DYN FUNDING CORPORATION,
Issuer
and
BANKERS TRUST COMPANY,
Trustee
INDENTURE
Dated as of January 1, 1992
$100,000,000
8.54% CONTRACT RECEIVABLE COLLATERALIZED NOTES,
SERIES 1992-1, DUE 1997
Table of Contents
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions
ARTICLE TWO
NOTE FORM
Section 2.01. Form Generally
Section 2.02. Form of Notes
Section 2.03. Denominations
Section 2.04. Execution, Authentication, Delivery and
Dating
Section 2.05. Registration, Registration of Transfer and
Exchange
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes
Section 2.07. Payment of Principal and Interest; Principal
and Interest Rights Preserved
Section 2.08. Persons Deemed Owners
Section 2.09. Cancellation
Section 2.10. Purchase of Notes by the Issuer
ARTICLE THREE
AUTHENTICATION AND DELIVERY OF NOTES
Section 3.01. General Provisions
Section 3.02. The Receivables
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture
Section 4.02. Application of Trust Money
ARTICLE FIVE
DEFAULTS AND REMEDIES
Section 5.01. Events of Default
Section 5.02. Acceleration of Maturity
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee
Section 5.04. Remedies
Section 5.05. Trustee May Enforce Claims Without Possession
of Notes
Section 5.06. Application of Proceeds
Section 5.07. Limitation on Suits
Section 5.08. Unconditional Rights of Noteholders to
Receive Principal and Interest
Section 5.09. Restoration of Rights and Remedies
Section 5.10. Rights and Remedies Cumulative
Section 5.11. Delay or Omission Not Waiver
Section 5.12. Control by Noteholders
Section 5.13. Waiver of Past Defaults
Section 5.14. Undertaking for Costs
Section 5.15. Waiver of Stay or Extension Laws
Section 5.16. Sale of Trust Estate
Section 5.17. Action on Notes
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities
Section 6.02. Notice of Default
Section 6.03. Certain Rights of Trustee
Section 6.04. Not Responsible for Recitals or Issuance of
Notes
Section 6.05. May Hold Notes
Section 6.06. Money Held in Trust
Section 6.07. Compensation and Reimbursement
Section 6.08. Corporate Trustee Required; Eligibility
Section 6.09. Resignation and Removal; Appointment of
Successor
Section 6.10. Acceptance of Appointment by Successor
Section 6.11. Merger, Conversion, Consolidation or
Succession to Business of Trustee
Section 6.12. Trustee as Successor Servicer
Section 6.13. Co-trustees and Separate Trustees
Section 6.14. Rights of the Trustee Upon Appointment of
Successor Servicer
ARTICLE SEVEN
NOTEHOLDERS' LIST AND REPORTS BY TRUSTEE AND ISSUER
Section 7.01. Issuer to Furnish Trustee Names and Addresses
of Noteholders
Section 7.02. Preservation of Information; Communications
to Noteholders
Section 7.03. Reports by and Inspections of Issuer
Section 7.04. Annual and Quarterly Statements as to Compliance
Section 7.05. Contract Schedule
Section 7.06. Primary Contract List
ARTICLE EIGHT
REPRESENTATIONS AND COVENANTS OF ISSUER
Section 8.01. Payment of Principal and Interest
Section 8.02. Maintenance of Office or Agency
Section 8.03. Unclaimed Funds
Section 8.04. Corporate Existence
Section 8.05. Protection of Trust Estate
Section 8.06. Representations and Covenants of the Issuer
Section 8.07. Negative Covenants
Section 8.08. Issuer May Consolidate, Etc., Only on Certain
Terms
Section 8.09. Successor Substituted
Section 8.10. Money for Note Payments to Be Held in Trust
Section 8.11. Performance of Obligations; Servicing
Agreement
Section 8.12. Corporate Separateness of Issuer
ARTICLE NINE
ACCOUNTS, ACCOUNTING AND RELEASES
Section 9.01. Collection of Money
Section 9.02. Collection Account; Distribution Account
Section 9.03. General Provisions Regarding Accounts and the
Reserve Fund
Section 9.04. Reports by Trustee; Contract Schedule
Section 9.05. Trust Estate; Contract Documents
Section 9.06. Amendments to Servicing Agreement
Section 9.07. Servicer as Custodian and Bailee of Trustee
Section 9.08. Reserve Fund
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures
Section 10.02. Execution of Supplemental Indentures
Section 10.03. Effect of Supplemental Indenture
Section 10.04. Reference in Notes to Supplemental
Indentures
ARTICLE ELEVEN
REDEMPTION OF NOTES
Section 11.01. Optional Redemption
Section 11.02. Special and Mandatory Redemption
Section 11.03. Notice of Optional Redemption by the Issuer
Section 11.04. Deposit of Redemption Price for Optional,
Special and Mandatory Redemptions
Section 11.05. Notes Payable on Redemption Date
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. Acts of Noteholders
Section 12.02. Notices, Etc., to Trustee and Issuer
Section 12.03. Notices to Noteholders; Waiver
Section 12.04. Effect of Headings and Table of Contents
Section 12.05. Successors and Assigns
Section 12.06. Separability
Section 12.07. Benefits of Indenture
Section 12.08. Governing Law
Section 12.09. Counterparts
Section 12.10. Corporate Obligation
Exhibit A Form of Notes
Exhibit B Form of Credit and Collections Statement of Policy
Exhibit C Form of Opinion of Counsel to the Issuer
Exhibit D Form of Accountants' Certificate
Exhibit E Form of Sale and Purchase Agreement
Exhibit F Form of Assignment of Claims Act Notice
Schedule A Contract Schedule
Schedule B Receivable Schedule
Schedule C List of Sellers
Schedule D Primary Contract List
INDENTURE, dated as of January 1, 1992 (herein, as amended,
modified or supplemented from time to time as permitted hereby,
called this "Indenture"), between Dyn Funding Corporation, a
corporation organized and existing under the laws of the State of
Delaware (herein, together with its permitted successors and
assigns, called the "Issuer"), and Bankers Trust Company, a New
York State banking corporation, as trustee (herein, together with
its successors in the trusts hereunder, called the "Trustee").
PRELIMINARY STATEMENT
The Issuer has duly authorized the execution and delivery of
this Indenture to provide for an issue of its 8.54% Contract
Receivable Collateralized Notes, Series 1992-1, due 1997 (the
"Notes") as provided in this Indenture. All covenants and
agreements made by the Issuer herein are for the benefit and security
of the holders of the Notes. The Issuer is entering into this Indenture,
and the Trustee is accepting the trusts created hereby, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
Simultaneously with the delivery of this Indenture (a) the
Issuer is entering into Sale and Purchase Agreements with
DynCorp, a corporation organized and existing under the laws of
the State of Delaware (the "Company"), and with certain other
separately incorporated subsidiaries of the Company named in such
Sale and Purchase Agreements (each referred to herein as a
"Seller" and, with the Company when the Company is being referred
to as a seller of Receivables, collectively referred to as the
"Sellers") pursuant to which each of the Sellers will sell
certain of its receivables specified therein to the Issuer and
(b) the Issuer, the Company and the Trustee are entering into the
Servicing Agreement pursuant to which the Company will agree to
service the Receivables and make collections thereon on behalf of
the holders from time to time of the Notes.
Subsequent to the delivery of this Indenture the Issuer may
enter into Sale and Purchase Agreements with certain separately
incorporated subsidiaries of the Company named in such Sale and
Purchase Agreements (each referred to herein as a "Seller")
pursuant to which each of such Sellers, if any, will sell certain
of its receivables specified therein to the Issuer.
GRANTING CLAUSES
The Issuer hereby Grants to the Trustee, for the exclusive
benefit of the Holders of the Notes, all of the Issuer's right,
title and interest in and to (a) the Receivables and all proceeds
received in respect of such Receivables, (b) all of the Sale and
Purchase Agreements, (c) the Servicing Agreement as it relates to
such Receivables, (d) the Collection Account, including all
Eligible Investments therein and all income from the investment
of funds therein, (e) the Distribution Account, including all
Eligible Investments therein and all income from the investment
of funds therein, (f) the Reserve Fund, including all Eligible
Investments therein and all income from the investment of funds
therein, (g) any Lockbox Account, including all Eligible
Investments therein and all income from the investment of funds
therein and (h) all proceeds in any way derived from any of the
foregoing items. Such Grants are made in trust to secure the
Notes equally and ratably without prejudice, priority or
distinction, except as expressly provided in the Indenture, between
any Note and any other Notes, and to secure (i) the
payment of all amounts due on the Notes in accordance with their
terms, (ii) the payment of all other sums payable under this
Indenture and (iii) compliance with the provisions of this
Indenture, all as provided in this Indenture.
The Trustee acknowledges such Xxxxx, accepts the trusts
hereunder in accordance with the provisions hereof and agrees to
perform the duties herein required to the end that the interests
of the Noteholders may be adequately and effectively protected.
ARTICLE ONE
DEFINITIONS
I. A. Definitions.
Except as otherwise specified herein or as the context may
otherwise require, the following terms have the respective
meanings set forth below for all purposes of this Indenture, and
the definitions of such terms are equally applicable both to the
singular and plural forms of such terms and to the masculine,
feminine and neuter genders of such terms.
Accountants' Certificate: A certificate of a firm of
independent certified public accountants of national reputation
appointed by the Issuer and reasonably acceptable to the Trustee,
which may be the firm of independent accountants that audits the
financial statements of the Issuer or the Company.
Accounts: The collective reference to the Collection
Account, the Distribution Account and any Lockbox Account.
Act and Acts of Noteholders: The meanings specified in
Section 12.01.
Administrative Expenses: The sum of: (a) the amounts due
the Trustee under Section 6.07; (b) federal and state taxes of
the Issuer and the cost of preparing tax returns; (c) expenses
relating to the maintenance of the Receivables; (d) expenses
incurred for general business operations of the Issuer; and (e)
all other expenses of the Issuer relating to the maintenance of
the Notes (to the extent not paid out of the proceeds of the
issuance of the Notes or by the Servicer), including but not
limited to, legal fees and expenses of counsel and accountants' fees;
provided, however, that Administrative Expenses shall not
include (a) the release of Excess Cash, (b) the Servicing Fee,
(c) any Deferred Purchase Price or (d) any damages or indemnities
payable by the Issuer to any Noteholder.
Affiliate: With respect to any Person, any other Person
controlling or controlled by or under common control with such
Person. For the purposes of this definition, "control", when
used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise, the terms "controlling" and
"controlled" having meanings correlative to the foregoing.
Aggregate Collateral Balance: As of any date of
determination, the sum of (a) the aggregate Stated Value of the
Receivables Granted to the Trustee and (b) all amounts on deposit
in the Collection Account.
Amortization Date: February 28, 1997.
Amortization Period: The period commencing with the day
after the Payment Date next preceding the Amortization Date to
and including the date on which principal of the Notes is paid in
full.
Assignment of Claims Act Notice: Any Assignment of Claims
Act Notice substantially in the form of Exhibit F hereto.
Authorized Officer: With respect to the Company, the Issuer
or any Seller, the President or any Vice President, Secretary or
Treasurer of such entity.
Average Daily Revenue: As of any Determination Date or
Purchase Date during the Non-Amortization Period and with respect
to any Government Contract or Government Subcontract, (a) the
aggregate amount of revenue recognized by the Company in its
unaudited financial statements and reports under such Government
Contract or Government Subcontract during the three immediately
preceding Determination Periods divided by (b) the number of
Calendar Days in such three preceding Determination Periods;
provided, that if the related Seller has performed under such
Government Contract or Government Subcontract for a period of
less than three months as of such Determination Date or Purchase
Date, Average Daily Revenue will be calculated on the basis of
such lesser period; provided, further, that Average Daily Revenue
shall not be calculated on the basis of a period of less than 28
Calendar Days. With respect to any Government Contract or
Government Subcontract if the amount of average daily revenue is
expected to permanently decrease by more than 10% from the
Average Daily Revenue for such Government Contract or Government
Subcontract as of the preceding Determination Date or Purchase
Date for which Average Daily Revenue was calculated, then Average
Daily Revenue will be adjusted immediately to an amount equal to
such decreased level to the same extent as if such decrease had
been in effect since the first day of the period over which
Average Daily Revenue is being calculated.
Board of Directors: The Board of Directors of the Issuer or
any committee of that Board duly authorized to act on behalf of
that Board with respect to any matters arising under the
Indenture.
Board Resolution: Any action by the Board of Directors, as
evidenced by a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Issuer to have been duly adopted by
the Board of Directors and to be in full force and effect on the
date of such certification and delivery to the Trustee.
Business Day: Any day that is not a Saturday, Sunday, holi
day, or other day on which commercial banking institutions in New
York are authorized or obligated by law or executive order to be
closed.
Calendar Day: Any day of a month.
Called Principal: With respect to any Note, the Note
Principal Balance that is declared to be due and payable pursuant
to (i) an Optional Redemption, Mandatory Redemption or Special
Redemption pursuant to Article Eleven or (ii) an acceleration of
maturity pursuant to Section 5.02.
Closing Date: The date on which the Notes are first
executed and delivered to the Purchasers.
Code: The Internal Revenue Code of 1986, as amended, and
the rules and regulations promulgated thereunder.
Collateral Value Percentage: With respect to (a) any
Government Receivable, 92% of its Stated Value, (b) any
Government Subcontract Receivable, 76% of its Stated Value and
(c) any Commercial Receivable, 76% of its Stated Value.
Collateral Value Ratio: As of any date of determination,
the ratio obtained by dividing (a) the sum of (i) the aggregate
Stated Value of the Receivables Granted to the Trustee, less the
aggregate Stated Value of Excluded Receivables, all valued at the
applicable Collateral Value Percentage, and (ii) all amounts on
deposit in the Collection Account by (b) the Outstanding Note
Principal Balance.
Collection Account: The account so denominated and
established pursuant to Section 9.02(a) herein. As used herein,
except if otherwise specifically provided and except in Section
3.01 and Sections 4.03(m), 4.04 and 5.02(d) of each Sale and
Purchase Agreement, the term Collection Account shall include any
Lockbox Accounts.
Collections: With respect to any Receivable, to the extent
that such Receivable has not been repurchased by a Seller
pursuant to its Sale and Purchase Agreement, all cash collections
and other cash proceeds of such Receivable that are collected in
available funds by the Issuer or the Servicer for deposit into a
Lockbox Account or a Seller's Lockbox Account.
Commercial Receivable: Any Receivable other than a
Government Receivable or a Government Subcontract Receivable.
Commission: The Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange
Act of 1934, as amended, or any successor agency having similar
power.
Company: DynCorp, a Delaware corporation.
Compliance Audit: The meaning specified in Section 7.04.
Consolidated EBDAIT: For any period, (a) the sum of the
amounts for such period of (i) Consolidated Net Income, (ii)
provision for taxes based on income, (iii) Consolidated Interest
Expense, (iv) depreciation expense, (v) amortization expense,
(vi) Restricted Stock Plan expense and (vii) Net ESOP Contri
butions, less (b) the amount for such period of interest income
(such amount of interest income not to exceed $1,500,000 for any
rolling twelve-month period), all as determined on a consolidated
basis in accordance with GAAP.
Consolidated Interest Expense: For any period, the sum of
(a) total interest expense of the Company and its subsidiaries on a
consolidated basis with respect to all outstanding indebtedness
of the Company and its subsidiaries, including, without
limitation, all commissions, discounts, and other fees and
charges owed with respect to letters of credit and bankers'
acceptance financings and net costs under interest rate
agreements, all as determined in accordance with GAAP, and (b)
interest expense on the Company's ESOP-related loan, which is
reported as cost of services.
Consolidated Net Cash Interest Expense: For any period,
(a) Consolidated Interest Expense, but excluding, however,
interest expense not payable in cash, amortization of debt
discount and deferred financing costs, less (b) interest income
(such amount of interest income not to exceed $1,500,000 for any
rolling twelve-month period).
Consolidated Net Income: For any period, the net income
(or loss) of the Company and its subsidiaries on a consolidated
basis for such period, excluding the sum of (i) extraordinary
items, net of taxes based on income, (ii) dividends on preferred
stock, and (iii) amortization of issuance discount on preferred
stock, all as determined in accordance with GAAP.
Contract: An agreement between one of the Sellers and an
Obligor, or an open account of an Obligor evidenced by an invoice
of a Seller, pursuant to which such Obligor is obligated to pay
for merchandise or services. Receivables under Government
Contracts or Government Subcontracts of a Seller may be combined
and aggregated in accordance with the following restrictions:
(i) the aggregate Stated Value of Receivables arising under each
Government Contract which is combined and aggregated must be less
than $500,000; (ii) the Stated Value of Receivables arising under
each Government Subcontract, which is combined and aggregated
must be less than $250,000; (iii) Government Contracts may only
be combined with other Government Contracts from the same Seller
and Government Subcontracts may only be combined with other
Government Subcontracts of the same Seller and the Contract
Schedule must separately identify each Contract included within
each aggregate; and (iv) the aggregate Stated Value of all
Receivables so combined and aggregated may not exceed 5% of the
Aggregate Collateral Balance.
Contract Schedule: The list in the form set forth in
Schedule A hereto identifying (a) each Government Contract and
Government Subcontract as to which Receivables arising thereunder
are initially Granted hereunder, (b) each Government Contract and
Government Subcontract as to which Receivables arising thereunder
are Granted hereunder subsequent to the Closing Date and (c)
each Obligor as to which Commercial Receivables arising
thereunder are initially Granted hereunder and subsequent to the
Closing Date.
Corporate Trust Office: The principal office of the Trustee
at which at any particular time its corporate trust business
shall be administered, which office at the date of the execution
of this Agreement is located at Four Albany Street, 10th Floor,
New York, New York 10006 (Attention: Corporate Trust and Agency
Group, Structured Finance Team).
Credit and Collection Practices: The Company's normal
credit extension practices and procedures and collection
practices relating to the Contracts and the Receivables applied
in accordance with the statement of policy set forth in Exhibit B
hereto.
Cut-off Date: January 15, 1992.
Date of Execution: The actual date of execution of this
Indenture by the Issuer and the Trustee as indicated by their
respective acknowledgements hereto annexed, and if the Issuer and
the Trustee shall have executed this Indenture at different
dates, the later date.
Default: Any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default or, when
used in association with obligations created by an agreement
other than this Indenture, the meaning specified in such agree
ment.
Defaulted Receivable: Any Receivable that is not a Disputed
Receivable or an Ineligible Receivable and:
(a) with respect to Government Receivables, that
portion of a Receivable (i) as to which any payment, or part
thereof, remains unpaid for 180 days from the original
billing date, (ii) that portion of which, consistent with
the Credit and Collection Policy, would be written off on
the Company's financial statements or books of account as
uncollectible (excluding, however, any portion as to which
non-payment is the result of a dispute between the
Government and the Company regarding amounts payable by the
Government to the Company under the related Contract), or (iii) as
to which the Government has given notice to the
Company, or the Company has reason to believe, that such
Receivable or portion thereof will not be paid (excluding,
however, any portion as to which non-payment is the result
of a dispute between the Government and the Company
regarding amounts payable by the Government to the Company
under the related Contract) and
(b) with respect to Commercial Receivables or
Government Subcontract Receivables, that portion of a
Receivable (i) as to which any payment, or part thereof,
remains unpaid for 180 days from the original billing date,
(ii) as to which the related Obligor or Prime Contractor
becomes bankrupt, unless such Obligor or Prime Contractor
has the approval of a bankruptcy court of competent
jurisdiction to make payments under the related Contract and
such payments are not the subject of any legal challenge,
(iii) that portion of which, consistent with the Credit and
Collection Policy, would be written off on the Company's
financial statements or books of account as uncollectible
(excluding, however, any portion as to which non-payment is
the result of a dispute regarding amounts payable to the
Company under the related Contract); provided, that with
respect to an Obligor or Prime Contractor that is not rated
Investment Grade and the Commercial Receivables or
Government Subcontract Receivables of which are Defaulted
Receivables pursuant to any of clauses (i) through (iv) of
this paragraph (b), all remaining Commercial Receivables or
Government Subcontract Receivables of such Obligor or Prime
Contractor will be deemed Defaulted Receivables unless the
Company delivers to the Trustee an Officer's Certificate to
the effect that: (i) the Company has no reason to believe
that the remaining Commercial Receivables or Government
Subcontract Receivables of such Obligor or Prime Contractor
will not be paid or will become Defaulted Receivables; and
(ii) the aggregate of the Stated Values of all Defaulted
Receivables of such Obligor (including Defaulted Receivables
which have previously been repurchased or substituted for)
net of any collections on such Defaulted Receivables, does
not exceed the greater of $50,000 or 10% of the total of the
Stated Values of all Commercial Receivables and Government
Subcontract Receivables of such Obligor or Prime Contractor
(including Defaulted Receivables which have previously been
repurchased or substituted for) net of any collections on
such Defaulted Receivables. If all of the Receivables of an
Obligor or Prime Contractor become Defaulted Receivables, the
receivables of such Obligor or Prime Contractor will
subsequently be deemed to be Eligible Receivables upon
consent of the Required Holders.
Deferred Purchase Price: On any date of determination, any
portion of the Purchase Price of an Eligible Receivable that is
unpaid on the Purchase Date on which such Eligible Receivable was
purchased and is still unpaid as of such date of determination.
Determination Date: With respect to any Payment Date, the
twenty-fifth day of the month in which such Payment Date occurs,
or would occur but for the 30th day of such month not being a
Business Day.
Determination Date Statement: The statement required to be
delivered by the Servicer, on or before the Determination Date,
pursuant to Section 4.02 of the Servicing Agreement.
Determination Period: With respect to any Determination
Date, the approximately one-calendar month period, as set forth
in Schedule A to the Servicing Agreement, most recently ended
prior to such Determination Date.
Discounted Value: With respect to the Called Principal of
any Note, the amount obtained by discounting all Remaining
Scheduled Payments with respect to such Called Principal from
their respective scheduled due dates to the Redemption Date with
respect to such Called Principal, in accordance with accepted
financial practice and at a discount factor (applied on a monthly
basis) equal to the applicable Reinvestment Yield with respect to
such Called Principal.
Disputed Receivable: As to any date of determination, that
portion of a Receivable (a) with respect to which the related
Obligor has disputed the amount billed by the Company, whether
such dispute arises over alleged unsatisfactory performance of
work under the related Contract or the contractual amount owed
the Company for services rendered, costs incurred or work
completed, or (b) as to which the related Obligor has withheld
payment because of a dispute, or settlement, with respect to a
debt of the Company due such Obligor including, but not limited
to, a notification from the Government of its intention to offset
to satisfy any such claim; provided, however, that all remaining
Receivables of (i) the related Commercial Obligor or (ii) under
the related Government Contract or Government Subcontract will be
deemed Disputed Receivables unless the Company delivers to the Trustee
an Officer's Certificate to the effect that the Company
has no reason to believe that all such remaining Receivables (A)
will become Defaulted Receivables or, (B) will become Disputed
Receivables.
Distribution Account: The account so denominated and
established pursuant to Section 9.02(a) herein.
Eligible Investments: One or more of the following:
(a) obligations of, or guaranteed as to principal and
interest by, the United States or any agency or
instrumentality thereof when such obligations are backed by
the full faith and credit of the United States;
(b) repurchase agreements on obligations specified in
clause (a) maturing not more than one month from the date of
acquisition thereof, provided that the long-term unsecured
obligations of the party agreeing to repurchase such obliga
tions are at the time rated by Standard & Poor's Corporation
in one of the three highest rating categories (without
regard to numerical modifiers) available from Standard &
Poor's Corporation; and provided further that the short-term
debt obligations of the party agreeing to repurchase shall
be rated A-1 or higher by Standard & Poor's Corporation;
(c) federal funds, certificates of deposit, time
deposits and bankers' acceptances, each of which shall not
have an original maturity of more than 90 days, of any
depository institution or trust company incorporated under
the laws of the United States or any state; provided that
the long-term unsecured debt obligations of such depository
institution or trust company at the date of acquisition
thereof have been rated by Standard & Poor's Corporation in
one of the three highest rating categories (without regard
to numerical modifiers) available from Standard & Poor's
Corporation; and provided further that the short-term
obligations of such depository institution or trust company
shall be rated A-1 or higher by Standard & Poor's
Corporation;
(d) commercial paper or commercial paper funds (having
original maturities of not more than 90 days) of any
corporation incorporated under the laws of the United States
or any state thereof; provided that any such commercial
paper or commercial paper funds shall be rated A-1 by Standard &
Poor's Corporation; and
(e) any no-load money market fund rated Am or Am-G or
higher by Standard & Poor's Corporation;
provided that, Eligible Investments purchased from funds in the
Collection Account, Distribution Account or Reserve Fund shall
include only such obligations or securities that either may be
redeemed daily or mature no later than the Business Day next
preceding the next Payment Date; and provided further, that no
instrument shall be an Eligible Investment if such instrument
evidences a right to receive only interest payments with respect
to the obligations underlying such instrument.
Eligible Receivable: (a) At any time, except as specified below,
any Government Receivable or Government Subcontract Receivable:
(i) which is not a Defaulted Receivable;
(ii) which is not a Disputed Receivable;
(iii) which represents either (A) amounts payable for
services performed or costs incurred under a Contract which have
been billed to the related Obligor or (B) amounts payable for
services performed or costs incurred under a Contract and which
are unbilled but billable (pursuant to the Company's policies)
within 60 days of the Purchase Date on which such Government
Receivable is sold to the Issuer or (C) accrued fixed fees, award
fees, general and administrative expenses or overhead expenses
which arose under a Contract;
(iv) which is an "account" or a "general intangible"
as defined in the UCC, but only to the extent that it constitutes
rights fully earned by performance;
(v) is denominated and payable only in United States
dollars;
(vi) which arose under a Contract which has been duly
authorized and is in full force and effect and which, together
with such Contract, constitutes the legal, valid and binding
obligation enforceable against such Obligor in accordance with
its terms and is not the subject of, as of the Purchase Date on
which such Receivable is sold to the Issuer, any material
dispute, asserted offset, counterclaim or defense;
(vii) which, together with the Contract related
thereto, does not contravene in any material respect any laws,
rules or regulations applicable thereto and with respect to which
no party to the Contract related thereto is in violation of any
such law, rule or regulation in any material respect;
(viii) which, with respect to accrued and unbilled
Receivables described in clauses (iii)(B) and (C) above, arose
under a Contract as to which the related Seller has been
performing for at least thirty days prior to the Purchase Date on
which such Receivable is sold to the Issuer; and
(ix) as to which, with respect to any Government
Subcontract Receivable arising under such Subcontract, if it
relates to an Obligor which is under the protection of a
bankruptcy court, such bankruptcy court has approved payment by
such Obligor under the related Contract to the related Seller.
(b) At any time, any Commercial Receivable:
(i) which is not a Defaulted Receivable;
(ii) which is not a Disputed Receivable;
(iii) which represents amounts payable for services
performed or costs incurred under a Contract which have been
billed to the related Obligor;
(iv) which is an "account" or a "general intangible"
as defined in the UCC, but only to the extent that it constitutes
rights fully earned by performance;
(v) is denominated and payable only in United States
dollars;
(vi) which arose under a Contract which has been duly
authorized and is in full force and effect and which, together
with such Contract, constitutes the legal, valid and binding
obligation of the Obligor of such Receivable enforceable against
such Obligor in accordance with its terms and is not the subject
of, as of the Purchase Date on which such Receivable is sold to
the Issuer, any material dispute, asserted offset, counterclaim
or defense whatsoever (except the discharge in bankruptcy of such
Obligor);
(vii) which, together with the Contract related thereto,
does not contravene in any material respect any laws, rules or
regulations applicable thereto and with respect to which no party
to the Contract related thereto is in violation of any such law,
rule or regulation in any material respect; and
(viii) as to which, if it relates to an Obligor which
is under the protection of a bankruptcy court, such bankruptcy
court has approved payment by such Obligor under the related
Contract to the related Seller.
ESOP: The Company's Employee Stock Ownership Plan,
including the trust fund established thereby.
Event of Default: The meaning specified in Section 5.01.
Excess Cash: With respect to each Determination Date, the
amount, if any, by which the Aggregate Collateral Balance, less
the Stated Value of any Excluded Receivables, exceeds the level
required to maintain the Collateral Value Ratio at 1.00 as of the
last day of the preceding Determination Period.
Excluded Receivables: As of any date of determination:
(a) all Receivables which are Defaulted Receivables;
(b) all Receivables which are Disputed Receivables;
(c) all Receivables which are Ineligible
Receivables;
(d) the excess of (i) the aggregate Stated Value of
all Receivables, or any specified portion of Receivables,
which are outstanding more than 120 days from their
respective billing dates over (ii) in the case of Commercial
Receivables, 7% of the Aggregate Collateral Balance on such
date of determination, and in the case of Government
Receivables together with Government Subcontract
Receivables, 3%, of the Aggregate Collateral Balance as
calculated on each Determination Date;
(e) all Commercial Receivables or Government
Subcontract Receivables of an Obligor when the aggregate
Stated Value of Disputed Receivables and Ineligible
Receivables due from such Obligor exceeds 25% of the
aggregate Stated Value of all Receivables due from such
Obligor; and
(f) (i) on each Determination Date only and with
respect to each Government Contract and Government
Subcontract, the excess, if any, of the aggregate Stated
Value of all Government Receivables and Government
Subcontract Receivables accrued and unbilled under such
Contract as of the last day of the preceding Determination
Period, less the aggregate Stated Value of Government
Receivables and Government Subcontract Receivables billed
under such Contract since the last day of such preceding
Determination Period, over the amount of Permitted Accrued
Receivables for such Government Contract and Government
Subcontract and (ii) if after giving effect to the limita
tion set forth in (i), the total allowable accrued and
unbilled Government Receivables and Government Subcontract
Receivables under all Contracts and Subcontracts with the
Government exceeds 40% of the Aggregate Collateral Balance
as of the last day of the preceding Determination Period,
those Receivables in excess of 40%; and (iii) if after
giving effect to the limitations set forth in (i) and (ii)
above, the total allowable accrued and unbilled Government
Subcontract Receivables under all Government Subcontracts
exceeds 5% of the Aggregate Collateral Balance as of the
last day of the preceding Determination Period, those
Government Subcontract Receivables in excess of 5%.
GAAP: Generally Accepted Accounting Principles applied on
a basis consistent with the Company's financial statements as set
forth in its Form 10-K.
Government: The federal government of the United States of
America or any department, division, agency or instrumentality
thereof.
Government Contract: Any Contract the Obligor on which is
the Government.
Government Receivable: Any Receivable under a Government
Contract, or any Receivable the payment of which is an obligation
of or is funded by the Government.
Government Subcontract: A Contract between a Seller and a
Prime Contractor, through which the Seller is acting as a
subcontractor to the Government, and where the Seller is not
itself in privity of contract with the Government.
Government Subcontract Receivable: Any Receivable under a
Government Subcontract.
Xxxxx: To grant, bargain, sell, warrant, alienate, remise,
demise, release, convey, assign, transfer, mortgage, pledge,
create and grant a first priority security interest in and right
of set-off against, deposit, set over and confirm. A Grant of
the Receivables shall include all rights, powers and options (but
none of the obligations) of the granting party thereunder, includ
ing without limitation, the immediate continuing right to collect
and receive payments in respect of the Receivables; provided,
however, that a Grant of Government Receivables does not include
the right of a Seller to enforce a claim for payment of such
Receivables under the related Contract.
Guarantee: The General Guarantee Agreement, dated as of
the Closing Date, by the Company in favor of the Issuer and the
Trustee.
Holder or Noteholder: The Person in whose name a Note is
registered in the Note Register.
Implied Rating: An Obligor with respect to Commercial
Receivables will have an "Implied Rating" if it meets one of the
following conditions as so certified by the Servicer to the
Trustee: (i) if any debt securities of such Obligor are rated by
Standard & Poor's Corporation the Implied Rating will be equal to
the senior unsecured debt rating of such Obligor, (ii) if the
debt obligations of such Obligor are not rated by Standard &
Poor's Corporation, but such obligations are guaranteed by a
holding company, an Affiliate or other entity which has a senior
unsecured debt rating from Standard & Poor's Corporation, the
Implied Rating will be equal to such senior unsecured rating or
(iii) if such Obligor is a Non-U.S. Obligor whose debt
obligations are not rated by Standard & Poor's Corporation, but
such obligations are either guaranteed by the related national
government or a majority of its stock is owned by such national
government, the Implied Rating of such Obligor will be equal to
the Standard & Poor's Corporation rating of such related national
government.
Indenture: This instrument as supplemented or amended. All
references in this instrument to designate "Articles,"
"Sections," "Subsections" and other subdivisions are to the
designated Articles, Sections, Subsections and other subdivisions
of this instrument as originally executed. The words "herein,"
"hereof," "hereunder" and other words of similar import refer to
this Indenture as a whole and not to any particular Article,
Section, Subsection or other subdivision.
Independent: When used with respect to any specified Person
means such a Person, who (a) is in fact independent of the Issuer
and any other obligor upon the Notes or a Related Person of the
Issuer or such other obligor, (b) does not have any direct xxxxx
cial interest or any material indirect financial interest in the
Issuer or in any such other obligor or in a Related Person of the
Issuer or such other obligor, and (c) is not connected with the
Issuer or any such other obligor as an officer, employee,
promoter, underwriter, trustee, partner, director or person
performing similar functions. Whenever it is provided herein
that any Independent Person's opinion or certificate shall be
furnished to the Trustee, such Person shall be appointed by
Issuer Order and approved by the Trustee and the Required Holders
in the exercise of reasonable care and such opinion or
certificate shall state that the signer has read this definition
and that the signer is independent within the meaning thereof.
Ineligible Receivable: Any Receivable as to which a breach,
on any date, of any representation or warranty set forth in
Section 4.02 of the Sale and Purchase Agreement has occurred and
is continuing.
Interest Coverage Ratio: For any period, (a) Consolidated
EBDAIT, divided by (b) Consolidated Net Cash Interest Expense.
Issuer: Dyn Funding Corporation, a Delaware corporation,
unless a successor Person shall have become the Issuer pursuant
to the applicable provisions of this Indenture, and thereafter
"Issuer" shall mean such successor Person.
Issuer Officer: The Chairman of the Board of Directors, the
President or any Vice President of the Issuer.
Issuer Order and Issuer Request: A written order or request
signed in the name of the Issuer by an Issuer Officer and by its
Treasurer, an Assistant Treasurer, Controller, an Assistant
Controller, Secretary, or an Assistant Secretary, and delivered
to the Trustee.
Lien: Any lien, mortgage, security interest, pledge,
charge, equity, encumbrance or right of any kind whatsoever
(except any lien, mortgage, security interest, pledge, charge,
equity, encumbrance or right of any kind granted under the Sale and
Purchase Agreement) with respect to the Receivables.
Lockbox Account: Each lockbox account established and
maintained by the Issuer with a depositary institution solely in
the name of the Trustee.
Lockbox Bank: Each depositary institution with which a
Lockbox Account is maintained.
Lockbox Notices: The collective reference to the notices by
each Seller to the depository institution with which such Seller
maintains its Seller's Lockbox authorizing control by the Trustee
of such Seller's Lockbox in the event of the removal or resigna
tion of the Company as Servicer.
Mandatory Redemption: A redemption by the Issuer of all of
the Notes pursuant to Section 11.02(b).
Mandatory Redemption Level: A Collateral Value Ratio of
0.95.
Net ESOP Contributions: For any period (a) cash
contributions to the ESOP, but only to the extent that such
contributions are repaid by the ESOP to the Company in the form
of either (i) cash payments under loan agreements between the
Company and the ESOP, or (ii) cash proceeds from the sale of the
Company's common stock to the ESOP, plus (b) to the extent
expensed, the fair market value of the Company's common stock
contributed to the ESOP, less (c) the amount of principal
payments pursuant to third party ESOP related financing
agreements, but excluding the payment of approximately
$31,941,502.43 to retire the ESOP related Term Loan under the
March 2, 1988 Credit Agreement among the Company, various banks
and Bankers Trust Company (as Agent) made contemporaneously with
the Closing Dates, all determined on a consolidated basis in
accordance with GAAP.
Non-Amortization Period: The period from the Closing Date
to the close of business on the Payment Date preceding the
Amortization Date.
Non-U.S. Obligor: An Obligor on a Contract relating to
Commercial Receivables that maintains its principal place of
business outside the United States of America.
Note Interest Payment: The total amount of interest payable on
the Notes on any Payment Date, as specified in the form of Notes.
Note Interest Rate: 8.54% per annum.
Note Payments: The total amount of principal and interest
payable on the Notes on any Payment Date, as specified in the
forms of Notes.
Note Principal Balance: With respect to any Note on any
date of determination, the principal balance thereof on the date
of initial issuance minus all amounts distributed to the
Noteholders as of such date in respect thereof on account of
principal.
Note Purchase Agreement: The Note Purchase Agreement dated
the date hereof by and among the Issuer, the Company and the
Purchasers, as it may be supplemented or amended.
Note Register and Note Registrar: The respective meanings
specified in Section 2.05.
Noteholder or Holder: The Person in whose name a Note is
registered in the Note Register.
Notes: Any notes authorized by, and authenticated and
delivered under, this Indenture.
Obligor: Each Person who is obligated to pay for
merchandise or services pursuant to a Contract, including any
guarantor thereof and, in the case of a Government Subcontract,
the related Prime Contractor.
Officer: With respect to any corporation, the Chairman of
the Board of Directors, the President, any Vice President, the
Secretary, any Assistant Secretary or the Treasurer of such
corporation.
Officer's Certificate: For any Person, a certificate
delivered to the Trustee that has been signed on behalf of that
Person by an individual who is identified in that certificate as
being an Officer of that Person or any other individual autho
rized to execute the certificate.
Opinion of Counsel: A written opinion of an attorney at law
admitted to practice before the highest court of any state of the
United States or the District of Columbia or a law firm that may,
except as otherwise expressly provided in this Indenture, be
counsel for the Issuer and who shall be satisfactory to the
Trustee and the Required Holders. Whenever an Opinion of Counsel
is required hereunder, such opinion may rely on opinions of other
counsel who are so admitted, provided, any such other opinion
expressly permits such reliance.
Optional Redemption: A redemption by the Issuer of all of
the Notes pursuant to Section 11.01.
Outstanding: As of any date of determination, "Outstanding"
refers to all Notes theretofore authenticated and delivered under
this Indenture except:
(a) Notes theretofore canceled by the Note Registrar
or delivered to the Note Registrar for cancellation;
(b) Notes or portions thereof for which payment or
redemption money in the necessary amount has been thereto
fore deposited pursuant to Section 4.01 with the Trustee or
any Paying Agent (other than the Issuer) in trust or set
aside and segregated in trust by the Issuer for the Holders
of such Notes; provided that, if such Notes or portions
thereof are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture;
(c) Notes in exchange for or in lieu of which other
Notes have been authenticated and delivered pursuant to this
Indenture unless proof satisfactory to the Trustee is
presented that any such Notes are held by a holder in due
course; and
(d) Notes alleged to have been destroyed, lost or
stolen for which replacement Notes have been issued as
provided in Section 2.06;
provided that, in determining whether the Holders of the
requisite principal amount of the Outstanding Notes have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, Notes owned by the Issuer or any other obligor
upon the Notes or any Related Person of the Issuer or of such
other obligor 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 Trustee Officer knows to be so owned shall be so disregarded.
Notes so owned which 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 or
any other obligor upon the Notes or any Related Person of the
Issuer or such other obligor.
Outstanding Note Principal Balance: As of the time of
reference thereto, the unpaid principal amount of the Notes
Outstanding as of such time of reference.
Paying Agent: Any Person authorized by the Issuer to pay
the principal of or interest on any Notes on behalf of the
Issuer.
Payment Date: The 30th day of each month (except that
Payment Dates in the month of February shall be the last day of
such month), or, if such day is not a Business Day, the next
succeeding Business Day, commencing on January 30, 1992.
Permitted Accrued Receivables: As to any Determination Date
and any Government Contract or Government Subcontract, an amount
equal to the product of (A) 60 and (B) the Average Daily Revenue
for such Government Contract or Government Subcontract; provided,
that the related Seller has performed services, incurred costs or
completed work under such Government Contract or Government
Subcontract during the period for which such Average Daily
Revenue was calculated.
Person: Any individual, corporation, partnership, joint
venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
Primary Contract List: The list of Obligors on Contracts
relating to Commercial Receivables and Government Subcontract
Receivables delivered to the Trustee by the Issuer on the Closing
Date and held by the Trustee, as such list may be amended from
time to time as provided in Section 7.06. The initial Primary
Contract List is attached hereto as Schedule D.
Prime Contractor: In the case of a Government Subcontract,
the Person other than a Seller, which is in privity of contract
with the Government.
Principal Distribution Amount: With respect to each Payment
Date during the Amortization Period, the excess of (a) all
amounts on deposit in the Collection Account representing Col
lections on the Receivables received from and including the next
preceding Determination Date (or, in the case of the Amortization
Date, from and including the first day of the Amortization
Period) through the day immediately preceding such current
Determination Date, including reinvestment income thereon, and
any other amounts on deposit in the Collection Account and the
Distribution Account over (b) the sum of the amounts payable on
such Payment Date in respect of (i) all interest due on the
Notes, (ii) the amount payable pursuant to any Special Redemption
or Mandatory Redemption, (iii) any amounts to be deposited in the
Reserve Fund pursuant to Section 9.02(e) and (iv) the Servicing
Fee plus any previously unpaid Servicing Fee.
Proceeding: Any suit in equity, action at law or other
judicial or administrative proceeding.
Purchase Date: Each date on which any Receivable is
purchased by the Issuer pursuant to the terms of any Sale and
Purchase Agreement.
Purchase Price: The Purchase Price for each Receivable
being purchased on any Purchase Date, determined as set forth in
Section 2.01 of each Sale and Purchase Agreement.
Purchasers: The purchasers of the Notes pursuant to, and
identified in, the Note Purchase Agreement.
Qualified Bank: A bank having long term unsecured debt
obligations rated "A" or higher by Standard & Poor's Corporation.
For purposes of the next preceding sentence, a bank shall be
deemed to have long term unsecured debt obligations rated "A" or
higher by Standard & Poor's Corporation if such bank is the
principal subsidiary of a bank holding company and the long term
unsecured debt obligations of such bank holding company are
currently rated "A" or higher by Standard & Poor's Corporation.
A bank shall be deemed the principal subsidiary of a bank holding
company if the bank's net worth exceeds 66-2/3% of the xxxxxxx
dated net worth of such bank holding company.
Rating Agencies: Collectively, Standard & Poor's
Corporation and Duff & Xxxxxx Credit Rating Co.
Receivable: All right to payments from an Obligor under a
Contract listed on the Contract Schedule for such amounts which
have been purchased by the Issuer from time to time pursuant to a
Sale and Purchase Agreement, whether constituting an account or
general intangible, including the right to payment of any
interest or finance charges and other obligations of such Obligor
with respect thereto. The term Receivables includes Commercial
Receivables, Government Subcontract Receivables and Government
Receivables and excludes that portion of any Receivable (i) that
has been repurchased or substituted for by a Seller pursuant to
Section 4.04 or 4.05 of the related Sale and Purchase Agreement
and (ii) as to which all amounts payable have been collected by
the Servicer.
Receivables Information: Any information provided in
writing by an Authorized Officer of the Sellers under the Sale
and Purchase Agreements to the Purchasers.
Receivable Schedule: The schedule attached as Schedule B
hereto and setting forth the following information as of the Cut-
off Date:
(a) With respect to Commercial Receivables:
(i) the name of each Obligor;
(ii) the aggregate Stated Value of the
Receivables of each Obligor; and
(iii) the invoice number of each Commercial
Receivable.
(b) With respect to Government Receivables:
(i) identification of each Government Contract;
(ii) the aggregate amount of billed Receivables
for each Government Contract;
(iii) the aggregate amount of accrued and
unbilled Receivables for each Government Contract; and
(iv) the Average Daily Revenue for each
Government Contract.
(c) With respect Government Subcontract Receivables:
(i) identification of each Government Subcontract and the
related Prime Contractor;
(ii) the aggregate amount of billed Receivables
for each Government Subcontract;
(iii) the aggregate amount of accrued and
unbilled Receivables for each Government Subcontract; and
(iv) the Average Daily Revenue for each
Government Subcontract.
(d) A calculation of the Collateral Value Ratio, including a
statement of the amount of cash to be deposited into the
Collection Account pursuant to Section 3.01(k) in order to
produce a Collateral Value Ratio of 1.00 as of the Cut-off Date.
Record Date: With respect to the Notes, the date on which
the Holders of Notes entitled to receive the payment due on the
Notes on the next succeeding Payment Date are determined, such
date as to any Payment Date being the fifteenth day of the month
in which such Payment Date occurs, or would occur but for the
30th day of such month not being a Business Day.
Redemption Date: With respect to the Called Principal of
any Note, the date on which such Called Principal is declared to
be due and payable pursuant to a Redemption or an acceleration of
maturity pursuant to Section 5.02. With respect to a Special
Redemption or Mandatory Redemption, the Redemption Date shall be
the Payment Date next succeeding the Determination Date on which
such Special Redemption or Mandatory Redemption is determined to
be required.
Redemption Price: With respect to any Note to be redeemed
pursuant to a Special Redemption, Mandatory Redemption or
Optional Redemption by the Issuer, 100% of the Outstanding Note
Principal Balance of the Notes to be redeemed together with
accrued and unpaid interest thereon to the applicable Redemption
Date plus, in the case of an Optional Redemption, Special
Redemption or Mandatory Redemption, the applicable Yield
Maintenance Premium.
Registered Holder: The Person whose name appears on the
Note Register as the registered holder of a Note.
Reinvestment Yield: With respect to the Called Principal of
any Note, the sum of (A) the yield to maturity implied by (i) the
yields reported, as of 10:00 A.M. (New York City time) on (a)
with respect to an Optional Redemption, the 16th Business Day
preceding the Redemption Date with respect to such Called
Principal and (b) with respect to a Special Redemption, Mandatory
Redemption or an acceleration pursuant to Section 5.02(c), the
Business Day next preceding the Redemption Date with respect to
such Called Principal, on the display designated as "Page 678" on
the Telerate Service (or such other display as may replace Page
678 on the Telerate Service) for actively traded U.S. Treasury
securities having a maturity equal to the Remaining Average Life
of such Called Principal as of such Redemption Date, or (ii) if
such yields shall not be reported as of such time or the yields
reported as of such time shall not be ascertainable, the Treasury
Constant Maturity Series yields reported, for the latest day for
which such yields shall have been so reported as of (a) with
respect to an Optional Redemption, the 16th Business Day
preceding the Redemption Date with respect to such Called
Principal and (b) with respect to a Special Redemption, Mandatory
Redemption or an acceleration pursuant to Section 5.02(c), the
Business Day next preceding the Redemption Date with respect to
such Called Principal, in Federal Reserve Statistical Release
H.15 (519) (or any comparable successor publication) for actively
traded U.S. Treasury securities having a constant maturity equal
to the Remaining Average Life of such Called Principal as of such
Redemption Date and (B) with respect to an Optional Redemption,
0%, with respect to a Special Redemption, a Mandatory Redemption
pursuant to Section 11.02(b) and with respect to an acceleration
pursuant to Section 5.02(c), 0.50% and with respect to a
Mandatory Redemption pursuant to Section 11.02(c), 1.00%. Such
implied yield in (A) above shall be determined, if necessary, by
(a) converting U.S. Treasury bill quotations to bond-equivalent
yields in accordance with accepted financial practice and (b)
interpolating linearly between reported yields.
Related Person: With respect to any Person, any trade or
business, whether or not incorporated, which, together with such
Person, is under common control, as described in Section 414(b)
or (c) of the Code.
Remaining Average Life: With respect to the Called
Principal of any Note, the number of years (calculated to the
nearest one-twelfth year) obtained by dividing (i) such Called
Principal into (ii) the sum of the products obtained by
multiplying (a) each Remaining Scheduled Payment of such Called
Principal (but not of interest thereon) by (b) the number of years
(calculated to the nearest one-twelfth year) which will
elapse between (x) with respect to an Optional Redemption, the
15th Business Day prior to the Redemption Date with respect to
such Called Principal and (y) with respect to a Special
Redemption or Mandatory Redemption, the Redemption Date with
respect to such Called Principal and the Amortization Date.
Remaining Scheduled Payments: With respect to the Called
Principal of any Note, all payments of such Called Principal and
interest thereon that would be due on or after the Redemption
Date with respect to such Called Principal if no payment of such
Called Principal were made prior to the Amortization Date and
assuming such Called Principal is paid in full on the
Amortization Date.
Repurchase Date: The date determined as described in
Section 4.04 of the Sale and Purchase Agreement.
Repurchase Price: The amount calculated as described in
Section 4.04 of the Sale and Purchase Agreement.
Required Holder(s): As of any date of determination, the
Registered Holder or Registered Holders of at least 66-2/3% of
the Outstanding Note Principal Balance at such time.
Required Reserve Balance: With respect to any Payment Date,
3% of the initial Note Principal Balance.
Reserve Fund: The fund established pursuant to Section
9.08.
Responsible Officer: Any officer of the Issuer, the
Servicer or a Seller who is familiar with, and customarily
performs functions relating to, the Issuer's, the Servicer's or a
Seller's obligations under the Indenture, the Servicing Agreement
and the Sale and Purchase Agreements, as the case may be.
Retainages: Amounts to be contractually withheld by an
Obligor pursuant to an underlying Contract.
Sale: The meaning specified in Section 5.16.
Sale and Purchase Agreement: Each Sale and Purchase Agree
ment, substantially in the form of Exhibit E hereto, between the
Issuer and a Seller whereby the Receivables securing the Notes
are sold by such Seller to the Issuer.
Scheduled Principal Debt: The amount of principal scheduled
to be due but not yet paid, on indebtedness of the Company and
its subsidiaries on a consolidated basis, including amounts due
by reason of acceleration. Indebtedness shall include notes,
debentures, capitalized lease obligations, mortgages and other
obligations recorded as notes payable or debt in the Company's
financial statements, all as determined in accordance with GAAP;
provided, however, that all amounts due under (i) term loans,
letters of credit, revolving credit facilities, and lines of
credit due to banking institutions and (ii) the Notes shall be
excluded, unless payment of such amounts has been accelerated as
a result of a default by the Company under the related
agreements.
Seller: Each of the Company and any majority-owned subsidiaries
of the Company that (a) enters into Sale and Purchase Agreements
following the Closing Date, each being party to a Sale and Purchase
Agreement and (b) the obligations of which, pursuant to the Guarantee,
are guaranteed by DynCorp. Major divisions of a Seller will be deemed
to be Sellers, provided that such divisions will not enter into separate
Sale and Purchase Agreements.
Seller's Lockbox: Each lockbox account established and
maintained by a Seller or the Servicer in its own name with a
depository institution.
Servicer: DynCorp, or any successor thereto, in its
capacity as Servicer pursuant to the Servicing Agreement.
Servicing Agreement: The Servicing Agreement dated as of
the date hereof by and among the Issuer, the Trustee and the
Servicer, as it may be supplemented or amended.
Servicing Fee: With respect to each Payment Date, an amount
equal to one-twelfth of one percent of the aggregate Stated Value
of all Eligible Receivables as of the end of the preceding
Determination Period.
Special Redemption: A redemption by the Issuer of the Notes
pursuant to Section 11.02(a).
Stated Maturity: With respect to any Note, the date
specified in such Note as the fixed date on which the final
installment of the principal of such Note is due and payable.
Stated Value: (a) As to any Receivable that has been
billed, the amount billed (net of any Retainages under the re
lated Contract) for services rendered, cost incurred or work
completed pursuant to the related Contract, (b) as to any
Government Receivable or Government Subcontract Receivable that
is accrued and unbilled, including any accrued fixed fee, award
fee, general and administrative expense and overhead expense, the
amount which has been determined with respect to a Determination
Period, and without regard to the 0.15 discount under clause
(c)(iii) below, and (c) as to that portion of a Government
Receivable or Government Subcontract Receivable that is accrued
and unbilled (other than amounts in (b) above), the product of
(i) the Average Daily Revenue for the related Contract, (ii) the
number of Calendar Days since the Purchase Date on which accrued
and unbilled Government Receivables arising under such Contract
were last sold to the Issuer (taking into account any adjustment
to the related Average Daily Revenue during such period) and
(iii) 0.85; provided, that on each Determination Date, the Stated
Value of accrued and unbilled Government Receivables and
Government Subcontract Receivables, as determined in clause (c)
above shall be the actual amount of such accrued and unbilled Re
ceivables as of the last day of the preceding Determination
Period as determined by the Seller on such current Determination
Date, without regard to the 0.15 discount under clause (c)(iii)
above.
Successor Servicer: Any servicer appointed by the Issuer or
the Trustee pursuant to Section 5.03 of the Servicing Agreement.
Trust Estate: All money, instruments and other property
subject or intended to be subject to the lien of this Indenture,
pursuant to the Granting Clauses of this Indenture, for the
benefit of the Holders of the Notes as of any particular time
(including, without limitation, all property and interests
Granted to the Trustee in this Indenture) and all right, title
and interest of the Trustee in, to and under the Servicing
Agreement, each Sale and Purchase Agreement and all money and
property received or receivable by the Trustee pursuant thereto
or otherwise in respect of the Receivables and Eligible Invest
ments, including all proceeds thereof.
Trustee: Bankers Trust Company, a New York State banking
corporation, or its agents, attorneys, custodians or nominees
unless a successor Person shall have become the Trustee pursuant
to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Person.
Trustee Officer: With respect to the Trustee, any officer
within the Corporate Trust office of the Trustee, including any
vice-president, assistant vice-president, secretary, assistant
secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the
above designated officers and, with respect to a particular
matter, any other officer or to whom such matter is referred
because of his knowledge of and familiarity with the particular
subject.
UCC: The Uniform Commercial Code as in effect in the rele
vant jurisdiction.
Vice President: Any vice president, irrespective of whether
such title is modified by any other forms preceding or following.
Yield Maintenance Premium: With respect to any Note, as of
the related Redemption Date, a premium equal to the excess, if
any, of the Discounted Value of the Called Principal of such Note
over the sum of (i) such Called Principal plus (ii) interest
accrued thereon as of (including interest due on) such Redemption
Date with respect to such Called Principal. The Yield-
Maintenance Premium shall in no event be less than zero.
ARTICLE TWO
NOTE FORM
Section 2.01. Form Generally.
The Notes and the Trustee's certificate of authentication
shall be in substantially the form set forth in this Article with
such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification,
as may, consistently herewith, be determined by the Officers of
the Issuer executing such Notes, as evidenced by their execution
of such Notes. Any portion of the text of any Note may be set
forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note.
The definitive Notes shall be typewritten, printed, litho
graphed or engraved or produced by any combination of these
methods, all as determined by the Officers of the Issuer execut
ing such Notes, as evidenced by their execution of such Notes.
Section 2.02. Form of Notes.
The Notes shall be substantially in the form set forth as
Exhibit A.
Section 2.03. Denominations.
The Notes shall be issuable in registered certificated form,
in the minimum principal amount of $500,000 and integral
multiples of $100,000 in excess thereof, provided that one Note
may be issued in such denomination as may be necessary to
represent the remainder of the Note Principal Balance.
Section 2.04. Execution, Authentication, Delivery and Dating.
The Notes shall be executed by manual signature on behalf of
the Issuer by its President or one of its Vice Presidents.
Notes bearing the manual signature of an individual who was
at any time a proper Officer of the Issuer shall bind the Issuer,
notwithstanding the fact that such individual has ceased to hold
such offices prior to the authentication and delivery of such
Notes or did not hold such offices at the date of issuance of
such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Notes executed
by the Issuer to the Trustee for authentication; and the Trustee
shall authenticate and deliver such Notes as in this Indenture
provided and not otherwise.
Notes which are authenticated and delivered by the Trustee
to or upon the order of the Issuer on the Closing Date shall be
dated the Closing Date. All other Notes which are authenticated
after the Closing Date for any other purpose hereunder shall be
dated the date of their authentication.
No Note shall be entitled to any benefit under this Inden
ture or be valid or obligatory for any purpose, unless there
appears on such Note a certificate of authentication substan
tially in the form provided for herein executed by the Trustee by
manual signature, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has
been duly authenticated and delivered hereunder.
Section 2.05. Registration, Registration of Transfer and Exchange.
The Issuer shall cause to be kept a "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 is
hereby initially appointed "Note Registrar" for the purpose of
registering Notes and transfers of Notes as herein provided.
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 a 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 and the
Trustee shall have the right to rely upon a certificate executed
on behalf of the Note Registrar by an Officer thereof as to the
names and addresses of the Holders of the Notes and the principal
amounts and numbers of such Notes.
Upon surrender for registration of transfer of any Note in
certificated form at the office or agency of the Issuer to be
maintained as provided in Section 8.02, the Issuer shall execute,
and, upon an Issuer Order, the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees,
one or more new Notes of any authorized denominations of a like
aggregate principal amount.
At the option of the Holder, Notes may be exchanged for
other Notes in any authorized denominations and of the like
aggregate principal amount, upon surrender of such Notes to be
exchanged at the office or agency of the Issuer. Whenever any
Notes are so surrendered for exchange, the Issuer shall execute,
and upon an Issuer Order, the Trustee shall authenticate and
deliver, the Notes that the Noteholder making the exchange is
entitled to receive.
All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Notes surrendered upon such registration
of transfer or exchange.
Every such Note presented or surrendered for registration of
transfer or exchange shall (if so required by the Issuer or the
Trustee) be duly endorsed, or be accompanied by a written instru
ment of transfer in form satisfactory to the Issuer and the
Trustee duly executed by the Holder thereof or his attorney duly
authorized in writing, and by such other documents as the Trustee
may reasonably require, provided that the Trustee shall not
require legal opinions in connection with any such transfer or
exchange.
No service charge shall be made to a Holder for any registra
tion of transfer or exchange of Notes, but the Issuer may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of such Notes.
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes.
If (a) any mutilated Note is surrendered to the Trustee, or
the Issuer and the Trustee receive evidence to their reasonable
satisfaction of the destruction, loss or theft of any Note (the
written statement of an institutional Noteholder shall be deemed
satisfactory for such purpose), and (b) there is delivered to the
Issuer and the Trustee such security or indemnity as may be
required by them to save each of them harmless (the unsecured
agreement of indemnity of an institutional Noteholder shall be
deemed satisfactory for such purpose), then, in the absence of
notice to the Issuer or the Note Registrar that such Note has
been acquired by a bona fide purchaser, the Issuer shall execute
and upon an Issuer Order the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a new Note of the same tenor and
principal amount, bearing a number not contemporaneously
outstanding; provided, however, that if any such mutilated,
destroyed, lost or stolen Note shall have become or shall be
about to become due and payable, or shall have been selected or
called for redemption, instead of issuing a new Note, the Issuer
may pay such Note without surrender thereof, except that any
mutilated Note shall be surrendered.
Upon the issuance of any new Note under this Section, the
Issuer may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer, whether
or not the mutilated, destroyed, lost or stolen Note shall be at
any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any
and all other Notes duly issued hereunder.
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, destroy
ed, lost or stolen Notes.
Section 2.07. Payment of Principal and Interest; Principal and Interest
Rights Preserved.
(a) The Notes shall bear interest from the Closing Date until
paid at the Note Interest Rate. Thirty days of interest shall be
due and payable on each Payment Date (other than the first and,
if applicable, last Payment Date) on the Note Principal Balance
of the Notes, determined as of the Closing Date with respect to
the first Payment Date, and thereafter, the preceding Payment
Date (after giving effect to any principal payment made on such
Notes on such date). Interest will be calculated on the basis of
a 360 day year consisting of 12 months of 30 days each. If the
amount available in the Distribution Account is insufficient to
pay the amount of interest due and payable on the Notes on any
Payment Date, such shortfall will be carried forward and added to
the amount due on such Notes on the next Payment Date. Any such
amount carried forward will bear interest, to the extent legally
permissible, at a rate per annum which shall be equal to 200
basis points in excess of the greater of (i) the Note Interest
Rate and (ii) the prime rate announced by Bankers Trust Company
in effect on the Payment Date on which such shortfall first
accrued.
(b) The principal of the Notes shall be payable on the
Amortization Date and each Payment Date thereafter, to the extent
of the amount available after payment of all interest payable on
the Notes, to the extent that funds remain in the Collection
Account, as provided in Section 9.02 herein.
(c) Payments on the Notes shall be made by the Trustee by wire
transfer of immediately available funds to the account of the
Person entitled thereto at a bank or other entity having
appropriate facilities therefor if such Person shall have so
notified the Trustee in writing by the Record Date immediately
prior to such Payment Date and is the registered owner of Notes
in the initial aggregate principal amount equal to or in excess
of $500,000. The final installment of principal of and interest
on each Note (or the Redemption Price thereof in the case of a
Note called for Optional Redemption) shall be payable on or after
its Stated Maturity. The Trustee shall notify the Person in
whose name a Note is registered at the close of business on the
twenty-fifth day of the month next preceding the month of the
Payment Date on which the Issuer expects that the final
installment of principal of and interest on such Note will be
paid. Such notice shall be mailed no earlier than the sixtieth
day, and no later than the thirty-fifth day (or, in the case of a
final Payment Date occurring in the month of February, the thirty-
third day), prior to such Payment Date. Within 30 days after the
final installment of principal of and interest on each Note (or
the Redemption Price thereof in the case of a Note called for
Optional Redemption), the Holders will return the Notes to the
Issuer.
(d) The Holders of the Notes as of the Record Date in respect
of a Payment Date shall be entitled to the interest accrued and
payable and principal payable on such Payment Date. Payments of
principal to such Holders shall be made in the proportion that
the unpaid principal balance of the Notes registered in the name
of each such Holder on such Record Date bears to the aggregate
unpaid principal balance of all the Notes on such Record Date.
All payment obligations under a Note are discharged to the extent
such payments are made to the Holder of record.
(e) Each Note delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Note
shall carry the rights to unpaid interest and principal that were
carried by such other Note.
Section 2.08. Persons Deemed Owners.
Prior to due presentment for registration of transfer of any
Note, the Issuer, the Trustee and any agent of the Issuer or of
the Trustee may treat the Person in whose name any Note is regis
tered as the owner of such Note for the purpose of receiving
payments of principal, premium, if any, and interest on such Note
and for all other purposes whatsoever, (whether or not such Note
is overdue), and neither the Issuer, the Trustee nor any agent of
the Issuer or the Trustee shall be bound by notice to the
contrary.
Section 2.09. 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 it. 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
lawful manner whatsoever, and all Notes so delivered shall be
promptly canceled by the Trustee. No Notes shall be authenti
cated in lieu of or in exchange for any Notes canceled as pro
vided in this Section, except as expressly permitted by this
Indenture. All canceled Notes held by the Trustee shall be
destroyed unless the Issuer shall direct by a timely Issuer Order
that they be returned to it.
Section 2.10. Purchase of Notes by the Issuer.
If the Issuer or any Affiliate of the Issuer offers to
purchase Notes, the Issuer must make such offer to all
Noteholders pro rata in proportion to the Note Principal Balance
held by each Noteholder.
ARTICLE THREE
AUTHENTICATION AND DELIVERY OF NOTES
III. 01. General Provisions.
The aggregate amount of Notes that may be authenticated and
delivered under this Indenture is limited to $100,000,000, except
for Notes authenticated and delivered upon registration and transfer
of, or in exchange for, or in lieu of, other Notes pursuant
to Section 2.05 or 2.06.
Notes complying with the foregoing requirements may be
executed by the Issuer and delivered to the Trustee for authentication
and thereupon the same shall be authenticated and deliver
ed by the Trustee upon Issuer Request and upon receipt by the
Trustee on the Closing Date of the following:
(a) an Officer's Certificate from the Issuer: (i) evidencing
the authorization of the execution, authentication and delivery
of the Notes and specifying the Stated Maturity, aggregate
principal amount and Note Interest Rate of the Notes to be
authenticated and delivered; (ii) certifying the Certificate of
Incorporation and Bylaws of the Issuer (copies of which are
attached); (iii) stating that no approval, authorization, consent,
order, registration, qualification, license or permit of
or with any court or governmental agency or body (other than
those that have already been obtained, copies of which are
attached) is required for the execution and delivery of the
Notes, or the execution, delivery and performance of the
Indenture, by the Issuer; and (iv) stating that the issuance of
the Notes will not result in a breach of any of the terms,
conditions or provisions of, or constitute a default under, the
Issuer's articles of incorporation or bylaws or any indenture,
mortgage, deed of trust or other agreement or instrument to which
the Issuer is a party or by which it is bound, or any order of
any court or administrative agency entered in any Proceeding to
which the Issuer is a party or by which it may be bound or to
which it may be subject;
(b) a Board Resolution of the Issuer authorizing the
execution, performance and delivery of the Indenture and the
execution, authentication by the Trustee and delivery of the
Notes and specifying the Stated Maturity and principal amounts of
Notes to be authenticated and delivered, certified by the
secretary or assistant secretary of the Issuer, which certificate
shall state that such Board Resolution has not been amended,
modified, revoked or rescinded as of the date of such
certification;
(c) [reserved];
(d) evidence of the good standing of the Issuer;
(e) an Opinion of Counsel to the Issuer dated not earlier than
such Issuer Request, to the effect set forth in Exhibit C hereto;
(f) an Accountant's Certificate (1) confirming the information
with respect to the Receivables set forth in Schedule B by
reference to sources provided by the Company and (2) specifying
procedures undertaken by them to review data and computations
relating to the following statements and confirming that the
following statements are accurate:
(i) as of the Cut-off Date the aggregate Stated Value of all
Receivables included in the Trust Estate, valued at the
applicable Collateral Value Percentage, together with any amount
required to be deposited in the Collection Account pursuant to
Section 3.01(k) is sufficient to produce a Collateral Value Ratio
of not less than 1.00; and
(ii) as of the Cut-off Date the composition of
the Receivables included in the Trust Estate satisfies the
requirements of Section 2.02(j)(i)-(vi), (k) and (l) of the Sale
and Purchase Agreement.
(g) an Officer's Certificate from the Issuer, dated as of the
date of such Issuer Request, to the effect (which may be combined
with the Officer's Certificate required by Section 3.01(a)
hereof) that, in the case of each Contract securing the Notes and
immediately prior to the delivery thereof on the Closing Date:
(i) the Issuer is the owner of such Receivables arising
under such Contract;
(ii) the Issuer has not assigned any interest or
participation in such Receivable (or, if any, such interest or
participation has been assigned, it has been released);
(iii) the Issuer has full right to Grant a security
interest in and assign and pledge the Trust Estate to the Trustee;
and
(iv) UCC financing statements with respect to the Trust
Estate have been filed with the Secretary of State of the State of
Delaware;
(h) an executed copy of the Servicing Agreement;
(i) an executed copy of each Sale and Purchase Agreement;
(j) such other documents as the Trustee may reasonably
require;
(k) $24,399,488.23 to be deposited in the Collection Account
representing the amount of cash required to result in a
Collateral Value Ratio of 1.00 as of the Cut-off Date and
Collections on the Receivables during the period from the Cut-off
Date through the third Business Day preceding the Closing Date,
which deposit shall be made from the proceeds of the sale of the
Notes; and
(l) any required deposit to the Reserve Fund pursuant to
Section 9.03(a), which deposit shall be made out of the proceeds
of the sale of the Notes; and
(m) an Officer's Certificate from the Issuer certifying as of
the Cut-off Date the information set forth in Sections 2.02(g),
2.02(j)(i)-(vi) and 2.02(k) and (l) of the Sale and Purchase Agreements.
Section 3.02. The Receivables.
The Issuer represents and warrants to the Trustee that the
Receivables listed on Schedule B hereof conform as of the Cut-off
Date, and additional Receivables purchased by the Issuer on any
Purchase Date after the Closing Date, will conform, to each of
the representations and warranties contained in Section 4.02 of
the applicable Sale and Purchase Agreement.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect with
respect to the Notes except as to (a) rights of registration of
transfer and exchange, (b) substitution of mutilated, destroyed,
lost or stolen Notes, (c) the rights of Noteholders to receive
payments of principal thereof and interest thereon, (d) the
rights, obligations and immunities of the Trustee hereunder, and
(e) the rights of Noteholders as beneficiaries hereof with
respect to the property so deposited with the Trustee and 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:
(i) all Notes theretofore authenticated and delivered (other
than (1) Notes which have been destroyed,lost or stolen and which
have been replaced, or paid as provided in Section 2.06, and (2)
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 8.03) have been delivered to the Trustee for
cancellation or an indemnity reasonably satisfactory to the
Trustee on account thereof has otherwise been provided (the
unsecured agreement of indemnity of the Noteholders shall be
deemed satisfactory for such purpose);
(ii) the Issuer has paid or caused to be paid all other
sums payable hereunder by the Issuer with respect to the Notes; and
Notes; and
(iii) the Issuer has delivered to the Trustee an Officer's
Certificate stating that all amounts payable hereunder to the
Noteholders have been paid.
Notwithstanding the satisfaction and discharge of this Inden
ture, the obligations of the Issuer to the Trustee under Section
6.07 and of the Trustee to the Noteholders under Section 4.02
shall survive.
Section 4.02. Application of Trust Money.
All monies deposited with the Trustee pursuant to Section
4.01 shall be held in trust and applied by it, in accordance with
the provisions of the Notes and this Indenture, to make payments,
either directly or through any Paying Agent, as the Trustee may
determine, to the Person entitled thereto of the principal and
interest payable on the Notes in respect of which such money has
been deposited with the Trustee.
ARTICLE FIVE
DEFAULTS AND REMEDIES
Section 5.01. Events of Default.
"Event of Default" with respect to any Note wherever used
herein, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be volun
tary or involuntary or be effected by operation of law or pur
suant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) Default by the Issuer in the payment of any principal,
interest or premium in respect of any Note when the same becomes
due and payable, which Default shall continue for a period of one
Business Day after the related Payment Date; or
(2) Default in the performance, or breach, of any covenant or
warranty of the Issuer in this Indenture (other than a covenant
or warranty a Default in the performance of which or breach of
which is elsewhere in this Section or in Article Nine
specifically dealt with) or in the Servicing Agreement or a Sale
and Purchase Agreement (other than those representations in
Section 4.02 thereof), as applicable, that would have a material
adverse effect on the interests of the Noteholders, and
continuance of such Default or breach for a period of 30 days
after the earlier to occur of (a) receipt by the Issuer of
written notice thereof or (b) a Responsible Officer of the Issuer
shall have had actual knowledge thereof; or
(3) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Issuer a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Issuer under the Federal Bankruptcy Code or any
other applicable federal or state law, or appointing a receiver,
liquidator, assignee, or sequestrator (or other similar official)
of the Issuer or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(4) the institution by the Issuer of Proceedings to be
adjudicated as bankrupt or insolvent or for the appointment of or
taking possession by, a trustee, a receiver, custodian, liquidator
or similar official of the Issuer, or any such proceedings are
commenced against the Issuer and the Issuer by any act indicates
its approval thereof, consent thereto or acquiescence therein, or
the filing by it of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or
any other similar applicable federal or state law, or the
consent by it to the filing of any such petition; or
(5) any order, judgment or decree is entered in any Proceeding
decreeing the dissolution of the Issuer and such order, judgment
or decree remains unstayed and in effect for more than 60 days;
or
(6) a final judgment is rendered against the Issuer in an
amount greater than $100,000 and, within 60 days after entry
thereof, such judgment is not discharged or execution thereof
stayed pending appeal, or within 60 days after the expiration of
any such stay, such judgment is not discharged; or
(7) the Issuer makes an assignment for the benefit of
creditors or is generally not paying its debts as such debts
become due; or
(8) any representation or warranty (other than those
representations in Article IV of the Sale and Purchase Agreement
for which the sole remedy is the obligation to repurchase such
Receivables pursuant to Section 4.04 thereof) made in writing by
or on behalf of the Issuer herein or in any instrument furnished
in compliance herewith or in reference to this Indenture or
otherwise in connection with the transactions contemplated by
this Indenture shall be false in any material respect on the date
as of which made and such breach shall not have been remedied
within 30 days after the earlier to occur of (a) receipt by the
Issuer of written notice thereof or (b) a Responsible Officer of
the Issuer shall have had actual knowledge thereof; or
(9) the Issuer fails to perform or observe, or fails to cause
to be performed or observed, any other agreement, term or
condition contained herein that would have a material adverse
effect on the interests of the Noteholders and such default shall
not have been remedied within 30 days after the earlier to occur
of (a) receipt by the Issuer of written notice thereof and (b) a
Responsible Officer of the Issuer shall have had actual knowledge
thereof; or
(10) the occurrence of an event of default pursuant
to Section 5.01 of the Servicing Agreement.
Section 5.02. Acceleration of Maturity.
(a) If an Event of Default specified in clause (3), (4) or (5)
of Section 5.01 occurs, all of the Notes at the time Outstanding
shall be immediately due and payable at par together with
interest accrued thereon and all other accrued amounts owing
under this Indenture;
(b) If any Event of Default other than that specified in
Section 5.02(a) occurs, the Trustee, if directed by an Act of the
Required Holders, shall by notice in writing to the Issuer and
the Noteholders, declare all of the Notes and other accrued
amounts owing under this Indenture, to be, and all of such Notes
and such other amounts owing under this Indenture shall thereupon
be and become, immediately due and payable together with interest
accrued on such Notes; and
(c) If an Event of Default specified in clause (1), (2), (8),
(9) or (10) (as to clause (10), with respect to Sections 5.01(c)
and (d) only of the Servicing Agreement) of Section 5.01 occurs,
the amounts payable pursuant to Section 5.02(b) shall include
Yield Maintenance Premium.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee
The Issuer covenants that upon the acceleration of the
maturity of the Notes pursuant to Section 5.02, the Issuer will,
upon demand of the Trustee, immediately pay to the Trustee for
the benefit of the Holder of each Note the whole amount then due
and payable on such Note for principal and interest, with
interest upon the overdue principal and, to the extent that
payments of such interest shall be legally enforceable, upon
overdue installments of interest pursuant to Section 2.07(a), in
the order set forth in Section 5.06 herein 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, its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as Trustee of an express
trust, may institute a Proceeding for the collection of the sums
so due and unpaid, and may prosecute such Proceeding to judgment
or final decree, and may enforce the same against the Issuer and
collect the monies adjudged or decreed to be payable in the
manner provided by law.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights
and the rights of the Noteholders by such appropriate proceedings
as the Trustee shall deem most effectual to protect and enforce
any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise
of any power granted herein, or to enforce any other proper
remedy or legal or equitable right vested in the Trustee by this
Indenture or by law.
In case there shall be pending Proceedings relative to the
Issuer 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 in case of any other comparable
judicial Proceedings relative to the Issuer or the creditors or
property of the Issuer, the Trustee, regardless whether the
principal of any Notes shall then be due and payable as therein
expressed or by declaration or otherwise and regardless whether
the Trustee shall have made any demand pursuant to the provisions of this
Section 5.03, shall be entitled and empowered, by intervention in such
Proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the
Notes, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee
and each predecessor Trustee, and their respective agents,
attorneys and 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 or bad
faith) and of the Noteholders allowed in any Proceedings relative
to the Issuer or other obligor upon the Notes, or to the
creditors or property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Notes in any election of a
trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency Proceedings or
Person performing similar functions in comparable Proceedings,
and
(c) to collect and receive any monies or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Noteholders
and of the Trustee on their behalf; and any trustee, receiver or
liquidator, custodian or other similar official is hereby
authorized by each of the Noteholders to make payments to the
Trustee, and, in the event that the Trustee shall consent to the
making of payments directly to the 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.
Amounts payable to the Trustee under this section are
intended to constitute Administrative Expenses. 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.
In any Proceedings brought by the Trustee (and also any
Proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party) the Trustee
shall be held to represent all the Holders of the Notes, and it
shall not be necessary to make any Holders of the Notes parties
to any such Proceedings.
Section 5.04. Remedies.
If an Event of Default shall have occurred and be continu
ing, the Trustee shall, at the direction of the Required Holders,
do one or more of the following:
(a) institute Proceedings for the collection of all amounts
then payable on the Notes or under this Indenture, whether by
declaration or otherwise, enforce any judgment obtained, and
collect from the Trust Estate securing the Notes monies adjudged
due;
(b) sell all or a portion of the Trust Estate securing
the Notes or rights of interest therein, at one or more public
or private sales called and conducted in any manner permitted
by law; provided, that the Trustee must obtain the prior consent
of all Noteholders if the proceeds of such sale are expected to
be less than the Outstanding Note Principal Balance;
(c) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to
the Trust Estate securing the Notes; and
(d) exercise any remedies of a secured party under the
UCC and take any other appropriate action to protect and enforce
the rights and remedies of the Trustee or the Holders of the
Notes hereunder.
Section 5.05. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Trustee without the
possession of any of the Notes or the production thereof in any
Proceeding relating thereto, and any such Proceeding instituted
by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the Notes.
Section 5.06. Application of Proceeds.
Any money collected by the Trustee pursuant to this Article
Five shall be applied in the following order, at the date or
dates fixed by the Trustee and, in the case of the distribution
of the entire amount due on account of principal of and any
interest on such Notes, upon presentation and surrender thereof:
First: To the payment of any amounts due the Trustee
under Section 6.07;
Second: To the payment of the amounts then due and
owing upon the Notes, first, for interest and then for
principal, including interest on any principal of or accrued
interest on such Notes which was not paid when due, which
amounts shall bear interest as provided in the last sentence
of Section 2.07(a), but only to the extent that the payment
of interest on overdue interest shall be legally enforce
able, plus Yield Maintenance Premium, if any;
Third: To the payment of any unpaid amount, known to
the Trustee, due other Persons in respect of expenses of the
Issuer; and
Fourth: To the payment of any balance to the Issuer.
Section 5.07. Limitation on Suits.
No Holder of any Note shall have any right to institute any
Proceedings, judicial or otherwise, with respect to this Inden
ture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) the Trustee has failed to declare all of the Outstanding
Notes due and payable as required by Section 5.02;
(b) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(c) such Holder shall have made written request to the Trustee
to institute Proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(d) such Holder has offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(e) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
Proceeding; and
(f) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Required Holders;
it being understood and intended that no one or more Holders of
Notes shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders of 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 and for the equal and
ratable benefit of all the Holders of Notes.
In the event the Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of
Holders of Notes, each representing less than a majority of the
then aggregate Outstanding amount of the Outstanding Notes, the
Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this
Indenture.
Section 5.08. Unconditional Rights of Noteholders to Receive Principal and
Interest.
Notwithstanding any other provision 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
in respect of such Note as such principal and interest becomes
due and payable 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 5.09. Restoration of Rights and Remedies.
If the Trustee or any Noteholder has instituted any
Proceeding to enforce any right or remedy under this Indenture
and such Proceeding has been discontinued or abandoned, or has
been determined adversely to the Trustee or to such Noteholder,
then and in every such case the Issuer, the Trustee and the
Noteholder shall, subject to any determination in such Proceed
ing, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of
the Trustee and the Noteholders shall continue as though no such
Proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the
Trustee or to the Noteholder 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 exist
ing at law or in equity or otherwise. The assertion or employ
ment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appro
priate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy occurring upon any Event of
Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Noteholders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the
Noteholders, as the case may be.
Section 5.12 Control by Noteholders.
So long as any Notes are Outstanding, the Required Holders
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 or exercising any trust or power
conferred on the Trustee with respect to the Notes; provided
that:
(a) the Trustee shall have the right to decline any such
direction if the Trustee, being advised by counsel, determines
that the action so directed is in conflict with any rule of law
or with this Indenture, and
(b) the Trustee may take any other action deemed proper by a
Trustee Officer that is not inconsistent with such direction; provided,
however, that, subject to Section 6.01, the Trustee need not take any
action that a Trustee Officer determines might involve the Trustee in
liability or be unjustly prejudicial to the Noteholders not consenting.
Section 5.13. Waiver of Past Defaults.
The Required Holders may on behalf of the Holders of all the
Notes waive in writing any past Default with respect to the Notes
and its consequences, except a Default:
(a) in the payment of the principal or interest in respect of
any Note, or
(b) in respect of a covenant or provision hereof that under
Section 10.01 (except subsection (b)(iii) thereof) cannot be
modified or amended without the consent of the Holder of each
Outstanding Note affected.
Upon any such written waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Note by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in
any suit against the 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 pro
visions of this Section shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Noteholder, or group
of Noteholders, (in compliance with Section 5.07 hereof), holding
in the aggregate more than 10% in principal amount of the
Outstanding Notes, or to any suit instituted by any Noteholder
for the enforcement of the payment of the principal or interest
in respect of any Note on or after the Payment Date on which any
of such amounts was due (or, in the case of redemption, on or after
the applicable Redemption Date).
Section 5.15. Waiver of Stay or Extension Laws.
The Issuer covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time here
after in force, which may adversely affect the covenants or the
performance of this Indenture; and the Issuer (to the extent that
it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 5.16. Sale of Trust Estate.
(a) The method, manner, time, place and terms of any Sale of
all or any portion of the Trust Estate pursuant to Section 5.04
shall be commercially reasonable. The Trustee may from time to
time postpone any Sale by public announcement made at the time
and place of such Sale. The Trustee hereby expressly waives its
right to any amount fixed by law as compensation for any Sale.
(b) In connection with a Sale of all or any portion of the
Trust Estate pursuant to Section 5.04, any Noteholder may bid for
and purchase the property offered for Sale, and upon compliance
with the terms of such Sale may hold, retain and possess and
dispose of such property, without further accountability, and
may, in paying the purchase money therefor, deliver any Outstand
ing Notes or claims for interest thereon in lieu of cash up to
the amount that shall, upon distribution of the net proceeds of
such Sale, be payable thereon, and such Notes, in case the
amounts so payable thereon shall be less than the amount due
thereon, shall be returned to the Holders thereof after being
appropriately stamped to show such partial payment.
(c) The Trustee may bid for and acquire any portion of the
Trust Estate securing the Notes in connection with a public sale
thereof, and may pay all or part of the purchase price by credit
ing against amounts owing on the Notes other amounts secured by
this Indenture, all or part of the net proceeds of such Sale
after deducting the costs, charges and expenses incurred by the
Trustee in connection with such Sale notwithstanding the pro
visions of Section 6.07 hereof. The Notes need not be produced
in order to complete any such Sale, or in order for the net
proceeds of such Sale to be credited against amounts owing on the
Notes. The Trustee may hold, lease, operate, manage or otherwise
deal with any property so acquired in any manner permitted by
law.
(d) The Trustee shall execute and deliver an appropriate
instrument of conveyance transferring its interest in any portion
of the Trust Estate in connection with a Sale thereof. In addi
tion, the Trustee is hereby irrevocably appointed the agent and
attorney-in-fact of the Issuer to transfer and convey its
interest in any portion of the Trust Estate in connection with a
Sale thereof, and to take all action necessary to effect such
Sale. No purchaser or transferee at such a Sale shall be bound
to ascertain the Trustee's authority, inquire into the satisfac
tion of any conditions precedent or see to the application of any
monies.
Section 5.17. Action on Notes.
The Trustee's right to seek and recover judgment on the
Notes or under this Indenture shall not be affected by the seek
ing or obtaining of or application for any other relief under or
with respect to this Indenture. Neither the lien of this Inden
ture 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 Trust Estate or upon any of the
assets of the Issuer.
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith or gross negligence 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 and
conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to
determine whether or not they substantially conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing
and a Trustee Officer shall have actual knowledge or written
notice of such Event of Default, the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent
man would exercise or use under the circumstances in the conduct
of his own affairs. Prior to the occurrence of an Event of
Default or after all Events of Default which may have occurred
have been cured or waived, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and shall use
the same degree of care and skill in their exercise as a
corporate trustee would exercise or use under the circumstances
in the administration of a corporate trust indenture.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own grossly negligent
action, its own grossly negligent failure to act, or its own
willful misconduct, except that:
(i) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made reasonably and in good faith by a Trustee Officer, unless it
shall be proved that the Trustee was grossly negligent in
ascertaining the pertinent facts;
(iii) to the extent required by the terms hereof, the Trustee
shall act in accordance with the directions of the Required
Holders and, to the extent not so provided herein, with respect
to any act requiring the Trustee to exercise its own discretion,
the Trustee shall act in accordance with the direction of the
Required Holders relating to the time, method and place of
conducting any Proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture and the Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in
good faith in accordance with any such instruction; and
(iv) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it unless such risk or liability relates to
its ordinary services under this Indenture.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
(e) The Trustee shall, at its own expense, maintain at all
times during which any Notes are Outstanding and keep in full
force and effect, (i) fidelity insurance, (ii) theft of documents
insurance, (iii) forgery insurance and (iv) errors and omissions
insurance. All such insurance shall be in amounts, with standard
coverage and subject to deductibles customary for insurance
typically maintained by banks which act as trustee.
Section 6.02. Notice of Default.
Upon the occurrence of any Event of Default of which a
Trustee Officer has actual knowledge or has received notice
thereof, the Trustee shall transmit by mail to all Holders of
Notes, as their names and addresses appear on the Note Register,
notice of such Event of Default hereunder known to the Trustee.
Section 6.03. Certain Rights of Trustee.
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, note or other paper or document
reasonably believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein
shall be sufficiently evidenced by an Issuer Request or Issuer
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officer's Certificate, a copy of which is
provided to the Noteholders at or prior to the time the Trustee
receives such Officer's Certificate;
(d) as a condition to the taking, suffering or omitting of any
action by it hereunder, the Trustee may consult with counsel and
the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture or to
honor the request or direction of any of the Noteholders pursuant
to this Indenture, unless such Noteholders shall have offered to
the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) 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,
direction, consent, order, bond, note or other paper or document,
but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books,
records and premises of the Issuer, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents, attorneys, custodians or nominees and the
Trustee shall not be responsible for any (i) misconduct or
negligence on the part of any agent, attorney, custodians or
nominees appointed with due care by it hereunder or (ii) the
supervision of such agents, attorneys, custodians or nominees
after such appointment with due care;
(h) the Trustee shall not be liable for any actions taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights conferred upon the
Trustee by this Indenture;
(i) the Trustee shall not be required to make any initial or
periodic examination of any documents or records related to the
Receivables for the purpose of establishing the presence or
absence of defects, the compliance by the Issuer with its
representations and warranties or for any other purpose; and
(j) in the event that the Trustee is also acting as Paying
Agent and Note Registrar, the rights and protections afforded to
the Trustee pursuant to this Article Six shall also be afforded
to such Paying Agent and Note Registrar.
Section 6.04. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the
certificate of authentication, shall be taken as the statements
of the Issuer, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representation as to the
validity or sufficiency of this Indenture, the Notes, any
Receivable or any related document. The Trustee shall not be
accountable for the use or application by the Issuer of Notes or
the proceeds thereof, including deposits, or withdrawals from,
the Collection Account or any other account established to
effectuate the transactions contemplated herein in accordance
herewith.
Section 6.05. May Hold Notes.
The Trustee, any Paying Agent, Note Registrar or any other
agent of the Issuer, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with
the Issuer with the same rights it would have if it were not
Trustee, Paying Agent, Note Registrar or such other agent.
Section 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds held by the Trustee in trust here
under except to the extent required herein or required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed upon by the
Trustee and the Issuer.
Section 6.07. Compensation and Reimbursement.
The Issuer agrees:
(a) to pay or cause the Servicer to pay the Trustee from time
to time reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to
reimburse or cause the Servicer to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision
of this Indenture (including, without limitation, all costs and
expenses incurred by the Trustee in connection with the exercise
by the Trustee of any remedies under the Indenture and the
reasonable compensation and the expenses and disbursements of its
agents and counsel, except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith);
and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability, expense, damage or injury suffered
or sustained by reason of any acts or omissions, or alleged acts
or omissions without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The Trustee's right to receive amounts pursuant to this
Section 6.07 shall at all times be subordinate to the lien of the
Notes, except as provided in Sections 5.06, 9.02(f) and 9.02(g),
and the Trustee shall receive amounts pursuant to Sections 5.06,
9.02(f) and 9.02(g) only to the extent that the payment thereof
will not result in an Event of Default and the failure to pay
such amounts to the Trustee will not constitute an Event of
Default. The Trustee hereby agrees not to cause the filing of a
petition in bankruptcy against the Issuer for the non-payment to
the Trustee of any amounts provided by this Section 6.07 until at
least 91 days after the payment in full of all Notes issued under
this Indenture.
Section 6.08. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be a corporation organized and doing business under the laws of
the United States of America or of any State, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $100,000,000, subject to super
vision or examination by federal or state authority and having an
office within the United States of America; provided, however,
that in the event Bankers Trust Company or its corporate
successor is not Trustee, the Trustee must be a Qualified Bank.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately
in the manner and with the affect hereinafter specified in this
Article.
Section 6.09. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appoint
ment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor
Trustee under Section 6.10.
(b) The Trustee may resign at any time by giving written
notice thereof to the Issuer. If an instrument of acceptance by
a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Required Holders, delivered to the Trustee and to the Issuer.
(d) If at any time:
(i) the Trustee shall cease to be eligible under Section 6.08
and shall fail to resign after written request therefor by the
Issuer or by any such Noteholder, or
(ii) the Trustee shall become legally incapable of acting with
respect to the Notes or shall be adjudged a bankrupt or insolvent
or a receiver or liquidator of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (1) the Issuer by a Board Resolution may
remove the Trustee, or (2) subject to Section 5.14, any
Noteholder who has been a bona fide Holder of a Note for at least
six months may, on behalf of himself and all other similarly
situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor
Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting in accordance with the provisions of this
Section 6.09, or if a vacancy shall occur in the office of the
Trustee for any cause, the Issuer, by a Board Resolution, shall
promptly appoint a successor Trustee subject to the approval of
the Required Holders. If within 90 days after such resignation,
removal or incapability or the occurrence of such vacancy, a
successor Trustee shall not have been appointed by the Issuer, a
successor Trustee shall be appointed by Act of the Required
Holders delivered to the Issuer and the retiring Trustee. The
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee. To
qualify, the successor so appointed shall satisfy the
requirements set forth in Section 6.08. If no successor Trustee
shall have been so appointed by the Issuer or the Noteholders and
shall have accepted appointment in the manner hereinafter
provided, any Noteholder who has been a bona fide Holder of a
Note for at least six months may, on behalf of himself and all
other similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Xxxxxxx.
(f) The Issuer shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor
Trustee by mailing written notice of such event by first-class
mail, postage prepaid, to the Holders of the Notes as their names
and addresses appear in the Note Register. Each notice shall
include the name of the successor Trustee and the address of its
Corporate Trust Office.
(g) The obligations of the Issuer under this Indenture shall
survive the resignation or removal of the Trustee.
(h) No Trustee under this Indenture shall be personally liable
for any action or omission of any successor Trustee.
Section 6.10. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Issuer, the Noteholders and the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts, duties and obligations of the retiring
Trustee; but, on request of the Issuer, the Required Holders or
the successor Trustee, such retiring Trustee shall, upon payment
of any amounts due it under Section 6.07 then unpaid, execute and
deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder,
subject nevertheless to its lien, if any, provided for in Section
6.07. Upon request of any such successor Trustee or the Required
Holders, the Issuer shall execute any and all instruments for
more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
Section 6.11. Merger, Conversion, Consolidation or Succession to Business
of Trustee.
Any Person into which the Trustee may be merged or converted
or with which it may be consolidated, or any Person resulting
from any merger, conversion or consolidation to which the Trustee
shall be a party, or any Person succeeding to all or
substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case
any Notes have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the
same effect as if such successor Trustee had itself authenticated
such Notes.
Section 6.12. Trustee as Successor Servicer.
The Trustee hereby expressly agrees to assume the
obligations of the successor to the Servicer pursuant to and in
accordance with the provisions of Section 5.03 of the Servicing Agreement,
subject to the right of the Trustee to appoint a successor servicer
contained in such Section 5.03.
Section 6.13. Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting the legal
requirements of any jurisdiction in which any of a Trust Estate
may at any time be located, the Issuer and the Trustee shall have
power to appoint, and, upon the written request of the Trustee or
of the Required Holders, the Issuer shall for such purpose join
with the Trustee in the execution, delivery and performance of
all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Trustee either to act as co-
trustee, jointly with the Trustee, of all or any part of such
Trust Estate, or to act as separate trustee of any such Property,
in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons
in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of
this Section. If the Issuer does not join in such appointment
within 15 days after the receipt by it of a request so to do, or
in case an Event of Default has occurred and in continuing, the
Trustee alone shall have power to make such appointment.
Should any written instrument from the Issuer be required by
any co-trustee or separate trustee so appointed for more fully
confirming to such co-trustee or separate trustee such property,
title, right or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the Issuer.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject
to the following terms, namely:
(1) The Notes shall be authenticated and delivered and
all rights, powers, duties and obligations hereunder in
respect of the custody of securities, cash and other
personal property held by, or required to be deposited or
pledged with, the Trustee hereunder, shall be exercised,
solely by the Trustee.
(2) The rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee or by
the Trustee and such co-trustee or separate trustee jointly,
as shall be provided in the instrument appointing such co-trustee
or separate trustee, except to the extent that under
any law of any jurisdiction in which any particular act is
to be performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(3) The Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the Issuer
evidenced by a Board Resolution, may accept the resignation
of or remove any co-trustee or separate trustee appointed
under this Section 6.13, and, in case an Event of Default
has occurred and is continuing, the Trustee shall have power
to accept the resignation of, or remove, any such co-trustee
or separate trustee without the concurrence of the Issuer.
Upon the written request of the Trustee, the Issuer shall
join with the Trustee in the execution, delivery and
performance of all instruments and agreements necessary or
proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned
or removed may be appointed in the manner provided in this
Section 6.13.
(4) No co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder.
(5) Any Act of Noteholders delivered to the Trustee
shall be deemed to have delivered to each such co-trustee
and separate trustee.
Section 6.14. Rights of the Trustee Upon Appointment of Successor Servicer
At any time following the effective date of a designation of
a Successor Servicer pursuant to Section 5.03 of the Servicing
Agreement, the Trustee is authorized at any time to date and to
deliver to the Lockbox Banks the Lockbox Notices, and to the
Government Contract Obligors the Assignment of Claims Act
Notices. In case any authorized signatory of a Seller whose
signature appears on a Lockbox Notice or an Assignment of Claims
Act Notice shall cease to have such authority before the delivery
of such Lockbox Notice or such Assignment of Claims Act Notice,
such signature shall nevertheless be valid following the
designation of a Successor Servicer as if such authority had
remained in force. The Trustee may notify the Obligors, at any
time following the effective date of the designation of a Successor
Servicer, of the ownership of the Company under this
Agreement and may also direct that payments of all amounts due,
or that become due, under any or all Receivables be made directly
to the Trustee or its designee. In furtherance of the foregoing,
the Trustee shall be entitled to take all such actions as it
deems necessary or advisable to exercise dominion and control
over the collection and servicing of the Receivables, including
such action as shall be necessary or desirable to cause all
Collections to come into the possession of the Trustee rather
than the Seller or the Company.
ARTICLE SEVEN
NOTEHOLDERS' LIST AND REPORTS BY TRUSTEE AND ISSUER
Section 7.01. Issuer to Furnish Trustee Names and Addresses of
Noteholders.
The Issuer will furnish or cause to be furnished to the
Trustee (a) upon each transfer of a Note, a list, in such form as
the Trustee may reasonably require, of the names, addresses and
taxpayer identification numbers of the Holders of Notes as they
appear on the Note Register as of such Record Date, and (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
for so long as the Trustee is the Note Registrar, no such list
shall be required to be furnished; provided, further, that for so
long as the Trustee is the Note Registrar, the Trustee shall
furnish to the Issuer such list in the same manner prescribed in
clause (b) hereof.
Section 7.02. Preservation of Information; Communications to Noteholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of
Notes contained in the most recent list furnished to the Trustee
as provided in Section 7.01 and the names, addresses and taxpayer
identification numbers of the Holders of Notes received by the
Trustee in its capacity as Note Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.01 upon
receipt of a new list so furnished.
(b) If any Holder of Notes applies in writing to the Trustee
stating that it desires to communicate with other Holders of Notes or
with the Holders of all Notes with respect to their rights under this
this Indenture or under the Notes, then the Trustee shall, within five
Business Days after the receipt of such application, afford such Holder
access to the information preserved at the time by the Trustee in
with Subsection (a) of this Section.
Section 7.03. Reports by and Inspections of Issuer.
(a) Issuer will deliver or cause to be delivered, in dupli
cate, to each Noteholder and the Trustee:
(i) as soon as practicable and in any event within 50 days
after the end of each quarterly period (other than the last
quarterly period) in each fiscal year, statements of income and
cash flows for the Issuer for the period from the beginning of
the current fiscal year to the end of such quarterly period, and
a balance sheet of the Issuer as at the end of such quarterly
period, setting forth in each case figures for the corresponding
period in the preceding fiscal year, all in reasonable detail and
certified by the authorized financial officer of the Issuer,
subject to changes resulting from normal year-end adjustments;
(ii) as soon as practicable and in any event within
95 days after the end of each fiscal year, audited statements of
income and cash flows for the Issuer for such year, and a balance
sheet of the Issuer as at the end of such year, setting forth in
each case corresponding figures from the preceding annual
financial statements, all in reasonable detail and certified by a
firm of independent accountants;
(iii) promptly upon receipt thereof, a copy of any
report submitted to the Issuer by independent accountants in
connection with any annual, interim or special audit made by them
of the financial records of the Issuer;
(iv) together with each delivery of financial state
ments required by clauses (i) and (ii) above, the Issuer will
deliver to each Purchaser that is also a Noteholder and to any
other Noteholder who so requests in writing and to the Trustee,
an Officer's Certificate stating that the signer has reviewed the
terms of this Indenture, the Servicing Agreement, the Sale and
Purchase Agreements and the Notes and has made, or caused to be
made under his supervision, a review in reasonable detail of the
transactions and condition of the Issuer during the fiscal period
covered by such financial statements and that (a) such review has
not disclosed the existence during or at the end of such fiscal
period, and that the signer has no knowledge of the existence, as
at the date of the Officer's Certificate, of any condition or
event which constitutes a Default or Event of Default under any
of the aforementioned agreements or Notes or which constitutes a
breach of a representation, warranty or covenant with respect to
any of the aforementioned agreements or Notes, or (b) if any such
condition or event existed or exists, specifying the nature and
period of existence thereof and what action the Issuer has taken
or is taking or proposes to take with respect thereto;
(v) promptly upon an Officer of the Issuer obtaining
knowledge (a) both that a condition or event exists and that such
condition or event constitutes an Event of Default, (b) that any
Holder of a Note has given any notice or taken any other action
with respect to a claimed Default or Event of Default under this
Agreement, (c) of any condition or event which, in the opinion of
management of the Issuer, would have a material adverse effect on
the business, condition (financial or other), assets, properties
or operations of the Issuer, or (d) of the institution of any
litigation involving claims against the Issuer equal to or
greater than $100,000 with respect to any single cause of action
or of any adverse determination in any litigation involving a
potential liability to the Issuer equal to or greater than
$100,000 with respect to any single cause of action, or with
respect to all related causes of action, an aggregate amount
equal to or greater than $200,000, an Officer's Certificate
specifying the nature and period of existence of any such
condition or event, or specifying the notice given or action
taken by such holder or Person and the nature of such claimed
Default, Event of Default, event or condition, and what action
the Issuer has taken, is taking or proposes to take with respect
thereto; and
(vi) with reasonable promptness, such other information
and data with respect to the Issuer as from time to time may
be reasonably requested by a Noteholder.
(b) The Issuer will permit any authorized representative
designated by the Trustee or any Noteholder, to visit and inspect
any of the properties of the Issuer, to examine the corporate
books and financial records of the Issuer, and make copies there
of or extracts therefrom and to discuss the affairs, finances,
and accounts of the Issuer with its principal officers, as appli
cable, and its independent public accountants, all at such reason
able times and as often as the Trustee or any holder of Notes may
reasonably request. Any expense incident to the exercise by the
Trustee or any Noteholder of any right under this Section 7.03
shall be borne by the Trustee, subject to Section 6.01(c)(iv), or
the Noteholder, as the case may be; provided that, if an
inspection is begun during the continuance of an Event of Default
hereunder or under any other indenture of the Issuer, the expense
incident to such audit shall be borne by the Issuer.
Section 7.04. Annual and Quarterly Statements as to Compliance.
(a) The Issuer shall cause a firm of independent public
accountants which is a member of the American Institute of
Certified Public Accountants to deliver to the Trustee on or
before April 15 of each year, beginning April 15, 1993, an
Accountants' Certificate stating whether, based upon their audit
of the Issuer's financial statements for the preceding fiscal
year, the Issuer has maintained the Collateral Value Ratio at not
less than 1.00 as reported on each Determination Date, or, if
such independent public accountants have knowledge of an Event of
Default in the fulfillment of any such obligations, and such
Event of Default shall be continuing, specifying each such Event
of Default known to such firm of independent public accountants
and the nature and status thereof (a "Compliance Audit").
(b) The Issuer shall cause such firm of independent public
accountants to deliver an Accountants' Certificate containing a
quarterly Compliance Audit, within 50 days following the end of
such calendar quarter, upon:
(i) a request by the Required Holders, provided such
request covers either the first, second or third quarter (but
limited to not more than one such request per fiscal year) of the
Issuer's fiscal year and is given with 90 days' notice; and
(ii) the occurrence of a Special Redemption, after which a
Compliance Audit shall be delivered, unless waived by the
Required Holders, for the succeeding four quarters following such
Special Redemption, excluding the fourth quarter of any fiscal
year following which an annual Compliance Audit shall be deemed
to satisfy this clause (ii).
Section 7.05. Contract Schedule.
(a) At any time during the Non-Amortization Period, the
Issuer may add, remove or replace Government Contracts, Government
Subcontracts or Commercial Obligors on the Contract Schedule.
(b) Within 10 days of each anniversary of the date of this
Indenture, or upon the written request of a Noteholder at any
other time, the Trustee shall provide to such Noteholder a
Contract Schedule, as provided to the Trustee by the Issuer, as
of the most recent Determination Date.
Section 7.06. Primary Contract List.
(a) On the Closing Date the Issuer shall deliver to the
Trustee the Primary Contract List.
(b) The Issuer may add Obligors to the Primary Contract List:
(i) without the consent of the Noteholders if the Obligor to
be added has an Implied Rating of BBB or higher by Standard &
Poor's Corporation; and
(ii) with the consent of the Required Holders, provided,
that the Issuer shall notify the Noteholders, in writing, of its
desire to add such Obligor and, if the Required Holders do not
reject such Obligor within 30 days after notice has been sent by
the Issuer, such consent shall be deemed given and the Obligor
may be added to the Primary Contract List.
(c) The Issuer shall review the Primary Contract List on each
Determination Date and shall remove an Obligor from the Primary
Contract List if:
(i) all of the Receivables of such Obligor become
Defaulted Receivables; or
(ii) that the Implied Rating of such Obligor was BBB
or higher at the time such Obligor was placed on the Primary
Contract List and the Issuer has actual knowledge such Implied
Rating subsequently drops below BBB, or is withdrawn, by Standard
& Poor's Corporation; provided, however, that such Obligor may be
subsequently added to the Primary Contract list pursuant to the
provisions of clause (b) above.
ARTICLE EIGHT
REPRESENTATIONS AND COVENANTS OF ISSUER
Section 8.01. Payment of Principal and Interest.
The Issuer will duly and punctually pay the principal and
interest in respect of the Notes.
Section 8.02 Maintenance of Office or Agency.
The Issuer will maintain an office or agency within the
United States of America where Notes may be presented or surren
dered for payment, where Notes may be surrendered for registra
tion of transfer or exchange and where notices and demands to or
upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer hereby initially appoints the Trustee such
office or agency. The Issuer will give prompt written notice to
the Trustee and the Noteholders 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 presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office, and the Issuer hereby
appoints the Trustee at its Corporate Trust Office as its agent
to receive all such presentations, surrenders, notices and
demands.
Section 8.03. Unclaimed Funds.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Issuer, in trust for the payment of the prin
cipal of or interest on any Note and remaining unclaimed for five
years after such principal or interest has become due and payable
shall be paid to the Issuer on Issuer Request, or (if then held
by the Issuer) shall be discharged from such trust; and the
Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money (but only to the extent of the amounts so paid
to the Issuer), and all liability of the Issuer as trustee there
of, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such release
or payment, may at the expense of the Issuer cause to be publish
ed once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in New York,
New York and in the city in which the Corporate Trust Office is located,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be
repaid to the Issuer. The Trustee may also adopt and employ, at the expense
of the Issuer, any other reasonable means of notification of such
release of payment (including, but not limited to, mailing notice
of such release to Holders whose Notes have been called but have
not been surrendered for redemption or whose right to or interest
in monies due and payable but not claimed is determinable from
the records of any Paying Agent, at the last address of record of
each such Holder).
Section 8.04. Corporate Existence.
The Issuer will keep in full effect its existence, rights
and franchises as a corporation under the laws of the State of
Delaware and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which
such qualification is or shall be necessary to protect the validity
and enforceability of this Indenture and the Notes. The Issuer
shall at all times operate in accordance with its Certificate of
Incorporation and By-laws.
Section 8.05. Protection of Trust Estate.
The Issuer will from time to time prepare, or 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 as the Trustee or the Required Holders deem necessary
or advisable to:
(a) grant more effectively all or any portion of the Trust
Estate for the Notes;
(b) maintain or preserve the lien (and the priority
thereof) of this Indenture or to carry out more effectively the
purposes hereof;
(c) perfect, publish notice of, or protect the validity
of any Grant made or to be made by this Indenture; or
(d) preserve and defend title to the Trust Estate
securing the Notes and the rights therein of the Trustee and the
Holders of the Notes secured thereby against the claims of all
persons and parties.
The Issuer hereby designates the Trustee its agent and
attorney-in-fact to execute any financing statement, continuation
statement or other instrument required by the Trustee pursuant to this
Section 8.05.
The Issuer shall pay or cause to be paid any taxes levied on
the account of the beneficial ownership by the Issuer of
Contracts that secures the Notes.
Section 8.06. Representations and Covenants of the Issuer.
(a) As of the Closing Date, the Issuer hereby represents
and warrants to the Noteholders that as of such date:
(i) Organization and Good Standing; Licensing. The Issuer is
a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has the corporate power
to own its assets and to transact the business in which it is currently
engaged. The Issuer is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the
character of the business transacted by it or properties owned or
leased by it requires such qualification and in which the failure so to
qualify would have a material adverse effect on the business, properties,
assets, or condition (financial or other) of the Issuer.
(ii) Authorization; Binding Obligations. The Issuer has the
power and authority to make, execute, deliver and perform this
Indenture and all the transactions contemplated under this
Indenture, and has taken all necessary corporate action to
authorize the execution, delivery and performance of this
Indenture. When executed and delivered, this Indenture will
constitute the legal, valid and binding obligation of the Issuer
enforceable in accordance with its terms, except as enforcement
of such terms may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and
by the availability of equitable remedies.
(iii) No Consent Required. The Issuer is not required to
obtain the consent of any other party or any consent, license, approval
or authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of
this Indenture, except such as have been obtained.
(iv) No Violations. The execution, delivery and performance
of this Indenture by the Issuer will not violate any provision of
any existing law or regulation or any order or decree of any
court applicable to the Issuer or the charter or bylaws of the
Issuer, or constitute a breach of any mortgage, indenture, contract
or other agreement to which the Issuer is a party or by which the
Issuer may be bound.
(v) Litigation. No litigation or administrative proceeding
of or before any court, tribunal or governmental body is currently
pending, or to the knowledge of the Issuer threatened, against
the Issuer or any of its properties or with respect to this
Indenture or the Notes which, if adversely determined, would in
the opinion of the Issuer have a material adverse effect on the
transactions contemplated by this Indenture.
(vi) Offering of Notes. Neither the Issuer nor any agent
acting on its behalf has, directly or indirectly, offered any
Note or any similar security of the Issuer for sale to, or
solicited any offer to buy any Note or any similar security of
the Issuer from, or otherwise approached or negotiated with
respect thereto with, any Person which, and neither the Issuer
nor any agent acting on its behalf has taken or will take any
action which, would subject the issuance or sale of any Note to
the provisions of Section 5 of the Securities Act of 1933, as
amended, or to the provisions of any securities or Blue Sky law
of any applicable jurisdiction.
(vii) Disclosure. Neither this Indenture nor any other
document, certificate or statement in writing furnished by or on
behalf of the Issuer in connection with the offering of the Notes
issued hereunder contains any untrue statement of a material fact
or omits to state a fact material to the issuance of the Notes
necessary in order to make the statements contained herein and
therein not misleading.
(viii) Investment Company Act. The Issuer is not an "investment
company", or a company "controlled" by an "investment company", within
the meaning of the Investment Company Act of 1940, as amended.
(ix) Taxes. The Issuer has no delinquent amounts owing to any
governmental entity in respect of taxes.
(x) Use of Proceeds. The Issuer shall use the proceeds from
the sale of the Notes issued hereunder, simultaneously with such
sale, to purchase the Receivables securing the Notes from the
Sellers, make the required initial deposit to the Reserve Fund
and pay expenses relating to the issuance of the Notes.
(xi) Regulation G. The Issuer does not own and has no
intention of acquiring any "margin stock" as defined in Regulation
G (12 CFR Part 207) of the Board of Governors of the Federal Reserve
System (herein called "margin stock"). None of the proceeds of
sale of any Note issued hereunder will be used, directly or
indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any margin stock or for the
purpose of maintaining, reducing or retiring any indebtedness which was
originally incurred to purchase or carry any stock that is currently
a margin stock or for any other purpose which might constitute this
transaction a "purpose credit" within the meaning of such Regulation G.
Neither the Issuer nor any agent acting on its behalf has taken or will
take any action which might cause this Indenture or the Notes to
violate Regulation G, Regulation T or any other regulation of the
Board of Governors of the Federal Reserve System or to violate the
Securities Exchange Act of 1934, as amended, in each case as in effect
now or as the same may hereafter be in effect, nor will the Issuer
at any time acquire or hold any margin stock at any time during the
term of this Indenture. Notwithstanding the foregoing, nothing herein
shall prevent the Issuer from repurchasing its own stock.
(b) As of the Closing Date, the Issuer hereby covenants that
it will exercise all due diligence in order to assure that it complies
with the requirements of all applicable laws, rules, regulations and orders
of any governmental authority, noncompliance with which would materially
adversely affect its business, condition (financial or other), prospects,
assets, property or operations.
Section 8.07. Negative Covenants.
The Issuer will not:
(a) sell, transfer, exchange, pledge or otherwise dispose of
any part of the Trust Estate except as expressly permitted by
this Indenture; or
(b) claim any credit on, or make any deduction from, the
principal or interest payable in respect of the Notes by reason
of the payment of any taxes levied or assessed upon any part of
the Trust Estate; or
(c) incur any debt other than as permitted in its Certificate
of Incorporation;
(d) relocate its chief executive office without providing the
Trustee with 90 days' notice thereof; or
5. without the consent of the Required Holders (i) amend its
Certificate of Incorporation, (ii) amend, or waive the provisions
of the Servicing Agreement or any Sale and Purchase Agreement or
(iii) consent to the assignment of the Seller's or the Servicer's
rights or obligations under any Sale and Purchase Agreement or
the Servicing Agreement, respectively.
Section 8.08. Issuer May Consolidate, Etc., Only on Certain Terms.
The Issuer shall not consolidate or merge with or into any
other Person or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(a) such consolidation, merger, conveyance, or transfer is
permitted by the Issuer's Certificate of Incorporation;
(b) the Person (if other than the Issuer) formed or surviving
such consolidation or merger or that acquires by conveyance or
transfer the properties and assets of the Issuer substantially as
an entirety shall be a Person (i) organized and existing under
the laws of the United States of America or any State or the
District of Columbia and (ii) which is subject to the limitations
on conduct contained in Articles 9 and 10 of the Amended
Certificate of Incorporation of the Issuer, and shall expressly
assume, by an indenture supplemental hereto, executed and
delivered to the Trustee and the Noteholders, in form
satisfactory to the Trustee and the Noteholders, the due and
punctual payment of the principal of and interest on all Notes
and the performance of every covenant of this Indenture on the
part of the Issuer to be performed or observed;
(c) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be
continuing; and
(d) the Issuer shall have delivered to the Trustee and the
Noteholders an Officer's Certificate and an Opinion of Counsel
each stating that (i) such consolidation, merger, conveyance or
transfer and such supplemental indenture comply with this
Article, (ii) all conditions precedent in this Article provided
for relating to such transaction have been complied with, (iii)
such supplemental indenture is duly authorized, executed and
delivered and is valid, binding and enforceable against such person
and (iv) such consolidation, merger, conveyance or transfer shall
not have a material adverse effect on the corporate separateness of
the Issuer from the Servicer.
Section 8.09. Successor Substituted.
Upon any consolidation or merger, or any conveyance or
transfer of the properties and assets of the Issuer substantially
as an entirety in accordance with Section 8.08, the Person formed
by or surviving such consolidation or merger (if other than the
Issuer) or the Person to which such conveyance or transfer is
made shall succeed to, and be substituted for, and may exercise
every right and power of, the Issuer under this Indenture with
the same effect as if such Person had been named as the Issuer
herein. In the event of any such conveyance or transfer, the
Person named as the "Issuer" in the first paragraph of this
instrument or any successor which shall theretofore have become
such in the manner prescribed in this Article may be dissolved,
wound-up and liquidated at any time thereafter, and such Person
thereafter shall be released from its liabilities as obligor and
maker on all the Notes and from its obligations under this
Indenture.
Section 8.10. Money for Note Payments to Be Held in Trust.
As provided in Section 9.02(a), all payments of amounts due
and payable with respect to the Notes which are to be made from
amounts withdrawn from the Collection Account pursuant to Section
9.02(c) shall be made on behalf of the Issuer by the Trustee or
by Paying Agent, and no amounts so withdrawn from the Collection
Account shall be paid over to or at the direction of the Issuer
except as provided in this Section 8.10 and Section 9.02.
Whenever the Issuer shall have a Paying Agent other than the
Trustee, it will, on or before the Business Day next preceding
each Payment Date, direct the Trustee to deposit with such Paying
Agent on or before such Payment Date an aggregate sum sufficient
to pay the amounts then becoming due, such sum to be (i) held in
trust for the benefit of Persons entitled thereto and (ii)
invested, pursuant to an Issuer Order, by the Paying Agent in an
Eligible Investment in accordance with the terms of Section 9.03,
the earned income of such investment to be remitted to the
Issuer, unless an Event of Default, Mandatory Redemption or
Special Redemption has occurred and is continuing. For all
investments made by a Paying Agent under this Section 8.10, such
Paying Agent shall be entitled to all of the rights and obligations
of the Trustee under Section 9.03, such rights and obligations
being incorporated in this Paragraph by this reference.
The Issuer will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee (and if the
Trustee acts as Paying Agent, it hereby so agrees), subject to
the provisions of this Section 8.10, that such Paying Agent, in
acting as Paying Agent, is an express agent of the Trustee and,
further, that such Paying Agent will:
(a) 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;
(b) give the Trustee notice of any Default by the Issuer (or
any other obligor upon the Notes) in the making of any payment
required to be made with respect to the Notes; and
(c) 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 Paying Agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, by Issuer Order direct any Paying Agent to pay to the
Trustee all sums held in trust by such Paying Agent, such sums to
be held by the Trustee upon the same trusts as those upon which
such sums were held by such Paying Agent; and upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Section 8.11. Performance of Obligations; Servicing Agreement.
(a) The Issuer will punctually perform and observe all of its
obligations and agreements contained in the Servicing Agreement.
(b) The Issuer will not take any action or permit any action
to be taken by others which would release any Person from any of
such Person's covenants or obligations under any instrument
included in the Trust Estate, or which would result in the
amendment, hypothecation, subordination, termination or discharge of,
or impair the validity or effectiveness of any such instrument, except
as expressly provided in this Indenture, the Servicing Agreement or such
other instrument.
(c) If the Issuer shall have knowledge of the occurrence of an
Event of Default under the Servicing Agreement, the Issuer shall
promptly notify the Trustee thereof, and shall specify in such
notice the action, if any, the Issuer is taking in respect of
such Event of Default. If such Event of Default arises from the
failure of the Servicer to perform any of its duties or
obligations under the Servicing Agreement with respect to the
Receivables securing the Notes, the Issuer may remedy such
failure, provided that a failure by the Servicer to pay the fees
and expenses of the Trustee pursuant to Section 3.06 of the
Servicing Agreement shall not release the Issuer from its obligation
to pay such fees and expenses pursuant to Section 6.07. So
long as any such Event of Default under the Servicing Agreement
shall be continuing, the Trustee may, and upon the direction of
the Issuer or the Required Holders the Trustee shall, terminate
all of the rights and powers of the Servicer under the Servicing
Agreement pursuant to Section 5.02 of the Servicing Agreement.
Unless directed or permitted by the Trustee and the Required
Holders, the Issuer may not waive any such Event of Default under
the Servicing Agreement or terminate the rights and powers of the
Servicer under the Servicing Agreement.
(d) Upon any termination of the Servicer's rights and powers
pursuant to Section 5.02 of the Servicing Agreement, all rights,
powers, duties, obligations and responsibilities of the Servicer
(other than any rights of the Servicer as a Seller) with respect
to the Receivables (including, without limitation, the
obligations set forth in Section 5.02 of the Servicing Agreement)
shall vest in and be assumed by the Trustee, and the Trustee
shall be the successor in all respects to the Servicer in its
capacity as servicer with respect to such Receivables under the
Servicing Agreement, except for any obligations of the Servicer
under Section 4.04 of the Servicing Agreement. The Trustee may
resign as the Servicer by giving written notice of such
resignation to the Issuer and in such event will be released from
such duties and obligations, such release not to be effective
until the date a new servicer enters into a servicing agreement
with the Issuer as provided below. Upon delivery of any such
notice to the Issuer, the Issuer shall obtain a new servicer,
satisfactory in all respects to the Trustee and the Required
Holders, which successor servicer shall enter into a servicing
agreement with the Issuer and the Trustee, such agreement to be
substantially similar to the Servicing Agreement. If, within 30
days after the delivery of the notice referred to above, the
Issuer shall not have obtained such a new servicer, the Trustee
may appoint, or may petition a court of competent jurisdiction to
appoint, a successor servicer to service the Receivables. In
connection with any such appointment, the Trustee may make such
arrangements for the compensation of such successor as it, such
successor, and the Issuer shall agree and shall enter into an
agreement with such successor for the servicing of such
Receivables, such agreement to be in form and substance
satisfactory to the Trustee and the Required Holders. Any such
compensation of the successor servicer shall not be in excess of
that payable to the Servicer under the Servicing Agreement,
unless the Servicer or some other Person agrees to pay such
additional compensation or such additional compensation as is
approved by the Required Holders. If the Trustee shall succeed
to the Servicer's duties as servicer of the Contracts as provided
herein, it shall do so in its individual capacity and not in its
capacity as Trustee and, accordingly, the provisions of Article
Six shall be inapplicable to the Trustee in its duties as the
successor to the Servicer and the servicing of the Receivables.
Neither the Trustee nor the Issuer shall appoint a successor
servicer whose appointment would result in the rating assigned to
the Notes on the Closing Date by the Rating Agencies being
reduced to a lower rating so long as there is a Person who
satisfies the requirements of this Section for a successor
servicer and is willing to accept an appointment as successor
servicer as provided in this Section and whose appointment as
successor servicer would not so lower such rating.
Section 8.12. Corporate Separateness of Issuer.
The Issuer shall at all times hold itself out to the public,
including its parent, under the Issuer's own name and as a
separate and distinct entity from its parent. At all times at
least one director and one executive officer of the Issuer (or
one individual serving in both capacities) shall be a Person who
is not a director, officer or employee of any Person owning of
record more than 10% of the outstanding shares of common stock of
the Issuer or any Person which owns beneficially more than 10% of
the outstanding common stock of the Issuer. The Issuer shall
maintain separate corporate records and books of account from
those of its parent, shall not commingle its assets with any
other Person (except to the limited extent permitted by Section
3.02 of the Servicing Agreement) and shall take appropriate Board
of Directors action to authorize its corporate actions. The
Issuer shall not engage in business transactions (other than the
transactions contemplated in this Indenture) with any of its
Affiliates on terms and conditions less favorable to the Issuer
than those available to the Issuer for comparable transactions
with Persons who are not Affiliates of the Issuer. The Issuer
shall maintain its chief executive office and principal place of
business in the State of Delaware and separate and apart from any
office of the Servicer.
ARTICLE NINE
ACCOUNTS, ACCOUNTING AND RELEASES
Section 9.01. 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,
including all payments due on account of any of the Receivables
pledged to secure the Notes. The Trustee shall hold all such
money and property received by it in trust for the Holders of the
Notes and shall apply it as provided in this Indenture. Except
as otherwise expressly provided in this Indenture, if any Default
occurs in the making of any payment or performance under the
Servicing Agreement, the Trustee may, and upon the request of the
Required Holders (as evidenced by the Note Register) shall, take
such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appro
priate Proceedings. Any such action shall be without prejudice
to any right to claim a Default or Event of Default under this
Indenture and to proceed thereafter as provided in Article Six.
Section 9.02. Collection Account; Distribution Account.
(a) Prior to the initial authentication and delivery of Notes,
the Issuer shall open, at a depository institution (which may be
the Trustee), (i) an account denominated "Collection Account --
Bankers Trust Company, as trustee in respect of 8.54% Contract
Receivable Collateralized Notes, Series 1992-1, Due 1997", (ii)
an account denominated "Distribution Account -- Bankers Trust
Company, as trustee in respect of 8.54% Contract Receivable
Collateralized Notes, Series 1992-1, Due 1997" and (iii) an
account denominated "Lockbox Account -- Bankers Trust Company,
Trustee for Dyn Funding Corporation under its 8.54% Contract
Receivable Collateralized Notes, Series 1992-1, Due 1997"
(collectively, the "Accounts"). The Accounts shall be held, in
the corporate trust department of such depositary institution, in
trust and relate solely to the Notes and Eligible Investments
securing the Notes, and funds in the Accounts shall be held as
provided in Section 6.06. The Issuer shall give the Trustee at
least five Business Days' written notice of any change in the
location of any Account and any related account identification
information. All payments to be made from time to time to the
Holders of Notes, out of funds in any Account pursuant to this
Indenture shall be made by the Trustee as the Paying Agent of the
Issuer or, pursuant to Section 8.10, by any other Paying Agent
appointed by the Issuer. All moneys deposited from time to time
in the Accounts, including the deposits to be made by the
Servicer in the Accounts pursuant to the Servicing Agreement, and
all investments made with such moneys, shall be held by the
Trustee as part of the Trust Estate as herein provided. All
funds withdrawn from the Collection Account pursuant to Section
9.02(d) and (e) for the purpose of making payments to holders
shall be applied in accordance with Section 8.10.
(b) So long as no Default or Event of Default shall have
occurred and be continuing, all or a portion of the Accounts
shall be invested and reinvested by the Trustee at the Issuer's
direction in one or more Eligible Investments bearing interest or
sold at discount. All income or other gain from investment of
moneys deposited in the Accounts shall be deposited in the appro
priate Account immediately upon receipt, and any loss resulting
from such investment shall be charged to such appropriate
Account. Notwithstanding the definition of "Eligible
Investments", in the case of an Account maintained with the
Paying Agent, Eligible Investments on which the Paying Agent is
the obligor (including repurchase agreements on which the Paying
Agent in its commercial capacity is liable as principal), may
mature on the Payment Date next succeeding the date of
investment.
(c) So long as the Notes have not been declared due and
payable pursuant to Section 5.02, the Trustee shall take the
following actions in the following order of priority, as
applicable:
(i) on any Business Day, if the amount on deposit in
the Reserve Fund is less than the Required Reserve Balance,
withdraw funds from the Collection Account for deposit in the
Reserve Fund until the amount on deposit therein equals the
Required Reserve Balance;
(ii) on any Business Day, upon receipt of a
request from the Servicer pursuant to Section 3.04 of the
Servicing Agreement, withdraw funds from the Collection Account
to repay the Servicer any amounts that duplicate other payments
in the account or that are not part of the Trust Estate,
including, but not limited to, funds deposited in error into the
Collection Account;
(iii) on any Business Day during the Non-Amortization
Period, upon receipt of an Issuer Request including a
certification that the Collateral Value Ratio, taking into
account the proposed withdrawal of funds, is at least 1.00 on
such Business Day, withdraw funds from the Collection Account in
an amount equal to any Deferred Purchase Price and release such
funds to the Issuer;
(iv) on any Business Day during the Non-Amortization
Period, upon receipt of an Issuer Request including a
certification that the Collateral Value Ratio, taking into
account the proposed withdrawal of funds, is at least 1.00 on
such Business Day, withdraw funds from the Distribution Account
in an amount equal to the unpaid portion, if any, of Excess Cash
that was payable to the Issuer on a prior Payment Date pursuant
to Section 9.02(f) and release such funds to the Issuer; and
(v) on any Business Day during the Non-Amortization
Period, upon receipt of an Issuer Order, withdraw funds from
the Collection Account and apply such funds to the purchase of
Eligible Receivables, subject to Section 2.02 of each Sale and
Purchase Agreement.
provided, however, that the Trustee shall not withdraw funds from
the Collection Account, any Lockbox Account or the Distribution
Account pursuant to clauses (iii) or (iv) above unless on such
Business Day (a) no Default or Event of Default exists, (b) no
Special Redemption amounts remain unpaid, (c) no Mandatory
Redemption is in effect and (d) amounts on deposit in the Reserve
Fund are at least equal to the Required Reserve Balance.
(d) So long as the Notes have not been declared due and
payable pursuant to Section 5.02, no later than the Business Day
preceding each Payment Date during the Non-Amortization Period,
the Trustee shall withdraw funds from the Collection Account, in
the amounts required, for application as follows:
first, to the Reserve Fund, until the amount on deposit
therein equals the Required Reserve Balance;
second, to the Distribution Account the sum of (i) an
amount equal to all interest due and payable on the Notes on
the succeeding Payment Date, (ii) the amount, if any,
required for a Special Redemption, Mandatory Redemption or
Optional Redemption on such Payment Date and (iii) all
amounts owing to the Servicer on such Payment Date; and
third, to the Distribution Account, all amounts that
are determined to be Excess Cash and distributable to the
Issuer.
(e) So long as the Notes have not been declared due and
payable pursuant to Section 5.02, on the Business Day preceding
each Payment Date on and after the Amortization Date, the aggre
gate of the amount on deposit in the Collection Account as of the
Business Day preceding the related Determination Date shall be
withdrawn from the Collection Account, in the amounts required,
for application as follows:
first, to the Reserve Fund, until the amount on deposit
therein equals the Required Reserve Balance;
second, to the Distribution Account, an amount equal to
all interest and principal due and payable on the Notes,
either as a Principal Distribution Amount or to redeem such
Notes, on the succeeding Payment Date; and
third, to the Distribution Account, an amount equal to
all amounts owing to the Servicer on the succeeding Payment
Date.
(f) On each Payment Date during the Non-Amortization Period,
amounts that have been deposited in the Distribution Account
pursuant to Section 9.02(d) or Section 11.04 will be distributed
as follows:
first, to the payment (or distribution to the Issuer
for payment) of all Administrative Expenses, to be applied
first to amounts due to the Trustee pursuant to Section 6.07(a),
in an amount not to exceed (i) $10,000 on any Payment Date and
and (ii) $75,000, cumulatively, in any calendar year;
second, to the payment of all interest due on the
Notes;
third, to the payment of all principal due on any Notes
that have been called for redemption;
fourth, to the payment of any Yield Maintenance
Premium;
fifth, to the payment (or distribution to the Issuer
for payment) of any Administrative Expenses not paid
pursuant to clause (i) above;
sixth, to the payment of all amounts due the Servicer
pursuant to the Servicing Agreement; and
seventh, Excess Cash, if any, to the Issuer.
(g) On each Payment Date during the Amortization Period,
amounts that have been deposited in the Distribution Account
pursuant to Section 9.02(e) or Section 11.04 will be distributed
as follows:
first, to the payment (or distribution to the Issuer
for payment) of all Administrative Expenses, to be applied
first to amounts due to the Trustee pursuant to Section
6.07(a), in an amount not to exceed (i) $10,000 on any
Payment Date and (ii) $75,000, cumulatively, in any calendar
year;
second, to the payment of all interest due on the
Notes;
third, to the payment of all principal due on any Notes
that have been called for redemption;
fourth, to the payment (or distribution to the Issuer
for payment) of the Principal Distribution Amount due on the
Notes; and
fifth, to the payment (or distribution to the Issuer
for payment) of any Administrative Expenses not paid
pursuant to clause (i) above;
sixth, to the payment of all amounts due the Servicer
pursuant to the Servicing Agreement.
(h) On any Payment Date if amounts on deposit in the Distri
bution Account are not sufficient to make any portion of the Note
Interest Payment on such Payment Date, an amount equal to the
amount by which the amount available in the Distribution Account
is less than the Note Interest Payment will be withdrawn from the
Reserve Fund and deposited in the Distribution Account for appli
cation to pay, to the extent available, all interest payable on
the Notes on such Payment Date.
Section 9.03. General Provisions Regarding Accounts and the Reserve Fund.
(a) The Issuer shall not direct the Trustee to make any
investment of any funds in an Account or the Reserve Fund or to
sell any investment held in an Account or the Reserve Fund except
under the following terms and conditions: (i) (A) each such
investment shall be made in the name of the Trustee (in its capa
city as such) or its agents, custodians or nominees (or, if, as
indicated by an Opinion of Independent Counsel delivered to the
Trustee, applicable law provides for perfection of pledges of an
investment not evidenced by a certificate or other instrument
through registration of such pledge on books maintained by or on
behalf of the issuer of such investment, such pledge may be so
registered), (B) the Trustee shall have sole investment control
over such investment, the income thereon and the proceeds
thereof, and (C) any instrument evidencing such investment shall
be delivered directly to the Trustee or its agent; and (ii) the
proceeds of each such sale of an investment shall be remitted by
the purchaser thereof directly to the Trustee for deposit in the
Account or the Reserve Fund in which such investment was held.
(b) If any amounts are needed for disbursement from an Account
or the Reserve Fund and sufficient uninvested funds are not
available to make such disbursement, in the absence of an Issuer
Order for the liquidation of investments in an amount sufficient
to provide the required funds, the Trustee shall cause to be sold
or otherwise converted to cash a sufficient amount of the
investments in such Account or the Reserve Fund; provided, that
such investments shall be sold in arms-length transactions, for
not less than their fair market value and provided, further, that
the Trustee may rely upon the appraisal of an independent
appraiser in determining such fair market value.
(c) The Trustee shall not in any way be held liable by reason
of any insufficiency in any Account or the Reserve Fund resulting
from any loss on any Eligible Investment included therein except
that Trustee shall remain liable on Eligible Investments which
are obligations of the Trustee in its commercial capacity.
(d) All investments of funds in an Account or the Reserve Fund
and all sales of Eligible Investments held in an Account or the
Reserve Fund shall, except as otherwise expressly provided in
this Indenture, be made by the Trustee in accordance with an
Issuer Order. Such Issuer Order may prescribe specific actions
(including, without limitation, that such funds shall not be
invested, in which case such funds shall remain deposited in the
Accounts or Reserve Fund) or may be a general, standing order
authorizing the Trustee to act within certain general parameters
or to act on written, telegraphic or telephonic instructions of
specified personnel or agents of the Issuer.
In the event that:
(i) the Issuer shall have failed to give investment directions
to the Trustee by 12:01 p.m. New York time on any Business Day
authorizing the Trustee to invest the funds then in an Account or
the Reserve Fund,
(ii) a Default or Event of Default shall have
occurred and be continuing but the Notes shall not have been
declared due and payable pursuant to Section 5.02, or
(iii) an Event of Default shall have occurred and be
continuing, the Notes shall have been declared due and payable
pursuant to Section 5.02, and amounts collected or receivable
from the related Trust Estate are being applied in accordance
with Section 5.06,
the Trustee shall invest and reinvest the funds then in each
Account or the Reserve Fund to the fullest extent practicable, in
such manner as the Trustee shall from time to time determine, but
only in one or more Eligible Investments bearing interest or sold
at a discount. All investments made pursuant to clause (i) above
shall mature on the next Business Day following the date of such
investment, all such investments made pursuant to clause (ii)
above shall mature no later than the latest maturity date
therefor permitted for Eligible Investments, and all investments
made pursuant to clause (iii) above shall mature no later than
the first date following the date of such investment on which the
Trustee proposes to make a distribution to Noteholders pursuant
to Section 5.06.
Section 9.04. Reports by Trustee; Contract Schedule.
(a) The Trustee shall report to the Issuer and the Servicer
with respect to the amount of each Account or the Reserve Fund
and the identity of the investments included therein, as the
Issuer or the Servicer may from time to time request and shall
provide accounting of deposits into and withdrawals from the
Accounts and the Reserve Fund, and of the investments made
therein.
(b) The Trustee shall hold the Contract Schedule and the
Receivable Schedule as provided to the Trustee by the Servicer.
Section 9.05. Trust Estate; Contract Documents.
(a) Subject to the payment of its fees and expenses, the
Trustee may, and when required by the provisions of this Inden
ture shall, execute instruments to release property from the lien
of this Indenture, or convey the Trustee's interest in the same,
in a manner and under circumstances which are not inconsistent
with the provisions of this Indenture. No party relying upon an
instrument executed by the Trustee as provided in this Article
Nine shall be bound to ascertain the Trustee's authority, inquire
into the satisfaction of any conditions precedent or see to the
application of any moneys.
(b) In order to facilitate the servicing of the Receivables by
the Servicer, the Servicer is hereby authorized in the name and
on behalf of the Trustee and the Issuer, to execute instruments
of satisfaction or cancellation, or of partial or full release or
discharge, and other comparable instruments with respect to the
Receivables (and the Trustee shall execute any such documents on
request of the Servicer), subject to the obligations of the
Servicer under the Servicing Agreement.
(c) Upon Issuer Order, the Trustee shall, at such time as
there are no Notes Outstanding, release and transfer, without
recourse, all of the Trust Estate that secured the Notes (other
than any cash held for the payment of the Notes pursuant to
Section 4.02).
Section 9.06. Amendments to Servicing Agreement.
The Trustee may, without the consent of any Noteholder,
enter into or consent to any amendment or supplement to the
Servicing Agreement for the purpose of increasing the obligations
or duties of any party other than the Trustee or the Noteholders.
The Trustee may, in its discretion, decline to enter into or
consent to any such supplement or amendment if its own rights,
duties or immunities shall be adversely affected.
Section 9.07. Servicer as Custodian and Bailee of Trustee.
In order to facilitate the servicing of the Receivables by
the Servicer, the Servicer shall retain all proceeds of any
Collections which it receives, prior to their deposit in the
Collection Account, any Lockbox Account or the Distribution
Account, as the case may be, in accordance with the Servicing
Agreement, solely as custodian and bailee of the Trustee. Solely
for purposes of perfection under Section 9-305 of the UCC of the
state in which such property is held by the Servicer, the Trustee
hereby acknowledges that the Servicer is acting as custodian and
bailee of the Trustee in holding such property pursuant to the
Servicing Agreement, and any other items constituting a part of
the Trust Estate which from time to time come into the possession
of the Servicer. It is intended that, by the Servicer's
acceptance of such custodianship and bailment pursuant to the
Servicing Agreement, the Trustee, as a secured party, will be
deemed to have possession of such monies and such other items for
purposes of Section 9-305 of the UCC of the state in which such
property is held by the Servicer.
Section 9.08. Reserve Fund.
(a) On or before the Closing Date the Issuer shall establish
with the Trustee, an account in the corporate trust department of
the Trustee denominated "Reserve Fund -- Bankers Trust Company,
as Trustee in respect of 8.54% Contract Receivable Collateralized
Notes, Series 1992-1, Due 1997". The Issuer shall deposit in
such account on or before the Closing Date, and maintain
thereafter, an amount equal to 3% of the initial Note Principal
Balance. All moneys received by the Trustee pursuant to Sections
9.02(d) or (e) or otherwise from the Issuer for deposit in the
Reserve Fund, together with any Eligible Investments in which
such moneys are or will be invested or reinvested during the term
of this Indenture, shall be held by the Trustee in the Reserve
Fund as part of the Trust Estate granted to secure the Notes,
subject to disbursement and withdrawal as herein provided.
Xxxxxx earned on Eligible Investments held in the Reserve Fund
will not be a part of the Trust Estate and will be released to
the Issuer on any Business Day upon receipt by the Trustee of an
Issuer Request, so long as the Reserve Fund is fully funded.
(b) So long as no Default or Event of Default shall have
occurred and be continuing, all or a portion of any moneys in the
Reserve Fund shall be invested and reinvested by the Trustee at
the Issuer's direction in one or more Eligible Investments bear
ing interest or sold at discount. Notwithstanding the definition
of "Eligible Investments", investments on which the Paying Agent
in its commercial capacity is the obligor may mature on the
Payment Date next succeeding the date of investment. All income
or other gain from investments of money held in the Reserve Fund
shall be deposited by the Trustee in the Reserve Fund immediately
upon receipt, and any loss resulting from such investments shall
be charged to the Reserve Fund.
(c) Unless the Notes have been declared due and payable
pursuant to Section 5.02, on each Payment Date the Trustee shall
withdraw from the Reserve Fund and deposit in the Distribution
Account an amount equal to the amount, if any, by which the Note
Interest Payment for such Payment Date exceeds the amount on
deposit in the Distribution Account on such Payment Date that is
available for such payment (before giving effect to any with
drawal from the Reserve Fund on such date for deposit in the
Distribution Account).
(d) On any Redemption Date on which an Optional Redemption
has been declared by the Issuer, the Trustee shall upon receipt
of an Issuer Order withdraw from the Reserve Fund, to the extent
of funds on deposit therein, and deposit in the Distribution
Account the amount, if any, by which the Redemption Price exceeds
the amount on deposit in the Distribution Account on such
Redemption Date that is available for such payment (before giving
effect to any withdrawal from the Reserve Fund on such date for
deposit in the Distribution Account); provided that on such
Redemption Date the full Redemption Price is paid to the
Outstanding Noteholders.
(e) On the Stated Maturity of the Notes, a Mandatory
Redemption Date or an Optional Redemption Date, the Trustee shall
withdraw from the Reserve Fund and deposit in the Distribution
Account the amount, if any, by which the Note Payment for such
Payment Date exceeds the amount on deposit in the Distribution
Account on such Payment Date that is available for such payment
(before giving effect to any withdrawal from the Reserve Fund on
such date for deposit in the Distribution Account); provided, in
the case of Mandatory Redemption or an Optional Redemption, that
on such Payment Date the full Redemption Price is paid to the
Outstanding Noteholders.
Upon the satisfaction and discharge of this Indenture in
accordance with Article Four, the Trustee shall pay or transfer
to the Issuer all money or Eligible Investments then in the
Reserve Fund.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures.
(a) The Issuer and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto
for the purpose of modifying this Indenture without the consent
of the Noteholders for the following purposes:
(i) to add to the duties or obligations of the Issuer
or the Trustee hereunder;
(ii) to maintain or improve the rating of the Notes
then given by a Rating Agency; or
(iii) to evidence and provide for the acceptance of
appointment by a successor Trustee and to add to or change
any of the provisions of this Indenture as shall be
necessary to facilitate the administration of the Trust
Estate by more than one Trustee.
(b) With the consent of the Required Holders of the Notes, the
Issuer and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto for the
purpose of modifying this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the
Holder of each Outstanding Note affected thereby:
(i) change the Stated Maturity of the principal of, or any
installment of principal or interest on, any Note, or reduce the
principal amount thereof or the Note Interest Rate thereon or the
Redemption Price with respect thereto, change the provisions of
this Indenture relating to the application of proceeds of the
Trust Estate to the payment of principal of Notes or change any
place where, or the coin or currency in which, any Note or the
interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or
after the applicable Redemption Date);
(ii) reduce the percentage in principal amount of the
Outstanding Notes, the consent of the Holders of which is
required for the execution of any such supplemental indenture, 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;
(iii) impair or adversely affect the Trust Estate
except as otherwise permitted herein;
(iv) 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 a Trust Estate or terminate the lien of this
Indenture on any property at any time subject hereto or deprive
the Holder of any Note of the security afforded by the lien of
this Indenture;
(v) change the percentage required to direct the
Trustee to sell or liquidate the Trust Estate pursuant to Section
5.04; or
(vi) modify any of the provisions of this Section or
Section 5.13, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Note as evidenced by the Note Register affected
thereby.
(c) The Trustee is hereby authorized to join in the execution
of any such supplemental indenture and to make any further
appropriate agreements and stipulations that may be therein con
tained, but the Trustee shall not be obligated to enter into any
such supplemental indenture that affects the Trustee's own
rights, duties, liabilities or immunities under this Indenture or
otherwise except to the extent required by law.
(d) Promptly after the execution by the Issuer and the Trustee
of any supplemental indenture pursuant to this Section 10.01,
the Issuer shall mail to the Holders of the Notes as their names
appear on the Note Register to which such supplemental indenture
relates, a copy of such supplemental indenture. Any failure of
the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such
supplemental indenture.
Section 10.02. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 10.03. Effect of Supplemental Indenture.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance there
with, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Notes theretofore
or thereafter authenticated and delivered hereunder shall be
bound thereby.
Section 10.04. Reference in Notes to Supplemental
Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and if
required by the Trustee shall, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental
indenture. If the Issuer shall so determine, new Notes so modi
fied as to conform, in the opinion of the Trustee and the Issuer,
to any such supplemental indenture may be prepared and executed
by the Issuer and authenticated and delivered by the Trustee in
exchange for the Outstanding Notes.
ARTICLE ELEVEN
REDEMPTION OF NOTES
Section 11.01. Optional Redemption.
(a) On any Payment Date on or after February 28, 1994 until
the Amortization Date, the Notes will be redeemable in whole, at
the option of the Issuer, at the Redemption Price for an Optional
Redemption; and
(b) On any Payment Date on or after the Amortization Date, the
Notes will be redeemable in whole, at the option of the Issuer,
at a price equal to 100% of the then Outstanding Note Principal
Balance, plus accrued and unpaid interest.
Section 11.02. Special and Mandatory Redemption.
(a) Special. If, on any Determination Date, (i) the
Collateral Value Ratio as set forth in the Determination Date
Statement prepared in accordance with Section 4.02 of the
Servicing Agreement is below 1.00 and the Issuer does not
substitute Receivables or deposit cash into the Collection
Account such that the Collateral Value Ratio, as set forth in
such Determination Date Statement, is raised to 1.00 prior to the
related Payment Date and (ii) such ratio was below 1.00 on the
previous Determination Date and the Company did not substitute
Receivables or deposit cash into the Collection Account such that
the Collateral Value Ratio, as set forth in the Determination
Date Statement for such previous Determination Date, was raised
to 1.00 prior to the current Determination Date, the Trustee
shall immediately give notice that it will redeem a portion of
the Notes on the next Payment Date. The Trustee shall call for a
Special Redemption of the Notes in an amount equal to the lesser
of (i) (A) the Outstanding Note Principal Balance minus (B) the
sum of (1) the aggregate Stated Value of the Receivables, less
the aggregate Stated Value of any Excluded Receivables, in each
case valued at the applicable Collateral Value Percentage and (2)
the amount on deposit in the Collection Account and (ii) the
Outstanding Note Principal Balance. The amounts in clauses (A)
and (B)(1) above shall be calculated as of the end of the
Determination Period preceding such Determination Date. Such
redemption will be at the Redemption Price for a Special
Redemption.
During the period from the Determination Date on which the
Trustee gives notice of a Special Redemption until the succeeding
Payment Date, subject to Section 9.02(c), Collections will be
retained in the Collection Account until the amount of funds on
deposit therein is equal to the Redemption Price for such Special
Redemption. If, after the Payment Date on which a Special
Redemption is to be made during the Non-Amortization Period, any
portion of the related Redemption Price has not been paid, funds
may not be withdrawn from the Collection Account to purchase
Eligible Receivables pursuant to Section 9.02(c) until the amount
required for such Special Redemption is on deposit in the
Collection Account and transferred to the Distribution Account.
Any Special Redemption will be paid, to the extent of funds
available in the Collection Account and the Distribution Account,
to the Noteholders as of the Record Date immediately preceding
such Payment Date in the proportion that the Note Principal
Balance of each Note to be redeemed bears to the Outstanding Note
Principal Balance.
(b) Mandatory. The Trustee shall on any Determination Date
immediately give notice of a Mandatory Redemption of all the
Outstanding Notes if (i) on the preceding Determination Date, the
Collateral Value Ratio was determined to be less than or equal to
the Mandatory Redemption Level as of the last day of the second
preceding Determination Period and the Company has not caused the
Collateral Value Ratio to be increased above the Mandatory
Redemption Level by substitution of Receivables or depositing
cash into the Collection Account; (ii) three Special Redemptions
(including such current Determination Date) are required within
any consecutive 12-month period; or (iii) on any Determination
Date (a) the aggregate Stated Value of all Ineligible Receivables
which have been Ineligible Receivables for more than 30 days
exceeds 7% of the Aggregate Collateral Balance and (b) the
Collateral Value Ratio is less than 1.00. In the case of clause
(i) above, the payment of principal pursuant to the Mandatory
Redemption will be due on the Payment Date following the
Determination Date next succeeding such notice of a Mandatory
Redemption, and in the case of clauses (ii) or (iii) above, such
payment will be due on the Payment Date next succeeding such
notice. Such redemption will be at the Redemption Price for a
Mandatory Redemption. Any Mandatory Redemption will be paid, to
the extent of funds available in the Collection Account and the
Distribution Account, to the Noteholders in the proportion that
the Note Principal Balance of each Note to be redeemed bears to
the Outstanding Note Principal Balance; provided, that if funds
available on such Payment Date in the Collection Account and the
Distribution Account are insufficient therefor, payment of a
Mandatory Redemption may include funds on deposit in the Reserve
Fund, provided, further, that the aggregate of funds available on
such Payment Date in the Collection Account, the Distribution
Account and the Reserve Fund are sufficient to pay in full the
Outstanding Note Principal Balance.
(c) Mandatory. If on any date of determination the Issuer is
prohibited from purchasing additional Eligible Receivables
pursuant to Section 3.03 of the Sale and Purchase Agreements, the
Issuer shall give notice thereof referencing this Section
11.02(c) relating to Mandatory Redemption to the Noteholders. If
the Required Holders so direct the Trustee within ten Business
Days of receipt of such notice by such Holders, the Trustee shall
give notice of a Mandatory Redemption of all the Outstanding
Notes. Payment will be due on the Payment Date next succeeding
such direction from the Trustee at the Redemption Price for a
Mandatory Redemption.
Section 11.03. Notice of Optional Redemption by the Issuer.
The Issuer shall give the Trustee and each Noteholder
fifteen Business Days prior written notice of any Optional
Redemption.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) that interest thereon shall cease to accrue on the date
specified on the notice;
(d) the place where such Notes are to be surrendered (or an
indemnity reasonably satisfactory to the Trustee provided) for
payment of the Redemption Price, which shall be the office or
agency of the Trustee to be maintained as provided herein.
Failure to give notice of redemption, or any defect therein, to
any Holder of any Note selected for redemption shall not impair
or affect the validity of the redemption of any other Note.
Section 11.04. Deposit of Redemption Price for Optional,
Special and Mandatory Redemptions.
(a) In the case of an Optional Redemption, on or before the
Business Day next preceding the Payment Date on which such
Optional Redemption is to be made, the Issuer shall deposit with
the Trustee cash in an amount sufficient to provide for payment
of the Redemption Price of all of the Notes (unless such payment
is to be made from funds on deposit in the Collection Account,
any Lockbox Account, the Distribution Account and the Reserve
Fund).
(b) In the case of all Special Redemptions and any Mandatory
Redemption, on or before the Business Day next preceding the
Payment Date on which a Special Redemption or Mandatory
Redemption is to be made, the Issuer shall deposit into the
Distribution Account cash in an amount sufficient to provide
payment of the Redemption Price for all of the Notes that are to
be redeemed on such Payment Date. If during the Non-Amortization
Period any portion of the amount to be paid on a Payment Date as
a Special Redemption or Mandatory Redemption remains outstanding
after such Payment Date, cash will not be released from the
Collection Account for the purpose of acquiring additional
Eligible Receivables or for the payment of the Servicing Fee
until such unpaid Special Redemption or Mandatory Redemption
Amount is paid or cash therefor is on deposit in the Distribution
Account. Any Special Redemption and Mandatory Redemption will be
paid to the Noteholders in the proportion that the Note Principal
Balance of each Note to be redeemed bears to the Outstanding Note
Principal Balance.
Section 11.05. Notes Payable on Redemption Date.
Notice of redemption having been given as provided in
Section 11.03, the Notes or portions thereof so to be redeemed
shall, on the applicable Redemption Date, become due and payable
at the Redemption Price and on such Redemption Date (unless the
Issuer shall Default in the payment of the Redemption Price) such
Notes (or portion thereof) shall cease to bear interest as
specified in the Indenture. On or after the Redemption Date,
such Notes shall be paid by the Issuer at the Redemption Price;
provided, however, that payments due on a Payment Date on or
prior to the Redemption Date shall be payable to the Holders of
such Notes registered as such on the relevant Record Dates
according to their terms.
If any Outstanding Note called for Optional Redemption
pursuant to Section 11.01 shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at a per annum rate equal to
200 basis points in excess of the greater of (i) the Note
Interest Rate and (ii) the prime rate announced by Bankers Trust
Company in effect on the Redemption Date.
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. 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 agent duly appointed in writing
and satisfying any requisite percentages as to minimum number or
dollar value of outstanding principal amount represented by such
Noteholders; 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 sign
ing 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 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 manner which the
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Notes shall
bind the Holder (and any transferee thereof) 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 12.02. Notices, Etc., to Trustee and Issuer.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Noteholders or other documents provided
or permitted by this Indenture to be made upon, given or furnish
ed to, or filed with:
(a) the Trustee by any Noteholder or by the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to a Trustee Officer, by facsimile
transmission or by other means acceptable to the Trustee to or
with 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 (except as provided in
Section 6.01(2)) if in writing and mailed, first-class postage
prepaid, to the Issuer addressed to it at 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
President, or at any other address previously furnished in
writing to the Trustee by the Issuer. A copy of each notice to
the Issuer shall be sent in writing and mailed, first-class
postage prepaid, to the Company at 0000 Xxxxxx Xxxxxx Xxxxx,
Xxxxxx, Xxxxxxxx 00000-0000, Attention: Senior Vice President
and Chief Financial Officer.
Unless otherwise instructed by the Purchaser, the Trustee
and the Issuer shall send a duplicate copy to the Purchaser of
every notice sent by each hereunder.
Section 12.03. Notices to Noteholders; Waiver.
Where this Indenture provides for notice to Noteholders of
any event, such notice shall be sufficiently given (unless other
wise herein expressly provided) if in writing and mailed by regis
tered or certified mail, postage prepaid or national overnight
courier service 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 which is mailed in
the manner herein provided shall conclusively be presumed to have
been duly given. Notwithstanding the foregoing, notice to be
given pursuant to Sections 7.06(b)(ii) and 11.02(c) shall be sent
in duplicate in such manner and to such officers of each
Noteholder as such Noteholder may from time to time specify,
which, in the case of The Prudential Insurance Company of America
and The Northwestern Mutual Life Insurance Company, shall be by
national overnight courier, Attention: (i) Xxxxx Xxxxxxx, and
Senior Managing Director and (ii) Xxxx Xxxxxx, Securities
Department, respectively.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive
such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by
Noteholders shall be filed with the Trustee but such filing shall
not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In the event that, 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.
The Issuer shall give prompt written notice to the Rating
Agencies, of any of the following occurrences: (a) the
appointment of a successor Trustee, (b) the execution of a
supplemental indenture pursuant to Article Ten, (c) the adoption
of any amendment to the Servicing Agreement, and (d) the payment
of the entire principal of the Notes. Such notice shall be
sufficient if furnished in writing to Standard & Poor's
Corporation, 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Asset Backed Surveillance Group and Duff & Xxxxxx Credit Rating
Co., 00 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx Xxxxxxxxxxx.
Section 12.04. 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 con
struction hereof.
Section 12.05. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer
shall bind its successors and assigns, whether so expressed or
not.
Section 12.06. 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 12.07. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or
implied, shall give to any Person, other than the parties hereto
and their successors hereunder, and the Noteholders, any benefit
or any legal or equitable right, remedy or claim under this
Indenture.
Section 12.08. Governing Law.
This Indenture and each Note shall be construed in accor
dance with and governed by the laws of the State of New York
applicable to agreements made and to be performed therein.
Section 12.09. Counterparts.
This instrument may be executed in any number of counter
parts, 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 12.10. Corporate Obligation.
No recourse may be taken, directly or indirectly, against
any incorporator, subscriber to the capital stock, stockholder,
officer, director or employee of the Issuer or of any predecessor
or successor of the Issuer with respect to the Issuer's obligations
on the Notes or under this Indenture.
IN WITNESS WHEREOF, the Issuer and the Trustee have caused
this Indenture to be duly executed by their respective officers
thereunto duly authorized and attested, all as of the day and
year first above written.
DYN FUNDING CORPORATION
By:
Name: Xxxx X. Xxxxxxxx
Title: Vice President
BANKERS TRUST COMPANY, not in
its individual capacity,
but solely as Trustee
By:
Name:
Title:
