to a Registration
Statement.
Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to them in
the Master Sale and Servicing Agreement or the Trust
Agreement.
SECTION 1.2 Incorporation by Reference of the
Trust Indenture Act
. Whenever this Indenture refers to a provision
of the TIA, the provision is incorporated by reference in
and made a part of this Indenture. The following TIA terms
used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange
Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee"
means the Trustee.
"obligor" on the indenture securities means the
Issuer.
All other TIA terms used in this Indenture that
are defined by the TIA, or defined by Commission rule have
the meaning assigned to them by such definitions.
SECTION 1.3 Rules of Construction
. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined
has the meaning assigned to it in accordance with
generally accepted accounting principles as in effect
from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without
limitation; and
(v) words in the singular include the plural
and words in the plural include the singular.
SECTION 1.4 Action by or Consent of Noteholders
and Certificateholders
. Whenever any provision of this Agreement refers
to action to be taken, or consented to, by Noteholders or
Certificateholders, such provision shall be deemed to refer
to the Certificateholder or Noteholder, as the case may be,
of record as of the Record Date immediately preceding the
date on which such action is to be taken, or consent given,
by Noteholders or Certificateholders. Solely for the
purposes of any action to be taken, or consented to, by
Noteholders or Certificateholders, any Note or Certificate
registered in the name of Seller or any Affiliate thereof
shall be deemed not to be outstanding (except in the event
that the Seller and/or an Affiliate thereof then owns all
outstanding Notes and Certificates); provided, however,
that, solely for the purpose of determining whether the
Trustee is entitled to rely upon any such action or consent,
only Notes or Certificates which the Owner Trustee or the
Trustee, respectively, knows to be so owned shall be so
disregarded.
SECTION 1.5 Conflict with TIA
. If this Indenture is qualified under the TIA,
and if any provision hereof limits, qualifies or conflicts
with a provision of the TIA that is required under the TIA
to be part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so
modified or excluded, the latter provisions shall be deemed
to apply to this Indenture as so modified or to be excluded,
as the case may be.
ARTICLE II.
The Notes
SECTION 2.1 Form; Amount Limited; Issuable in
Series
.
(a) Notes of each Series, together with the
Trustee's certificate of authentication, shall be in
substantially the form set forth in the related Series
Supplement, with such appropriate insertions, omissions,
substitutions and other variations as are required or
permitted by this Indenture or the related Series Supplement
and may have such letters, numbers or other marks of
identification and such legends or endorsements placed
thereon as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their
execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of 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), all as determined by the officers executing
such Notes, as evidenced by their execution of such
Notes.
Each Note shall be dated the date of its authentication.
The terms of the Notes set forth in the related Series
Supplement are part of the terms of this Indenture.
(b) The aggregate principal amount of Notes
which may be authenticated and delivered and Outstanding at
any time under this Indenture is not limited; provided that
any Series Supplement may so limit the aggregate principal
amount of Notes of the related Series. The Notes shall be
issued in one or more Series, and may be issued in Classes
and/or Tranches within a Series (and Tranches within a
Class).
No Series of Notes shall be issued under this Indenture
unless such Notes have been authorized pursuant to a
Series Supplement, and all conditions precedent to the
issuance thereof, as specified in the related Series
Supplement, shall have been satisfied.
All Notes of each Series issued under this Indenture
shall be in all respects equally and ratably entitled to
the benefits hereof and secured by the related Series
Trust Estate without preference, priority or distinction
on account of the actual time or times of authentication
and delivery, all in accordance with the terms and
provisions hereof and the related Series Supplement.
SECTION 2.2 Execution, Authentication and
Delivery
. The Notes shall be executed on behalf of the
Issuer by any of its Authorized Officers. The signature of
any such Authorized Officer on the Notes may be original or
facsimile.
Notes bearing the original or facsimile signature
of individuals who were at any time Authorized Officers of
the Issuer shall bind the Issuer, notwithstanding that such
individuals or any of them have ceased to hold such offices
prior to the authentication and delivery of such Notes or
did not hold such offices at the date of such Notes.
At any time and from time to time after the
execution and delivery of this Indenture and the related
Series Supplement, and upon satisfaction of all the
conditions set forth in the related Series Supplement, the
Trustee shall, upon receipt of an Issuer Order and an
Officer's Certificate prepared and delivered by the Master
Servicer that all conditions precedent for such issuance
have been satisfied, deliver Notes of the related Series
(including Notes of any Class or Tranche within such
Series.)
The Notes of a Series shall be issuable in the
denominations specified in the related Series Supplement.
No Note shall be entitled to any benefit under
this Indenture or any Series Supplement or be valid or
obligatory for any purpose, unless there appears attached to
such Note a certificate of authentication substantially in
the form provided for herein executed by the Trustee by the
manual signature of one of its authorized signatories, and
such certificate attached to any Note shall be conclusive
evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
SECTION 2.3 Temporary Notes
. Pending the preparation of Definitive Notes of
any Series (or of any Class or Tranche within a Series), the
Issuer may execute, and upon receipt of an Issuer Order
prepared and delivered by the Master Servicer, the Trustee
shall authenticate and deliver, temporary Notes which are
printed, lithographed, typewritten, mimeographed or
otherwise produced, of the tenor of the Definitive Notes in
lieu of which they are issued and with such variations not
inconsistent with the terms of this Indenture as the
officers executing such Notes may determine, as evidenced by
their execution of such Notes.
If temporary Notes of any Series (or of any Class
or Tranche within a Series) are issued, the Issuer will
cause Definitive Notes of such Series (or Class or Tranche)
to be prepared without unreasonable delay. After the
preparation of Definitive Notes of such Series (or Class or
Tranche), the temporary Notes shall be exchangeable for
Definitive Notes of such Series (or Class or Tranche) upon
surrender of the temporary Notes at the office or agency of
the Issuer to be maintained as provided in Section 3.2,
without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes, the Issuer
shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of Definitive
Notes of such Series (or Class or Tranche) of authorized
denominations. Until so exchanged, the temporary Notes of
any Series (or Class or Tranche) shall in all respects be
entitled to the same benefits under this Indenture and the
related Series Supplement as Definitive Notes of such Series
(or Class or Tranche).
SECTION 2.4 Registration; Registration of
Transfer and Exchange
. (a) The Issuer shall cause to be kept a
register (the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall
provide for the registration of Notes and the registration
of transfers of Notes. The Trustee shall be "Note
Registrar" for the purpose of registering Notes and
transfers of Notes as herein provided. Upon any resignation
of any Note Registrar, the Issuer shall promptly appoint a
successor or, if it elects not to make such an appointment,
assume the duties of Note Registrar.
If a Person other than the Trustee is appointed by
the Issuer as Note Registrar, the Issuer will give the
Trustee prompt written notice of the appointment of such
Note Registrar and of the location, and any change in the
location, of the Note Register, and the Trustee shall have
the right to inspect the Note Register at all reasonable
times and to obtain copies thereof. The Trustee shall have
the right to rely upon a certificate executed on behalf of
the Note Registrar by an Authorized Officer thereof as to
the names and addresses of the Holders of the Notes and the
principal amounts and number of such Notes.
Upon surrender for registration or transfer of any
Note at the office or agency of the Issuer to be maintained
as provided in Section 3.2, and if the requirements of
Section 8-401(1) of the UCC are met, the Issuer shall
execute and cause the Trustee to authenticate one or more
new Notes, in any authorized denominations, of the same
class and a like aggregate principal amount. A Noteholder
may also obtain from the Trustee, in the name of the
designated transferee or transferees one or more new Notes,
in any authorized denominations, of the same Class and
Tranche, as applicable, and a like aggregate principal
amount. Such requirements shall not be deemed to create a
duty in the Trustee to monitor the compliance by the Issuer
with Section 8-401 of the UCC.
At the option of the Holder, Notes of a Series (or
Class or Tranche) may be exchanged for other Notes of such
Series (or Class or Tranche) in any authorized
denominations, of the same Class (and Tranche, if
applicable) and a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so surrendered for exchange,
and if the requirements of Section 8-401(1) of the UCC are
met, the Issuer shall execute and upon its written request
the Trustee shall authenticate the Notes which the
Noteholder making the exchange is entitled to receive. Such
requirements shall not be deemed to create a duty in the
Trustee to monitor the compliance by the Issuer with Section
8-401 of the UCC.
All Notes issued upon any registration of transfer
or exchange of Notes shall be the valid obligations of the
Issuer, evidencing the same debt, and entitled to the same
benefits under this Indenture and the related Series
Supplement, as the Notes surrendered upon such registration
of transfer or exchange.
Unless specified in a Series Supplement, every
Note presented or surrendered for registration of transfer
or exchange shall, unless specified in a Series Supplement,
be (i) duly endorsed by, or be accompanied by a written
instrument of transfer in the form attached as an exhibit to
the Note duly executed by the Holder thereof or such
Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar which
requirements include membership or participation in
Securities Transfer Agents Medallion Program ("Stamp") or
such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in
substitution for, Stamp, all in accordance with the Exchange
Act, and (ii) accompanied by such other documents as the
Note Registrar may require.
No service charge shall be made to a Holder for
any registration of transfer or exchange of Notes, but the
Note Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or
exchange of Notes.
Notwithstanding, the preceding provisions of this
section, the Issuer shall not be required to make, and the
Note Registrar shall not register, transfers or exchanges of
Notes selected for redemption for a period of 15 days
preceding the Distribution Date.
Any Noteholder using the assets of (i) an employee
benefit plan (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to the provisions of Title I of
ERISA, (ii) a plan described in Section 4975(e)(1) of the
Internal Revenue Code of 1986, as amended, or (iii) any
entity whose underlying assets include plan assets by reason
of a plan's investment in the entity to purchase the Notes,
or to whom the Notes are transferred, will be deemed to have
represented that the acquisition and continued holding of
the Notes will be covered by a U.S. Department of Labor
Class Exemption.
(b) No Holder of an Unregistered Note shall
transfer its Note, unless (i) such transfer is made in
accordance with Rule 144A under the Securities Act or (ii)
pursuant to an exemption from registration provided by Rule
144 under the Securities Act (if available) and the
registration and qualification requirements under applicable
state securities laws.
Each Unregistered Note issued hereunder will contain the
following legend limiting sales to "Qualified
Institutional Buyers" within the meaning of Rule 144A
under the Securities Act:
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND HAS NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR
REGULATORY AUTHORITY OF ANY STATE. THIS NOTE HAS BEEN
OFFERED AND SOLD PRIVATELY. THE HOLDER HEREOF
ACKNOWLEDGES THAT THESE SECURITIES ARE "RESTRICTED
SECURITIES" THAT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT AND AGREES FOR THE BENEFIT OF THE OBLIGORS
AND ITS AFFILIATES THAT THESE SECURITIES MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) PURSUANT TO AN EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), IN EACH CASE IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER JURISDICTION.
SECTION 2.5 Mutilated, Destroyed, Lost or
Stolen Notes
. If (i) any mutilated Note is surrendered to the
Trustee, or the Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Note,
and (ii) there is delivered to each of the Issuer and the
Trustee such security or indemnity as may be required by it
to hold the Issuer and the Trustee harmless, then, in the
absence of notice to the Issuer, the Note Registrar or the
Trustee that such Note has been acquired by a bona fide
purchaser, and provided that the requirements of Section 8-
405 of the UCC are met, the Issuer shall execute and upon
its request the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed,
lost or stolen Note, a replacement Note of the same Series
(or Class or Tranche) (such requirement shall not be deemed
to create a duty in the Trustee to monitor the compliance by
the Issuer with Section 8-405); provided, however, that if
any such destroyed, lost or stolen Note, but not a mutilated
Note, shall have become or within seven days shall be due
and payable, or shall have been called for redemption
pursuant to the terms of the related Series Supplement, the
Issuer may, instead of issuing a replacement Note, direct
the Trustee, in writing, to pay such destroyed, lost or
stolen Note when so due or payable or upon the redemption
date without surrender thereof. If, after the delivery of
such replacement Note or payment of a destroyed, lost or
stolen Note pursuant to the proviso to the preceding
sentence, a bona fide purchaser of the original Note in lieu
of which such replacement Note was issued presents for
payment such original Note, the Issuer and the Trustee shall
be entitled to recover such replacement Note (or such
payment) from the Person to whom it was delivered or any
Person taking such replacement Note from such Person to whom
such replacement Note was delivered or any assignee of such
Person, except a bona fide purchaser, and shall be entitled
to recover upon the security or indemnity provided therefor
to the extent of any loss, damage, cost or expense incurred
by the Issuer or the Trustee in connection therewith.
Upon the issuance of any replacement Note under
this Section, the Issuer may require the payment by the
Holder of such Note of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the
fees and expenses of the Trustee) connected therewith.
Every replacement Note of any Series issued
pursuant to this Section in replacement of any mutilated,
destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or
not the mutilated, destroyed, lost or stolen Note shall be
at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture and the related Series
Supplement equally and proportionately with any and all
other Notes of the same Series duly issued hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 Persons Deemed Owner
. Prior to due presentment for registration of
transfer of any Note, the Issuer, the Trustee and any agent
of Issuer or the Trustee may treat the Person in whose name
any Note is registered (as of the Record Date) as the owner
of such Note for the purpose of receiving payments of
principal of and interest, if any on such Note and for all
other purposes whatsoever, whether or not such Note be
overdue, and none of the Issuer, the Trustee nor any agent
of the Issuer or the Trustee shall be affected by notice to
the contrary.
SECTION 2.7 Payment of Principal and Interest;
Defaulted Interest
.
(a) The Notes shall accrue interest as
provided in the form of Note set forth in the related Series
Supplement or in such Series Supplement and such interest
shall be due and payable on each Distribution Date as
specified therein. Any installment of interest or
principal, if any, payable on any Note which is punctually
or duly provided for by the Issuer on the applicable
Distribution Date shall be paid, as provided in the related
Series Supplement, or if not so provided to the Person in
whose name such Note (or one or more Predecessor Notes) is
registered on the Record Date, by check mailed first-class,
postage prepaid, to such Person's address as it appears on
the Note Register on such Record Date, except that, if the
Notes of a Series are Book Entry Notes, unless Definitive
Notes have been issued for such Series pursuant to Section
2.12, with respect to Notes of such Series registered on the
Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payment
will be made by wire transfer in immediately available funds
to the account designated by such nominee and except for the
final installment of principal payable with respect to such
Note on a Distribution Date or on the Final Scheduled
Distribution Date with respect to a Series as set forth in
the relevant Series Supplement which shall be payable as
provided below. The funds represented by any such checks
returned undelivered shall be held in accordance with
Section 3.3.
(b) The principal of each Note shall be
payable in installments on each Distribution Date as
provided in the form of Note set forth in the related Series
Supplement or in such Series Supplement. Notwithstanding
the foregoing, the entire unpaid principal amount of the
Notes shall be due and payable, if not previously paid, on
the date on which an Event of Default shall have occurred
and be continuing, if the Notes are declared to be
immediately due and payable in the manner provided in the
related Series Supplement. Upon written notice from the
Master Servicer on behalf of the Issuer, the Trustee shall
notify the Person in whose name a Note is registered at the
close of business on the Record Date preceding the
Distribution Date on which the Issuer expects that the final
installment of principal of and interest on such Note will
be paid. Such notice may be mailed or transmitted by
facsimile prior to such final Distribution Date and may
specify that such final installment will be payable only
upon presentation and surrender of such Note and shall
specify the place where such Note may be presented and
surrendered for payment of such installment.
(c) If the Issuer defaults in a payment of
interest on the Notes, the Issuer shall pay defaulted
interest (plus interest on such defaulted interest to the
extent lawful) at the applicable Interest Rate to the extent
lawful. Unless otherwise provided in the related Series
Supplements, the Issuer may pay such defaulted interest to
the Persons who are Noteholders on a subsequent special
record date, which date shall be at least five Business Days
prior to the payment date. The Issuer shall fix or cause to
be fixed any such special record date and payment date, and,
at least 15 days before any such special record date, the
Issuer shall mail to each Noteholder and the Trustee a
notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.
SECTION 2.8 Cancellation
. All Notes surrendered for payment, registration
of transfer, exchange or redemption shall, if surrendered to
any Person other than the Trustee, be delivered to the
Trustee and shall be promptly canceled by the Trustee in
accordance with its customary procedures. The Issuer may at
any time deliver to the 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 Trustee
in accordance with its customary procedures. No Notes 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. All canceled Notes may be held
or disposed of by the Trustee in accordance with its
standard retention or disposal policy as in effect at the
time.
SECTION 2.9 Release of Collateral
. The Trustee shall, on or after a Series
Termination Date, release any remaining portion of the
related Series Trust Estate from the lien created by this
Indenture and deposit in the applicable Series Collection
Account any funds then on deposit in any other Trust
Account. The Trustee shall release property from the lien
created by this Indenture pursuant to this Section 2.9 only
upon receipt of an Issuer Request by it and the Trustee
accompanied by an Officer's Certificate, an Opinion of
Counsel and (if required by the TIA) Independent
Certificates in accordance with TIA 314c and 314(d)(1)
meeting the applicable requirements of Section 11.1.
SECTION 2.10 Book-Entry Notes
. The Notes, upon original issuance, may be
issued in the form of typewritten Notes representing the
Book-Entry Notes, to be delivered to The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of,
the Issuer. Such Notes may initially be registered on the
Note Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Note Owner will receive a
Definitive Note representing such Note Owner's interest in
such Note, except as provided in Section 2.12. Unless and
until definitive, fully registered Notes (the "Definitive
Notes") have been issued to Note Owners pursuant to Section
2.12:
(i) the provisions of this Section shall be in
full force and effect;
(ii) the Note Registrar and the Trustee shall be
entitled to deal with the Clearing Agency for all
purposes of this Indenture (including the payment of
principal of and interest on the Notes and the giving
of instructions or directions hereunder) as the sole
Holder of the Notes, and shall have no obligation to
the Note Owners;
(iii) to the extent that the provisions of
this Section conflict with any other provisions of this
Indenture, the provisions of this Section shall
control;
(iv) the rights of Note Owners shall be
exercised only through the Clearing Agency and shall be
limited to those established by law and agreements
between such Note Owners and the Clearing Agency and/or
the Clearing Agency Participants. Unless and until
Definitive Notes are issued pursuant to Section 2.12,
the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and
receive and transmit payments of principal of and
interest on the Notes to such Clearing Agency
Participants;
(v) whenever this Indenture requires or permits
actions to be taken based upon instructions or
directions of Holders of Notes evidencing a specified
percentage of the Outstanding Amount of the Notes, the
Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received
instructions to such effect from Note Owners and/or
Clearing Agency Participants owning or representing,
respectively, such required percentage of the
beneficial interest in the Notes or in the Notes of a
Class, as the case maybe, and has delivered such
instructions to the Trustee; and
(vi) Note Owners may receive copies of any
reports sent to Noteholders pursuant to this Indenture,
upon written request, together with a certification
that they are Note Owners and payment of reproduction
and postage expenses associated with the distribution
of such reports, from the Trustee at the Corporate
Trust Office.
SECTION 2.11 Notices to Clearing Agency
. With respect to each Series of Notes which are
Book Entry Notes, whenever a notice or other communication
to the Noteholders of such Series is required under this
Indenture, unless and until Definitive Notes shall have been
issued to Note Owners pursuant to Section 2.12, the Trustee
shall give all such notices and communications specified
herein to be given to Holders of the Notes to the Clearing
Agency, and shall have no obligation to the Note Owners.
SECTION 2.12 Definitive Notes
. If the Notes of a Series are Book-Entry Notes
and if (i) the Master Servicer advises the Trustee in
writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities with respect
to the Notes of such Series, and the Master Servicer is
unable to locate a qualified successor, (ii) the Master
Servicer at its option advises the Trustee in writing that
it elects to terminate the book-entry system through the
Clearing Agency or (iii) after the occurrence of an Event of
Default with respect to such Series, Note Owners
representing beneficial interests aggregating at least a
majority of the Outstanding Amount of the Notes advise the
Trustee through the Clearing Agency in writing that the
continuation of a book entry system through the Clearing
Agency is no longer in the best interests of the Note
Owners, then the Clearing Agency shall notify all Note
Owners and the Trustee of the occurrence of any such event
and of the availability of Definitive Notes to Note Owners
requesting the same. Upon surrender to the Trustee of the
typewritten Note or Notes representing the Book-Entry Notes
by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute and upon the written
direction of the Issuer the Trustee shall authenticate the
Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Note Registrar or
the Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the
issuance of Definitive Notes, the Trustee shall recognize
the Holders of the Definitive Notes as Noteholders.
SECTION 2.13 Final Distribution
.
(a) The Master Servicer shall give the
Trustee at least 15 days prior notice of the Distribution
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
Trustee shall provide notice to the Noteholders of such
Series or Class specifying (i) the date upon which final
payment of such Series or Class will be made upon
presentation and surrender of Notes (if required) 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. The Trustee shall give such notice to the
Registrar and the Note Paying Agent at the time such notice
is given to Noteholders.
(b) Notwithstanding a final distribution to
the Noteholders of any Series or Class, except as otherwise
provided in this paragraph, all funds then on deposit in the
Master Collection Account and any Series Trust Account
allocated to such Noteholders shall continue to be held in
trust for the benefit of such Noteholders, and the Note
Paying Agent or the Trustee shall pay such funds to such
Noteholders upon surrender of their Notes. In the event
that all such Noteholders shall not surrender their Notes
for cancellation within six months after the date specified
in the notice from the Trustee described in paragraph (a),
the 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. If
within one year after the second notice all such Notes shall
not have been surrendered for cancellation, the 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 account held for the
benefit of such Noteholders. The Trustee and the Note
Paying Agent shall upon written request pay to the related
Issuer any moneys held by them for the payment of principal
or interest that remains unclaimed for two years. After
payment to the related Issuers, Noteholders entitled to the
money must look to the related Issuers for payment as
general unsecured creditors unless an applicable abandoned
property law designates another Person and all liability of
the Trustee or such Note Paying Agent with respect to such
trust money shall thereupon cease.
(c) Any notice required or permitted to be
given to a Holder of Registered Notes shall be given by
first-class mail, postage prepaid, at the address of such
Holder as shown in the Note Register.
ARTICLE III.
Covenants
SECTION 3.1 Payment of Principal and Interest
. The Issuer will duly and punctually pay or
cause to be paid the principal of and interest on the Notes
in accordance with the terms of the Notes, this Indenture
and the related Series Supplement. Amounts properly
withheld under the Code by any Person from a payment to any
Noteholder of interest and/or principal shall be considered
as having been paid by the Issuer to such Noteholder for all
purposes of this Indenture.
SECTION 3.2 Maintenance of Office or Agency
. The Issuer will maintain in New York an office
or agency where Notes may be surrendered for registration,
transfer or exchange of the Notes, and where notices and
demands to or upon the Issuer in respect of the Notes and
this Indenture may be served. The Issuer hereby initially
appoints the Trustee to serve as its agent for the foregoing
purposes. The Issuer will give prompt written notice to the
Trustee of the location, and of any change in the location,
of any such office or agency. If at any time the Issuer
shall fail to maintain any such office or agency or shall
fail to furnish the Trustee with the address thereof, such
surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Issuer hereby appoints the
Trustee as its agent to receive all such surrenders, notices
and demands.
SECTION 3.3 Money for Payments to be Held in
Trust
. One Business Day prior to each Distribution
Date, the Issuer shall deposit or cause to be deposited to
the related Series Collection Account Available Funds (which
shall be immediately available) with respect to the related
Collection Period. Such sum shall be held in trust for the
benefit of the Persons entitled thereto and (unless the Note
Paying Agent is the Trustee), the Issuer shall promptly
notify the Trustee of its action or failure so to act.
The Issuer will cause each Note Paying Agent other
than the Trustee to execute and deliver to the Trustee an
instrument in which such Note Paying Agent shall agree with
the Trustee (and if the Trustee acts as Note Paying Agent
with respect to clauses (i) and (v), it hereby so agrees),
subject to the provisions of this Section, that such Note
Paying Agent will:
(i) hold all sums held by it for the payment of
amounts due with respect to the Notes in trust for the
benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of
as herein provided and pay such sums to such Persons as
herein provided;
(ii) give the Trustee written notice of any
default by the Issuer of which a Responsible Officer of
the Trustee has actual knowledge (or any other obligor
upon the Notes) in the making of any payment required
to be made with respect to the Notes;
(iii) at any time during the continuance of
any such default, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held
in trust by such Note Paying Agent;
(iv) immediately resign as a Note Paying Agent
and forthwith pay to the Trustee all sums held by it in
trust for the payment of Notes if at any time it ceases
to meet the standards required to be met by a Note
Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code
with respect to the withholding from any payments made
by it on any Notes of any applicable withholding taxes
imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture
and any Series Supplement or for any other purpose, by
Issuer Order direct any Note Paying Agent to pay to the
Trustee all sums held in trust by such Note Paying Agent,
such sums to be held by the Trustee upon the same trusts as
those upon which the sums were held by such Note Paying
Agent; and upon such a payment by any Note Paying Agent to
the Trustee, such Note Paying Agent shall be released from
all further liability with respect to such money.
The Trust hereby appoints The Chase Manhattan Bank
as Certificate Paying Agent to make payments to
Certificateholders on behalf of the Issuer in accordance
with the provisions of the Certificates, this Agreement and
the Trust Agreement, and The Chase Manhattan Bank hereby
accepts such appointment (subject to removal in the event it
not longer serves as Trustee pursuant to Section 6.8) and
further agrees that it will be bound by the provisions of
the Trust Agreement relating to the Certificate Paying Agent
and will:
(i) hold all sums held by it for the payment of
amounts due with respect to the Certificates in trust
for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided and as provided in the
Trust Agreement and pay such sums to such Persons as
herein and therein provided;
(ii) give the Owner Trustee notice of any
default by the Issuer of which a Responsible Officer of
the Trustee has actual knowledge in the making of any
payment required to be made with respect to the
Certificates;
(iii) at any time during the continuance of
any such default, upon the written request of the Owner
Trustee forthwith pay to the Owner Trustee on behalf of
the Issuer all sums so held in Trust by such
Certificate Paying Agent;
(iv) immediately resign as a Certificate Paying
Agent and forthwith pay to the Owner Trustee on behalf
of the Issuer all sums held by it in trust for the
payment of Certificates if at any time it ceases to
meet the standards required to be met by a Note Paying
Agent at the time of its appointment; and
(v) comply with all requirements of the Code
with respect to the withholding from any payments made
by it on any Certificates of any applicable withholding
taxes imposed thereon and with respect to any
applicable reporting requirements in connection
therewith.
SECTION 3.4 Existence
. Except as otherwise permitted by the provisions
of Section 3.10, the Issuer will keep in full effect its
existence, rights and franchises as a business trust under
the laws of the State of Delaware (unless it becomes, or any
successor Issuer hereunder is or becomes, organized under
the laws of any other state or of the United States of
America, in which case the Issuer will keep in full effect
its existence, rights and franchises under the laws of such
other jurisdiction) and will obtain and preserve its
qualification to do business in each jurisdiction in which
such qualification is or shall be necessary to protect the
validity and enforceability of this Indenture, each Series
Supplement, the Notes and each other instrument or agreement
included in the related Series Trust Estate.
SECTION 3.5 Protection of Trust Property
. The Issuer intends the security interest
Granted pursuant to this Indenture and the related Series
Supplement in favor of the Holders to be prior to all other
liens in respect of the related Series Trust Estate, and the
Issuer shall take all actions necessary to obtain and
maintain, in favor of the Trustee for the benefit of the
Holders a first lien on and a first priority, perfected
security interest in the related Series Trust Estate. The
Issuer will from time to time prepare (or shall cause to be
prepared), execute and deliver all such supplements and
amendments hereto and all such financing statements,
continuation statements, instruments of further assurance
and other instruments, and will take such other action
necessary or advisable to:
(i) Grant more effectively all or any portion
of the related Series Trust Estate;
(ii) maintain or preserve the lien and security
interest (and the priority thereof) in favor of the
Trustee for the benefit of the Holders created by this
Indenture and the related Series Supplement 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 and the related Series Supplement ;
(iv) enforce any of the related Series Trust
Estate;
(v) preserve and defend title to the related
Series Trust Estate and the rights of the Trustee in
such Trust Property against the claims of all persons
and parties; and
(vi) pay all taxes or assessments levied or
assessed upon the related Series Trust Estate when due.
The Issuer hereby designates the Master Servicer its agent
and attorney-in-fact to execute any financing statement,
continuation statement or other instrument required by the
Trustee pursuant to this Section; provided that, such
designation shall not be deemed to create a duty in the
Trustee to monitor the compliance of the Master Servicer
with respect to its duties under this Section 3.5 or the
adequacy of any financing statement, continuation statement
or other instrument prepared by the Master Servicer.
SECTION 3.6 Opinions as to Trust Property
.
(a) On the Closing Date, the Issuer shall
furnish to the 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, Series Supplement, 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 make effective the first priority
lien and security interest in favor of the Trustee for the
benefit of the Holders, created by this Indenture and the
related Series Supplement and reciting the details of such
action, or stating that, in the opinion of such counsel, no
such action is necessary to make such lien and security
interest effective.
(b) Within 90 days after the beginning of
each calendar year, beginning with 2000, the Master Servicer
on behalf of the Issuer shall furnish to the Trustee an
Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the
recording, filing, re-recording and refiling of this
Indenture, any Series Supplement and any other requisite
documents and with respect to the execution and filing of
any financing statements and continuation statements as are
necessary to maintain the lien and security interest created
by this Indenture and the related Series Supplement and
reciting the details of such action or stating that in the
opinion of such counsel no such action is necessary to
maintain such lien and security interest. Such Opinion of
Counsel shall also describe the recording, filing, re-
recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and
the execution and filing of any financing statements and
continuation statements that will, in the opinion of such
counsel, be required to maintain the lien and security
interest of this Indenture and the related Series Supplement
until December 31 of the following calendar year.
SECTION 3.7 Performance of Obligations;
Servicing of Receivables
.
(a) The Issuer will not take any action and
will use its best efforts not to permit any action to be
taken by others that would release any Person from any of
such Person's material covenants or obligations under any
instrument or agreement included in the related Series Trust
Estate or that would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or
agreement, except as ordered by any bankruptcy or other
court or as expressly provided in this Indenture, the Basic
Documents and the related Series Related Documents or such
other instrument or agreement.
(b) The Issuer may contract with other
Persons to assist it in performing its duties under this
Indenture, and any performance of such duties by a Person
identified to the Trustee in an Officer's Certificate of the
Issuer shall be deemed to be action taken by the Issuer.
Initially, the Issuer has contracted with the Master
Servicer to assist the Issuer in performing its duties under
this Indenture and each Series Supplement. The Master
Servicer hereby agrees to service the Receivables in each
Series Trust Estate in the manner set forth in the Master
Sale and Servicing Agreement, this Indenture and each Series
Supplement and to perform its duties as may be set forth in
the Master Sale and Servicing Agreement, this Indenture and
in each Series Supplement.
(c) The Issuer will punctually perform and
observe all of its obligations and agreements contained in
this Indenture, the Basic Documents, all Series Related
Documents and in the instruments and agreements included in
the related Series Trust Estate, including, but not limited,
to preparing (or causing to be prepared) and filing (or
causing to be filed) all UCC financing statements and
continuation statements required to be filed by the terms of
this Indenture, the related Series Supplement and the Master
Sale and Servicing Agreement in accordance with and within
the time periods provided for herein and therein. Except as
otherwise expressly provided therein, the Issuer shall not
waive, amend, modify, supplement or terminate any Basic
Document or any provision thereof without the consent of the
Trustee.
(d) If a Responsible Officer of the Owner
Trustee shall have actual knowledge of the occurrence of a
Master Servicer Termination Event under the Master Sale and
Servicing Agreement, the Issuer shall promptly notify the
Trustee and the Rating Agencies thereof in accordance with
Section 11.4, and shall specify in such notice the action,
if any, the Issuer is taking in respect of such default. If
a Master Servicer Termination Event shall arise from the
failure of the Master Servicer to perform any of its duties
or obligations under the Master Sale and Servicing Agreement
with respect to the Receivables, the Issuer shall take all
reasonable steps available to it to remedy such failure.
SECTION 3.8 Negative Covenants
. So long as any Notes are Outstanding, the
Issuer shall not:
(i) except as expressly permitted by this
Indenture or the Basic Documents or the related Series
Related Documents, sell, transfer, exchange or
otherwise dispose of any of the properties or assets of
the Issuer, including those included in the related
Series Trust Estate;
(ii) claim any credit on, or make any deduction
from the principal or interest payable in respect of,
the Notes of a Series (other than amounts properly
withheld from such payments under the Code) or assert
any claim against any present or former Noteholder by
reason of the payment of the taxes levied or assessed
upon any part of the related Series Trust Estate; or
(iii) (A) permit the validity or effectiveness
of this Indenture or any Series Supplement to be
impaired, or permit the lien in favor of the Trustee
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 or any
Series Supplement except as may be expressly permitted
hereby, (B) permit any lien, charge, excise, claim,
security interest, mortgage or other encumbrance (other
than the lien of this Indenture and the related Series
Supplement) to be created on or extend to or otherwise
arise upon or burden the related Series Trust Estate or
any part thereof or any interest therein or the
proceeds thereof (other than tax liens, mechanics'
liens and other liens that arise by operation of law,
in each case on a Financed Vehicle and arising solely
as a result of an action or omission of the related
Obligor), c permit the lien of this Indenture and the
related Series Supplement not to constitute a valid
first priority (other than with respect to any such
tax, mechanics' or other lien) security interest in the
related Series Trust Estate, (D) except as expressly
permitted therein, amend, modify or fail to comply with
the provisions of the Basic Documents or (E) except as
expressly permitted therein, amend, modify or fail to
comply with the provisions of the Series Related
Documents.
SECTION 3.9 Annual Statement as to Compliance
. The Master Servicer on behalf of the Issuer
will deliver to the Trustee, within 90 days after the end of
each fiscal year of the Issuer (commencing with the fiscal
year ended December 31, 1999), and otherwise in compliance
with the requirements of TIA Section 314(a)(4) an Officer's
Certificate stating, as to the Authorized Officer signing
such Officer's Certificate, that
(i) a review of the activities of the Issuer
during such year and of performance under this
Indenture has been made under such Authorized Officer's
supervision; and
(ii) to the best of such Authorized Officer's
knowledge, based on such review, the Issuer has
complied with all conditions and covenants under this
Indenture and each Series Supplement throughout such
year, or, if there has been a default in the compliance
of any such condition or covenant, specifying each such
default known to such Authorized Officer and the nature
and status thereof.
SECTION 3.10 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
shall be a Person organized and existing under the laws
of the United States of America or any State and shall
expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form
satisfactory to the 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 and each Series
Supplement on the part of the Issuer to be performed or
observed, all as provided herein;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing under any Series Supplement;
(iii) the Rating Agency Condition shall have
been satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion
of Counsel (and shall have delivered copies thereof to
the Trustee and the Owner Trustee) to the effect that
such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or any
Certificateholder;
(v) any action as is necessary to maintain the
lien and security interest created by this Indenture
and each Series Supplement shall have been taken; and
(vi) the Issuer shall have delivered to the
Trustee an Officer's Certificate and an Opinion of
Counsel each stating that such consolidation or merger
comply with this Article III and that all conditions
precedent herein provided for relating to such
transaction have been complied with (including any
filing required by the Exchange Act).
(b) The Issuer shall not convey or transfer
all or substantially all of its properties or assets,
including those included in each Series Trust Estate, 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, (B) expressly assume,
by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the
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, each Supplement, each of the Basic Documents
and each of the Series Related Documents 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 Series 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,
each Series Supplement and the Notes and (E) expressly
agree by means of such Series Supplement that such
Person (or if a group of persons, then one specified
Person) shall prepare (or cause to be prepared) and
make all filings with the Commission (and any other
appropriate Person) required by the Exchange Act in
connection with the Notes;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing under any Series Supplement;
(iii) the Rating Agency Condition shall have
been satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion
of Counsel (and shall have delivered copies thereof to
the Trustee) to the effect that such transaction will
not have any material adverse tax consequence to the
Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the
lien and security interest created by this Indenture
and each Series Supplement shall have been taken; and
(vi) the Issuer shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel each stating that such conveyance or transfer
and such Indenture Supplement complies with this
Article III and that all conditions precedent herein
provided for relating to such transaction have been
complied with (including any filing required by the
Exchange Act).
SECTION 3.11 Successor or Transferee
.
(a) Upon any consolidation or merger of the
Issuer in accordance with Section 3.10(a), the Person formed
by or surviving such consolidation or merger (if other than
the Issuer) shall succeed to, and be substituted for, and
may exercise every right and power of, the Issuer under this
Indenture and each Series Supplement with the same effect as
if such Person had been named as each Issuer herein.
(b) Upon a conveyance or transfer of all the
assets and properties of the Issuer pursuant to Section 3.10
(b), Household Automobile Revolving Trust I will be released
from every covenant and agreement of this Indenture and each
Series Supplement to be observed or performed on the part of
the Issuer with respect to the Notes immediately upon the
delivery of written notice to the Trustee stating that
Household Automobile Revolving Trust I is to be so released.
SECTION 3.12 No Other Business
. The Issuer shall not engage in any business
other than financing, purchasing, owning, selling and
managing the Receivables, entering and maintaining any
ancillary agreement related to issuance of the Notes and
owning the Class SV Preferred Stock of the Seller in the
manner contemplated by this Indenture, the Basic Documents
and each Series Supplement and all Series Related Documents
and activities incidental thereto.
SECTION 3.13 No Borrowing
. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or
indirectly, for any Indebtedness except for (i) the Notes,
(ii) obligations owing from time to time to a related Series
Support Provider under the related agreement regarding
Series Support, if any and (iii) any other Indebtedness
permitted by or arising under the Basic Documents and each
Series Supplement. The proceeds of the Notes and the
Certificates of a Series shall be used exclusively to fund
the Issuer's purchase of the Receivables of such Series, or
to obtain release of the lien relating to the pledge of the
Receivables for a prior series of notes issued by the
Issuer, the purchase of related property of the Series Trust
Estate, to fund any trust account and to pay the Issuer's
organizational, transactional and start-up expenses.
SECTION 3.14 Master Servicer's Obligations
. The Issuer shall enforce the provisions of
Sections 4.9, 4.10 and 4.11 of the Master Sale and Servicing
Agreement with respect to the duties of Master Service
thereunder.
SECTION 3.15 Guarantees, Loans, Advances and
Other Liabilities
. Except as contemplated by the Master Sale and
Servicing Agreement or this Indenture or any Series
Supplement, 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 continently
liable, directly or indirectly, in connection with the
obligations, stocks or dividends of, or own, purchase,
repurchase or acquire (or agree continently to do so) any
stock, obligations, assets or securities of, or any other
interest in, or make any capital contribution to, any other
Person.
SECTION 3.16 Capital Expenditures
. The Issuer shall not make any expenditure (by
long-term or operating lease or otherwise) for capital
assets (either realty or personally).
SECTION 3.17 Compliance with Laws
. The Issuer shall comply with the requirements
of all applicable laws, the non-compliance with which would,
individually or in the aggregate, materially and adversely
affect the ability of the Issuer to perform its obligations
under the Notes, this Indenture, or any Basic Document, any
Series Supplement or any Series Related Document.
SECTION 3.18 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 Seller, (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, distributions to the Seller, Master
Servicer, the Owner Trustee, the Trustee and the
Certificateholders as permitted by, and to the extent funds
are available for such purpose under, the Master Sale and
Servicing Agreement or Trust Agreement. The Issuer will not,
directly or indirectly, make payments to or distributions
from the Master Collection Account except in accordance with
this Indenture, the Basic Documents, any Series Supplement
or any Series Related Document.
SECTION 3.19 Notice of Events of Default
. Upon a Responsible Officer of the Owner Trustee
having actual knowledge thereof, the Issuer agrees to give
the Trustee and the Rating Agencies prompt written notice of
each Event of Default under any Series Supplement and each
default on the part of the Master Servicer or the Seller of
its obligations under the Master Sale and Servicing
Agreement.
SECTION 3.20 Further Instruments and Acts
. Upon request of the Trustee, the Issuer will
execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Indenture.
SECTION 3.21 Amendments of Master Sale and
Servicing Agreement and Trust Agreement
. The Issuer shall not agree to any amendment to
Section 13.1 of the Master Sale and Servicing Agreement or
Section 13.1 of the Trust Agreement to eliminate the
requirements thereunder that the Trustee or the Holders of
the Notes consent to amendments thereto as provided therein.
SECTION 3.22 Income Tax Characterization
. For purposes of federal income, state and local
income and franchise and any other income taxes, the Issuer,
the Noteholders, the Certificateholders and the Trustee will
treat the Notes as indebtedness and hereby instructs the
Trustee to treat the Notes as indebtedness for federal and
state tax reporting purposes.
SECTION 3.23 No Borrowing
. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or
indirectly, for any Indebtedness except for (i) the Notes
and (ii) any other Indebtedness permitted by or arising
under the Basic Documents.
SECTION 3.24 Guarantees, Loans, Advances and
Other Liabilities
. Except as contemplated by the Master Sale and
Servicing Agreement or this Indenture, the Issuer shall not
make any loan or advance or credit to, or guarantee
(directly or indirectly or by an instrument having the
effect of assuring another's payment or performance on any
obligation or capability of so doing or otherwise), endorse
or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or
dividends of, or own, purchase, repurchase or acquire (or
agree contingently to do so) any stock, obligations, assets
or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.25 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 3.26 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 Master 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, distributions to the Servicer, the Owner
Trustee, the Trustee and the Certificateholders as permitted
by, and to the extent funds are available for such purpose
under the Master Sale and Servicing Agreement or Trust
Agreement.
ARTICLE IV.
Satisfaction and Discharge
SECTION 4.1 Satisfaction and Discharge of
Indenture
. This Indenture shall cease to be of further
effect with respect to the Notes except as to (i) rights of
registration of transfer and exchange, (ii) substitution of
mutilated, destroyed, lost or stolen Notes, (iii) rights of
Noteholders to receive payments of principal thereof and
interest thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8, 3.10,
3.12, 3.13, 3.20, 3.21 and 3.22, (v) the rights and
immunities of the Trustee hereunder (including the rights of
the Trustee under Section 6.7 and the obligations of the
Trustee under Section 4.2) and (vi) the rights of
Noteholders as beneficiaries hereof with respect to the
related Series Trust Estate so deposited with the Trustee
payable to all or any of them, and the Trustee, on demand of
and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture with respect to the Notes, when
(A) either
(1) all Notes theretofore authenticated
and delivered (other than (i) Notes that have been
destroyed, lost or stolen and that have been
replaced or paid as provided in Section 2.5 and
(ii) Notes 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 such trust, as provided
in Section 3.3) have been delivered to the Trustee
for cancellation and the related Series Support,
if any, has been returned to the related Series
Support Provider; or
(2) all Notes not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their respective
Final Scheduled Distribution Dates within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the
name, and at the expense, of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be irrevocably
deposited with the Trustee cash or direct obligations of
or obligations guaranteed by the United States of America
(which will mature prior to the date such amounts are
payable), in trust for such purpose, in an amount
sufficient to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Trustee for
cancellation when due on the Final Scheduled Distribution
Date or tender date (if Notes shall have been called for
redemption or tender pursuant to the related Series
Supplement, as the case may be; and
(B) the Issuer has paid or caused to be paid
all other amounts owing to all Holders.
SECTION 4.2 Application of Trust Money
. All monies deposited with the Trustee pursuant
to Section 4.1 hereof shall be held in trust and applied by
it, in accordance with the provisions of the Notes, this
Indenture and the related Series Supplement, to the payment,
either directly or through any Note Paying Agent, as the
Trustee may determine, to the Holders of the particular
Notes for the payment or redemption of which such monies
have been deposited with the Trustee, of all sums due and to
become due thereon for principal and interest; but such
monies need not be segregated from other funds except to the
extent required herein or in the Master Sale and Servicing
Agreement or required by law.
SECTION 4.3 Repayment of Monies Held by Note
Paying Agent
. In connection with the satisfaction and
discharge of this Indenture with respect to the Notes, all
monies then held by any Note Paying Agent other than the
Trustee under the provisions of this Indenture with respect
to such Notes shall, upon demand of the Issuer, be paid to
the Trustee to be held and applied according to Section 3.3
and thereupon such Note Paying Agent shall be released from
all further liability with respect to such monies.
ARTICLE V.
Remedies
SECTION 5.1 Events of Default
. The definition of "Event of Default" with
respect to a Series, together with certain rights and
remedies consequent thereto, shall be set forth in the
related Series Supplement.
SECTION 5.2 Collection of Indebtedness and
Suits for Enforcement by Trustee
.
(a) Subject to the terms of the related
Series Supplement, the Issuer covenants that if (i) default
is made in the payment of any interest on any Note when the
same becomes due and payable, and such default continues for
a period of five days, or (ii) default is made in the
payment of the principal of or any installment of the
principal of any Note when the same becomes due and payable,
and such default continues for a period of five days, the
Issuer will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of the Notes, the whole amount then
due and payable on such Notes for principal and interest,
with interest upon the overdue principal, and, to the extent
payment at such rate of interest shall be legally
enforceable, upon overdue installments of interest, at the
applicable Interest Rate and in addition thereto such
further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
Trustee and its agents and outside counsel.
(b) If an Event of Default occurs and is
continuing with respect to a Series, the Trustee may in its
discretion proceed to protect and enforce the rights of the
Noteholders of each Series by such appropriate Proceedings
as the Trustee shall deem most effective to protect and
enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture
or the related Series Supplement or in aid of the exercise
of any power granted herein, or to enforce any other proper
remedy or legal or equitable right vested in the Trustee by
this Indenture, the related Series Supplement or by law.
(c) In case there shall be pending, relative
to the Issuer or any other obligor upon the Notes or any
Person having or claiming an ownership interest in the
related Series Trust Estate, proceedings under Title 11 of
the United States Code or any other applicable Federal or
state bankruptcy, insolvency or other similar law, or in
case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the
Issuer or its property or such other obligor or Person, or
in case of any other comparable judicial proceedings
relative to the Issuer or other obligor upon the Notes of
such Series, or to the creditors or property of the Issuer
or such other obligor, the Trustee, irrespective of whether
the principal of any Notes of such Series shall then be due
and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section,
shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(i) to file and prove a claim or claims for the
whole amount of principal and interest owing and unpaid
in respect of such Notes and to file such other papers
or documents as may be necessary or advisable in order
to have the claims of the Trustee against the related
Series Trust Estate (including any claim for reasonable
compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and
outside counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee, except as a
result of negligence, bad faith or willful misconduct)
and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of Notes
of such Series in any election of a trustee, a standby
trustee or person performing similar functions in any
such proceedings;
(iii) to collect and receive any monies or
other property payable or deliverable on any such
claims and received with respect to the related Series
Trust Estate and to distribute all amounts received
with respect to the claims of the Noteholders and of
the Trustee on their behalf; and
(iv) to file such proofs of claim and other
papers or documents as may be necessary or advisable in
order to have the claims of the Trustee or the Holders
of Notes of such Series, in each case against the
related Series Trust Estate allowed in any judicial
proceedings relative to the Issuer, its creditors and
its property;
and any trustee, receiver, liquidator, custodian or other
similar official in any such proceeding is hereby authorized
by each of such Noteholders to make payments to the Trustee,
and, in the event that the Trustee shall consent to the
making of payments directly to such Noteholders, to pay to
the Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Trustee, each predecessor
Trustee and their respective agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith.
(d) Nothing herein contained shall be deemed
to authorize the Trustee to authorize or consent to or vote
for or accept or adopt on behalf of any Noteholder any plan
of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof or
to authorize the Trustee to vote in respect of the claim of
any Noteholder in any such proceeding except, as aforesaid,
to vote for the election of a trustee in bankruptcy or
similar person.
(e) All rights of action and of asserting
claims under this Indenture, the related Series Supplement
or under any of the Notes, may be enforced by the Trustee
without the possession of any of the Notes or the production
thereof in any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Trustee
shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment
of the expenses, disbursements and compensation of the
Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of
the Holders of the Notes.
(f) In any proceedings brought by the
Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture or the
related Series Supplement), the Trustee shall be held to
represent all the Holders of the Notes, and it shall not be
necessary to make any Noteholder a party to any such
proceedings.
SECTION 5.3 Limitation of Suits
. No Holder of any Note shall have any right to
institute any proceeding, judicial or otherwise, with
respect to this Indenture or the related Series Supplement,
or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(i) such Holder has previously given written
notice to the Trustee of a continuing Event of Default
with respect to the Notes of the related Series;
(ii) the Holders of not less than 25% of the
Outstanding Amount of the Notes of the related Series
have made written request to the Trustee to institute
such proceeding in respect of such Event of Default in
its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to
the Trustee indemnity reasonably satisfactory to it
against the costs, expenses and liabilities to be
incurred in complying with such request;
(iv) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity has
failed to institute such Proceedings; and
(v) no direction inconsistent with such written
request has been given to the Trustee during such 60-
day period by the Holders of a majority of the
Outstanding Amount of the Notes of such Series.
it being understood and intended that no Holders of Notes
shall have any right in any manner whatsoever by virtue of,
or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders
of Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right
under this Indenture, except in the manner herein provided.
SECTION 5.4 Unconditional Rights of Noteholders
To Receive Principal and Interest
. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right,
which is absolute and unconditional, to receive payment of
the principal of and interest, if any, on such Note on or
after the respective due dates thereof expressed in such
Note or in this Indenture or the related Series Supplement
(or, in the case of redemption or tender pursuant to any
Series Supplement, on or after the related redemption or
tender date) and to institute suit for the enforcement of
any such payment, and such right shall not be impaired
without the consent of such Holder.
SECTION 5.5 Restoration of Rights and Remedies
. If the Trustee or any Noteholder has instituted
any Proceeding to enforce any right or remedy under this
Indenture or the related Series Supplement and such
Proceeding has been discontinued or abandoned for any
reason, then and in every such case the Issuer, the Trustee,
and the related 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 Trustee, and the
related Noteholders shall continue as though no such
proceeding had been instituted.
SECTION 5.6 Rights and Remedies Cumulative
. No right or remedy herein conferred upon or
reserved to the related Noteholders is intended to be
exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 5.7 Delay or Omission Not a Waiver
. No delay or omission of the Trustee or any
Holder of any related Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair
any such right or remedy or constitute a waiver of any such
Default or Event of Default or an acquiescence therein.
Every right and remedy given by this Article V or by law to
the Trustee, the Trustee or to the related Noteholders may
be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the related
Noteholders, as the case may be.
SECTION 5.8 Control by Noteholders
. The Holders of a majority of the Outstanding
Amount of the Notes with respect to such Series shall have
the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee with
respect to the Notes of such Series or exercising any trust
or power conferred on the Trustee; provided that
(i) such direction shall not be in conflict
with any rule of law or with this Indenture or with the
related Series Supplement; and
(ii) the Trustee may take any other action
deemed proper by the Trustee that is not inconsistent
with such direction;
provided, however, that, subject to Section 6.1, the Trustee
need not take any action that it determines might involve it
in liability or might materially adversely affect the rights
of any Noteholders not consenting to such action.
SECTION 5.9 Waiver of Past Defaults
. Unless otherwise provided in the related Series
Related Documents, a majority of the Noteholders of a Series
may waive any past Default or Event of Default relating to
such Series and its consequences except a Default relating
to such Series (a) in payment of principal of or interest on
any of the Notes of the related Series or (b) in respect of
a covenant or provision hereof which cannot be modified or
amended without the consent of the Holder of each Note of
the related Series. In the case of any such waiver, the
Issuer, the Trustee and the Holders of the Notes of the
related Series shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other Default or impair any
right consequent thereto.
Upon any such waiver, such Default shall cease to
exist and be deemed to have been cured and not to have
occurred, and any Event of Default arising therefrom shall
be deemed to have been cured and not to have occurred, for
every purpose of this Indenture and the related Series
Supplement; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair
any right consequent thereto.
SECTION 5.10 Undertaking for Costs
. All parties to this Indenture and the related
Series Supplement agree, and each Holder of any Note by such
Xxxxxx's acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this
Indenture and the related Series Supplement, or in any suit
against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard
to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section
shall not apply to (a) any suit instituted by the Trustee,
(b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than
10% of the Outstanding Amount of the Notes of the related
Series or c any suit instituted by any Noteholder for the
enforcement of the payment of principal of or interest on
any Note on or after the respective due dates expressed in
such Note and in this Indenture and the related Series
Supplement.
SECTION 5.11 Waiver of Stay or Extension Laws
. The Issuer covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead or in any manner whatsoever, claim or take the benefit
of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants
or the performance of this Indenture and the related Series
Supplement; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit of any
such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
SECTION 5.12 Action on Notes
. The Trustee's right to seek and recover
judgment on the Notes or under this Indenture or any Series
Supplement shall not be affected by the seeking, obtaining
or application of any other relief under or with respect to
this Indenture or the related Series Supplement. Neither
the lien of this Indenture or the related Series Supplement
nor any rights or remedies of the Trustee or the Noteholders
shall be impaired by the recovery of any judgment by the
Trustee against the Issuer or by the levy of any execution
under such judgment upon any portion of the related Series
Trust Estate or upon any of the assets of the Issuer.
SECTION 5.13 Performance and Enforcement of
Certain Obligations
.
(a) Promptly following a request from the
Trustee to do so and at the Master Servicer's expense, the
Issuer agrees to take all such lawful action as the Trustee
may request to compel or secure the performance and
observance by the Seller and the Master Servicer, as
applicable, of each of their obligations to the Issuer under
or in connection with the Master Sale and Servicing
Agreement in accordance with the terms thereof, and to
exercise any and all rights, remedies, powers and privileges
lawfully available to the Issuer under or in connection with
the Master Sale and Servicing Agreement to the extent and in
the manner directed by the Trustee, including the
transmission of notices of default on the part of the Seller
or the Master Servicer thereunder and the institution of
legal or administrative actions or proceedings to compel or
secure performance by the Seller or the Master Servicer of
each of their obligations under the Master Sale and
Servicing Agreement.
(b) If an Event of Default has occurred and
is continuing with respect to a Series, the Trustee may,
and, at the written direction of the Holders of 66-2/3% of
the Outstanding Amount of the Notes of such Series shall,
exercise all rights, remedies, powers, privileges and claims
of the Issuer against the Seller or the Master Servicer
under or in connection with the Master Sale and Servicing
Agreement, including the right or power to take any action
to compel or secure performance or observance by the Seller
or the Master Servicer of each of their obligations to the
Issuer thereunder and to give any consent, request, notice,
direction, approval, extension or waiver under the Master
Sale and Servicing Agreement, and any right of the Issuer to
take such action shall be suspended.
ARTICLE VI.
The Trustee
SECTION 6.1 Duties of Trustee
.
(a) If an Event of Default has occurred and
is continuing of which Responsible Officer of the Trustee
has actual knowledge, the Trustee shall exercise the rights
and powers vested in it by this Indenture and the Basic
Documents and use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an
Event of Default with respect to a Series of which a
Responsible Officer of the Trustee has actual knowledge:
(i) the Trustee undertakes to perform with
respect to such Series such duties and only such duties
as are specifically set forth in this Indenture and the
related Series Supplement and no implied covenants or
obligations shall be read into this Indenture or the
related Series Supplement against the Trustee; and
(ii) in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee as the case may be and
conforming to the requirements of this Indenture and
the related Series Supplement; however, the Trustee
shall examine the certificates and opinions to
determine whether or not they conform on their face to
the requirements of this Indenture or the related
Series Supplement provided, further, that the Trustee
shall not be responsible for the accuracy or content of
any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished
to it, including, without limitation, any statistical,
numerical or financial data contained therein.
(c) The Trustee may not be relieved from
liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with
respect to any action it takes or omits to take in good
faith in accordance with a direction received by it
pursuant to Section 5.8.
(d) The Trustee shall not be liable for
interest on any money received by it except as such Person
may agree in writing with the Issuer.
(e) Money held in trust by the Trustee need
not be segregated from other funds except to the extent
required by law or the terms of this Indenture, the related
Series Supplement or the Master Sale and Servicing
Agreement.
(f) No provision of this Indenture or the
related Series Supplement shall require the Trustee to
expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder
or in the exercise of any of its rights or powers, if it
shall have reasonable grounds to believe that repayment of
such funds or indemnity reasonably satisfactory to it
against such risk or liability is not reasonably assured to
it.
(g) Every provision of this Indenture and
the related Series Supplement relating to the conduct or
affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section
and to the provisions of the TIA.
(h) The Trustee shall, and xxxxxx agrees
that it will, perform all of the obligations and duties
required of it under the Master Sale and Servicing
Agreement.
(i) Without limiting the generality of this
Section 6.1, the Trustee shall have no duty (i) to see to
any recording, filing or depositing of this Indenture, any
Series Supplement or any agreement referred to herein or any
financing statement evidencing a security interest in the
Financed Vehicles, or to see to the maintenance of any such
recording or filing or depositing or to any recording,
refiling or redepositing of any thereof, (ii) to see to any
insurance of the Financed Vehicles or Obligors or to effect
or maintain any such insurance, (iii) to see to the payment
or discharge of any tax, assessment or other governmental
charge or any Lien or encumbrance of any kind owing with
respect to, assessed or levied against any part of the
Trust, (iv) to confirm or verify the contents of any reports
or certificates delivered to the Trustee pursuant to this
Indenture, any Series Supplement or the Master Sale and
Servicing Agreement believed by the Trustee to be genuine
and to have been signed or presented by the proper party or
parties, or (v) to inspect the Financed Vehicles at any time
or ascertain or inquire as to the performance of observance
of any of the Issuer's, the Seller's or the Master
Servicer's representations, warranties or covenants or the
Master Servicer's duties and obligations as Master Servicer
and as custodian of the Receivable Files under the Master
Sale and Servicing Agreement.
(j) In no event shall The Chase Manhattan
Bank, in any of its capacities hereunder, be deemed to have
assumed any duties of the Owner Trustee under the Delaware
Business Trust Statute, common law, or the Trust Agreement.
SECTION 6.2 Rights of Trustee
.
(a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from
acting, it may require an Officer's Certificate or an
Opinion of Counsel. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance
on the Officer's Certificate or Opinion of Counsel.
(c) The Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys or a
custodian or nominee, and the Trustee shall not be
responsible for any misconduct or negligence on the part of,
or for the supervision of the Master Servicer or any other
agent, attorney, custodian or nominee appointed with due
care by it hereunder.
(d) The Trustee shall not be liable for any
action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers;
provided, however, that the Trustee's conduct does not
constitute willful misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel,
and the advice or opinion of counsel with respect to legal
matters relating to this Indenture, the Basic Documents, any
Series Supplement, any Series Related Documents and the
Notes and such advice or opinion of counsel shall be full
and complete authorization and protection from liability in
respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) The Trustee shall be under no obligation
to institute, conduct or defend any litigation under this
Indenture or any Series Supplement or in relation to this
Indenture or any Series Supplement, at the request, order or
direction of any of the Holders of Notes, pursuant to the
provisions of this Indenture or any Series Supplement,
unless such Holders of Notes shall have offered to the
Trustee reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred therein or
thereby; provided, however, that the Trustee shall, upon the
occurrence of an Event of Default (that has not been cured),
exercise the rights and powers vested in it by this
Indenture and any Series Supplement with reasonable care and
skill customary for the care and skill exercised by trustees
under similar circumstances.
(g) The Trustee shall not be bound to make
any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or
other paper or document, provided, however, that if the
payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of
the Trustee not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, any
Series Supplement or the Master Sale and Servicing
Agreement, the Trustee may require indemnity reasonably
satisfactory to it against such cost, expense or liability
as a condition to so proceeding; the reasonable expense of
every such examination shall be paid by the Person making
such request, or, if paid by the Trustee shall be reimbursed
by the Person making such request upon demand.
(h) The right of the Trustee to perform any
discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Trustee shall not be answerable
for other than its negligence or willful misconduct in the
performance of such act.
(i) The Trustee shall not be required to
give any bond or surety in respect of the execution of the
Trust Estate created hereby or the powers granted hereunder.
(j) Anything in this Indenture or any
Supplement hereto to the contrary notwithstanding, in no
event shall the Trustee be liable for special, indirect or
consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the
Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
(k) The Trustee shall not be required to
take notice or be deemed to have notice or knowledge of any
default, Event of Default, Master Servicer Termination Event
unless a Responsible Officer of the Trustee shall have
actual notice thereof.
(l) The Trustee shall not in any way be held
liable by reason of any insufficiency in any Trust Account
(including, without limitation, the Master Collection
Account, the Reserve Account and the 1998-1 Note Account or
any subaccount thereof) held by or on behalf of the Trustee
resulting from any investment loss on any Eligible
Investment included therein.
SECTION 6.3 Individual Rights of Trustee
. The Trustee in its individual or any other
capacity may become the owner or pledgee of Notes and may
otherwise deal with the Issuer or its Affiliates with the
same rights it would have if it were not Trustee. Any Note
Paying Agent, Note Registrar, co-registrar or co-paying
agent may do the same with like rights. However, the
Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4 Trustee's Disclaimer
. The Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of
this Indenture, any Series Supplement, the related Series
Trust Estate or the Notes, it shall not be accountable for
the Issuer's use of the proceeds from the Notes, and it
shall not be responsible for any statement of the Issuer in
the Indenture, in any Series Supplement or in any document
issued in connection with the sale of the Notes or in the
Notes other than the Trustee's certificate of
authentication.
SECTION 6.5 Notice of Defaults
. If an Event of Default occurs and is continuing
and if it is either actually known by, or written notice of
the existence thereof has been delivered to, a Responsible
Officer of the Trustee, the Trustee shall mail to each
Noteholder notice of the Default within 90 days after such
knowledge or notice occurs. Except in the case of a Default
in payment of principal of or interest on any Note, the
Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests
of Noteholders.
SECTION 6.6 Reports by Trustee to Holders
. Upon written request, the Note Paying Agent or
the Master Servicer shall on behalf of the Issuer deliver to
each Noteholder such information as may be reasonably
required to enable such Holder to prepare its Federal and
state income tax returns required by law.
SECTION 6.7 Compensation and Indemnity
.
(a) As payable in each Series Supplement,
the Issuer shall, or shall cause the Master Servicer to, pay
to the Trustee from time to time the Trustee Fee as
compensation for its services. The Trustee's compensation
shall not be limited by any law on compensation of a trustee
of an express trust. The Issuer shall or shall cause the
Master Servicer to reimburse the Trustee for all reasonable
out-of-pocket expenses incurred or made by it, including
costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the
Trustee's agents, outside counsel, accountants and experts.
The Issuer shall or shall cause the Master Servicer to
indemnify the Trustee, and its respective officers,
directors, employees and agents against any and all loss,
liability or expense (including attorneys' fees and
expenses) incurred by each of them in connection with the
acceptance or the administration of this trust and the
performance of its duties hereunder. The Trustee shall
notify the Issuer and the Master Servicer promptly of any
claim for which it may seek indemnity. Failure by the
Trustee to so notify the Issuer and the Master Servicer
shall not relieve the Issuer of its obligations hereunder or
the Master Servicer of its obligations under Article XII of
the Master Sale and Servicing Agreement. The Issuer shall
defend or shall cause the Master Servicer to defend any
claim for indemnity that may arise against the Trustee, or
the Trustee may have separate counsel and the Issuer shall
or shall cause the Master Servicer to pay the fees and
expenses of such counsel. Neither the Issuer nor the Master
Servicer need reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through
such Person's own willful misconduct, negligence or bad
faith.
(b) The Issuer's payment obligations to the
Trustee pursuant to this Section shall survive the
resignation or removal of the Trustee and the discharge of
this Indenture. When the Trustee incurs expenses after the
occurrence of an Insolvency Event with respect to the
Issuer, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or
any other applicable federal or state bankruptcy, insolvency
or similar law. Notwithstanding anything else set forth in
this Indenture, the Basic Documents, any Series Supplement
or any Series Related Documents, the Trustee agrees that the
obligations of the Issuer (but not the Master Servicer) to
the Trustee hereunder and under any Series Supplement or any
Series Related Documents, shall be recourse to the related
Series Trust Estate only and specifically shall not be
recourse to the assets of the Issuer or any Securityholder.
In addition, the Trustee agrees that its recourse to the
Issuer, the related Series Trust Estate, the Seller and
amounts held pursuant to the related Series Support shall be
limited to the right to receive the distributions as
provided for in the payment priority provisions of the
related Series Supplement.
SECTION 6.8 Replacement of Trustee
. The Trustee may, and in the circumstances
specified in subparagraph (i) shall, resign at any time upon
60 days' prior written notice by so notifying the Issuer.
Holders of a majority of Outstanding Amount of the Notes and
the Master Servicer may remove the Trustee by so notifying
the Trustee upon 60 days' written notice. The Issuer may
and, at the request of the Noteholders shall, remove the
Trustee, if:
(i) the Trustee fails to comply with Section
6.11;
(ii) a court having jurisdiction in the premises
in respect of the Trustee in an involuntary case or
proceeding under federal or state banking or bankruptcy
laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or
other similar law, shall have entered a decree or order
granting relief or appointing a receiver, liquidator,
assignee, custodian, trustee, conservator, sequestrator
(or similar official) for the Trustee or for any
substantial part of the Trustee's property, or ordering
the winding-up or liquidation of the Trustee's affairs;
(iii) an involuntary case under the federal
bankruptcy laws, as now or hereafter in effect, or
another present or future federal or state bankruptcy,
insolvency or similar law is commenced with respect to
the Trustee and such case is not dismissed within 60
days;
(iv) the Trustee commences a voluntary case
under any federal or state banking or bankruptcy laws,
as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or
other similar law, or consents to the appointment of or
taking possession by a receiver, liquidator, assignee,
custodian, trustee, conservator, sequestrator (or other
similar official) for the Trustee or for any
substantial part of the Trustee's property, or makes
any assignment for the benefit of creditors or fails
generally to pay its debts as such debts become due or
takes any corporate action in furtherance of any of the
foregoing;
(v) the Trustee otherwise becomes incapable of
acting; or
(vi) the rating assigned to the long-term
unsecured debt obligations of the Trustee by the Rating
Agencies shall be lowered below the rating of "BBB",
"Baa3" or equivalent rating or be withdrawn by either
of the Rating Agencies.
If the Trustee resigns or is removed or if a
vacancy exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the
retiring Trustee), the Issuer shall promptly deliver a
notice of such removal, resignation or vacancy to the Master
Servicer and the Master Servicer may appoint a successor
Trustee. If the Master Servicer fails to appoint such a
successor Trustee, the Issuer or a resigning Trustee may
petition any court of competent jurisdiction to appoint a
successor Trustee. If the Trustee resigns or is removed,
the Trustee shall also resign or be removed, as the case may
be, as Certificate Paying Agent.
A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to
the Issuer. Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the
retiring Trustee under this Indenture and the Series
Supplement. The successor Trustee shall mail a notice of
its succession to Noteholders. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the
successor Trustee.
If the Trustee fails to comply with Section 6.11,
any Noteholder may petition any court of competent
jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Issuer's and the Master Servicer's
obligations under Section 6.7 shall continue for the benefit
of the retiring Trustee.
SECTION 6.9 Successor Trustee by Xxxxxx
. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or
transferee entity without any further act shall be the
successor Trustee; provided that such corporation or banking
association shall otherwise be eligible under Section 6.11
hereof. The Trustee shall provide the Rating Agencies with
written notice of any such transaction as soon as practical
thereafter.
In case at the time such successor or successors
by merger, conversion or consolidation to the Trustee shall
succeed to the trusts created by this Indenture any of the
Notes shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such
Notes so authenticated; and in case at that time any of the
Notes shall not have been authenticated, any successor to
the Trustee may authenticate such Notes either in the name
of any predecessor hereunder or in the name of the successor
to the Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes
or in this Indenture provided that the certificate of the
Trustee shall have.
SECTION 6.10 Appointment of Co-Trustee or
Separate Trustee
.
(a) Notwithstanding any other provisions of
this Indenture, at any time, for the purpose of meeting any
legal requirement of any jurisdiction in which any part of
the Trust may at the time be located, the Trustee shall have
the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-
trustees, or separate trustee or separate trustees, of all
or any part of the related Series Trust Estate, and to vest
in such Person or Persons, in such capacity and for the
benefit of the Noteholders, such title to the related Series
Trust Estate, or any part hereof, and, subject to the other
provisions of this Section, such powers, duties,
obligations, rights and trusts as the Trustee may consider
necessary or desirable. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 6.11 and no notice to
Noteholders of the appointment of any co-trustee or separate
trustee shall be required under Section 6.8 hereof.
(b) Every separate trustee and co-trustee
shall, to the extent permitted by law, be appointed and act
subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be
conferred or imposed upon and exercised or performed by
the Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which
any particular act or acts are to be performed the
Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title
to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed singly
by such separate trustee or co-trustee, but solely at
the direction of the Trustee;
(ii) no trustee hereunder shall be personally
liable by reason of any act or omission of any other
trustee hereunder, including acts or omissions of
predecessor or successor trustees; and
(iii) the Trustee may at any time accept the
resignation of or remove any separate trustee or co-
trustee.
(c) Any notice, request or other writing
given to the Trustee shall be deemed to have been given to
each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article VI. Each
separate trustee and co-trustee, upon its acceptance of the
trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided
therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture
relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument
shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may
at any time constitute the Trustee, its agent or attorney-in-
fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect
of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, dissolve, become
insolvent, become incapable of acting, resign or be removed,
all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or
successor trustee.
SECTION 6.11 Eligibility: Disqualification
. The Trustee shall at all times: satisfy TIA
310(a), have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual
report of condition, and have a long-term debt rating of at
least "BBB", "Baa3" or equivalent rating from each of the
Rating Agencies. The Trustee shall comply with TIA
310(b), including the optional provision permitted by the
second sentence of TIA 310(b)(9); provided, however, that
there shall be excluded from the operation of TIA
310(b)(1) any indenture or indentures under which other
securities of the Issuer are outstanding if the requirements
for such exclusion set forth in TIA 310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims
Against Issuer
. The Trustee shall comply with TIA 311(a),
excluding any creditor relationship listed in TIA 311(b).
A Trustee who has resigned or been removed shall be subject
to TIA 311(a) to the extent indicated.
SECTION 6.13 Representations and Warranties of
the Trustee
. The Trustee represents and warrants to the
Issuer as follows:
(a) Due Organization. The Trustee is a New
York banking corporation, duly organized, validly existing
and in good standing under the laws of the State of New York
and is duly authorized and licensed under applicable law to
conduct its business as presently conducted.
(b) Corporate Power. The Trustee has all
requisite right, power and authority to execute and deliver
this Indenture and each Series Supplement and to perform all
of its duties as the Trustee hereunder.
(c) Due Authorization. The execution and
delivery by the Trustee of this Indenture, each Series
Supplement and the other Series Related Transaction
Documents to which it is a party, and the performance by the
Trustee of its duties hereunder and thereunder, have been
duly authorized by all necessary corporate proceedings which
are required for the valid execution and delivery by the
Trustee, or the performance by the Trustee, of this
Indenture, each Series Supplement and such other Series
Related Documents.
(d) Xxxxx and Binding Indenture. The
Trustee has duly executed and delivered this Indenture, each
Series Supplement, each other Basic Document and each Series
Related Document to which it is a party, and each of this
Indenture, any Series Supplement, each other Basic Document
and each other Series Related Document constitutes the
legal, valid and binding obligation of the Trustee
enforceable against the Trustee in accordance with its
terms, except as (i) such enforceability may be limited by
bankruptcy, insolvency, reorganization and similar laws
relating to or affecting the enforcement of creditors'
rights generally and (ii) the availability of equitable
remedies may be limited by equitable principles of general
applicability.
SECTION 6.14 Waiver of Setoffs
. The Trustee hereby expressly waives any and all
rights of setoff that the Trustee may otherwise at any time
have under applicable law with respect to any Trust Account
and Series Trust Account and agrees that amounts in the
Trust Accounts and Series Trust Accounts shall at all times
be held and applied solely in accordance with the provisions
hereof.
SECTION 6.15 No Consent to Certain Acts of
Seller
. The Seller shall not request that the Trustee
consent to, nor shall the Trustee consent to any action
proposed to be taken by the Seller pursuant to Article
FIFTEENTH of the Seller's Articles of Incorporation.
ARTICLE VII.
Noteholders' Lists and Reports
SECTION 7.1 Issuer To Furnish To Trustee Names
and Addresses of Noteholders
. The Issuer will furnish or cause to be
furnished to the Trustee with respect to each Series of
Notes (a) not more than five days after the earlier of (i)
each Record Date with respect to such Series and (ii) three
months after the last Record Date, a list, in such form as
the Trustee may reasonably require, of the names and
addresses of the Holders with respect to such Series as of
such Record Date, (b) at such other times as the Trustee may
request in writing, within 30 days after receipt by the
Issuer of any such request, a list of similar form and
content as of a date not more than 10 days prior to the time
such list is furnished; provided, however, that so long as
the Trustee is the Note Registrar, no such list shall be
required to be furnished.
SECTION 7.2 Preservation of Information;
Communications to Noteholders
. The Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses
of the Holders contained in the most recent list furnished
to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity
as Note Registrar. The Trustee may destroy any list
furnished to it as provided in such Section 7.1 upon receipt
of a new list so furnished.
(a) Noteholders may communicate pursuant to
TIA 312(b) with other Noteholders with respect to their
rights under this Indenture or under the Notes.
(b) The Issuer, the Trustee and the Note
Registrar shall have the protection of TIA 312c.
SECTION 7.3 Reports by Issuer
.
If this Indenture is qualified under the TIA, the Issuer
shall:
(i) file with the Trustee, within 15 days after
the Issuer is required to file the same with the
Commission, copies of the annual reports and copies of
the information, documents and other reports (or copies
of such portions of any of the 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
15(d) of the Exchange Act;
(ii) file with the 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
(iii) supply to the Trustee (and the Trustee
shall transmit by mail to all Noteholders described in
TIA 313c) such summaries of any information,
documents and reports required to be filed by the
Issuer pursuant to clauses (i) and (ii) of this Section
7.3(a) as may be required by rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines,
the fiscal year of the Issuer shall end on December 31 of
each year.
(c) The Trustee shall not have any duty or
obligation with respect to any reports or other information
delivered to it pursuant to this Section 7.3.
SECTION 7.4 Reports by Trustee
. If required by TIA 313(a), within 60 days
after each March 31 beginning with March 31, 1999 the
Trustee shall mail to each Noteholder as required by TIA
313c a brief report dated as of such date that complies
with TIA 313(a). The Trustee also shall comply with TIA
313(b).
A copy of each report at the time of its mailing
to Noteholders shall be filed by the Trustee with the
Commission and each stock exchange, if any, on which the
Notes are listed. The Issuer shall notify the Trustee if
and when the Notes are listed on any stock exchange.
ARTICLE VIII.
Accounts, Disbursements and Releases
SECTION 8.1 Collection of Money
. Except as otherwise expressly provided herein,
the Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or
assistance of any fiscal agent or other intermediary, all
money and other property payable to or receivable by the
Trustee pursuant to this Indenture and the Master Sale and
Servicing Agreement. The Trustee shall apply all such money
received by it as provided in this Indenture and the Series
Supplement. Except as otherwise expressly provided in this
Indenture or in the Master Sale and Servicing Agreement, if
any default occurs in the making of any payment or
performance under any agreement or instrument that is part
of the Series Trust Estate, the Trustee may take such action
as may be appropriate to enforce such payment or
performance, including the institution and prosecution of
appropriate proceedings. Any such action shall be without
prejudice to any right to claim a Default or Event of
Default under this Indenture and any right to proceed
thereafter as provided in Article V.
SECTION 8.2 Release of Trust Property
.
(a) Subject to the payment of its fees and
expenses pursuant to Section 6.7, the Trustee may, and when
required by the Issuer and the provisions of this Indenture
shall, execute instruments to release property from the lien
of this Indenture, in a manner and under circumstances that
are not inconsistent with the provisions of this Indenture.
No party relying upon an instrument executed by the Trustee
as provided in this Article VIII shall be bound to ascertain
the Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any
monies.
(b) The Trustee shall, at such time as there
are no Notes outstanding and all sums due the Trustee
pursuant to Section 6.7 have been paid, release any
remaining portion of the related Series Trust Estate that
secured the Notes from the lien of this Indenture and
release to the Issuer or any other Person entitled thereto
any funds then on deposit in the Trust Accounts. The
Trustee shall release property from the lien of this
Indenture pursuant to this Section 8.2(b) only upon receipt
of an Issuer Request accompanied by an Officer's
Certificate, an Opinion of Counsel and (if required by the
TIA) Independent Certificates in accordance with TIA 314c
and 314(d)(1) meeting the applicable requirements of Section
11.1.
SECTION 8.3 Opinion of Counsel
. The Trustee shall receive at least seven days'
notice when requested by the Issuer to take any action
pursuant to Section 8.2(a), accompanied by copies of any
instruments involved, and the Trustee shall also 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 and such action will not materially and
adversely impair the security for the Notes or the rights of
the Noteholders in contravention of the provisions of this
Indenture; provided, however, that such Opinion of Counsel
shall not be required to express an opinion as to the fair
value of the related Series Trust Estate. Counsel rendering
any such opinion may rely, without independent
investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Trustee in
connection with any such action.
ARTICLE IX.
Amendments; Series Supplements
SECTION 9.1 Amendments Without Consent of
Noteholders
.
(a) Except as otherwise provided in the
Series Supplement, without the consent of the Holders of any
Notes but with prior written notice to the Rating Agencies,
as evidenced to the Trustee and the Issuer, when authorized
by an Issuer Order, at any time and from time to time, the
parties hereto may enter into one or more amendments hereto,
in form satisfactory to the Trustee, for any of the
following purposes:
(i) to correct or amplify the description of
any property at any time subject to the lien of this
Indenture, or better to assure, convey and confirm unto
the Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject
to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance
with the applicable provisions hereof, of another
person to the Issuer, and the assumption by any such
successor of the covenants of the Issuer herein and in
the Notes contained;
(iii) to add to the covenants of the Issuer,
for the benefit of the Holders of the Notes, or to
surrender any right or power herein conferred upon the
Issuer;
(iv) to convey, transfer, assign, mortgage or
pledge any property to or with the Trustee;
(v) to cure any ambiguity, to correct or
supplement any provision herein or in any Series
Supplement which may be inconsistent with any other
provision herein or in any Series Supplement or to make
any other provisions with respect to matters or
questions arising under this Indenture or in any Series
Supplement; provided that such action shall not
adversely affect the interests of the Holders of the
Notes;
(vi) to evidence and provide for the acceptance
of the appointment hereunder by a successor trustee
with respect to the Notes and to add to or change any
of the provisions of this Indenture as shall be
necessary to facilitate the administration of the
trusts hereunder by more than one trustee, pursuant to
the requirements of Article VI; or
(vii) to modify, eliminate or add to the
provisions of this Indenture to such extent as shall be
necessary to effect the qualification of this Indenture
under the TIA or under any similar federal statute
hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the
TIA.
The Trustee is hereby authorized to join in the
execution of any amendment and to make any further
appropriate agreements and stipulations that may be therein
contained.
(b) Except as otherwise provided in the
Series Supplement, the Issuer and the Trustee, when
authorized by an Issuer Order, may, also without the consent
of any of the Holders of the Notes but with prior written
notice to the Rating Agencies by the Issuer, as evidenced to
the Trustee, enter into an amendment hereto for the purpose
of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the
Notes under this Indenture; provided, however, that such
action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of
any Noteholder.
SECTION 9.2 Amendments With Consent of
Noteholders
. Except as otherwise provided in the Series
Supplement, the Issuer and the Trustee, when authorized by
an Issuer Order provided by the Master Servicer, also may,
upon satisfaction of the Rating Agency Condition and with
the consent of the Holders of not less than a majority of
the Outstanding Amount of each class of Notes affected
thereby, by Act of such Holders delivered to the Issuer and
the Trustee, enter into an amendment hereto for the purpose
of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the
Notes under this Indenture; provided, however, that no such
amendment shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(i) change the date of payment of any installment of
principal of or interest on any Note, or reduce
the principal amount thereof, the interest rate
thereon, change the provision of this Indenture
relating to the application of collections on, or
the proceeds of the sale of, any Series Trust
Estate to payment of principal of or interest on
the Notes, or change any place of payment where,
or the coin or currency in which, any Note or the
interest thereon is payable;
(ii) impair the right to institute suit for the
enforcement of the provisions of this Indenture
requiring the application of funds available
therefor, as provided in Article V, to the payment
of any such amount due on the Notes on or after
the respective due dates thereof;
(iii) reduce the percentage of the Outstanding Amount of
the Notes, the consent of the Holders of which is
required for any such Series Supplement, or the
consent of the Holders of which is required for
any waiver of compliance with certain provisions
of this Indenture or certain defaults hereunder
and their consequences provided for in this
Indenture;
(iv) modify or alter the provisions of the proviso to
the definition of the term "Outstanding";
(v) reduce the percentage of the Outstanding Amount of
the Notes required to direct the Trustee to direct
the Issuer to sell or liquidate the Series Trust
Estate pursuant to Section 5.4;
(vi) modify any provision of this Section except to
increase any percentage specified herein or to
provide that certain additional provisions of this
Indenture or the Basic Documents cannot be
modified or waived without the consent of the
Holder of each Outstanding Note affected thereby;
(vii) modify any of the provisions of this Indenture in
such manner as to affect the calculation of the
amount of any payment of interest or principal due
on any Note on any Distribution Date (including
the calculation of any of the individual
components of such calculation) or to affect the
rights of the Holders of Notes to the benefit of
any provisions for the mandatory redemption of the
Notes contained in the Series Supplement; or
(viii) permit the creation of any lien ranking prior to
or on a parity with the lien of this Indenture
with respect to any part of the Series Trust
Estate or, except as otherwise permitted or
contemplated herein or in the Series Supplement or
the Series Related Documents, terminate the lien
of this Indenture on any property at any time
subject hereto or deprive the Holder of any Note
of the security provided by the lien of this
Indenture.
It shall not be necessary for any Act of
Noteholders under this Section to approve the particular
form of any proposed amendment, but it shall be sufficient
if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the
Trustee of any amendment pursuant to this Section, the
Trustee shall mail to the Holders of the Notes to which such
amendment relates a notice setting forth in general terms
the substance of such amendment. Any failure of the Trustee
to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any
such amendment.
Prior to the execution of any amendment to this
Indenture, the Indenture Trustee shall be entitled to
receive and rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by
this Indenture. The Indenture Trustee may, but shall not be
obligated to, enter into any such amendment which affects
the Indenture Trustee's own rights, duties or immunities
under this Indenture.
SECTION 9.3 Supplements Authorizing a Series of
Notes
.
(a) Each Series of Notes issued hereunder
shall be issued pursuant to a Series Supplement, which shall
set forth the terms and provisions of such Series.
(b) Amendments to Series Supplements shall
be governed by the provisions of the relevant Series
Supplement. The Trustee may conclusively rely on an Opinion
of Counsel as to which Series Supplements relate to which
Series, or to this Indenture (and thus all Series) as a
whole.
SECTION 9.4 Execution of Series Supplements
. In executing, or permitting the additional
trusts created by, any Series Supplement permitted by this
Article IX or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to
receive, and subject to Sections 6.1 and 6.2, shall be fully
protected in relying upon, an Opinion of Counsel (and, if
requested, an Officer's Certificate) stating that the
execution of such Series Supplement is authorized or
permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such Series Supplement that
affects the Trustee's own rights, duties, liabilities or
immunities under this Indenture or otherwise.
SECTION 9.5 Effect of Series Supplement
. Upon the execution of any Series Supplement or
amendment pursuant to the provisions of such Series
Supplement or hereof, this Indenture shall be and be deemed
to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective
rights, limitations of rights, obligations, duties,
liabilities and immunities under this Indenture of the
Trustee, the Issuer and the Holders of the Notes shall
thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and
amendments, and all the terms and conditions of any such
Series Supplement or Amendment shall be and be deemed to be
part of the terms and conditions of this Indenture for any
and all purposes.
SECTION 9.6 Conformity With Trust Indenture Act
. Every amendment of this Indenture and every
Series Supplement executed pursuant to this Article IX shall
conform to the requirements of the Trust Indenture Act as
then in effect so long as this Indenture shall then be
qualified under the Trust Indenture Act.
SECTION 9.7 Reference in Notes to Series
Supplements
. Notes authenticated and delivered after the
execution of any Series Supplement pursuant to this Article
IX may, and if required by the Issuer shall, bear a notation
as to any matter provided for in such Series Supplement. If
the Issuer shall so determine, new Notes so modified as to
conform, in the opinion of the Issuer, to any such Series
Supplement may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
ARTICLE X.
Reserved
ARTICLE XI.
Miscellaneous
SECTION 11.1 Compliance Certificates and
Opinions, etc.
(a) Upon any application or request by the
Issuer to the Trustee to take any action under any provision
of this Indenture or any Series Supplement, the Issuer shall
furnish to the Trustee (i) an Officer's Certificate stating
that all conditions precedent, if any, provided for in this
Indenture or any Series Supplement relating to the proposed
action have been complied with, (ii) an Opinion of Counsel
stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with and
(iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting the
applicable requirements of this Section, 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 or any Series Supplement, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this
Indenture or any Series Supplement shall include:
(i) a statement that each signatory of such
certificate or opinion has read or has caused to be
read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and
scope of the examination or investigation upon which
the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each
such signatory, such signatory has made such
examination or investigation as is necessary to enable
such signatory to express an informed opinion as to
whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion
of each such signatory such condition or covenant has
been complied with.
(b) (i) Prior to the deposit of any
property or securities with the Trustee that is to be
made the basis for the release of any property or
securities subject to the lien of this Indenture and
the related Series Supplement, the Issuer shall, in
addition to any obligation imposed in Section 11.1(a)
or elsewhere in this Indenture or the related Series
Supplement, furnish to the Trustee an Officer's
Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value
(within 90 days of such deposit) to the Issuer of the
property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish
to the Trustee an Officer's Certificate certifying or
stating the opinion of any signer thereof as to the
matters described in clause (i) above, the Issuer shall
also deliver to the Trustee an Independent Certificate
as to the same matters, if the fair value to the Issuer
of the securities to be so deposited and of all other
such securities made the basis of any such withdrawal
or release since the commencement of the then-current
fiscal year of the Issuer, as set forth in the
certificates delivered pursuant to clause (i) above and
this clause (ii), is 10% or more of the Outstanding
Amount of the Notes; provided, that such a certificate
need not be furnished with respect to any securities so
deposited, if the fair value thereof to the Issuer as
set forth in the related Officer's Certificate is less
than $25,000 or less than 1% percent of the Outstanding
Amount of the Notes.
(iii) Other than with respect to the release
of any Repurchased Receivables or Liquidated
Receivables (as such terms are defined in the Master
Sale and Servicing Agreement), whenever any property or
securities are to be released from the lien of this
Indenture and the related Series Supplement, the Issuer
shall also furnish to the Trustee an Officer's
Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value
(within 90 days of such release) of the property or
securities proposed to be released and stating that in
the opinion of such person the proposed release will
not impair the security under this Indenture and the
related Series Supplement in contravention of the
provisions hereof.
(iv) Whenever the Issuer is required to furnish
to the Trustee an Officer's Certificate certifying or
stating the opinion of any signer thereof as to the
matters described in clause (i) above, the Issuer shall
also furnish to the Trustee an Independent Certificate
as to the same matters if the fair value of the
property or securities and of all other property other
than Repurchased Receivables and Defaulted Receivables
(as such terms are defined in the Master Sale and
Servicing Agreement), or securities released from the
lien of this Indenture since the commencement of the
then current calendar year, as set forth in the
certificates required by clause (ii) above and this
clause (iii), equals 10% or more of the Outstanding
Amount of the Notes; provided, that such certificate
need not be furnished in the case of any release of
property or securities if the fair value thereof as set
forth in the related Officer's Certificate is less than
$25,000 or less than 1 percent of the then Outstanding
Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other
provision of this Section, the Issuer may (A) collect,
liquidate, sell or otherwise dispose of Receivables as
and to the extent permitted or required by the Basic
Documents and (B) make cash payments out of the Trust
Accounts as and to the extent permitted or required by
the Basic Documents.
SECTION 11.2 Form of Documents Delivered to
Trustee
. In any case where several matters are required
to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an Authorized
Officer of the Issuer may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to
the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate of an Authorized
Officer or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of the
Master Servicer, the Seller or the Issuer, stating that the
information with respect to such factual matters is in the
possession of the Master Servicer, the Seller or the Issuer,
unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever in this Indenture or any Series
Supplement, in connection with any application or
certificate or report to the Trustee, it is provided that
the Issuer shall deliver any document as a condition of the
granting of such application, or as evidence of the Issuer's
compliance with any term hereof, it is intended that the
truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or
report (as the case may be), of the facts and opinions
stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such
application granted or to the sufficiency of such
certificate or report. The foregoing shall not, however, be
construed to affect the Trustee's right to conclusively rely
upon the truth and accuracy of any statement or opinion
contained in any such document as provided in Article VI.
SECTION 11.3 Acts of Noteholders
.
(a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Noteholders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in
person or by agents duly appointed in writing; and except as
herein otherwise expressly provided such action shall become
effective when such instrument or instruments are delivered
to the Trustee, and, where it is hereby expressly required,
to the Issuer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Noteholders
signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.1) conclusive in favor of the
Trustee and the Issuer, if made in the manner provided in
this Section.
(b) The fact and date of the execution by
any person of any such instrument or writing may be proved
in any customary manner of the Trustee.
(c) The ownership of Notes shall be proved
by the Note Register.
(d) Any request, demand, authorization,
direction, notice, consent, waiver or other action by the
Holder of any Notes shall bind the Holder of every Note
issued upon the registration thereof or in exchange therefor
or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Trustee or the Issuer in reliance
thereon, whether or not notation of such action is made upon
such Note.
SECTION 11.4 Notices, etc., to Trustee, Issuer
and Rating Agencies
. Any request, demand, authorization, direction,
notice, consent, waiver or Act of Noteholders or other
documents provided or permitted by this Indenture or any
Series Supplement to be made upon, given or furnished to or
filed with:
(a) The Trustee by any Noteholder or by the
Issuer shall be sufficient for every purpose hereunder if
personally delivered, delivered by overnight courier or
mailed first-class and shall be deemed to have been duly
given upon receipt to the Trustee at its Corporate Trust
Office, or
(b) The Issuer by the Trustee or by any
Noteholder shall be sufficient for every purpose hereunder
if personally delivered, delivered by facsimile or overnight
courier or mailed first class, and shall deemed to have been
duly given upon receipt to the Issuer addressed to:
Household Automobile Revolving Trust I, in care of
Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000 Attention:
Corporate Trust Administration, or at any other address
previously furnished in writing to the Trustee by Issuer.
The Issuer shall promptly transmit any notice received by it
from the Noteholders to the Trustee.
Notices required to be given to the Rating
Agencies by the Issuer, the Trustee or the Owner Trustee
shall be in writing, personally delivered, delivered by
overnight courier or first class or via facsimile to (i) in
the case of Moody's, at the following address: Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Fax No: (000) 000-0000 and (ii) in the case of
S&P, at the following address: Standard & Poor's Ratings
Group, 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000,
Attention: Asset Backed Surveillance Department, Fax No:
(000) 000-0000; or as to each of the foregoing, at such
other address as shall be designated by written notice to
the other parties.
SECTION 11.5 Notices to Noteholders; Waiver
. Where this Indenture or any Series Supplement
provides for notice to Noteholders of any event, such notice
shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class,
postage prepaid to each Noteholder affected by such event,
at his address as it appears on the Note Register, not later
than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case
where notice to Noteholders is given by mail, neither the
failure to mail such notice nor any defect in any notice so
mailed to any particular Noteholder shall affect the
sufficiency of such notice with respect to other
Noteholders, and any notice that is mailed in the manner
herein provided shall conclusively be presumed to have been
duly given.
Where this Indenture or any Series Supplement
provides for notice in any manner, such notice may be waived
in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by
Noteholders shall be filed with the Trustee but such filing
shall not be a condition precedent to the validity of any
action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular
mail service as a result of a strike, work stoppage or
similar activity, it shall be impractical to mail notice of
any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such
notice.
Where this Indenture or any Series Supplement
provides for notice to the Rating Agencies, failure to give
such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance
constitute a Default or Event of Default.
SECTION 11.6 Alternate Payment and Notice
Provisions
. Notwithstanding any provision of this
Indenture, any Series Supplement or any of the Notes to the
contrary, the Issuer may enter into any agreement with any
Holder of a Note providing for a method of payment, or
notice by the Trustee or any Note Paying Agent to such
Holder, that is different from the methods provided for in
this Indenture or the related Series Supplement for such
payments or notices, provided that such methods are
reasonable and consented to by the Trustee (which consent
shall not be unreasonably withheld). The Issuer will furnish
to the Trustee a copy of each such agreement and the Trustee
will cause payments to be made and notices to be given in
accordance with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act
. If this Indenture is qualified under the Trust
Indenture Act and if any provision hereof limits, qualifies
or conflicts with another provision hereof that is required
to be included in this indenture by any of the provisions of
the Trust Indenture Act, such required provision shall
control.
The provisions of TIA 310 through 317 that
impose duties on any person (including the provisions
automatically deemed included herein unless expressly
excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of
Contents
. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 11.9 Successors and Assigns
. All covenants and agreements in this Indenture
and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the
Trustee in this Indenture, any Series Supplement shall bind
its successors. All agreements of the Master Servicer in
this Indenture or any Series Supplement shall bind its
successors and assigns.
SECTION 11.10 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.
SECTION 11.11 Benefits of Indenture
. Nothing in this Indenture or any Series
Supplement or in the Notes, express or implied, shall give
to any Person, other than the parties hereto and their
successors hereunder, and the Noteholders, and any other
party secured hereunder, and any other person with an
ownership interest in any part of the related Series Trust
Estate, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 11.12 Legal Holidays
. In any case where the date on which any payment
is due shall not be a Business Day, then (notwithstanding
any other provision of the Notes, this Indenture or any
Series Supplement) payment need not be made on such date,
but may be made on the next succeeding Business Day with the
same force and effect as if made on the date an which
nominally due, and no interest shall accrue for the period
from and after any such nominal date.
SECTION 11.13 GOVERNING LAW
. THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO
ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts
. This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.15 Recording of Indenture
. If this Indenture or any Series Supplement is
subject to recording in any appropriate public recording
offices, such recording is to be effected by the Issuer and
at its expense accompanied by an Opinion of Counsel (which
may be counsel to the Trust or any other counsel reasonably
acceptable to the Trustee) to the effect that such recording
is necessary either for the protection of the Noteholders or
any other person secured hereunder or for the enforcement of
any right or remedy granted to the Trustee under this
Indenture or any Series Supplement.
SECTION 11.16 Trust Obligation
. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer,
the Seller, the Master Servicer, the Owner Trustee or the
Trustee on the Notes or under this Indenture or any Series
Supplement or any certificate or other writing delivered in
connection herewith or therewith, against (i) the Seller,
the Master Servicer, the Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest
in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director, employee or agent of the Seller,
the Master Servicer, the Trustee or the Owner Trustee in its
individual capacity, any holder of a beneficial interest in
the Issuer, the Seller, the Master Servicer, the Owner
Trustee or the Trustee or of any successor or assign of the
Seller, the Master Servicer, the Trustee or the Owner
Trustee in its individual capacity, except as any such
Person may have expressly agreed (it being understood that
the Trustee and the Owner Trustee have no such obligations
in their individual capacity) and except that any such owner
or beneficiary shall be fully liable, to the extent provided
by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any
installment or call owing to such entity. For all purposes
of this Indenture, in the performance of any duties or
obligations of the Issuer hereunder, the Owner Trustee shall
be subject to, and entitled to the benefits of, the terms
and provisions of Articles VI, VII, and VIII of the Trust
Agreement.
SECTION 11.17 No Petition
. The Trustee, by entering into this Indenture,
and each Noteholder, by accepting a Note, hereby covenant
and agree that they will not at any time institute against
the Seller, or the Issuer, or join in any institution
against the Seller, 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 of the Basic Documents or any of the Series Related
Documents.
SECTION 11.18 Inspection
. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Trustee,
during the Issuer's normal business hours, to examine all
the books of account, records, reports, and other papers of
the Issuer, to make copies and extracts therefrom, to cause
such books to be audited by independent certified public
accountants, and to discuss the Issuer's affairs, finances
and accounts with the Issuer's officers, employees, and
independent certified public accountants, all at such
reasonable times and as often as may be reasonably
requested. The Trustee shall and shall cause its
representatives to hold in confidence all such information
except to the extent disclosure may be required by law (and
all reasonable applications for confidential treatment are
unavailing) and except to the extent that the Trustee may
reasonably determine that such disclosure is consistent with
its Obligations hereunder.
SECTION 11.19 Limitation of Liability
. It is expressly understood and agreed by the
parties hereto that (a) this Agreement is executed and
delivered by Wilmington Trust Company, not individually or
personally but solely as Owner Trustee of the Issuer under
the Trust Agreement, in the exercise of the powers and
authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on
the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by Wilmington
Trust Company but is made and intended for the purpose for
binding only the Issuer, c nothing herein contained shall be
construed as creating any liability on Wilmington Trust
Company individually or personally, to perform any covenant
either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties to
this Agreement and by any person claiming by, through or
under them and (d) under no circumstances shall Wilmington
Trust Company 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 undertaking by the Issuer under
this Agreement or any related documents.
[Signature Page Follows]
IN WITNESS WHEREOF, the Issuer, the Master
Servicer and the Trustee have caused this Indenture to be
duly executed by their respective officers, hereunto duly
authorized, all as of the day and year first above written.
HOUSEHOLD AUTOMOBILE
REVOLVING TRUST I
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but
solely as Owner Trustee
By:_______________________________
Name:
Title:
HOUSEHOLD FINANCE CORPORATION.
as Master Servicer
By:_______________________________
Name:
Title:
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee
By:_______________________________
Name:
Title:
[Signature Page for the Indenture]
