Exhibit 4.1
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CNH WHOLESALE MASTER NOTE TRUST
as Issuer
and
JPMORGAN CHASE BANK
as Indenture Trustee
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INDENTURE
dated as of September 1, 2003
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MASTER INDENTURE
THIS INDENTURE between CNH WHOLESALE MASTER NOTE TRUST, a statutory trust
organized under the laws of the State of Delaware (the "Issuer") and JPMORGAN
CHASE BANK, a New York banking corporation, in its capacity as Indenture Trustee
(the "Indenture Trustee"), is made and entered into as of September 1, 2003.
RECITALS OF THE ISSUER
The Issuer has duly authorized the execution and delivery of this Indenture
to provide for the issuance of its notes to be issued in one or more fully
registered or bearer Series or Classes. All things necessary to make this
Indenture a valid agreement of the Issuer, in accordance with its terms, have
been done.
GRANTING CLAUSE
The Issuer hereby grants to the Indenture Trustee for the benefit and
security of (a) the Noteholders, (b) each Enhancement Provider to an Enhancement
Agreement entered into in connection with the issuance of a Class of Notes that
expressly states in the related Indenture Supplement that such Enhancement
Provider is entitled to the benefit of the Collateral and (c) the Indenture
Trustee, in its individual capacity (each, a "Secured Party"), a security
interest in all of its right, title and interest, whether now owned or hereafter
acquired, in and to:
(i) the Receivables;
(ii) Collections and Recoveries related to and all money, instruments,
investment property and other property distributed or distributable in respect
of (together with all earnings, dividends, distributions, income, issues, and
profits relating to) the Receivables pursuant to the terms of the Transfer and
Servicing Agreement, this Indenture and any Indenture Supplement;
(iii) all Eligible Investments and all money, investment property,
instruments and other property on deposit from time to time in, credited to or
related to the Collection Account, the Series Accounts, the Excess Funding
Account and the Backup Servicer Account (including any subaccounts of any such
account), and in all interest, dividends, earnings, income and other
distributions from time to time received, receivable or otherwise distributed or
distributable thereto or in respect thereof (including any accrued discount
realized on liquidation of any investment purchased at a discount);
(iv) all rights, remedies, powers, privileges and claims of Issuer under
or with respect to any Enhancement and the Transfer and Servicing Agreement
(whether arising pursuant to the terms of the related Enhancement Agreement or
the Transfer and Servicing Agreement or otherwise available to Issuer at law or
in equity), including the rights of Issuer to enforce such Enhancement Agreement
or the Transfer and Servicing Agreement, and to give or withhold any and all
consents, requests, notices, directions, approvals, extensions or waivers under
or with respect to such Enhancement Agreement or the Transfer and Servicing
Agreement to the same extent as Issuer could but for the assignment and security
interest granted to Indenture Trustee for the benefit of the Noteholders;
MASTER INDENTURE
(v) all Insurance Proceeds;
(vi) all proceeds of any derivative contracts between Issuer and a
counterparty, as described in any Indenture Supplement;
(vii) all money, accounts, general intangibles, chattel paper,
instruments, documents, goods, investment property, deposit accounts, letters of
credit, letter-of-credit rights and oil, gas, and other minerals consisting of,
arising from or related to the foregoing;
(viii) all other property of Issuer;
(ix) all present and future claims, demands, causes and choses in action
in respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds, products, rents, receipts or profits of the
conversion, voluntary or involuntary, into cash or other property, all cash and
non-cash proceeds, and other property consisting of, arising from or relating to
all or any part of any of the foregoing; and
(x) any proceeds of the foregoing (collectively, the "COLLATERAL").
The Security Interest in the Collateral is granted to secure the Notes
(and, to the extent specified in the applicable Indenture Supplement or
Enhancement Agreement, the obligations under any applicable Enhancement
Agreements) equally and ratably without prejudice, priority or distinction
between any Note and any other Note by reason of difference in time of issuance
or otherwise, except as otherwise expressly provided in this Indenture or in the
Indenture Supplement which establishes any Class of Notes, and to secure (i) the
payment of all amounts due on such Notes (and, to the extent so specified, the
obligations under any applicable Enhancement Agreements) in accordance with
their terms, (ii) the payment of all other sums payable by the Issuer under this
Indenture or any Indenture Supplement and (iii) compliance by the Issuer with
the provisions of this Indenture or any Indenture Supplement. This Indenture is
a security agreement within the meaning of the UCC.
The Indenture Trustee acknowledges the grant of such Security Interest, and
accepts the Collateral in trust hereunder in accordance with the provisions
hereof and agrees to perform the duties herein to the end that the interests of
the Secured Parties may be adequately and effectively protected.
Particular Notes and Enhancement Agreements shall benefit from the Security
Interest to the extent (and only to the extent) collections on and proceeds of
the Collateral are allocated for their benefit pursuant to this Indenture and
the applicable Indenture Supplement.
2 MASTER INDENTURE
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms and
conditions upon which the Notes are and are to be authenticated, issued and
delivered, and in consideration of the premises and the purchase of Notes by the
Holders thereof, it is mutually agreed as follows, for the equal and
proportionate benefit of all Holders of the Notes or of a Series or Class
thereof, as the case may be:
LIMITED RECOURSE
The obligation of the Issuer to make payments of principal, interest and
other amounts on the Notes and to make payments on Enhancement Agreements is
limited in recourse as set forth in Section 7.11.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. DEFINITIONS. For all purposes of this Indenture and of
any Indenture Supplement, except as otherwise expressly provided or unless
the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act or in the
related Indenture Supplement, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder means such accounting principles as are
generally accepted in the United States of America at the date of such
computation;
(4) all references in this Indenture to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this Indenture as originally executed. The words
"herein," "hereof" and "hereunder" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(5) "including" and words of similar import shall be deemed to
be followed by "without limitation."
"Accounts" means, collectively, the Collection Account, the Excess Funding
Account and any Supplemental Account, in each case including any Sub-Accounts
therein.
3 MASTER INDENTURE
"Accumulation Period," with respect to any Series or Class of Notes, has
the meaning assigned in the related Indenture Supplement.
"Accumulation Period Commencement Date," with respect to any Series or
Class of Notes, has the meaning assigned in the related Indenture Supplement.
"Act," when used with respect to any Noteholder, is defined in Section
1.04(a).
"Action," when used with respect to any Noteholder, is defined in Section
1.04(a).
"Adjusted Outstanding Dollar Principal Amount," with respect to any Series
or Class of Notes, has the meaning assigned in the related Indenture Supplement.
"Adjusted Pool Balance" is defined in the Transfer and Servicing Agreement.
"Administration Agreement" means the Administration Agreement, dated as of
September 1, 2003, between and among the Issuer, Case Credit, as Administrator
and the Indenture Trustee.
"Administrator" means Case Credit, in its capacity as Administrator
pursuant to the terms of the Administration Agreement.
"Adverse Effect" means, whenever used in this Indenture with respect to any
Series or Class of Notes with respect to any action, that such action shall (a)
at the time of its occurrence or at any future date result in the occurrence of
an Early Amortization Event or Event of Default relating to such Series or
Class, as applicable, (b) adversely affect the amount of funds available to be
distributed to the Noteholders of any such Series or Class pursuant to this
Indenture or the timing of such distributions, or (c) adversely affect the
security interest of the Indenture Trustee in the Collateral.
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means, with respect to any Holders of Notes, has the meaning
specified in the related Indenture Supplement.
"Authenticating Agent" means any Person authorized by the Indenture Trustee
to authenticate Notes under Section 8.14.
"Authorized Newspaper" means, with respect to any Class of Notes,
publication in the newspaper of record specified in the applicable Indenture
Supplement for that Class, or if and so long as Notes of that Class are listed
on any securities exchange and that exchange so requires, in the newspaper of
record required by the applicable securities exchange, printed in any language
4 MASTER INDENTURE
specified in the applicable Indenture Supplement or satisfying the requirements
of such exchange.
"Authorized Officer" means, with respect to (i) the Issuer, any officer of
the Owner Trustee who is authorized to act for the Owner Trustee in matters
relating to the Issuer and who is identified on the list of Authorized Officers
delivered by the Owner Trustee to the Indenture Trustee on the Closing Date (as
such list may be modified or supplemented from time to time thereafter), (ii)
the Administrator, so long as the Administration Agreement is in effect, any
Assistant Treasurer or more senior officer of the Administrator who is
authorized to act for the Administrator in matters relating to the Issuer and to
be acted upon by the Administrator pursuant to the Administration Agreement and
who is identified on the list of Authorized Officers delivered by the
Administrator to the Indenture Trustee on the Closing Date (as such list may be
modified or supplemented from time to time thereafter) and (iii) the Transferor,
any Assistant Treasurer or more senior officer of the Transferor who is
authorized to act for the Transferor in matters relating to the Transferor and
who is identified on the list of Authorized Officers delivered by the Transferor
to the Indenture Trustee on the Closing Date (as such list may be modified or
supplemented from time to time thereafter).
"Available Interest Amount" means for any Collection Period, Collections of
No-Principal Receivables for such Collection Period PLUS Reallocated Yield
Amounts for such Collection Period.
"Available Principal Amount" means for any Collection Period, Principal
Collections for such Collection Period MINUS Reallocated Yield Amounts for such
Collection Period.
"Available Subordinated Amount" with respect to any Series of Notes, has
the meaning specified in the related Indenture Supplement.
"Backup Servicer" means the institution that is engaged by the Issuer or
the Servicer on its behalf to act as a backup servicer under the Transfer and
Servicing Agreement and that satisfies all of the requirements of a Successor
Servicer under Section 6.02 of the Transfer and Servicing Agreement.
"Backup Servicer Account" means the account designated as such, established
and maintained pursuant to Section 4.02(e).
"Backup Servicer Account Initial Deposit" means $750,000.00.
"Backup Servicer Account Required Amount" means, initially, the Backup
Servicer Account Initial Deposit, PROVIDED, HOWEVER, the Backup Servicer Account
Required Amount may be reduced by the Servicer with the consent of Moody's as
evidenced by written affirmation that such reduction will not result in a
downgrade or withdrawal by Moody's of its then current rating of any Class or
Series of Notes.
"Backup Servicer Account Shortfall Amount" means the excess of Backup
Servicer Fees and Expenses over amounts on deposit in the Backup Servicer
Account.
5 MASTER INDENTURE
"Backup Servicer Fees and Expenses" means all reasonable costs, fees and
expenses (including attorneys' fees) incurred in connection with the engagement
of a Backup Servicer, including any engagement fees, travel expenses or due
diligence costs and thereafter, the ongoing servicing fees and expenses of a
Backup Servicer.
"Bearer Note" means a Note in bearer form.
"Beneficiary" means the holders of the Transferor Interest.
"Business Day," unless otherwise specified in the Indenture Supplement for
any Class of Notes, means any day other than (a) a Saturday or Sunday or (b) any
other day on which banking corporations or state banking institutions in Racine,
Wisconsin, New York, New York or Wilmington, Delaware, are authorized or
obligated by law, executive order or governmental decree to be closed.
"Case Credit" means Case Credit Corporation, a Delaware Corporation.
"Case Receivables Purchase Agreement" means the Receivables Purchase
Agreement, dated as of September 1, 2003, by and between Case Credit, as
Originator and CWRI, as Purchaser.
"Class" means, with respect to any Note, the Class designated for such Note
in the applicable Indenture Supplement.
"Collateral" is defined in the Granting Clause.
"Collateral Amount" means, with respect to any Outstanding Class of Notes,
an amount determined in accordance with the applicable Indenture Supplement.
"Collection Account" is defined in Section 4.02(a).
"Collections" is defined in Section 4.01.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Corporate Trust Office" means the principal office of the Indenture
Trustee in New York, New York at which at any particular time its corporate
trust business shall be principally administered, which office at the date
hereof is located at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Institutional Trust Services Group or at any other time at such other
address as the Indenture Trustee may designate from time to time by notice to
the Holders.
"CWRI" means CNH Wholesale Receivables Inc.
"Depository" means a U.S. Depository or a Foreign Depository, as the case
may be.
6 MASTER INDENTURE
"Discount Note" means a Note that provides for an amount less than the
Stated Principal Amount (but not less than the Initial Dollar Principal Amount)
thereof to be due and payable upon the occurrence of an Early Amortization Event
or other optional or mandatory redemption or the occurrence of an Event of
Default and the acceleration of such Note, in each case before the Scheduled
Final Payment Date of the applicable Note.
"Dollar" means (a) United States dollars or (b) denominated in United
States dollars.
"Early Amortization Event" is defined in Section 12.01.
"Early Amortization Period" is defined in the related Indenture Supplement.
"Effective Date" means the date on which this Indenture is executed and
delivered by the parties hereto.
"Enhancement" is defined in the Transfer and Servicing Agreement.
"Enhancement Agreement" is defined in the Transfer and Servicing Agreement.
"Enhancement Provider" is defined in the Transfer and Servicing Agreement.
"Entity" means any Person other than an individual or government (including
any agency or political subdivision thereof).
"ERISA" means the Employee Retirement Income Security Act of 1974, as the
same may be amended from time to time.
"Event of Default" is defined in Section 7.01.
"Excess Funded Amount" with respect to any Series of Notes, has the meaning
specified in the related Indenture Supplement.
"Excess Funding Account" is defined in Section 4.02(a).
"Exchange Date" means, with respect to any Class of Notes, the latest of:
(a) in the case of exchanges of beneficial interests in Temporary Global
Notes for beneficial interests in Permanent Global Notes in registered form, any
date that is after the related issuance date;
(b) in the case of exchanges of beneficial interests in Temporary Global
Notes for beneficial interests in Permanent Global Notes in bearer form, the
date of presentation of certification of non-United States beneficial ownership
(as described in Section 2.05); and
(c) the earliest date on which such an exchange of a beneficial interest
in a Temporary Global Note for a beneficial interest in a Permanent Global Note
is permitted by applicable law.
7 MASTER INDENTURE
"FDIC" means the Federal Deposit Insurance Corporation or any successor
thereto.
"Federal Bankruptcy Code" means Title 11 of the United States Code, as
amended from time to time.
"Fitch" means Fitch, Inc., or any successor thereto.
"Foreign Currency" means (a) a currency other than Dollars or (b)
denominated in a currency other than Dollars.
"Foreign Depository" means the Person specified in the applicable Indenture
Supplement, in its capacity as depository for the accounts of any clearing
agencies located outside the United States.
"Global Note" means any Note issued pursuant to Section 2.04.
"Holder," when used with respect to any Note, means a Noteholder.
"Indenture" or "this Indenture" means this Indenture as originally executed
and as amended, supplemented, restated or otherwise modified from time to time
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, and shall include the terms of particular Series
or Classes of Notes created as contemplated by Section 3.01.
"Indenture Supplement" means, with respect to any Series of Notes, a
supplement to this Indenture, executed and delivered in conjunction with the
issuance of such Notes pursuant to Section 10.01, together with any applicable
terms document related to such Indenture Supplement and any amendment to the
Indenture Supplement executed pursuant to Section 10.01 or 10.02, and, in either
case, including all amendments thereof and supplements thereto.
"Indenture Trustee" means the Person named as the Indenture Trustee in the
first paragraph of this Indenture until a successor Indenture Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Indenture Trustee" means and includes each Person who is then an
Indenture Trustee hereunder. If at any time there is more than one such Person,
"Indenture Trustee" as used with respect to the Notes of any Series or Class
means the Indenture Trustee with respect to Notes of that Series or Class.
"Indenture Trustee Authorized Officer," when used with respect to the
Indenture Trustee, means any vice president, any assistant vice president, the
treasurer, any assistant treasurer, any senior trust officer or trust officer,
or any other officer of the Indenture Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Initial Dollar Principal Amount" means (a) unless otherwise specified in
the applicable Indenture Supplement, with respect to Classes of Dollar
Interest-bearing Notes, the aggregate initial principal amount of the
Outstanding Notes of such Class, and (b) with respect to Classes
8 MASTER INDENTURE
of Discount Notes and foreign currency Notes, the amount specified in the
applicable Indenture Supplement as the Initial Dollar Principal Amount thereof.
"Insurance Proceeds" is defined in the Transfer and Servicing Agreement.
"Interest-bearing Note" means a Note that bears interest at a stated or
computed rate on the principal amount thereof. A Note may be both an
Interest-bearing Note and a Discount Note.
"Interest Payment Date" means, with respect to any Series or Class of
Notes, the scheduled due date of any payment of interest on such Notes, as
specified in the applicable Indenture Supplement, or if such day is not a
Business Day, the next following Business Day, unless such day is in the next
calendar month, in which case the Interest Payment Date, unless otherwise
specified in the related Indenture Supplement, shall be the last Business Day of
the current calendar month; provided, however, that upon the acceleration of a
Series or Class of Notes following an Event of Default or upon the occurrence of
an Early Amortization Event, or other optional or mandatory redemption of that
Series or Class of Notes, each Monthly Principal Accrual Date shall be an
Interest Payment Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Investor Default Amount" with respect to any Series of Notes, has the
meaning specified in the related Indenture Supplement.
"Investor Uncovered Dilution Amounts" with respect to any Series of Notes,
has the meaning specified in the related Indenture Supplement.
"Issuer" is defined in the first paragraph of this Indenture.
"Issuer Authorized Officer" means (a) an authorized signatory of the Owner
Trustee or (b) the chairman or vice-chairman of the board of directors, chairman
or vice-chairman of the executive committee of the board of directors, the
president, any vice-president, the secretary, any assistant secretary, the
treasurer, or any assistant treasurer, in each case of the Beneficiary or the
Administrator, any other officer or employee of the Beneficiary or Administrator
who is authorized to act on behalf of the Issuer.
"Issuer Certificate" means a certificate (including an Officer's
Certificate) signed in the name of an Issuer Authorized Officer, or the Issuer
by an Issuer Authorized Officer, and in each case delivered to the Indenture
Trustee relating to, among other things, the issuance of a new Class of Notes.
Wherever this Indenture requires that an Issuer Certificate be signed also by an
accountant or other expert, such accountant or other expert (except as otherwise
expressly provided in this Indenture) may be in the employ of the Beneficiary.
"Legal Final Maturity Date" means, with respect to a Series or Class of
Notes, the date specified in the Indenture Supplement, for such Note as the
fixed date on which the principal of such Series or Class of Notes is due and
payable.
9 MASTER INDENTURE
"Majority Holders" means, with respect to any Series or Class of Notes or
all Outstanding Notes, the Holders of a majority in Outstanding Dollar Principal
Amount of the Outstanding Notes of that Series or Class or of all Outstanding
Notes, as the case may be, or as otherwise defined for such Series in the
Indenture Supplement for such Series.
"Monthly Interest Accrual Date" means, with respect to any Outstanding
Series or Class of Notes:
(a) each Interest Payment Date for such Series or Class, and
(b) for any Monthly Period in which no Interest Payment Date for such
Series or Class occurs, the date in such Monthly Period corresponding
numerically to the next Interest Payment Date for such Series or Class of Notes,
or in the case of a Series or Class of Discount Notes, the Scheduled Final
Payment Date for that Series or Class, or as otherwise specified in the
applicable Indenture Supplement for such Series or Class of Notes; provided,
however, that
(i) for the Monthly Period in which a Series or Class of Notes is
issued, the date of issuance of such Series or Class shall be the first
Monthly Interest Accrual Date for such Monthly Period for such Series or
Class of Notes,
(ii) for the Monthly Period next following the Monthly Period in
which a Series or Class of Notes is issued, unless otherwise indicated in
the related Indenture Supplement, the first day of such Monthly Period
shall be the first Monthly Interest Accrual Date in such next following
Monthly Period for such Series or Class of Notes,
(iii) any date on which proceeds from a sale of Receivables following
an Event of Default and acceleration of any Class of Notes are deposited
into the interest funding account for such Notes shall be a Monthly
Interest Accrual Date for such Class of Notes,
(iv) if there is no such numerically corresponding date in such
Monthly Period, then the Monthly Interest Accrual Date shall be the last
Business Day of such Monthly Period, and
(v) if such numerically corresponding date in such Monthly Period
is not a Business Day, then the Monthly Interest Accrual Date shall be the
next following Business Day (unless such Business Day would fall in the
following Monthly Period in which case the Monthly Interest Accrual Date
shall be the last Business Day of such earlier month).
"Monthly Noteholders' Statement" means a report substantially in the form
of Exhibit B, as the same may be supplemented as set forth in the related
Indenture Supplement.
"Monthly Period" means a calendar month, except as otherwise specified for
a Series of Notes in its Indenture Supplement. The Monthly Period with respect
to a Transfer Date or Payment Date is the Monthly Period that ends immediately
prior to such date.
10 MASTER INDENTURE
"Monthly Principal Accrual Date" means, with respect to any Outstanding
Series or Class of Notes:
(a) for any Monthly Period in which an Scheduled Final Payment Date for
such Series or Class occurs, such Scheduled Final Payment Date, or as otherwise
specified in the applicable Indenture Supplement for such Series or Class of
Notes, and
(b) for any Monthly Period in which no Scheduled Final Payment Date for
such Series or Class occurs, the date in such Monthly Period corresponding
numerically to the next Scheduled Final Payment Date for such Series or Class of
Notes (or for any month following the last Scheduled Final Payment Date, the
date in such month corresponding numerically to the preceding Scheduled Final
Payment Date for such Series or Class of Notes), or as otherwise specified in
the applicable Indenture Supplement, for such Class of Notes; provided, however,
that:
(i) any date on which prefunded excess amounts are released from
any principal funding subaccount and deposited into the principal funding
subaccount of any Class of Notes on or after the Scheduled Final Payment
Date for such Class of Notes shall be a Monthly Principal Accrual Date for
such Class of Notes,
(ii) any date on which proceeds from a sale of Receivables following
an Event of Default and acceleration of any Series or Class of Notes are
deposited into the Principal Funding Account for such Notes shall be a
Monthly Principal Accrual Date for such Class of Notes,
(iii) if there is no numerically corresponding date in such Monthly
Period, then the Monthly Principal Accrual Date shall be the last Business
Day of such Monthly Period, and
(iv) if such numerically corresponding date in such Monthly Period
is not a Business Day, the Monthly Principal Accrual Date shall be the next
following Business Day (unless such Business Day would fall in the
following month in which case the Monthly Principal Accrual Date shall be
the last Business Day of such earlier Monthly Period).
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor thereto.
"NH Credit" means New Holland Credit Company, LLC, a Delaware limited
liability company.
"NH Receivables Purchase Agreement" means the Receivables Purchase
Agreement, dated as of September 1, 2003, by and among NH Credit as Originator,
CWRI, as Purchaser and Case Credit as Servicer.
"Non-Performing," with respect to an Enhancement Agreement, means not
Performing.
11 MASTER INDENTURE
"Note" or "Notes" means any note or notes of any Series or Class
authenticated and delivered from time to time under this Indenture.
"Note Owner" means the beneficial owner of an interest in a Global Note.
"Note Register" is defined in Section 3.05.
"Note Registrar" means the Person who keeps the Note Register specified in
Section 3.05.
"Noteholder" means a Person in whose name a Note is registered in the Note
Register or the bearer of any Bearer Note (including a Global Note in bearer
form), as the case may be.
"Officer's Certificate" means a certificate signed by the Beneficiary or
the Owner Trustee and delivered to the Indenture Trustee. Wherever this
Indenture requires that an Officer's Certificate be signed also by an accountant
or other expert, such accountant or other expert (except as otherwise expressly
provided in this Indenture) may be in the employ of the Beneficiary.
"Opinion of Counsel" means a written opinion of counsel reasonably
acceptable to the Indenture Trustee, who may, without limitation, and except as
otherwise expressly provided in this Indenture, be an employee of or of counsel
to the Issuer, the Beneficiary or any of their Affiliates, the Note Registrar
and the Issuer, as applicable.
"Originator" is defined in the Transfer and Servicing Agreement.
"Outstanding," when used with respect to a Note or with respect to Notes of
any Series or Class means, as of the date of determination, all such Notes
theretofore authenticated and delivered under this Indenture, except:
(a) any Notes theretofore canceled by the Indenture Trustee or delivered
to the Indenture Trustee for cancellation, or canceled by the Issuer, CWRI or
any Affiliate thereof pursuant to Section 3.09;
(b) any non-revolving Notes for whose full payment (including principal
and interest) or redemption money in the necessary amount has been theretofore
deposited with the Indenture Trustee or any Paying Agent in trust for the
Holders of such Notes; provided that, if such Notes are to be redeemed, notice
of such redemption has been duly given if required pursuant to this Indenture,
the related Indenture Supplement, or provision therefor satisfactory to the
Indenture Trustee has been made;
(c) any Notes which are deemed to have been paid in full pursuant to
Section 5.06; and
(d) any such Notes in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture, or which shall have
been paid pursuant to the terms of Section 3.06 (except with respect to any such
Note as to which proof satisfactory to the Indenture Trustee is presented that
12 MASTER INDENTURE
such Note is held by a person in whose hands such Note is a legal, valid and
binding obligation of the Issuer).
For purposes of determining the amounts of deposits, allocations,
reallocations or payments to be made, unless the context clearly requires
otherwise, references to "Notes" shall be deemed to be references to
"Outstanding Notes." In determining whether the Holders of the requisite
principal amount of such Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, and for purposes
of Section 9.04, Notes beneficially owned by the Issuer or CWRI or any Affiliate
of the Issuer or CWRI shall be disregarded and deemed not to be Outstanding. In
determining whether the Indenture Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Notes which an Indenture Trustee Authorized Officer knows to be owned by the
Issuer or CWRI or any Affiliate of the Issuer or CWRI shall be so disregarded.
Notes so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee demonstrates to the reasonable satisfaction of the
Indenture Trustee (i) the pledgee's right to act as owner with respect to such
Notes and (ii) that the pledgee is not the Issuer, CWRI or any other obligor
upon the Notes or any Affiliate of the Issuer, CWRI or such other obligor.
"Outstanding Dollar Principal Amount" means at any time,
(a) with respect to any Series or Class of non-Discount Notes, the
aggregate Initial Dollar Principal Amount of the Outstanding Notes of such
Series or Class at such time, less the amount of any withdrawals from the
Principal Funding Account or Principal Funding sub-Account for such Class of
Notes for payment of principal to the Holders of such Series or Class or to the
applicable Enhancement Provider pursuant to the related Indenture Supplement,
and
(b) with respect to any Series or Class of Discount Notes, an amount of
the Outstanding Notes of such Series or Class calculated by reference to the
applicable formula set forth in the applicable Indenture Supplement, taking into
account the amount and timing of payments of principal made to the Holders of
such Series or Class or to the applicable Enhancement Provider and accretions of
principal, each pursuant to the related Indenture Supplement.
"Owner Trustee" means The Bank of New York, not in its individual capacity
but solely as owner trustee of the Issuer, and each of its successors and
assigns.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of or interest on any Notes on behalf of the Issuer, which shall
initially be the Indenture Trustee.
"Payment Date" means, with respect to any Series or Class of Notes, the
applicable Principal Payment Date or Interest Payment Date.
"Payment Instruction" means an instruction substantially in the form of
Exhibit A, or such other form as the Issuer may determine, as the same may be
supplemented as set forth in the related Indenture Supplement.
13 MASTER INDENTURE
"Perfection Representations and Warranties" means the representations and
warranties set forth below:
1. GENERAL. The Specified Agreement creates a valid and continuing
security interest (as defined in the applicable UCC) in the Receivables and
the proceeds thereof in favor of the Secured Party, which, (a) in the case
of existing Receivables and the proceeds thereof, is enforceable upon
execution of the Specified Agreement against creditors of and purchasers
from Debtor, or with respect to Additional Accounts or Automatic Additional
Accounts then existing Receivables in Additional Accounts or Automatic
Additional Accounts, as of the applicable Addition Date, and which will be
enforceable with respect to Receivables hereafter and thereafter created
and the proceeds thereof upon such creation, in each case as such
enforceability may be limited by applicable Debtor Relief Laws, now or
hereafter in effect, and by general principles of equity (whether
considered in a suit at law or in equity) and (b) upon filing of the
financing statements described in CLAUSE 4 below and, in the case of
Receivables hereafter created, upon the creation thereof, will be prior to
all other Liens (other than Liens permitted pursuant to CLAUSE 3 below).
2. GENERAL. The Receivables constitute "accounts", "tangible chattel
paper", "payment intangibles" or "general intangibles" within the meaning
of UCC Section 9-102.
3. CREATION. Immediately prior to the conveyance of the Receivables
pursuant to the Specified Agreement, Debtor owns and has good and
marketable title to, or has a valid security interest in, the Receivables
free and clear of any Lien, claim or encumbrance of any Person. For the
transfer of any Receivables constituting "payment intangibles," Debtor has
received all consents and approvals required by the terms of the related
Floorplan Financing Agreement, if any, for the transfer of any such
Receivables constituting "payment intangibles."
4. PERFECTION. Debtor has caused or will have caused, within ten
days of the Initial Closing Date, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions
under applicable law in order to perfect the security interest granted to
the Secured Party under the Specified Agreement in the Receivables arising
in the Initial Accounts and Automatic Additional Accounts, and (if any
additional filing is so necessary) within 10 days of the applicable
Addition Date, in the case of such Receivables arising in Additional
Accounts and Automatic Additional Accounts. With respect to Receivables
that constitute tangible chattel paper, the Servicer or a Subservicer, as
custodian, received possession of such tangible chattel paper after the
Secured Party received a written acknowledgment from such custodian that it
is acting solely as agent of the Secured Party. All financing statements
filed under this clause 4 contain a statement that "A purchase of or
security interest in any collateral described in this financing statement
will violate the rights of the Secured Party".
5. PRIORITY. Other than the security interest granted to the Secured
Party pursuant to the Specified Agreement, Debtor has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any
of the Receivables. Debtor has not
14 MASTER INDENTURE
authorized the filing of and is not aware of any financing statements
against Debtor that include a description of collateral covering the
Receivables other than any financing statement (i) relating to the security
interest granted to Secured Party under the Specified Agreement, (ii) that
has been terminated, or (iii) that has been granted pursuant to the terms
of the Transaction Documents.
6. SURVIVAL OF PERFECTION REPRESENTATIONS. Notwithstanding any other
provision of the Specified Agreement or any other Transaction Document, the
Perfection Representations contained herein shall be continuing, and remain
in full force and effect.
7. NO WAIVER. The parties to the Specified Agreement: (i) shall not,
without obtaining a confirmation of the then-current rating of the Notes,
waive any of the representations and warranties set forth herein; (ii)
shall provide the Ratings Agencies with prompt written notice of any breach
of the representations and warranties set forth herein, and shall not,
without obtaining a confirmation of the then-current rating of the Notes
(as determined after any adjustment or withdrawal of the ratings following
notice of such breach) waive a breach of any of the representations and
warranties set forth herein.
8. SERVICER TO MAINTAIN PERFECTION AND PRIORITY. The Servicer
covenants that, in order to evidence the interests of Debtor and the
Secured Party under the Specified Agreement, Servicer shall take such
action, or execute and deliver such instruments (other than effecting a
Filing (as defined below), unless such Filing is effected in accordance
with this paragraph) as may be necessary or advisable (including, without
limitation, such actions as are requested by Debtor) to maintain and
perfect, as a first priority interest, the Secured Party's security
interest in the Receivables. Servicer shall, from time to time and within
the time limits established by law, prepare and present to the Secured
Party for the Secured Party to authorize the Servicer to file, all
financing statements, amendments, continuations, initial financing
statements in lieu of a continuation statement, terminations, partial
terminations, releases or partial releases, or any other filings necessary
or advisable to continue, maintain and perfect the Secured Party's security
interest in the Receivables as a first-priority interest (each a "Filing").
Servicer shall present each such Filing to the Secured Party together with
an Officer's Certificate to the effect that such Filing is (i) consistent
with grant of the security interest to the Secured Party pursuant to the
Specified Agreement, (ii) satisfies all requirements and conditions to such
Filing in this Agreement and (iii) satisfies the requirements for a Filing
of such type under the Uniform Commercial Code in the applicable
jurisdiction (or if the Uniform Commercial Code does not apply, the
applicable statute governing the perfection of security interests), and (y)
a form of authorization for the Secured Party's signature. Upon receipt of
such Officer's Certificate and form of authorization, Debtor shall promptly
authorize in writing Servicer to, and Servicer shall, effect such Filing
under the Uniform Commercial Code without the signature of the Secured
Party or Debtor where allowed by applicable law. Notwithstanding anything
else in the Specified Agreement to the contrary, the Servicer shall not
have any authority to effect a Filing without obtaining written
authorization from the Debtor in accordance with this paragraph (c).
15 MASTER INDENTURE
"Performing" means, with respect to any Enhancement Agreement, no payment
default or repudiation of performance by a Enhancement Provider has occurred,
and such Enhancement Agreement has not been terminated.
"Permanent Global Note" is defined in Section 2.05.
"Permitted Investments" means, unless otherwise provided in the Indenture
Supplement with respect to any Series of Notes:
(a) instruments, investment property or other property consisting of:
(i) obligations of or fully guaranteed by the United States of
America;
(ii) time deposits or certificates of deposit of any depository
institution or trust company incorporated under the laws of the United
States of America or any state thereof (or domestic branches of foreign
depository institutions or trust companies) and subject to supervision and
examination by federal or state banking or depository institution
authorities; provided, however, that at the time of the Indenture Trustee's
investment or contractual commitment to invest therein, the certificates of
deposit or short-term deposits of such depository institution or trust
company shall have a credit rating from Xxxxx'x and S&P of P-1 and A-1+,
respectively, and, if rated by Fitch, F1+ from Fitch;
(iii) commercial paper (including but not limited to asset backed
commercial paper) having, at the time of the Indenture Trustee's investment
or contractual commitment to invest therein, a rating from Xxxxx'x and S&P
of P-1 and A-1+, respectively, and, if rated by Fitch, F1+ from Fitch;
(iv) bankers' acceptances issued by any depository institution or
trust company described in clause (a)(ii) above; and
(v) investments in money market funds rated AAA-m or AAA-mg by S&P,
Aaa by Xxxxx'x or F1 by Fitch (including money market funds for which the
Indenture Trustee in its individual capacity or any of its Affiliates is
investment manager or adviser or from which the Indenture Trustee in its
individual capacity or any of its Affiliates charges or collects fees and
expenses for services rendered) or otherwise approved in writing by each
Rating Agency;
(b) demand deposits in the name of the Indenture Trustee in any depository
institution or trust company referred to in clause (a)(ii) above;
(c) uncertificated securities that are registered in the name of the
Indenture Trustee upon books maintained for that purpose by the issuer thereof
and identified on books maintained for that purpose by the Indenture Trustee as
held for the benefit of the Noteholders, and consisting of shares of an open end
diversified investment company which is registered under the Investment Company
Act, and which (i) invests its assets exclusively in obligations of or
guaranteed by the United States of
16 MASTER INDENTURE
America or any instrumentality or agency thereof having in each instance a final
maturity date of less than one year from their date of purchase or other
Permitted Investments, (ii) seeks to maintain a constant net asset value per
share, (iii) has aggregate net assets of not less than $100,000,000 on the date
of purchase of such shares and (iv) with respect to which each Rating Agency
confirms in writing that such investment shall not cause a Ratings Effect; and
(d) any other investment if each Rating Agency confirms in writing that
such investment shall not cause a Ratings Effect.
"Person" means any individual, corporation, estate, partnership, limited
liability company, limited liability partnership, joint venture, association,
joint-stock company, business trust, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" means, with respect to any Class of Notes issued
hereunder, the city or political subdivision so designated with respect to such
Class of Notes in accordance with the provisions of Section 3.01.
"Predecessor Notes" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.06 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Principal Funding Account" with respect to any Series of Notes, has the
meaning specified in the related Indenture Supplement.
"Principal Payment Date" means, with respect to any Series or Class of
Notes, each Scheduled Final Payment Date, or upon the acceleration of such
Series or Class of Notes following an Event of Default or upon the occurrence of
an Early Amortization Event, or other optional or mandatory redemption of such
Series or Class of Notes, each Monthly Principal Accrual Date.
"Qualified Account" means either (a) a segregated account (including a
securities account) with a Qualified Institution or (b) a segregated
non-interest bearing trust account with the corporate trust department of a
depository institution organized under the laws of the United States of America
or any one of the States thereof or the District of Columbia (or any domestic
branch of a foreign bank), having corporate trust powers and acting as trustee
for funds deposited in such account, so long as any of the securities of such
depository institution shall have a credit rating from each Rating Agency in one
of its generic rating categories which signifies investment grade.
"Qualified Institution" means (a) a depository institution, which may
include the Indenture Trustee or the Owner Trustee (so long as it is a paying
agent under the Indenture), organized under the laws of the United States of
America or any one of the States thereof or the District of Columbia, the
deposits in which are insured by the FDIC and which at all times satisfies the
definition of Required Institutional Rating with respect to each Rating Agency
or (b) a depository institution acceptable to each Rating Agency.
17 MASTER INDENTURE
"Rating Agency" means, with respect to any Outstanding Series or Class of
Notes, each statistical rating agency selected by the Issuer to rate such Notes.
"Ratings Effect" means a reduction, qualification or withdrawal of any then
current rating of the Notes.
"Reallocated Yield Amounts" means the Reallocated Yield Percentage
MULTIPLIED BY the Principal Collections during the Collection Period.
"Reallocated Yield Percentage" is defined in the Transfer and Servicing
Agreement.
"Receivables" is defined in the Transfer and Servicing Agreement.
"Receivables Purchase Agreement" means each of the Case Receivables
Purchase Agreement, the NH Receivables Purchase Agreement and each other
Receivables Purchase Agreement between an Originator, as seller and the
Transferor, as Purchaser.
"Record Date" for the interest or principal payable on any Note on any
applicable Payment Date means the last day of the month before the related
Interest Payment Date or Principal Payment Date, as applicable, unless otherwise
specified in the applicable Indenture Supplement.
"Registered Note" means a Note issued in registered form.
"Registered Noteholder" means a holder of a Registered Note.
"Required Institutional Rating" means, with respect to (i) S&P, a long-term
unsecured debt rating or AA- or a short-term debt rating of A-1+, (ii) Xxxxx'x,
a long-term unsecured debt rating of Aa3 or a short-term debt rating of P-1, and
(iii) Fitch, a long-term unsecured debt rating of AA- or a short-term debt
rating of F-1+.
"Required Subordinated Amount" means, with respect to any Class of a senior
Class of Notes, the amount specified in the related Indenture Supplement.
"S&P" means Standard & Poor's Ratings Services or any successor thereto.
"Scheduled Final Payment Date" means, with respect to any Series or Class
of Notes, the scheduled due date of any payment of principal on such Notes, as
specified in the related Indenture Supplement, or if such day is not a Business
Day, the next following Business Day, unless such day is in the next calendar
month, in which case such Scheduled Final Payment Date, unless otherwise
specified in the related Indenture Supplement, shall be the last Business Day of
the current calendar month.
"Secured Party" is defined in the Granting Clause.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
18 MASTER INDENTURE
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Security Interest" means the security interest granted pursuant to the
Granting Clause.
"Senior Class," with respect to a Class of Notes of any Series, has the
meaning specified in the related Indenture Supplement.
"Series" means, with respect to any Note, the Series specified in the
applicable Indenture Supplement.
"Series Accounts" is defined in the Transfer and Servicing Agreement.
"Series Available Interest Amount Shortfalls," has the meaning specified in
the related Indenture Supplement.
"Series Available Principal Amount Shortfalls," has the meaning specified
in the related Indenture Supplement.
"Series Collateral Amount," with respect to any Series of Notes, has the
meaning specified in the related Indenture Supplement.
"Series Floating Allocation Percentage" means, for any Series of Notes with
respect to any Monthly Period and the related Transfer Date, the percentage
equivalent, which shall never exceed 100%, of a fraction, the numerator of which
is the Series Security Amount for such Series as of the last day of the
immediately preceding Monthly Period and the denominator of which is the greater
of (a) the Adjusted Pool Balance as of the last day of the immediately preceding
Monthly Period and (b) the sum of the Series Security Amounts for all Series of
Notes on that day.
"Series Principal Allocation Percentage" means, for a Series of Notes with
respect to any Monthly Period and the related Transfer Date, the percentage
equivalent, which shall never exceed 100%, of a fraction the numerator of which
is the Series Security Amount for such Series as of the last day of the Monthly
Period prior to the commencement of an Early Amortization Period or the
Accumulation Period, and the denominator of which is the greater of (a) the
Adjusted Pool Balance as of the last day of the immediately preceding Monthly
Period and (b) the sum of the Series Security Amounts for all Series of Notes as
of the last day of the Monthly Period prior to the commencement of any Early
Amortization Period or Accumulation Period; provided, however, that for any
Series that is in its Accumulation Period or an Early Amortization Period, the
Series Security Amount of that Series shall be the Series Security Amount as of
the last day of the Monthly Period prior to the commencement of such
Accumulation Period or Early Amortization Period.
"Series Security Amount," with respect to any Series of Notes, has the
meaning specified in the related Indenture Supplement.
"Servicer" is defined in the Transfer and Servicing Agreement.
19 MASTER INDENTURE
"Specified Agreement" means the agreement specified in a Transaction
Document as the "Specified Agreement" for purposes of the Perfection
Representations and Warranties.
"Stated Principal Amount," with respect to any Note, has the meaning
specified in the related Indenture Supplement.
"Sub-Account" means each portion of an Account designated as such pursuant
to this Indenture or the related Indenture Supplement.
"Subordinated Class," with respect to a Class of Notes of any Series, has
the meaning specified in the related Indenture Supplement.
"Subordinated Notes" means Notes of a Subordinated Class of a Series.
"Subordinated Percentage" with respect to any Series, has the meaning
specified in the related Indenture Supplement.
"Supplemental Account" means the trust account or accounts designated as
such and established pursuant to Section 4.02(a).
"Tax Opinion" means, with respect to any action, an Opinion of Counsel to
the effect that, for federal income tax purposes, (a) such action shall not
adversely affect in any material respect the tax characterization as debt of any
Outstanding Series or Class of Notes that were characterized as debt at the time
of their issuance, (b) following such action the Issuer shall not be treated as
an association (or publicly traded partnership) taxable as a corporation, (c)
such action shall not cause or constitute an event in which a gain or loss would
be recognized by any Holder of any such Notes, and (d) except as otherwise
provided in the related Indenture Supplement, where such action is the issuance
of a Series or Class of Notes, following such action such Series or Class of
Notes shall be properly characterized as debt.
"Temporary Global Note" is defined in Section 2.05.
"Transaction Documents" means the Indenture, the Indenture Supplements, the
Transfer and Servicing Agreement, the Receivables Purchase Agreements, the Trust
Agreement and the Administration Agreement.
"Transfer and Servicing Agreement" means the Transfer and Servicing
Agreement, dated as of September 1, 2003, among CWRI, as Transferor, Case Credit
Corporation, as Servicer, and The Bank of New York, as owner trustee, as
amended, restated and supplemented from time to time.
"Transfer Date" means the Business Day preceding each Payment Date.
"Transferor" means CWRI in its capacity as Transferor under the Transfer
and Servicing Agreement.
"Transferor Amount" means, on any Determination Date, the Adjusted Pool
Balance minus the aggregate Collateral Amounts for all outstanding Series.
20 MASTER INDENTURE
"Transferor Interest" means the interest of the Transferor or its assigns
in the Issuer and the Receivables, which entitles Transferor or its assigns to
receive the various amounts specified in the Transaction Documents to be paid or
transferred to the holder(s) of the Transferor Interest.
"Trust Agreement" means the Trust Agreement, dated as of September 1, 2003,
between CWRI, as Transferor, and The Bank of New York, as Owner Trustee, as
amended, supplemented or restated from time to time.
"Trust Available Subordinated Amount" is defined in the Transfer and
Servicing Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, as in force at the date as of which this
Indenture was executed except as provided in Section 10.05.
"UCC" means, unless the context otherwise requires, the Uniform Commercial
Code, as in effect in the relevant jurisdiction.
"U.S. Depository" means, unless otherwise specified by the Issuer pursuant
to either Section 2.04, 2.06, or 3.01, with respect to Notes of any Class
issuable or issued as Global Note within the United States, The Depository Trust
Company, New York, New York, or any successor thereto registered as a clearing
agency under the Securities Exchange Act, or other applicable statute
regulation.
Section 1.02. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Issuer to the Indenture Trustee to take any
action under any provision of this Indenture, the Issuer shall furnish to
the Indenture Trustee (i) an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with and (ii) an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent,
if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion
need be furnished.
The Indenture Trustee may rely, as to authorization by the Issuer of any
Class of Notes, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Section 3.10 and this Section, as applicable, in
connection with the first authentication of Notes of such Class.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for the written statement
required by Section 11.04) shall include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
21 MASTER INDENTURE
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that such individual has made such
examination or investigation as is necessary to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE. In any
case where several matters are required to be certified by, or covered by
an opinion of, one or more specified Persons, one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to the other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of the Issuer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless the Issuer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations are erroneous.
Any such certificate or opinion of, or representation by, counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, the Issuer stating that the information with respect to such
factual matters is in the possession of the Issuer, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. ACTS OF NOTEHOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action (collectively, "Action") provided by this
Indenture to be given or taken by Noteholders of any Series or Class may be
embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Noteholders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Indenture Trustee, and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 8.01) conclusive in favor of the Indenture Trustee and the Issuer,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness to
such execution or by
22 MASTER INDENTURE
the certificate of any notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership,
on behalf of such corporation or partnership, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
person executing the same, may also be proved in any other manner which the
Indenture Trustee deems reasonably sufficient.
(c) (i) The ownership of Registered Notes shall be proved by
the Note Register.
(ii) The ownership of Bearer Notes or coupons shall be proved
by the production of such Bearer Notes or coupons or by a certificate,
satisfactory to the Issuer, executed by any bank, trust company or
recognized securities dealer, wherever situated, satisfactory to the
Issuer. Each such certificate shall be dated and shall state that on
the date thereof a Bearer Note or coupon bearing a specified serial
number was deposited with or exhibited to such bank, trust company or
recognized securities dealer by the Person named in such certificate.
Any such certificate may be issued in respect of one or more Bearer
Notes or coupons specified therein. The holding by the Person named in
any such certificate of any Bearer Note specified therein shall be
presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding
(A) another certificate bearing a later date issued in respect of the
same Bearer Note or coupon produced, (B) the Bearer Note or coupon
specified in such certificate is produced by some other Person or (C)
the Bearer Note or coupon specified in such certificate has ceased to
be Outstanding.
(iii) If the Issuer shall solicit from the Holders any action,
the Issuer may, at its option, by an Officer's Certificate, fix in
advance a record date for the determination of Holders entitled to
give such action, but the Issuer shall have no obligation to do so. If
the Issuer does not so fix a record date, such record date shall be
the later of thirty (30) days before the first solicitation of such
action or the date of the most recent list of Noteholders furnished to
the Indenture Trustee pursuant to Section 9.01 before such
solicitation. Such action may be given before or after the record
date, but only the Holders of record at the close of business on the
record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Notes
Outstanding have authorized or agreed or consented to such action, and
for that purpose the Notes Outstanding shall be computed as of the
record date; provided that no such authorization, agreement or consent
by the Holders on the record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Note shall bind the
Holder of every Note issued upon the transfer thereof or in exchange
therefor or in lieu thereof, in respect of
23 MASTER INDENTURE
anything done or suffered to be done by the Indenture Trustee or the Issuer
in reliance thereon whether or not notation of such action is made upon
such Note.
Section 1.05. NOTICES, ETC., TO INDENTURE TRUSTEE AND ISSUER. Any
action of Noteholders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Indenture Trustee by any Noteholder or by the Issuer
shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Indenture Trustee at its Corporate Trust
Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder
shall be sufficient for every purpose hereunder (except as provided in
Section 7.01(c)) if in writing and mailed, first-Class postage prepaid, to
the Issuer addressed to it at the address of its principal office specified
in the first paragraph of this Indenture or at any other address previously
furnished in writing to the Indenture Trustee by the Issuer.
Section 1.06. NOTICES TO NOTEHOLDERS; WAIVER.
(a) Where this Indenture, any Indenture Supplement or any
Registered Note provides for notice to Registered Noteholders of any event,
such notice shall be sufficiently given (unless otherwise herein, in such
Indenture Supplement or in such Registered Note expressly provided) if in
writing and mailed, first-class postage prepaid, sent by facsimile, sent by
electronic transmission or personally delivered to each Holder of
Registered Note affected by such event, at such Noteholder's address as it
appears in the Note Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Registered Noteholders is given by mail,
facsimile, electronic transmission or delivery neither the failure to mail,
send by facsimile, electronic transmission or deliver such notice, nor any
defect in any notice so mailed, to any particular Noteholders shall affect
the sufficiency of such notice with respect to other Noteholders and any
notice that is mailed, sent by facsimile, electronic transmission or
delivered in the manner herein provided shall conclusively have been
presumed to have been duly given.
Where this Indenture, any Indenture Supplement or any Registered Note
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Registered Noteholders shall be filed with the Indenture Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
(b) In case, by reason of the suspension of regular mail
service as a result of a strike, work stoppage or otherwise, it shall be
impractical to mail notice of any event to any Holder of a Registered Note
when such notice is required to be given pursuant to any provision of this
Indenture, then any method of notification as shall be reasonably
satisfactory to the Indenture Trustee and the Issuer shall be deemed to be
a sufficient giving of such notice.
24 MASTER INDENTURE
(c) No notice shall be given by mail, facsimile, electronic
transmission or otherwise delivered to a Holder of Bearer Notes or coupons
in bearer form. In the case of any Class with respect to which any Bearer
Notes are Outstanding, any notice required or permitted to be given to
Holders of such Bearer Notes shall be published in an Authorized Newspaper
within the time period prescribed in this Indenture or the applicable
Indenture Supplement.
(d) With respect to any Class of Notes, the applicable
Indenture Supplement may specify different or additional means of giving
notice to the Holders of the Notes of such Class.
(e) Where this Indenture provides for notice to any Rating
Agency, failure to give such notice shall not affect any other rights or
obligations created hereunder and shall not under any circumstance
constitute an Adverse Effect.
Section 1.07. CONFLICT WITH TRUST INDENTURE ACT. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by, or with another provision (an "incorporated
provision") included in this Indenture by operation of, Sections 310 to
318, inclusive, of the Trust Indenture Act, such imposed duties or
incorporated provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act that may be
so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or excluded, as the case may be.
Section 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
and Section headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
Section 1.09. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture by the Issuer shall bind its successors and assigns, whether
so expressed or not. All covenants and agreements of the Indenture Trustee
in this Indenture shall bind its successors, co-trustees and agents of the
Indenture Trustee.
Section 1.10. SEPARABILITY. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
Section 1.11. BENEFITS OF INDENTURE. Nothing in this Indenture or in
any Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, any Authenticating Agent or
Paying Agent, the Note Registrar, Enhancement Providers (to the extent
specified in the applicable Enhancement Agreement) and the Holders of Notes
(or such of them as may be affected thereby), any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 1.12. GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS
25 MASTER INDENTURE
LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 1.13. COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and
the same instrument.
Section 1.14. INDENTURE REFERRED TO IN THE TRUST AGREEMENT. This is
the Indenture referred to in the Trust Agreement.
ARTICLE II
NOTE FORMS
Section 2.01. FORMS GENERALLY. The Notes shall have such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture or the applicable Indenture Supplement and
may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon, as may be required to comply with
applicable laws or regulations or with the rules of any securities
exchange, or as may, consistently herewith, be determined by the Issuer, as
evidenced by the Issuer's execution of such Notes. Any portion of the text
of any Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Note.
The definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders) or may be produced in any other manner, all as determined by
the Issuer, as evidenced by the Issuer's execution of such Notes, subject, with
respect to the Notes of any Series or Class, to the rules of any securities
exchange on which such Notes are listed.
Section 2.02. FORMS OF NOTES. Each Note shall be in one of the forms
approved from time to time by or pursuant to an Indenture Supplement.
Before the delivery of a Note to the Indenture Trustee for authentication
in any form approved by or pursuant to an Issuer Certificate, the Issuer
shall deliver to the Indenture Trustee the Issuer Certificate by or
pursuant to which such form of Note has been approved, which Issuer
Certificate shall have attached thereto a true and correct copy of the form
of Note which has been approved thereby or, if an Issuer Certificate
authorizes a specific officer or officers of the Beneficiary to approve a
form of Note, a certificate of such officer or officers approving the form
of Note attached thereto. Any form of Note approved by or pursuant to an
Issuer Certificate must be acceptable as to form to the Indenture Trustee,
such acceptance to be evidenced by the Indenture Trustee's authentication
of Notes in that form or a certificate signed by an Indenture Trustee
Authorized Officer and delivered to the Issuer.
Section 2.03. FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The form of Indenture Trustee's Certificate of
Authentication for any Note issued pursuant to this Indenture shall be
substantially as follows:
26 MASTER INDENTURE
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Series or Class designated therein referred
to in the within-mentioned Indenture.
JPMorgan Chase Bank,
as Indenture Trustee,
By:
-----------------------------------
Authorized Signatory
Dated:
---------------------------------
Section 2.04. NOTES ISSUABLE IN THE FORM OF A GLOBAL NOTE.
(a) If the Issuer establishes pursuant to Sections 2.02 and
3.01 that the Notes of a particular Series or Class are to be issued in
whole or in part in the form of one or more Global Notes, then the Issuer
shall execute and the Indenture Trustee or its agent shall, in accordance
with Section 3.03 and the Issuer Certificate delivered to the Indenture
Trustee or its agent thereunder, authenticate and deliver, such Global Note
or Notes, which, unless otherwise provided in the applicable Indenture
Supplement (i) shall represent, and shall be denominated in an amount equal
to the aggregate Stated Principal Amount (or in the case of Discount Notes,
the aggregate Stated Principal Amount at the Scheduled Final Payment Date
of such Notes) of the Outstanding Notes of such Series or Class to be
represented by such Global Note or Notes, or such portion thereof as the
Issuer shall specify in an Issuer Certificate, (ii) in the case of
Registered Notes, shall be registered in the name of the Depository for
such Global Note or Notes or its nominee, (iii) shall be delivered by the
Indenture Trustee or its agent to the Depository or pursuant to the
Depository's instruction, (iv) if applicable, shall bear a legend
substantially to the following effect: "Unless this Note is presented by an
authorized representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Issuer or its agent for registration of
transfer, exchange or payment, and any note issued is registered in the
name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC), any
transfer, pledge or other use hereof for value or otherwise by or to any
person is wrongful inasmuch as the registered owner hereof, Cede & Co., has
an interest herein" and (v) may bear such other legend as the Issuer, upon
advice of counsel, deems to be applicable.
(b) Notwithstanding any other provisions of this Section 2.04
or of Section 3.05, and subject to the provisions of paragraph (c) below,
unless the terms of a Global Note or the applicable Indenture Supplement
expressly permit such Global Note to be exchanged in whole or in part for
individual Notes, a Global Note may be transferred, in whole but not in
part and in the manner provided in Section 3.05, only to a nominee of the
Depository for such Global Note, or to the Depository, or a successor
Depository for such Global Note selected or approved by the Issuer, or to a
nominee of such successor Depository.
27 MASTER INDENTURE
(c) With respect to Notes issued within the United States,
unless otherwise specified in the applicable Indenture Supplement, or with
respect to Notes issued outside the United States, if specified in the
applicable Indenture Supplement:
(i) If at any time the Depository for a Global Note notifies
the Issuer that it is unwilling or unable to continue as Depository
for such Global Note or if at any time the Depository for the Notes
for such Series or Class ceases to be a clearing agency registered
under the Securities Exchange Act, or other applicable statute or
regulation, the Issuer shall appoint a successor Depository with
respect to such Global Note. If a successor Depository for such Global
Note is not appointed by the Issuer within ninety (90) days after the
Issuer receives such notice or becomes aware of such ineligibility,
the Issuer shall execute, and the Indenture Trustee or its agent, upon
receipt of an Issuer Certificate requesting the authentication and
delivery of individual Notes of such Series or Class in exchange for
such Global Note, shall authenticate and deliver, individual Notes of
such Series or Class of like tenor and terms in an aggregate Stated
Principal Amount equal to the Stated Principal Amount of the Global
Note in exchange for such Global Note.
(ii) The Issuer may at any time and in its sole discretion
determine that the Notes of any Series or Class or portion thereof
issued or issuable in the form of one or more Global Notes shall no
longer be represented by such Global Note or Notes. In such event the
Issuer shall execute, and the Indenture Trustee, upon receipt of an
Issuer Certificate for the authentication and delivery of individual
Notes of such Series or Class in exchange in whole or in part for such
Global Note, shall authenticate and deliver individual Notes of such
Series or Class of like tenor and terms in definitive form in an
aggregate Stated Principal Amount equal to the Stated Principal Amount
of such Global Note or Notes representing such Series or Class or
portion thereof in exchange for such Global Note or Notes.
(iii) If specified by the Issuer pursuant to Sections 2.02 and
3.01 with respect to Notes issued or issuable in the form of a Global
Note, the Depository for such Global Note may surrender such Global
Note in exchange in whole or in part for individual Notes of such
Series or Class of like tenor and terms in definitive form on such
terms as are acceptable to the Issuer and such Depository. Thereupon
the Issuer shall execute, and the Indenture Trustee or its agent shall
authenticate and deliver, without service charge, (A) to each Person
specified by such Depository a new Note or Notes of the same Series or
Class of like tenor and terms and of any authorized denomination as
requested by such Person in aggregate Stated Principal Amount equal to
and in exchange for such Person's beneficial interest in the Global
Note; and (B) to such Depository a new Global Note of like tenor and
terms and in an authorized denomination equal to the difference, if
any, between the Stated Principal Amount of the surrendered Global
Note and the aggregate Stated Principal Amount of Notes delivered to
the Holders thereof.
28 MASTER INDENTURE
(iv) If any Event of Default has occurred with respect to such
Global Notes, and Holders of Notes evidencing not less than 50% of the
unpaid Outstanding Dollar Principal Amount of the Global Notes of that
Class advise the Indenture Trustee and the Depository that a Global
Note is no longer in the best interest of the Noteholders, the Holders
of Global Notes of that Class may exchange such Notes for individual
Notes.
(v) In any exchange provided for in any of the preceding
three paragraphs, the Issuer shall execute and the Indenture Trustee
or its agent shall authenticate and deliver individual Notes in
definitive registered form in authorized denominations. Upon the
exchange of the entire Stated Principal Amount of a Global Note for
individual Notes, such Global Note shall be canceled by the Indenture
Trustee or its agent. Except as provided in the preceding paragraphs,
Notes issued in exchange for a Global Note pursuant to this Section
shall be registered in such names and in such authorized denominations
as the Depository for such Global Note, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the
Indenture Trustee or the Note Registrar in writing. The Indenture
Trustee or the Note Registrar shall deliver such Notes to the Persons
in whose names such Notes are so registered.
Section 2.05. TEMPORARY GLOBAL NOTES AND PERMANENT GLOBAL NOTES.
(a) If specified in the applicable Indenture Supplement for
any Series or Class, all or any portion of a Global Note may initially be
issued in the form of a single temporary Global Bearer Note or Registered
Note (the "Temporary Global Note"), without interest coupons, in the
denomination of the entire aggregate principal amount of such Series or
Class and substantially in the form set forth in the exhibit with respect
thereto attached to the applicable Indenture Supplement. The Temporary
Global Note shall be authenticated by the Indenture Trustee upon the same
conditions, in substantially the same manner and with the same effect as
the Notes in definitive form. The Temporary Global Note may be exchanged as
described below or in the applicable Indenture Supplement for permanent
global Bearer Notes or Registered Notes (the "Permanent Global Notes").
(b) Unless otherwise provided in the applicable Indenture
Supplement, exchanges of beneficial interests in Temporary Global Notes for
beneficial interests in Permanent Global Notes shall be made as provided in
this clause. The Beneficiary shall, upon its determination of the date of
completion of the distribution of the Notes of such Series or Class, so
advise the Indenture Trustee, the Issuer, the Foreign Depository, and each
foreign clearing agency forthwith. Without unnecessary delay, but in any
event not prior to the Exchange Date, the Issuer shall execute and deliver
to the Indenture Trustee at its London office or its designated agent
outside the United States Permanent Global Notes in bearer or registered
form (as specified in the applicable Indenture Supplement) in an aggregate
principal amount equal to the entire aggregate principal amount of such
Series or Class. Bearer Notes so issued and delivered may have coupons
attached. The Temporary Global Note may be exchanged for an equal aggregate
principal amount of Permanent Global Notes only on or after the Exchange
Date. A United States Person may
29 MASTER INDENTURE
exchange the portion of the Temporary Global Note beneficially owned by it
only for an equal aggregate principal amount of Permanent Global Notes in
registered form bearing the applicable legend set forth in the form of
Registered Note attached to the applicable Indenture Supplement and having
a minimum denomination of $500,000, which may be in temporary form if the
Issuer so elects. The Issuer may waive the $500,000 minimum denomination
requirement if it so elects. Upon any demand for exchange for Permanent
Global Notes in accordance with this clause, the Issuer shall cause the
Indenture Trustee to authenticate and deliver the Permanent Global Notes to
the Holder (x) outside the United States, in the case of Bearer Notes and
(y) according to the instructions of the Holder, in the case of Registered
Notes, but in either case only upon presentation to the Indenture Trustee
of a written statement substantially in the form of Exhibit D-1 (or such
other form as the Issuer may determine) with respect to the Temporary
Global Note, or portion thereof being exchanged, signed by a foreign
clearing agency and dated on the Exchange Date or a subsequent date, to the
effect that it has received in writing or by tested telex a certification
substantially in the form of (i) in the case of beneficial ownership of the
Temporary Global Note, or a portion thereof being exchanged, by a United
States institutional investor pursuant to this clause, the certificate in
the form of Exhibit D-2 (or such other form as the Issuer may determine)
signed by the Beneficiary which sold the relevant Notes or (ii) in all
other cases, the certificate in the form of Exhibit D-3 (or such other form
as the Issuer may determine), the certificate referred to in this clause
(ii) being dated on the earlier of the first payment of interest in respect
of such Note and the date of the delivery of such Note in definitive form.
Upon receipt of such certification, the Indenture Trustee shall cause the
Temporary Global Note to be endorsed in accordance with clause (d). Any
exchange as provided in this Section shall be made free of charge to the
Holders and the beneficial owners of the Temporary Global Note and to the
beneficial owners of the Permanent Global Note issued in exchange, except
that a person receiving the Permanent Global Note must bear the cost of
insurance, postage, transportation and the like in the event that such
Person does not receive such Permanent Global Note in person at the offices
of a foreign clearing agency.
(c) The delivery to the Indenture Trustee by a foreign
clearing agency of any written statement referred to above may be relied
upon by the Issuer and the Indenture Trustee as conclusive evidence that a
corresponding certification or certifications has or have been delivered to
such foreign clearing agency pursuant to the terms of this Indenture.
(d) Upon any such exchange of all or a portion of the
Temporary Global Note for a Permanent Global Note or Notes, such Temporary
Global Note shall be endorsed by or on behalf of the Indenture Trustee to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of such Permanent Global Note or Notes. Until so
exchanged in full, such Temporary Global Note shall in all respects be
entitled to the same benefits under this Indenture as Permanent Global
Notes authenticated and delivered hereunder except that the beneficial
owners of such Temporary Global Note shall not be entitled to receive
payments of interests on the Notes until they have exchanged their
beneficial interests in such Temporary Global Note for Permanent Global
Notes.
30 MASTER INDENTURE
Section 2.06. BENEFICIAL OWNERSHIP OF GLOBAL NOTES. Until definitive
Notes have been issued to the applicable Noteholders pursuant to Section
2.04 or as otherwise specified in any applicable Indenture Supplement,
(a) the Issuer and the Indenture Trustee may deal with the
applicable clearing agency and the clearing agency's participants for all
purposes (including the making of distributions) as the authorized
representatives of the respective Note Owners; and
(b) the rights of the respective Note Owners shall be
exercised only through the applicable clearing agency and the clearing
agency's participants and shall be limited to those established by law and
agreements between such Note Owners and the clearing agency and/or the
clearing agency's participants. Pursuant to the operating rules of the
applicable clearing agency, unless and until Notes in definitive form are
issued pursuant to Section 2.04, the clearing agency shall make book-entry
transfers among the clearing agency's participants and receive and transmit
distributions of principal and interest on the related Notes to such
clearing agency's participants.
For purposes of any provision of this Indenture requiring or permitting
actions with the consent of, or at the direction of, Noteholders evidencing a
specified percentage of the aggregate unpaid principal amount of Outstanding
Notes, such direction or consent may be given by Note Owners (acting through the
clearing agency and the clearing agency's participants) owning interests in
Notes evidencing the requisite percentage of principal amount of Notes.
Section 2.07. NOTICES TO DEPOSITORY. Whenever any notice or other
communication is required to be given to Noteholders with respect to which
book-entry Notes have been issued, unless and until Notes in definitive
form shall have been issued to the related Note Owners, the Indenture
Trustee shall give all such notices and communications to the applicable
Depository.
ARTICLE III
THE NOTES
Section 3.01. GENERAL TITLE; GENERAL LIMITATIONS; ISSUABLE IN SERIES;
TERMS OF A SERIES OR CLASS.
(a) The aggregate Stated Principal Amount of Notes which may
be authenticated and delivered and Outstanding under this Indenture is not
limited.
(b) The Notes may be issued in one or more Series or Classes
up to an aggregate Stated Principal Amount of Notes as from time to time
may be authorized by the Issuer. All Notes of each Series or Class under
this Indenture shall in all respects be equally and ratably entitled to the
benefits hereof with respect to such Series or Class without preference,
priority or distinction on account of the actual time of the authentication
and delivery or the Scheduled Final Payment Date or Legal Final Maturity
Date of the Notes of such Series or Class, except as specified in the
applicable Indenture Supplement for such Series or Class.
31 MASTER INDENTURE
(c) Each Note issued must be part of a Series or Class of
Notes for purposes of allocations pursuant to Article V. A Series of Notes
is created pursuant to an Indenture Supplement. A Class of Notes of that
Series is created pursuant to such Indenture Supplement.
(d) Each Series of Notes may, but need not be, subdivided
into multiple Classes. Unless the context otherwise requires, references
herein to a Class of Notes include a Series of Notes that has not been
subdivided into multiple Classes. Notes belonging to a Class in any Series
may be entitled to specified payment priorities over other Classes of Notes
in that Series.
(e) There shall also be established in or pursuant to an
Indenture Supplement or pursuant to an Issuer Certificate or terms document
related to the applicable Indenture Supplement before the initial issuance
of Notes of each such Series or Class, provision for:
(i) the Series designation;
(ii) the Stated Principal Amount of the Notes;
(iii) whether such Notes are of a particular Class of Notes;
(iv) the Required Subordinated Amount (if any) for such Class
of Notes;
(v) the currency or currencies in which such Notes shall be
denominated and in which payments of principal of, and interest on,
such Notes shall or may be payable;
(vi) if the principal of or interest, if any, on such Notes
are to be payable, at the election of the Issuer or a Holder thereof,
in a currency or currencies other than that in which the Notes are
stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made;
(vii) if the amount of payments of principal of or interest, if
any, on such Notes may be determined with reference to an index based
on (A) a currency or currencies other than that in which the Notes are
stated to be payable, (B) changes in the prices of one or more other
securities or groups or indexes of securities or (C) changes in the
prices of one or more commodities or groups or indexes of commodities,
or any combination of the foregoing, the manner in which such amounts
shall be determined;
(viii) the price or prices at which the Notes shall be issued;
(ix) the times at which such Notes may, pursuant to any
optional or mandatory redemption provisions, be redeemed, and the
other terms and provisions of any such redemption provisions;
32 MASTER INDENTURE
(x) the rate per annum at which such Notes shall bear
interest, if any, or the formula or index on which such rate shall be
determined, including all relevant definitions, and the date from
which interest shall accrue;
(xi) each Interest Payment Date, Scheduled Final Payment Date
and Legal Final Maturity Date for such Notes;
(xii) the Initial Dollar Principal Amount of such Notes, and
the means for calculating the Outstanding Dollar Principal Amount of
such Notes;
(xiii) whether or not application shall be made to list such
Notes on any securities exchange;
(xiv) any Events of Default or Early Amortization Events with
respect to such Notes, if not set forth herein and any additions,
deletions or other changes to the Events of Default or Early
Amortization Events set forth herein that shall be applicable to such
Notes (including a provision making any Event of Default or Early
Amortization Event set forth herein inapplicable to the Notes of that
Series or Class);
(xv) the appointment by the Indenture Trustee of an
Authenticating Agent in one or more places other than the location of
the office of the Indenture Trustee with power to act on behalf of the
Indenture Trustee and subject to its direction in the authentication
and delivery of such Notes in connection with such transactions as
shall be specified in the provisions of this Indenture or in or
pursuant to the applicable Indenture Supplement creating such Series
or Class;
(xvi) if such Notes shall be issued in whole or in part in the
form of a Global Note or Global Notes, the terms and conditions, if
any, upon which such Global Note or Global Notes may be exchanged in
whole or in part for other individual Notes; and the Depository for
such Global Note or Global Notes (if other than the Depository
specified in Section 1.01);
(xvii) if such Notes shall be issued in whole or in part as
Registered Notes, Bearer Notes or both, whether such Notes are to be
issued with or without coupons or both;
(xviii) the subordination of such Notes to any other indebtedness
of the Issuer, including without limitation, the Notes of any other
Series or Class;
(xix) if such Notes are to have the benefit of any Enhancement
Agreement, the terms and provisions of such agreement;
(xx) the Record Date for any Payment Date of such Notes, if
different from the last day of the month before the related Payment
Date;
33 MASTER INDENTURE
(xxi) the controlled accumulation amount, if any, the
controlled amortization amount, if any, or other principal
amortization amount, if any, scheduled for such Notes; and
(xxii) any other terms of such Notes which shall not be
inconsistent with the provisions of this Indenture;
all upon such terms as may be determined in or pursuant to an Indenture
Supplement with respect to such Series or Class.
(f) The form of the Notes of each Series or Class shall be
established pursuant to the provisions of this Indenture and the related
Indenture Supplement creating such Series or Class. The Notes of each
Series or Class shall be distinguished from the Notes of each other Series
or Class in such manner, reasonably satisfactory to the Indenture Trustee,
as the Issuer may determine.
(g) Unless otherwise provided with respect to Notes of a
particular Series or Class, the Notes of any particular Series or Class
shall be issued in registered form, without coupons.
(h) Any terms or provisions in respect of the Notes of any Series
or Class issued under this Indenture may be determined pursuant to this
Section by providing in the applicable Indenture Supplement for the method
by which such terms or provisions shall be determined.
(i) The Notes of each Series or Class may have such Scheduled
Final Payment Date or Dates or Legal Final Maturity Date or Dates, be
issuable at such premium over or discount from their face value, bear
interest at such rate or rates (which may be fixed or floating), from such
date or dates, payable in such installments and on such dates and at such
place or places to the Holders of Notes registered as such on such Record
Dates, or may bear no interest, and have such terms, all as shall be
provided for in or pursuant to the applicable Indenture Supplement.
Section 3.02. DENOMINATIONS. The Notes of each Class shall be issuable
in such denominations and currency as shall be provided in the provisions
of this Indenture or in or pursuant to the applicable Indenture Supplement.
In the absence of any such provisions with respect to the Registered Notes
of any Class, the Registered Notes of that Class shall be issued in
denominations of $1,000 and multiples thereof. In the absence of any such
provisions with respect to the Bearer Notes of any Class, the Bearer Notes
of that Class shall be issued in denominations of 1,000, 5,000, 50,000 and
100,000 units of the applicable currency.
Section 3.03. EXECUTION, AUTHENTICATION AND DELIVERY AND DATING.
(a) The Notes shall be executed on behalf of the Issuer by an
Issuer Authorized Officer. The signature of any officer of the Beneficiary
or the Owner Trustee on the Notes may be manual or facsimile.
34 MASTER INDENTURE
(b) Notes bearing the manual or facsimile signatures of
individuals who were at any time an Issuer Authorized Officer shall bind
the Issuer, notwithstanding that such individuals or any of them have
ceased to hold such offices before the authentication and delivery of such
Notes or did not hold such offices at the date of issuance of such Notes.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Notes executed by the
Issuer to the Indenture Trustee for authentication; and the Indenture
Trustee shall, upon request by an Officer's Certificate, authenticate and,
deliver or retain as custodian for DTC, such Notes as in this Indenture
provided and not otherwise.
(d) Before any such authentication and delivery, the
Indenture Trustee shall be entitled to receive, in addition to any
Officer's Certificate and Opinion of Counsel required to be furnished to
the Indenture Trustee pursuant to Section 1.02, the Issuer Certificate and
any other opinion or certificate relating to the issuance of the Series or
Class of Notes required to be furnished pursuant to Section 2.02 or Section
3.10.
(e) The Indenture Trustee shall not be required to
authenticate such Notes if the issue thereof shall adversely affect the
Indenture Trustee's own rights, duties or immunities under the Notes and
this Indenture.
(f) Unless otherwise provided in the form of Note for any
Series or Class, all Notes shall be dated the date of their authentication.
(g) No Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Note a certificate of authentication substantially in the form
provided for herein executed by the Indenture Trustee by manual signature
of an authorized signatory, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
Section 3.04. TEMPORARY NOTES.
(a) Pending the preparation of definitive Notes of any Class,
the Issuer may execute, and, upon receipt of the documents required by
Section 3.03, together with an Officer's Certificate, the Indenture Trustee
shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Notes
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the Issuer may determine,
as evidenced by the Issuer's execution of such Notes.
(b) If temporary Notes of any Class are issued, the Issuer
shall cause definitive Notes of such Class to be prepared without
unreasonable delay. After the preparation of definitive Notes, the
temporary Notes of such Class shall be exchangeable for definitive Notes of
such Class upon surrender of the temporary Notes of such Class at the
office or agency of the Issuer in a Place of Payment, without charge to the
Holder;
35 MASTER INDENTURE
and upon surrender for cancellation of any one or more temporary Notes the
Issuer shall execute and the Indenture Trustee shall authenticate and
deliver in exchange therefor a like Stated Principal Amount of definitive
Notes of such Class of authorized denominations and of like tenor and
terms. Until so exchanged the temporary Notes of such Class shall in all
respects be entitled to the same benefits under this Indenture as
definitive Notes of such Class.
Section 3.05. REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Issuer shall keep or cause to be kept a register
(herein sometimes referred to as the "Note Register") in which, subject to
such reasonable regulations as it may prescribe, the Issuer shall provide
for the registration of Registered Notes, or of Registered Notes of a
particular Class, and for transfers of Registered Notes or of Registered
Notes of such Class. Any such register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such register or
registers shall be available for inspection by the Indenture Trustee at the
office or agency to be maintained by the Issuer as provided in Section
11.02.
(b) Subject to Section 2.04, upon surrender for transfer of
any Registered Note of any Class at the office or agency of the Issuer in a
Place of Payment, if the requirements of Section 8-401(a) of the UCC are
met, the Issuer shall execute, and, upon receipt of such surrendered note,
the Indenture Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Notes of
such Class of any authorized denominations, of a like aggregate Stated
Principal Amount, Scheduled Final Payment Date and Legal Final Maturity
Date and of like terms.
(c) Subject to Section 2.04, at the option of the Holder,
Notes of any Class may be exchanged for other Notes of such Class of any
authorized denominations, of a like aggregate Stated Principal Amount,
Scheduled Final Payment Date and Legal Final Maturity Date and of like
terms, upon surrender of the Notes to be exchanged at such office or
agency. Registered Notes, including Registered Notes received in exchange
for Bearer Notes, may not be exchanged for Bearer Notes. At the option of
the Holder of a Bearer Note, subject to applicable laws and regulations,
Bearer Notes may be exchanged for other Bearer Notes or Registered Notes
(of the same Class) of authorized denominations of like aggregate
fractional undivided interests in the Noteholders' interest, upon surrender
of the Bearer Notes to be exchanged at an office or agency of the Note
Registrar located outside the United States. Each Bearer Note surrendered
pursuant to this Section shall have attached thereto all unmatured coupons;
provided, however, that any Bearer Note, so surrendered after the close of
business on the last day of the month preceding the relevant Payment Date
need not have attached the coupon relating to such Payment Date. Whenever
any Notes are so surrendered for exchange, the Issuer shall execute, and
the Trustee shall authenticate and deliver (in the case of Bearer Notes,
outside the United Sates), the Notes which the Noteholders making the
exchange are entitled to receive.
36 MASTER INDENTURE
(d) By acquiring a Note, each purchaser and transferee shall
be deemed to represent and warrant that either (a) it is not acquiring the
Note with the plan assets of an "employee benefit plan" as defined in
Section 3(3) of ERISA, which is subject to Title I of ERISA, a "plan" as
defined in Section 4975 of the Code, an entity deemed to hold the plan
assets of any of the foregoing by reason of investment by an employee
benefit plan or plan in such entity, or a governmental plan subject to
applicable law that is substantially similar to the fiduciary
responsibility provisions of ERISA or Section 4975 of the Code, or (b) the
acquisition and holding of the Note will not give rise to a non-exempt
prohibited transaction under Section 406 of ERISA of Section 4975 of the
Code (or, in the case of a governmental plan, any substantially similar
applicable law).
(e) All Notes issued upon any transfer or exchange of Notes
shall be the valid and legally binding obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Notes surrendered upon such transfer or exchange.
(f) Every Note presented or surrendered for transfer or
exchange shall (if so required by the Issuer or the Indenture Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Issuer and the Note Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
(g) Unless otherwise provided in the Note to be transferred
or exchanged, no service charge shall be made on any Noteholder for any
transfer or exchange of Notes, but the Issuer may (unless otherwise
provided in such Note) require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Notes, other than exchanges pursuant to Section
3.04 or 10.06 not involving any transfer.
(h) None of the Issuer, the Indenture Trustee, any agent of
the Indenture Trustee, any Paying Agent or the Note Registrar shall have
any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a Global
Note or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
(i) The Issuer initially appoints the Indenture Trustee to
act as Note Registrar for the Registered Notes on its behalf. The Issuer
may at any time and from time to time authorize any Person to act as Note
Registrar in place of the Indenture Trustee with respect to any Class of
Notes issued under this Indenture.
(j) Registration of transfer of Notes containing the
following legend or to which the following legend is applicable:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS
NOTE NOR ANY
37 MASTER INDENTURE
PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE
WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND
ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR
SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM
SUCH REGISTRATION PROVISIONS. THE TRANSFER OF THIS NOTE IS
SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE INDENTURE
REFERRED TO HEREIN.
shall be effected only if such transfer is made pursuant to an effective
registration statement under the Securities Act, or is exempt from the
registration requirements under the Securities Act. In the event that
registration of a transfer is to be made in reliance upon an exemption from the
registration requirements under the Securities Act other than Rule 144A under
the Securities Act or Rule 903 or Rule 904 of Regulation S under the Securities
Act, the transferor or the transferee shall deliver, at its expense, to the
Issuer and the Indenture Trustee, an investment letter from the transferee,
substantially in the form of the investment letter attached hereto as Exhibit C
or such other form as the Issuer may determine, and no registration of transfer
shall be made until such letter is so delivered.
Notes issued upon registration or transfer of, or Notes issued in exchange
for, Notes bearing the legend referred to above shall also bear such legend
unless the Issuer, the Indenture Trustee and the Note Registrar receive an
Opinion of Counsel, satisfactory to each of them, to the effect that such legend
may be removed.
Whenever a Note containing the legend referred to above is presented to the
Note Registrar for registration of transfer, the Note Registrar shall promptly
seek instructions from the Issuer regarding such transfer and shall be entitled
to receive an Issuer Certificate prior to registering any such transfer. The
Issuer hereby agrees to indemnify the Note Registrar and the Indenture Trustee
and to hold each of them harmless against any loss, liability or expense
incurred without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by them in relation to any such
instructions furnished pursuant to this clause.
Section 3.06. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
(a) If (i) any mutilated Note (together, in the case of
Bearer Notes, with all unmatured coupons, if any, appertaining thereto) is
surrendered to the Indenture Trustee, or the Issuer and the Indenture
Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Note, and (ii) there is delivered to the Issuer and the
Indenture Trustee such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Issuer or
the Indenture Trustee that such Note has been acquired by a protected
purchaser, the Issuer shall execute and upon its request the Indenture
Trustee shall authenticate and deliver (in the case of Bearer Notes,
outside the United States), in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a new Note of like tenor, Series
or Class, Scheduled Final Payment Date, Legal Final Maturity Date and
Stated Principal Amount, bearing a number not contemporaneously
Outstanding.
38 MASTER INDENTURE
(b) In case any such mutilated, destroyed, lost or stolen
Note has become or is about to become due and payable, the Issuer in its
discretion may, instead of issuing a new Note, pay such Note.
(c) Upon the issuance of any new Note under this Section, the
Issuer may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Indenture Trustee)
connected therewith.
(d) Every new Note issued pursuant to this Section in lieu of
any destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Notes of the same Series or Class duly issued
hereunder.
(e) The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Notes.
Section 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Unless otherwise provided with respect to such Note
pursuant to Section 3.01, interest payable on any Registered Note shall be
paid to the Person in whose name that Note (or one or more Predecessor
Notes) is registered at the close of business on the most recent Record
Date and interest payable on any Bearer Note shall be paid to the bearer of
that Note (or the applicable coupon).
(b) Subject to clause (a), each Note delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Note
shall carry the rights to interest accrued or principal accreted and
unpaid, and to accrue or accrete, which were carried by such other Note.
Section 3.08. PERSONS DEEMED OWNERS. The Issuer, the Indenture
Trustee, the Owner Trustee, the Beneficiary and any agent of the Issuer,
the Indenture Trustee, the Owner Trustee, or the Beneficiary may treat the
Person who is proved to be the owner of such Note pursuant to Section
1.04(c) as the owner of such Note for the purpose of receiving payment of
principal of and (subject to Section 3.07) interest on such Note and for
all other purposes whatsoever, whether or not such Note be overdue, and
neither the Issuer, the Indenture Trustee, the Owner Trustee, nor any agent
of the Issuer, the Indenture Trustee, the Owner Trustee, or the Beneficiary
shall be affected by notice to the contrary.
Section 3.09. CANCELLATION. All Notes surrendered for payment,
redemption, transfer, conversion or exchange shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture
Trustee and, if not already canceled, shall be promptly canceled by it. The
Issuer may at any time deliver to the Indenture Trustee for cancellation
any Notes previously authenticated and delivered hereunder which the
39 MASTER INDENTURE
Issuer may have acquired in any manner whatsoever, and all Notes so
delivered shall be promptly canceled by the Indenture Trustee. No Note
shall be authenticated in lieu of or in exchange for any Notes canceled as
provided in this Section, except as expressly permitted by this Indenture.
The Indenture Trustee shall dispose of all canceled Notes in accordance
with its customary procedures and shall deliver a certificate of such
disposition to the Issuer.
Section 3.10. NEW ISSUANCES OF NOTES.
(a) The Issuer may issue new Notes of any Series or Class, so
long as the following conditions precedent are satisfied:
(i) on or before the tenth Business Day before the date that
the new issuance is to occur, the Issuer gives the Indenture Trustee,
the Agents and the Rating Agencies written notice of the issuance;
(ii) on or prior to the date that the new issuance is to
occur, the Issuer delivers to the Indenture Trustee and each Rating
Agency an Issuer Certificate to the effect that:
(A) the Issuer reasonably believes that the new issuance
shall not at the time of its occurrence or at a future date cause
an Adverse Effect on any Outstanding Notes;
(B) all instruments furnished to the Indenture Trustee
conform to the requirements of this Indenture and constitute
sufficient authority hereunder for the Indenture Trustee to
authenticate and deliver such Notes;
(C) the form and terms of such Notes have been
established in conformity with the provisions of this Indenture;
(D) all laws and requirements with respect to the
execution and delivery by the Issuer of such Notes have been
complied with, the Issuer has the trust power and authority to
issue such Notes and such Notes have been duly authorized and
delivered by the Issuer and, assuming due authentication and
delivery by the Indenture Trustee, constitute legal, valid and
binding obligations of the Issuer enforceable in accordance with
their terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or
other laws and legal principles affecting creditors' rights
generally from time to time in effect and to general equitable
principles, whether applied in an action at law or in equity) and
entitled to the benefits of this Indenture, equally and ratably
with all other Notes, if any, of such Series or Class
Outstanding, subject to the terms of this Indenture and each
Indenture Supplement; and
(E) such other matters as the Indenture Trustee may
reasonably request;
40 MASTER INDENTURE
(iii) on or before the date that the new issuance is to occur,
the Issuer shall have delivered to the Indenture Trustee and the
Rating Agencies a Tax Opinion with respect to such issuance;
(iv) on or before the date that the new issuance is to occur,
the Issuer shall have delivered to the Trustee an Indenture Supplement
and, if applicable, the Issuer Certificate or terms document relating
to the applicable Series, Class or Classes of Notes;
(v) in the case of foreign currency Notes, the Issuer shall
have appointed one or more Paying Agents in the appropriate countries;
(vi) the Rating Agencies have provided written confirmation
that such issuance shall not have a Ratings Effect;
(vii) the conditions specified herein or in Section 3.11 are
satisfied; and
(viii) any other conditions specified herein in the applicable
Indenture Supplement;
provided, however, that any one of the aforementioned conditions (other than
clauses (iii) and (iv)) may be eliminated or modified as a condition precedent
to any new issuance of a Series or Class of Notes if the Issuer has obtained
written confirmation from each Rating Agency that there shall be no Ratings
Effect with respect to any Outstanding Notes as a result of a new issuance of
Notes.
(b) The Issuer and the Indenture Trustee shall not be
required to obtain the consent of any Noteholder of any Outstanding Series
or Class to issue any additional Notes of any Series or Class.
(c) There are no restrictions on the timing or amount of any
additional issuance of Notes of an Outstanding Class of a multiple issuance
Series, so long as the conditions described in paragraph (a) are met. As of
the date of any additional issuance of Notes of an Outstanding Class of
Notes, the Stated Principal Amount, Outstanding Dollar Principal Amount and
Collateral Amount of that Class shall be increased to reflect the principal
amount of the additional Notes. If the additional Notes are a Class of
Notes that has the benefit of an Enhancement Agreement, the Issuer shall
enter into an Enhancement Agreement for the benefit of the additional
Notes. The targeted deposits, if any, to the interest funding sub-account
and principal funding sub-account shall be increased proportionately to
reflect the principal amount of the additional Notes.
When issued, the additional Notes of a Class shall be identical in all
respects to the other Outstanding Notes of that Class and shall be equally and
ratably entitled to the benefits of the Indenture and the related Indenture
Supplement as the other Outstanding Notes of that Class without preference,
priority or distinction.
Section 3.11. SPECIFICATION OF REQUIRED SUBORDINATED AMOUNT AND OTHER
TERMS WITH RESPECT TO EACH CLASS.
41 MASTER INDENTURE
(a) The applicable Indenture Supplement for each Class of
Notes shall specify a Required Subordinated Amount, if any, of each
subordinated Class of Notes, if any.
(b) The Issuer may change the Required Subordinated Amount
for any Class of Notes at any time without the consent of any Noteholders
so long as the Issuer has (i) received confirmation from the Rating
Agencies that have rated any Outstanding Notes of that Series that the
change in the Required Subordinated Amount shall not result in a Ratings
Effect with respect to any Outstanding Notes in that Series and (ii)
delivered to the Indenture Trustee and the Rating Agencies a Tax Opinion.
Section 3.12. REALLOCATION OF AVAILABLE INTEREST AMOUNTS. Available
Interest Amounts and other specified amounts allocated to each Series shall
be reallocated to cover interest and expenses related to each Series as
specified in each related Indenture Supplement. The reallocation provisions
of the Indenture Supplement for each Series are required to be identical in
all material respects.
Section 3.13. EXCESS AVAILABLE INTEREST AMOUNTS SHARING. The Issuer
shall reallocate and redistribute certain excess Available Interest Amounts
to cover Series Available Interest Amount Shortfalls incurred by other
Series as specified in the related Indenture Supplements.
Section 3.14. EXCESS AVAILABLE PRINCIPAL AMOUNTS SHARING. The Issuer
shall reallocate and redistribute certain excess Available Principal
Amounts to cover Series Available Principal Amount Shortfalls incurred by
other Series as specified in the related Indenture Supplements.
Section 3.15. EXCESS FUNDING AMOUNTS. The Issuer shall allocate and
distribute Excess Funding Amounts as specified in the related Indenture
Supplements.
ARTICLE IV
ACCOUNTS AND INVESTMENTS
Section 4.01. COLLECTIONS. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance from
any fiscal agent or other intermediary, all money and other property
payable to or receivable by the Indenture Trustee pursuant to this
Indenture including, without limitation, all funds and other property
payable to the Indenture Trustee in connection with the Collateral
(collectively, the "Collections"). The Indenture Trustee shall hold all
such money and property received by it as part of the Collateral and shall
apply it as provided in this Indenture.
Section 4.02. ACCOUNTS.
(a) Accounts; Deposits to and Distributions from Accounts. On
or before the Effective Date, the Issuer shall cause to be established and
maintained three or more Qualified Accounts (the "Collection Account", the
"Excess Funding Account" and
42 MASTER INDENTURE
the "Backup Servicer Account") in the name of the Indenture Trustee, each
bearing a designation clearly indicating that the funds deposited therein
are held for the benefit of the Indenture Trustee, the Noteholders and any
applicable Enhancement Provider. From time to time in connection with the
issuance of a Series or Class of Notes, the Indenture Trustee may establish
one or more Qualified Accounts denominated as "Supplemental Accounts" in
the name of the Indenture Trustee. The Collection Account, Excess Funding
Account and Backup Servicer Account shall be under the sole dominion and
control of the Indenture Trustee for the benefit of the Secured Parties.
If, at any time, the institution holding the Collection Account ceases to
be a Qualified Institution, the Issuer shall within ten (10) Business Days
(or such longer period, not to exceed thirty (30) calendar days, as to
which each Rating Agency may consent in writing) establish a new Collection
Account, Excess Funding Account or Backup Servicer Account that is a
Qualified Account and shall transfer any cash and/or investments to such
new Collection Account or new Excess Funding Account, as the case may be.
From the date such new Collection Account or new Excess Funding Account is
established, it shall be the "Collection Account", the "Excess Funding
Account" or "Backup Servicer Account", as the case may be. Supplemental
Accounts shall be created as specified in the applicable Indenture
Supplement. Any Supplemental Account shall receive deposits as set forth in
the applicable Indenture Supplement. All payments to be made from time to
time by or on behalf of the Indenture Trustee to Noteholders (or in respect
of Backup Servicer Fees and Expenses, to the Person entitled thereto) out
of funds in the Accounts pursuant to this Indenture shall be made by or on
behalf of the Indenture Trustee to the Paying Agent not later than 12:00
noon New York City time on the applicable Payment Date or earlier, if
necessary, or as otherwise provided in Article V or the applicable
Indenture Supplement but only to the extent of available funds in the
applicable Supplemental Account or Sub-Account.
(b) Except as otherwise provided in Section 4.02(c) or the
terms of any Indenture Supplement, the Servicer shall deposit Collections
into the Collection Account as promptly as possible after the Date of
Processing of such Collections, but in no event later than the second
Business Day after such Date of Processing. Notwithstanding anything in
this Agreement to the contrary, for so long as (i) Case Credit remains the
Servicer hereunder, (ii) no Servicer Default has occurred and is continuing
and (iii) (x) Case Credit maintains a short-term rating of at least A-1 by
S&P and P-1 by Xxxxx'x (and for five Business Days following any reduction
of either such rating), (y) Case Credit arranges for and maintains a letter
of credit or other form of Enhancement in respect of the Servicer's
obligations to make deposits of collections on the Receivables in the
Collection Account that is acceptable in form and substance to each Rating
Agency and any Agents or (z) Case Credit otherwise obtains the Rating
Agency confirmations described below, then, subject to any limitations in
the confirmations described below, the Servicer need not make the daily
deposits of Collections into the Collection Account as provided in Section
4.01, but may make a single deposit into the Collection Account in same-day
or next-day funds not later than 11:00 A.M., New York City time, on the
Payment Date in a net amount equal to the amount which would have been on
deposit with respect to the immediately preceding Collection Period in the
Collection Account; provided, however, that prior to ceasing daily deposits
as described above the Transferor shall have delivered to the Indenture
Trustee written confirmation from each of the
43 MASTER INDENTURE
Rating Agencies that the failure by Case Credit to make daily deposits
shall not result in a reduction or withdrawal of the rating of any
outstanding Series or Class.
(c) With respect to any Collection Period, whether the
Servicer is required to make deposits of Collections pursuant to paragraph
(a) or (b) above, (i) the Servicer shall only be required to deposit
Collections into the Collection Account up to the aggregate amount of
Collections required to be deposited into any Series Account or, without
duplication, distributed on the related Payment Date to Noteholders, to any
Agent or to any Enhancement Provider pursuant to the terms of any Indenture
Supplement or Enhancement Agreement and (ii) if at any time prior to such
Payment Date the amount of Collections deposited in the Collection Account
exceeds the amount required to be deposited pursuant to clause (i) above,
the Servicer shall be permitted to withdraw the excess from the Collection
Account.
(d) Upon written direction of the Servicer funds on deposit
in the Excess Funding Account shall be withdrawn and paid to Transferor on
any day to the extent that the Transferor Amount exceeds the Trust
Available Subordinated Amount on such day. On any Transfer Date on which
one or more Series is in an Amortization Period or Accumulation Period,
Servicer shall determine the aggregate amounts of Principal Shortfalls, if
any, with respect to each such Series (after giving effect to the
allocation and payment provisions in the Indenture Supplement with respect
to each such Series), and Servicer shall instruct Indenture Trustee in
writing to withdraw such amount from the Excess Funding Account (up to an
amount equal to the lesser of (x) the amount on deposit in the Excess
Funding Account after application of the preceding sentence on that day and
(y) the amount, if any, by which the Transferor Amount would be less than
zero if there were no funds on deposit in the Excess Funding Account on
that day) on such Transfer Date and allocate such amount among each such
Series as specified in each related Indenture Supplement.
(e) On each Payment Date to the extent that any Backup
Servicer Fees and Expenses are then due and payable, the Servicer will
instruct the Indenture Trustee in writing to withdraw from the Backup
Servicer Account an amount equal to such Backup Servicer Fees and Expenses
then due and payable, and distribute such amount to the Person entitled
thereto. If the amount on deposit in the Backup Servicer Account on any
Payment Date (after giving effect to the withdrawal therefrom for the
payment of Backup Servicer Fees and Expenses for such Payment Date) is
greater than the Backup Servicer Account Required Amount, the excess will
be released to the Transferor. The Transferor (and any of its transferees
and assignees) shall in no event be required to refund any amounts properly
distributed to it pursuant to this Section 4.02(e). To the extent a Backup
Servicer Account Shortfall Amount exists on any Payment Date, the Servicer
agrees, within thirty days of demand thereof, to pay any such Backup
Servicer Account Shortfall Amount to the Person entitled thereto.
Section 4.03. INVESTMENT OF FUNDS IN THE ACCOUNTS.
(a) Funds on deposit in the Accounts shall be invested and
reinvested by the Indenture Trustee at the written direction of the Issuer
in one or more Permitted
44 MASTER INDENTURE
Investments. The Issuer may authorize the Indenture Trustee to make
specific investments pursuant to written instructions, in such amounts as
the Issuer shall specify. Notwithstanding the foregoing, funds held by the
Indenture Trustee in any of the Accounts shall be invested in Permitted
Investments that shall mature in each case no later than the date on which
such funds in the Accounts are scheduled to be transferred or distributed
by the Indenture Trustee pursuant to this Indenture (or as necessary to
provide for timely payment of principal or interest on the applicable
Principal Payment Date or Interest Payment Date).
(b) All funds deposited from time to time in the Accounts
pursuant to this Indenture and all investments made with such funds shall
be held by the Indenture Trustee in the Accounts as part of the Collateral
as herein provided, subject to withdrawal by the Indenture Trustee for the
purposes set forth herein.
(c) Funds and other property in any of the Accounts shall not
be commingled with any other funds or property of the Issuer or the
Indenture Trustee. The Indenture Trustee shall: (i) hold each Permitted
Investment (other than those described in clause (c) of the definition
thereof) that constitutes investment property through a securities
intermediary, which securities intermediary shall agree with the Indenture
Trustee that (A) such investment property at all times shall be credited to
a securities account of the Indenture Trustee, (B) all property credited to
such securities account shall be treated as a financial asset, (C) such
securities intermediary shall treat the Indenture Trustee as entitled to
exercise the rights that comprise each financial asset credited to such
securities account, (D) such securities intermediary shall comply with
entitlement orders originated by the Indenture Trustee without the further
consent of any other person or entity, (E) such securities intermediary
shall not agree with any person or entity other than the Indenture Trustee
to comply with entitlement orders originated by any person or entity other
than the Indenture Trustee, (F) such securities account and all property
credited thereto shall not be subject to any lien, security interest, right
of set-off, or encumbrance in favor of such securities intermediary or
anyone claiming through such securities intermediary (other than the
Indenture Trustee), and (G) such agreement between such securities
intermediary and the Indenture Trustee shall be governed by the laws of the
State of New York; (ii) maintain possession of each other Permitted
Investment not described in clause (i) above (other than those described in
clause (c) of the definition thereof) in the State of New York separate and
apart from all other property held by the Indenture Trustee; and (iii)
cause each Permitted Investment described in clause (c) of the definition
thereof to be registered in the name of the Indenture Trustee by the issuer
thereof; provided, that, other than following an Event of Default and
acceleration pursuant to Section 7.02, no Permitted Investment shall be
disposed of prior to its maturity. Notwithstanding any other provision of
this Indenture, the Indenture Trustee shall not hold any Permitted
Investment through an agent except as expressly permitted by this Section
4.03(c). Each term used in this Section 4.03(c) and defined in the New York
UCC shall have the meaning set forth in the New York UCC.
(d) On each Transfer Date, all interest and earnings (net of
losses and investment expenses) accrued since the preceding Transfer Date
on funds on deposit in the Collection Account and the Excess Funding
Account shall be treated as Available
45 MASTER INDENTURE
Interest Amounts and applied pursuant to Section 5.01 for such Transfer
Date. Unless otherwise stated in the related Indenture Supplement, for
purposes of determining the availability of funds or the balance in the
Accounts for any reason under this Indenture or any Indenture Supplement,
investment earnings on such funds shall be deemed not to be available or on
deposit.
Subject to Section 8.01(c), the Indenture Trustee shall not in any way be
held liable by reason of any insufficiency in such Accounts resulting from any
loss on any Permitted Investment included therein except for losses attributable
to the Indenture Trustee's failure to make payments on such Permitted
Investments issued by the Indenture Trustee, in its commercial capacity, in
accordance with their terms.
Funds on deposit in the Accounts shall be invested and reinvested by the
Indenture Trustee to the fullest extent practicable, in such manner as the
Indenture Trustee shall from time to time determine, but only in one or more
Permitted Investments set forth in clause (a)(v) of the definition thereof, upon
the occurrence of any of the following events:
(i) the Issuer shall have failed to give investment
directions to the Indenture Trustee; or
(ii) an Event of Default shall have occurred and is continuing
but no Notes have been declared due and payable pursuant to Section
7.02.
ARTICLE V
ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 5.01. ALLOCATIONS OF AVAILABLE INTEREST AMOUNTS. With respect
to each Monthly Period, the Indenture Trustee shall allocate to each Series
of Notes its portion of the Available Interest Amount for such Monthly
Period in an amount equal to the product of (i) the Series Floating
Allocation Percentage for such Series times (ii) the Available Interest
Amount for such Monthly Period
Section 5.02. ALLOCATIONS OF AVAILABLE PRINCIPAL AMOUNTS. With respect
to each Monthly Period, the Indenture Trustee shall allocate to each Series
of Notes its portion of the Available Principal Amount for such Monthly
Period in an amount equal to the product of (i) the Series Principal
Allocation Percentage for such Series times (ii) the Available Principal
Amount for such Monthly Period.
Section 5.03. ALLOCATIONS OF INVESTOR DEFAULT AMOUNTS. With respect to
each Monthly Period, the Indenture Trustee shall allocate to each Series of
Notes its portion of the Investor Default Amounts for such Monthly Period
in an amount equal to the product of (i) the Series Floating Allocation
Percentage for such Series times (ii) the Investor Default Amount for such
Monthly Period.
Section 5.04. ALLOCATIONS OF INVESTOR UNCOVERED DILUTION AMOUNTS. With
respect to each Monthly Period, the Indenture Trustee shall allocate to
each Series of Notes its portion of the Investor Uncovered Dilution Amounts
for such Monthly Period in an
46 MASTER INDENTURE
amount equal to the product of (i) the Series Floating Allocation
Percentage for such Series times (ii) the Investor Uncovered Dilution
Amount for such Monthly Period.
Section 5.05. ALLOCATIONS TO THE EXCESS FUNDING ACCOUNT AND THE
TRANSFEROR. Unless otherwise specified in the applicable Indenture
Supplement, with respect to each Monthly Period, the Servicer shall
distribute to the Transferor an amount equal to the excess of the Trust
Available Subordinated Amount over the Transferor Amount; PROVIDED that, if
the Transferor Amount (determined after giving effect to the transfer of
Principal Receivables to the Issuer on such date) is less than the Trust
Available Subordinated Amount or if the Adjusted Pool Balance is less than
the Required Pool Balance, Servicer shall not allocate to Transferor any
amounts that would otherwise be allocated to Transferor, but shall instead
deposit such funds in an amount equal to such deficiency in the Excess
Funding Account. Unless otherwise stated in any Indenture Supplement,
neither Servicer nor Transferor need deposit any amounts allocated to
Transferor into the Collection Account and shall pay, or be deemed to pay,
such amounts as collected to Transferor.
Section 5.06. FINAL PAYMENT. Each Class of Notes shall be considered
to be paid in full, the Holders of such Class of Notes shall have no
further right or claim, and the Issuer shall have no further obligation or
liability with respect to such Class of Notes, on the earliest to occur of:
(a) the date of the payment in full of the Stated Principal
Amount of and all accrued interest on that Class of Notes (which date
shall follow the termination of any revolving period for such Series
of Notes);
(b) the date on which the Outstanding Dollar Principal Amount
of such Notes, after giving effect to all deposits, allocations,
reallocations, sales of Receivables and payments to be made on such
date, is reduced to zero, and all accrued interest on such Notes is
paid in full following the termination of any revolving period of such
Series of Notes; or
(c) on the Legal Final Maturity Date of such Notes, after
giving effect to all deposits, allocations, reallocations, sales of
Receivables and payments to be made on such date.
Section 5.07. PAYMENTS WITHIN A SERIES OR CLASS. All payments of
principal, interest or other amounts to Holders of the Notes of a Series or
Class shall be made in accordance with the related Indenture Supplement.
ARTICLE VI
SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES HELD BY THE
ISSUER OR CWRI
Section 6.01. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall cease to be of further effect with respect to any Series or Class of
Notes (except as to any surviving rights of transfer or exchange of Notes
of that Series or Class expressly
47 MASTER INDENTURE
provided for herein or in the form of Note for that Series or Class), and
the Indenture Trustee, on demand of and at the expense of the Issuer, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to that Series or Class, when:
(a) all Notes of that Series or Class theretofore
authenticated and delivered (other than (A) Notes of that Series or
Class which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.06, and (B) Notes of that
Series or Class for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from that trust, as provided in
Section 11.03) have been delivered to the Indenture Trustee canceled
or for cancellation;
(b) the Issuer has paid or caused to be paid all other sums
payable hereunder (including payments to the Indenture Trustee
pursuant to Section 8.07) by the Issuer with respect to the Notes of
that Series or Class; and
(c) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture with respect to the Notes of that
Series or Class have been complied with. Notwithstanding the
satisfaction and discharge of this Indenture with respect to any
Series or Class of Notes, the obligations of the Issuer to the
Indenture Trustee with respect to that Series or Class under Section
8.07 and the obligations of the Indenture Trustee under Sections 6.02
and 11.03 shall survive such satisfaction and discharge.
Section 6.02. APPLICATION OF TRUST MONEY. All money and obligations
deposited with the Indenture Trustee pursuant to Section 6.01 or Section
6.03 and all money received by the Indenture Trustee in respect of such
obligations shall be held in trust and applied by it, in accordance with
the provisions of the Series or Class of Notes in respect of which it was
deposited and this Indenture, to the payment, either directly or through
any Paying Agent (including the Issuer acting as its own Paying Agent) as
the Indenture Trustee may determine, to the Persons entitled thereto, of
the principal and interest for whose payment that money and obligations
have been deposited with or received by the Indenture Trustee; but that
money and obligations need not be segregated from other funds held by the
Indenture Trustee except to the extent required by law.
Section 6.03. CANCELLATION OF NOTES HELD BY THE ISSUER OR CWRI. If the
Issuer, CWRI or any of their Affiliates holds any Notes, that Holder may,
subject to any provisions of a related Indenture Supplement limiting the
repayment of subordinated Classes of Notes, if any, by notice from that
Holder to the Indenture Trustee cause that Note to be canceled, whereupon
the Note shall no longer be Outstanding.
48 MASTER INDENTURE
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.01. EVENTS OF DEFAULT. "Event of Default," wherever used
herein, means with respect to any Series or Class of Notes any one of the
following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body), unless such
event is either expressly stated to be inapplicable to a particular Series
or Class or specifically deleted or modified in the applicable Indenture
Supplement creating such Series or Class of Notes or in the form of Note
for such Series or Class:
(a) with respect to any Class of Notes, a default by the
Issuer in the payment of any interest on such Notes when such interest
becomes due and payable, and continuance of such default for a period
of thirty-five (35) days following the date on which such interest
became due and payable;
(b) with respect to any Class of Notes, a default by the
Issuer in the payment of the principal amount of such Notes at the
applicable Legal Final Maturity Date;
(c) a default in the performance, or breach, of any covenant
or warranty of the Issuer in this Indenture in respect of the Notes of
such Series or Class (other than a covenant or warranty in respect of
the Notes of such Series or Class a default in the performance of
which or the breach of which is elsewhere in this Section specifically
dealt with), all of such covenants and warranties in this Indenture
which are not expressly stated to be for the benefit of a particular
Series or Class of Notes being deemed to be in respect of the Notes of
all Series or Classes for this purpose, and continuance of such
default or breach for a period of sixty (60) days after there has been
given, by registered or certified mail, to the Issuer by the Indenture
Trustee or to the Issuer and the Indenture Trustee by the Holders of
at least 25% in Outstanding Dollar Principal Amount of the Outstanding
Notes of such affected Series or Class, a written notice specifying
such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder and, as a result
of such default, the interests of the Holders of the Notes of such
affected Series or Class are materially and adversely affected and
continue to be materially and adversely affected during the sixty (60)
day period;
(d) the entry of an order for relief against the Issuer under
the Federal Bankruptcy Code by a court having jurisdiction in the
premises or a decree or order by a court having jurisdiction in the
premises adjudging the Issuer a bankrupt or insolvent under any other
applicable Federal or State law, or the entry of a decree or order
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Issuer
under the Federal Bankruptcy Code or any other applicable Federal or
State law, or
49 MASTER INDENTURE
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Issuer or of any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed and
in effect for a period of ninety (90) consecutive days;
(e) the consent by the Issuer to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief
under the Federal Bankruptcy Code or any other applicable Federal or
State law, or the consent by it to the filing of any such petition or
to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Issuer or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of corporate action by the Issuer in furtherance of any such action;
or
(f) with respect to any Series or Class, any additional Event
of Default specified in the Indenture Supplement for such Series or
Class as applying to such Series or Class, or specified in the form of
Note for such Series or Class.
Section 7.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
(a) If an Event of Default described in clause (a), (b), (c)
or (f) (if the Event of Default under clause (c) or (f) is with respect to
less than all Series and Classes of Notes then Outstanding) of Section 7.01
occurs and is continuing with respect to any Series or Class, then and in
each and every such case, unless the principal of all the Notes of such
Series or Class shall have already become due and payable, either the
Indenture Trustee or the Majority Holders of the Notes of such Series or
Class then Outstanding hereunder (each such Series or Class acting as a
separate Class), by notice in writing to the Issuer (and to the Indenture
Trustee if given by Holders), may declare the Outstanding Dollar Principal
Amount of all the Notes of such Series or Class then Outstanding and all
interest accrued or principal accreted and unpaid (if any) thereon to be
due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable, anything in this
Indenture, the related Indenture Supplement or in the Notes of such Series
or Class to the contrary notwithstanding. Such payments are subject to
Article V and the allocation, deposits and payment sections of the related
Indenture Supplement.
(b) If an Event of Default described in clause (c) or (f) (if
the Event of Default under clause (c) or (f) is with respect to all Series
and Classes of Notes then Outstanding) of Section 7.01 occurs and is
continuing, then and in each and every such case, unless the principal of
all the Notes shall have already become due and payable, either the
Indenture Trustee or the Majority Holders of all the Notes then Outstanding
hereunder (treated as one Class), by notice in writing to the Issuer (and
to the Indenture Trustee if given by Holders), may declare the Outstanding
Dollar Principal Amount of all the Notes then Outstanding and all interest
accrued or principal accreted and unpaid (if any) thereon to be due and
payable immediately, and upon any such declaration the same
50 MASTER INDENTURE
shall become and shall be immediately due and payable, notwithstanding
anything in this Indenture, the related Indenture Supplements or the Notes
to the contrary.
(c) If an Event of Default described in clause (d) or (e) of
Section 7.01 occurs and is continuing beyond the relevant cure period, if
any, then the Notes of all Series and Classes shall automatically be and
become immediately due and payable by the Issuer, without notice or demand
to any Person, and the Issuer shall automatically and immediately be
obligated to pay off the Notes.
(d) At any time after such a declaration of acceleration has
been made with respect to the Notes of any Series or Class and before a
judgment or decree for payment of the money due has been obtained by the
Indenture Trustee as hereinafter in this Article VII provided, the Majority
Holders of such Series or Classes, by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration and its
consequences if:
(x) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay (i) all overdue installments of interest on the Notes of
such Series or Class, (ii) the principal of any Notes of such Series or
Class which have become due otherwise than by such declaration of
acceleration, and interest thereon at the rate or rates prescribed therefor
by the terms of the Notes of such Series or Class, to the extent that
payment of such interest is lawful, (iii) interest upon overdue
installments of interest at the rate or rates prescribed therefore by the
terms of the Notes of such Series or Class to the extent that payment of
such interest is lawful, and (iv) all sums paid by the Indenture Trustee
hereunder and the reasonable compensation, expenses and disbursements of
the Indenture Trustee, its agents and counsel and all other amounts due the
Indenture Trustee under Section 8.07; and
(y) all Events of Default with respect to such Series or Class of
Notes, other than the nonpayment of the principal of the Notes of such
Series or Class which has become due solely by such acceleration, have been
cured or waived as provided in Section 7.16.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 7.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE. The Issuer covenants that if:
(a) the Issuer defaults in the payment of interest on any
Series or Class of Notes when such interest becomes due and payable,
or
(b) the Issuer defaults in the payment of the principal of
any Series or Class of Notes at the Legal Final Maturity Date thereof,
and any such default continues beyond any specified grace period
provided with respect to such Series or Class of Notes, the Issuer
shall, upon demand of the Indenture Trustee, pay (subject to the
allocation provided in Article V, this Article VII and any related
Indenture Supplement) to the Indenture Trustee, for the benefit of the
Holders of
51 MASTER INDENTURE
any such Notes of the affected Series or Class, the whole amount then
due and payable on any such Notes for principal and interest, with
interest, to the extent that payment of such interest shall be legally
enforceable, upon the overdue principal and upon overdue installments
of interest, (i) in the case of Interest-bearing Notes, at the rate of
interest applicable to the stated principal amount thereof, unless
otherwise specified in the applicable Indenture Supplement; and (ii)
in the case of Discount Notes, as specified in the applicable
Indenture Supplement, and in addition thereto, shall pay such further
amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee, its agents and
counsel and all other amounts due the Indenture Trustee under Section
8.07.
If the Issuer fails to pay such amounts forthwith upon such demand, the
Indenture Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Issuer or any other obligor upon the Notes of such
Series or Class and collect the money adjudged or decreed to be payable in the
manner provided by law out of the Collateral or any other obligor upon such
Notes, wherever situated.
Section 7.04. INDENTURE TRUSTEE MAY FILE PROOFS OF CLAIM. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Issuer or any other obligor upon the Notes or
the property of the Issuer or of such other obligor or their creditors, the
Indenture Trustee (irrespective of whether the principal of the Notes shall
then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Indenture Trustee shall have made any
demand on the Issuer for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceedings or
otherwise,
(i) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary and advisable
in order to have the claims of the Indenture Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee, its agents and counsel and all
other amounts due the Indenture Trustee under Section 8.07) and of the
Noteholders allowed in such judicial proceeding, and
(ii) to collect and receive any funds or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby
authorized by each Noteholder to make such payment to the Indenture
Trustee and in the event that the Indenture Trustee shall consent to
the making of such payments directly to the Noteholders, to pay to the
Indenture Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Indenture
Trustee, its agents and counsel, and any other amounts due the
Indenture Trustee under Section 8.07.
52 MASTER INDENTURE
Nothing herein contained shall be deemed to authorize the Indenture Trustee
to authorize or consent to or accept or adopt on behalf of any Noteholder any
plan or reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Indenture Trustee
to vote in respect of the claim of any Noteholder in any such proceeding.
Section 7.05. INDENTURE TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF NOTES. All rights of action and claims under this Indenture or the Notes
of any Series or Class may be prosecuted and enforced by the Indenture
Trustee without the possession of any of the Notes of such Series or Class
or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee, its agent and counsel,
be for the ratable benefit of the Holders of the Notes of the Series or
Class in respect of which such judgment has been recovered.
Section 7.06. APPLICATION OF MONEY COLLECTED. Any money or other
property collected by the Indenture Trustee with respect to a Series or
Class of Notes pursuant to this Article VII shall be applied in the
following order, at the date or dates fixed by the Indenture Trustee and,
in case of the distribution of such money on account of principal or
interest, upon presentation of the Notes of such Series or Class and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
(a) first, to the payment of all amounts due and owing to the
Indenture Trustee under Section 8.07(a);
(b) second, to the payment of the amounts then due and unpaid
upon the Notes of that Series or Class for principal and interest, in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind (but
subject to the allocation provided in Article V of this Indenture and
the related Indenture Supplements), according to the amounts due and
payable on such Notes for principal and interest, respectively; and
(c) third, to the Issuer.
Section 7.07. INDENTURE TRUSTEE MAY ELECT TO HOLD THE COLLATERAL.
Following an acceleration of any Series or Class of Notes, the Indenture
Trustee may elect to continue to hold the Collateral and apply
distributions in accordance with the regular distribution provisions
pursuant to Article V of this Indenture, except that principal shall be
paid on the accelerated Class of Notes to the extent funds are received
from the Collections and allocated to the accelerated Class, and payment is
permitted by the subordination provisions, if any, of the accelerated
Class.
Section 7.08. SALE OF RECEIVABLES FOR ACCELERATED NOTES. In the case
of a Series or Class of Notes that has been accelerated following an Event
of Default, the Indenture
53 MASTER INDENTURE
Trustee may cause to Issuer to sell, and if one of the conditions in
subsections (a), (b) or (c) of this Section 7.08 is met, the Issuer shall
sell, Principal Receivables and the related Non-Principal Receivables (or
interests therein). If a Series or Class of Notes is accelerated before its
Legal Final Maturity Date, each holder of the accelerated Notes may notify
the Indenture Trustee in writing that it desires to cause the Issuer to
sell Principal Receivables and the related Non-Principal Receivables, or
interests in Principal Receivables and the related Non-Principal
Receivables, with respect to the Notes of that Series or Class. Noteholders
of a Series or Class can only cause a sale of Receivables if at least one
of the following conditions is met:
(a) the Holders of at least 90% of the Outstanding Dollar
Principal Amount of the Notes of that Series or Class have notified
the Indenture Trustee in writing that they desire to cause the issuer
to sell Principal Receivables and the related Non-Principal
Receivables, or interests in Principal Receivables and the related
Non-Principal Receivables, with respect to their Series or Class of
Notes;
(b) the Holders of a Majority of the Outstanding Dollar
Principal Amount of the Notes of that Series or Class have notified
the Indenture Trustee in writing that they desire to cause the Issuer
to sell Principal Receivables and the related Non-Principal
Receivables, or interests in Principal Receivables and the related
Non-Principal Receivables, with respect to their Series or Class of
Notes and the net proceeds of the sale of Receivables pursuant to that
sale, as described below, plus amounts on deposit in the Principal
Funding Account would be sufficient to pay all amounts due on the
Notes of that Series or Class; or
(c) (1) the Servicer determines that the funds to be
allocated to the Notes of that Series or Class, including (A)
Collections allocated to that Series or Class and (B) amounts on
deposit in the Principal Funding Account, may not be sufficient on an
ongoing basis to make payments on the Notes of that Series or Class as
those payments would have become due if those obligations had not been
declared due and payable and (2) Holders of at least 66 2/3% of the
Outstanding Dollar Principal Amount of the Notes of that Series or
Class have notified the Indenture Trustee in writing that they desire
to cause the Issuer to sell Principal Receivables and the related
Non-Principal Receivables, or interests Principal Receivables and the
related Non-Principal Receivables, with respect to their Series or
Class of Notes.
If any of the conditions in the preceding paragraph are met, the Issuer
shall sell Principal Receivables and the related Non-Principal Receivables on
behalf of all Holders of the Notes of that Series or Class, whether or not they
have actually given notice of their desire to cause a sale of Receivables or
interests in Principal Receivables and the related Non-Principal Receivables, in
the amount specified in the related Indenture Supplement. The Holders of the
accelerated Notes shall maintain their rights in their Notes until the Holders
deliver their Notes to the Issuer as required in connection with the application
of the sale proceeds to payment of the amounts due on the related Class or
Series of Notes.
54 MASTER INDENTURE
If an Event of Default occurs relating to the failure to pay principal of
or interest on a Series or Class of Notes in full on the related Legal Final
Maturity Date, the Issuer shall automatically sell Receivables on such date.
Section 7.09. NOTEHOLDERS HAVE THE RIGHT TO DIRECT THE TIME, METHOD
AND PLACE OF CONDUCTING ANY PROCEEDING FOR ANY REMEDY AVAILABLE TO THE
INDENTURE TRUSTEE. The Majority Holders of any accelerated Series or Class
of Notes have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred on the Indenture Trustee, in
respect of such Series or Class. This right may be exercised only if the
direction provided by the Noteholders does not conflict with applicable law
or this Indenture and does not have a substantial likelihood of involving
the Indenture Trustee in personal liability. The Holder of any Note will
have the right to institute suit for the enforcement of payment of
principal of and interest on their Note on its Legal Final Maturity Date.
Section 7.10. LIMITATION ON SUITS. No Holder of any Note of any Series
or Class shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default with respect to
Notes of such Series or Class;
(b) the Holders of not less than 25% in Outstanding Dollar
Principal Amount of the Outstanding Notes of such Series or Class have
made written request to the Indenture Trustee to institute proceedings
in respect of such Event of Default in its own name as Indenture
Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture
Trustee indemnity reasonably satisfactory to it against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(d) the Indenture Trustee for sixty (60) days after its
receipt of such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Indenture Trustee during such sixty (60) day period
by the Majority Holders of such Series or Class;
it being understood and intended that no one or more Holders of Notes of such
Series or Class shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Notes of such Series or Class, or to obtain or to
seek to obtain priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and proportionate benefit of all the Holders of all Notes of such Series
or Class.
55 MASTER INDENTURE
Section 7.11. UNCONDITIONAL RIGHT OF NOTEHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST; LIMITED RECOURSE. Notwithstanding any other provisions in
this Indenture, the Holder of any Note shall have the right, which is
absolute and unconditional, to receive payment of the principal of and
interest on such Note on the Legal Final Maturity Date expressed in the
related Indenture Supplement and to institute suit for the enforcement of
any such payment, and such right shall not be impaired without the consent
of such Holder; provided, however, that notwithstanding any other provision
of this Indenture to the contrary, the obligation to pay principal of or
interest on the Notes or any other amount payable to any Noteholder shall
be without recourse to CWRI, the Indenture Trustee, the Owner Trustee or
any affiliate, officer, employee or director of any of them, and the
obligation of the Issuer to pay principal of or interest on the Notes or
any other amount payable to any Noteholder shall be subject to Article V
and the allocation and payment provisions of the Indenture Supplements.
Section 7.12. RESTORATION OF RIGHTS AND REMEDIES. If the Indenture
Trustee or any Noteholder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, then and in every such case the
Issuer, the Indenture Trustee and the Noteholders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Indenture Trustee and the Noteholders shall continue as though no such
proceeding had been instituted.
Section 7.13. RIGHTS AND REMEDIES CUMULATIVE. No right or remedy
herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 7.14. DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Indenture Trustee or of any Holder of any Note to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by
law to the Indenture Trustee or to the Noteholders may be exercised from
time to time, and as often as may be deemed expedient, by the Indenture
Trustee or by the Noteholders, as the case may be.
Section 7.15. CONTROL BY NOTEHOLDERS. The Majority Holders of any
Series or Class shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Indenture
Trustee or exercising any trust or power conferred on the Indenture Trustee
with respect to the Notes of such Series or Class, provided that:
(a) the Indenture Trustee shall have the right to decline to
follow any such direction if the Indenture Trustee, being advised by
counsel, determines that
56 MASTER INDENTURE
the action so directed may not lawfully be taken or would conflict
with this Indenture or if the Indenture Trustee in good faith shall,
by an Indenture Trustee Authorized Officer, determine that the
proceedings so directed would involve it in personal liability or be
unjustly prejudicial to the Holders not taking part in such direction,
and
(b) the Indenture Trustee may take any other action permitted
hereunder deemed proper by the Indenture Trustee which is not
inconsistent with such direction.
Section 7.16. WAIVER OF PAST DEFAULTS. The Majority Holders of any
Series or Class may on behalf of the Holders of all the Notes of such
Series or Class waive any past default hereunder or under the related
Indenture Supplement with respect to such Series or Class and its
consequences, except a default not theretofore cured:
(a) in the payment of the principal of or interest on any
Note of such Series or Class, or
(b) in respect of a covenant or provision hereof which under
Article X cannot be modified or amended without the consent of the
Holder of each Outstanding Note of such Series or Class.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 7.17. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Note by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Indenture Trustee for any action taken or omitted by
it as Indenture Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Indenture Trustee, to any suit instituted by any
Noteholder, or group of Noteholders, holding in the aggregate more than 25%
in Outstanding Dollar Principal Amount of the Outstanding Notes of any
Series or Class to which the suit relates, or to any suit instituted by any
Noteholders for the enforcement of the payment of the principal of or
interest on any Note on or after the applicable Legal Final Maturity Date
expressed in such Note.
Section 7.18. WAIVER OF STAY OR EXTENSION LAWS. The Issuer covenants
(to the extent that it may lawfully do so) that it shall not at any time
insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Issuer (to the extent that it may
57 MASTER INDENTURE
lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it shall not hinder, delay or impede the
execution of any power herein granted to the Indenture Trustee, but shall
suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE VIII
THE INDENTURE TRUSTEE
Section 8.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture with
respect to the Notes of any Series or Classes, and no implied covenants or
obligations shall be read into this Indenture against the Indenture
Trustee.
(b) In the absence of bad faith on its part, the Indenture
Trustee may, with respect to Notes of any Series or Class, conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Indenture
Trustee and conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the
Indenture Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture but need
not confirm or investigate the accuracy of any mathematical calculations or
other facts stated therein.
(c) In case an Event of Default with respect to any Series or
Class of Notes has occurred and is continuing, the Indenture Trustee shall
exercise with respect to the Notes of such Series or Class such of the
rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a fiduciary would exercise or use
under the circumstances in the conduct of such person's own affairs.
(d) No provision of this Indenture shall be construed to
relieve the Indenture Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except
that:
(i) this clause (d) shall not be construed to limit the
effect of subsection (a) of this Section;
(ii) the Indenture Trustee shall not be liable for any error
of judgment made in good faith by an Indenture Trustee Authorized
Officer, unless it is conclusively determined by a court of competent
jurisdiction that the Indenture Trustee was negligent in ascertaining
the pertinent facts;
(iii) the Indenture Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Majority Holders of any Series or
Class relating to the time, method and place of conducting any
proceeding for any remedy available to the Indenture Trustee,
58 MASTER INDENTURE
or exercising any trust or power conferred upon the Indenture Trustee,
under this Indenture with respect to the Notes of such Series or
Class; and
(iv) no provision of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or indemnity satisfactory to the Indenture Trustee against such
risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Indenture Trustee shall be
subject to the provisions of this Section.
Section 8.02. NOTICE OF DEFAULTS. Within sixty (60) days after the
occurrence of any default hereunder of which an Indenture Trustee
Authorized Officer has actual knowledge or has received written notice
thereof with respect to Notes of any Series or Class,
(a) the Indenture Trustee shall transmit by mail to all
Registered Noteholders of such Series or Class, as their names and
addresses appear in the Note Register, notice of such default hereunder
known to the Indenture Trustee,
(b) the Indenture Trustee shall notify all Holders of Bearer
Notes of such Series or Class, by publication of notice of such default in
an Authorized Newspaper, or as otherwise provided in the applicable
Indenture Supplement, and
(c) the Indenture Trustee shall give prompt written
notification thereof to the Rating Agencies;
provided, however, that, except in the case of a default in the payment of the
principal of or interest on any Note of such Series or Class, the Indenture
Trustee shall be fully protected in withholding such notice if and so long as
the board of directors, the executive committee or a trust committee of
directors and/or Indenture Trustee Authorized Officers of the Indenture Trustee
in good faith determine that the withholding of such notice is in the interests
of the Noteholders of such Series or Class. For the purpose of this Section, the
term "default," with respect to Notes of any Series or Class, means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Notes of such Series or Class.
Section 8.03. CERTAIN RIGHTS OF INDENTURE TRUSTEE. Except as
otherwise provided in Section 8.01:
(a) the Indenture Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document
(whether in its original or facsimile form) believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
59 MASTER INDENTURE
(b) any request or direction of the Issuer mentioned herein
shall be sufficiently evidenced by an Officer's Certificate;
(c) whenever in the administration of this Indenture the
Indenture Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Indenture Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an
Officer's Certificate;
(d) the Indenture Trustee may consult with counsel of its own
selection and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Noteholders pursuant to this
Indenture, unless such Noteholders shall have offered to the Indenture
Trustee security or indemnity reasonably satisfactory to it against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document,
but the Indenture Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Indenture Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Issuer, personally or by agent or
attorney, with reasonable prior written notice to Issuer and during
Issuer's regular business hours;
(g) the Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, attorneys, custodians or nominees and the Indenture
Trustee shall not be responsible for any misconduct or negligence on
the part of any agent, attorney, custodian or nominee appointed with
due care by it hereunder; and
(h) the Indenture Trustee shall not be responsible for filing
any financing statements or continuation statements in connection with
the Notes, but shall cooperate with the Issuer in connection with the
filing of such financing statements or continuation statements.
Section 8.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES. The
recitals contained herein and in the Notes, except the certificates of
authentication, shall be taken as the statements of the Issuer, and the
Indenture Trustee assumes no responsibility for their correctness. The
Indenture Trustee makes no representations as to the validity or
60 MASTER INDENTURE
sufficiency of this Indenture or of the Notes. The Indenture Trustee shall
not be accountable for the use or application by the Issuer of Notes or the
proceeds thereof.
Section 8.05. MAY HOLD NOTES. The Indenture Trustee, any Paying Agent,
the Note Registrar or any other agent of the Issuer, in its individual or
any other capacity, may become the owner or pledgee of Notes and, subject
to Sections 8.08 and 8.13, may otherwise deal with the Issuer with the same
rights it would have if it were not Indenture Trustee, Paying Agent, Note
Registrar or such other agent.
Section 8.06. MONEY HELD IN TRUST. Money held by the Indenture Trustee
in trust hereunder need not be segregated from other funds except to the
extent required by law. The Indenture Trustee shall be under no liability
for interest on any money received by it hereunder except as otherwise
agreed in writing with the Issuer.
Section 8.07. COMPENSATION AND REIMBURSEMENT, LIMIT ON COMPENSATION,
REIMBURSEMENT AND INDEMNITY.
(a) The Issuer agrees
(i) to pay to the Indenture Trustee from time to time
reasonable compensation for all services rendered by it hereunder as
agreed to in writing between the Issuer and the Indenture Trustee
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein, to
reimburse the Indenture Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Indenture
Trustee in accordance with any provision of this Indenture (including
the reasonable compensation and the reasonable expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(iii) to indemnify the Indenture Trustee and its officers,
directors, employees and agents for, and to hold them harmless
against, any and all loss, liability, claim, obligation, damage,
injury, judgment or expense (including the reasonable compensation and
the reasonable expenses and disbursements of its agents and counsel)
incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim
or liability (whether asserted by the Issuer, the Servicer, any Holder
or any other Person) in connection with the exercise or performance of
any of its powers or duties hereunder.
The Indenture Trustee shall have no recourse to any asset of the Issuer other
than funds available pursuant to Section 7.06 or to any Person other than the
Servicer or the Issuer.
61 MASTER INDENTURE
(b) This Section shall survive the termination of this
Indenture and the resignation or replacement of the Indenture Trustee under
Section 8.10.
Section 8.08. DISQUALIFICATION; CONFLICTING INTERESTS. If the
Indenture Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Indenture Trustee shall, if so
required by the Trust Indenture Act, either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture. Nothing herein
shall prevent the Indenture Trustee from filing with the Commission the
application referred to in the second to last paragraph of Section 310(b)
of the Trust Indenture Act.
Section 8.09. CORPORATE INDENTURE TRUSTEE REQUIRED; ELIGIBILITY. There
shall at all times be an Indenture Trustee hereunder with respect to each
Series or Class of Notes, which Indenture Trustee shall be a corporation
organized and doing business under the laws of the United States of America
or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or State authority, and
having a rating of at least BBB- by S&P and F2 by Fitch. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
The Issuer may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Issuer, serve as Indenture
Trustee. If at any time the Indenture Trustee with respect to any Series or
Class of Notes shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
Section 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Indenture Trustee and no
appointment of a successor Indenture Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Indenture Trustee under Section 8.11.
(b) The Indenture Trustee may resign with respect to any
Series or Class of Notes at any time by giving written notice thereof to
the Issuer. If an instrument of acceptance by a successor Indenture Trustee
shall not have been delivered to the Indenture Trustee within thirty (30)
days after the giving of such notice of resignation, the resigning
Indenture Trustee may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
(c) The Indenture Trustee may be removed with respect to any
Series or Class of Notes at any time by Act of the Majority Holders of that
Series or Class, delivered to the Indenture Trustee and to the Issuer.
(d) If at any time:
62 MASTER INDENTURE
(i) the Indenture Trustee fails to comply with Section 310(b)
of the Trust Indenture Act with respect to any Series or Class of
Notes after written request therefor by the Issuer or by any
Noteholder who has been a bona fide Holder of a Note of that Series or
Class for at least six (6) months, or
(ii) the Indenture Trustee ceases to be eligible under Section
8.09 with respect to any Series or Class of Notes and fails to resign
after written request therefor by the Issuer or by any such
Noteholder, or
(iii) the Indenture Trustee becomes incapable of acting with
respect to any Series or Class of Notes, or
(iv) the Indenture Trustee is adjudged bankrupt or insolvent
or a receiver of the Indenture Trustee or of its property is appointed
or any public officer takes charge or control of the Indenture Trustee
or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Issuer may remove the Indenture Trustee, with
respect to the Series or Class, or in the case of clause (iv), with respect to
all Series or Classes, or (B) subject to Section 7.17, any Noteholder who has
been a bona fide Holder of a Note of such Series, Class and Class for at least
six (6) months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Indenture
Trustee with respect to such Series or Class and the appointment of a successor
Indenture Trustee with respect to the Series or Class, or, in the case of clause
(iv), with respect to all Series and Classes.
(e) If the Indenture Trustee resigns, is removed or becomes
incapable of acting with respect to any Series or Class of Notes, or if a
vacancy shall occur in the office of the Indenture Trustee with respect to
any Series or Class of Notes for any cause, the Issuer shall promptly
appoint a successor Indenture Trustee for that Series or Class of Notes.
If, within one year after such resignation, removal or incapacity, or the
occurrence of such vacancy, a successor Indenture Trustee with respect to
such Series or Class of Notes is appointed by Act of the Majority Holders
of such Series or Class delivered to the Issuer and the retiring Indenture
Trustee, the successor Indenture Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the successor Indenture Trustee
with respect to such Series or Class and supersede the successor Indenture
Trustee appointed by the Issuer with respect to such Series or Class. If no
successor Indenture Trustee with respect to such Series or Class shall have
been so appointed by the Issuer or the Noteholders of such Series or Class
and accepted appointment in the manner hereinafter provided, any Noteholder
who has been a bona fide Holder of a Note of that Series or Class for at
least six (6) months may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a successor Indenture Trustee with respect to such Series or Class.
(f) The Issuer shall give written notice of each resignation
and each removal of the Indenture Trustee with respect to any Series or
Class and each appointment of a successor Indenture Trustee with respect to
any Series or Class to each Noteholder as provided in Section 1.06 and to
each Rating Agency. Each notice shall
63 MASTER INDENTURE
include the name of the successor Indenture Trustee and the address of its
principal Corporate Trust Office.
Section 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every successor
Indenture Trustee appointed hereunder shall execute, acknowledge and
deliver to the Issuer and to the predecessor Indenture Trustee an
instrument accepting such appointment, with a copy to the Rating Agencies,
and thereupon the resignation or removal of the predecessor Indenture
Trustee shall become effective with respect to any Series or Class as to
which it is resigning or being removed as Indenture Trustee, and such
successor Indenture Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
predecessor Indenture Trustee with respect to any such Series or Class;
but, on request of the Issuer or the successor Indenture Trustee, such
predecessor Indenture Trustee shall, upon payment of its reasonable
charges, if any, execute and deliver an instrument transferring to such
successor Indenture Trustee all the rights, powers and trusts of the
predecessor Indenture Trustee, and shall duly assign, transfer and deliver
to such successor Indenture Trustee all property and money held by such
predecessor Indenture Trustee hereunder with respect to all or any such
Series or Class, subject nevertheless to its lien, if any, provided for in
Section 8.07. Upon request of any such successor Indenture Trustee, the
Issuer shall execute any and all reasonably requested instruments, with
terms mutually agreed upon by the Issuer and the successor Indenture
Trustee for more fully and certainly vesting in and confirming to such
successor Indenture Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Indenture Trustee with
respect to the Notes of one or more (but not all) Series or Classes, the Issuer,
the predecessor Indenture Trustee and each successor Indenture Trustee with
respect to the Notes of any applicable Series or Class shall execute and deliver
an Indenture Supplement which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the predecessor Indenture Trustee with respect to the Notes of any Series or
Class as to which the predecessor Indenture Trustee is not being succeeded shall
continue to be vested in the predecessor Indenture Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Indenture Trustee, it being understood that nothing herein or in such Indenture
Supplement shall constitute such Indenture Trustees co- trustees of the same
trust and that each such Indenture Trustee shall be Indenture Trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Indenture Trustee.
No successor Indenture Trustee with respect to any Series or Class of Notes
shall accept its appointment unless at the time of such acceptance such
successor Indenture Trustee shall be qualified and eligible with respect to that
Series or Class under this Article.
Section 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Indenture Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Indenture Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Indenture Trustee,
shall be the successor of the Indenture Trustee hereunder, provided such
64 MASTER INDENTURE
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto. The Issuer shall give prompt written notice
of such merger, conversion, consolidation or succession to the Rating
Agencies. In case any Notes shall have been authenticated, but not
delivered, by the Indenture Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Indenture
Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Indenture Trustee
had itself authenticated such Notes.
Section 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. If and
when the Indenture Trustee shall be or become a creditor of the Issuer (or
any other obligor upon the Notes), the Indenture Trustee shall be subject
to the provisions of Section 311 of the Trust Indenture Act. An Indenture
Trustee who has resigned or been removed shall be subject to Section 311(a)
of the Trust Indenture Act to the extent provided therein.
Section 8.14. APPOINTMENT OF AUTHENTICATING AGENT. At any time when
any of the Notes remain Outstanding, the Indenture Trustee, with the
approval of the Issuer, may appoint an Authenticating Agent or Agents with
respect to one or more Series or Classes of Notes which shall be authorized
to act on behalf of the Indenture Trustee to authenticate Notes of such
Series or Classes issued upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 3.06, and Notes so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Indenture Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Notes by the Indenture Trustee or the
Indenture Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Indenture
Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Indenture Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Issuer and shall at
all times be a corporation organized and doing business under the laws of
the United States of America, any State thereof or the District of
Columbia, authorized under such laws to act as an Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and, if
other than the Issuer itself, subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
The initial Authenticating Agent for the Notes of all Series and Classes
shall be the Indenture Trustee.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to
65 MASTER INDENTURE
be an Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Indenture Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Indenture Trustee and to the Issuer. The Indenture Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Issuer. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Indenture Trustee, with the approval of the
Issuer, may appoint a successor Authenticating Agent which shall be acceptable
to the Issuer and shall give notice to each Noteholder as provided in Section
1.06. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Indenture Trustee agrees to pay to each Authenticating Agent (other
than an Authenticating Agent appointed at the request of the Issuer from time to
time) reasonable compensation for its services under this Section, and the
Indenture Trustee shall be entitled to be reimbursed for such payments, pursuant
to the provisions of Section 8.07.
If an appointment with respect to one or more Series or Classes is made
pursuant to this Section, the Notes of such Series or Classes may have endorsed
thereon, in addition to the Indenture Trustee's certificate of authentication,
an alternate certificate of authentication in the following form:
This is one of the Notes of the Series or Classes designated therein
referred to in the within-mentioned Indenture.
JPMorgan Chase Bank,
as Indenture Trustee
By:
-----------------------------------
As Authenticating Agent
By:
-----------------------------------
Authorized Signatory
Section 8.15. TAX RETURNS. In the event the Issuer shall be required
to file tax returns, the Servicer shall prepare or shall cause to be
prepared such tax returns and shall provide such tax returns to the Owner
Trustee or the Beneficiary for signature at least five (5) days before such
tax returns are due to be filed. The Issuer, in accordance with the terms
of each Indenture Supplement, shall also prepare or shall cause to be
prepared
66 MASTER INDENTURE
all tax information required by law to be distributed to Noteholders and
shall deliver such information to the Indenture Trustee at least five (5)
days prior to the date it is required by law to be distributed to
Noteholders. The Indenture Trustee, upon written request, shall furnish the
Servicer with all such information known to the Indenture Trustee as may be
reasonably requested and required in connection with the preparation of all
tax returns of the Issuer, and shall, upon request, execute such returns.
In no event shall the Indenture Trustee or the Owner Trustee be personally
liable for any liabilities, costs or expenses of the Issuer or any
Noteholder arising under any tax law, including without limitation,
federal, state or local income or excise taxes or any other tax imposed on
or measured by income (or any interest or penalty with respect thereto
arising from a failure to comply therewith).
Section 8.16. REPRESENTATIONS AND COVENANTS OF THE INDENTURE TRUSTEE.
The Indenture Trustee represents, warrants and covenants that:
(i) The Indenture Trustee is a banking corporation duly
organized and validly existing under the laws of the State of New
York;
(ii) The Indenture Trustee has full power and authority to
deliver and perform this Indenture and has taken all necessary action
to authorize the execution, delivery and performance by it of this
Indenture and other documents to which it is a party; and
(iii) Each of this Indenture and other documents to which it is
a party has been duly executed and delivered by the Indenture Trustee
and constitutes its legal, valid and binding obligation in accordance
with its terms.
Section 8.17. CUSTODY OF THE COLLATERAL. All Collateral (i) that
constitutes investment property shall be held by the Indenture Trustee
through a securities intermediary, which securities intermediary shall
agree with the Indenture Trustee that (A) such investment property at all
times shall be credited to a securities account of the Indenture Trustee,
(B) all property credited to such securities account shall be treated as a
financial asset, (C) such securities intermediary shall treat the Indenture
Trustee as entitled to exercise the rights that comprise each financial
asset credited to such securities account, (D) such securities intermediary
shall comply with entitlement orders originated by the Indenture Trustee
without the further consent of any other person or entity, (E) such
securities intermediary shall not agree with any person or entity other
than the Indenture Trustee to comply with entitlement orders originated by
any person or entity other than the Indenture Trustee, (F) such securities
account and all property credited thereto shall not be subject to any lien,
security interest, right of set-off, or encumbrance in favor of such
securities intermediary or anyone claiming through such securities
intermediary (other than the Indenture Trustee), and (G) such agreement
between such securities intermediary and the Indenture Trustee shall be
governed by the laws of the State of New York; and (ii) not described in
clause (i) above shall be held by the Indenture Trustee in the State of New
York separate and apart from all other property held by the Indenture
Trustee. Notwithstanding any other provision of this Indenture, the
Indenture Trustee shall not hold any Collateral through an agent except as
expressly
67 MASTER INDENTURE
permitted by this Section 8.17 and Section 4.03(c). Each term used in this
Section 8.17 and defined in the New York UCC shall have the meaning set
forth in the New York UCC.
Section 8.18. INDENTURE TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM
THE ISSUER. Any application by the Indenture Trustee for written
instructions from the Issuer may, at the option of the Indenture Trustee,
set forth in writing any action proposed to be taken or omitted by the
Indenture Trustee under and in accordance with this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective, provided that such application shall make specific reference to
this Section 8.18. The Indenture Trustee shall not be liable for any action
taken by, or omission of, the Indenture Trustee in accordance with a
proposal included in such application on or after the date specified in
such application (which date shall not be less than five (5) Business Days
after the date any officer of the Issuer actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date
in the case of an omission), the Indenture Trustee shall have received
written instructions in response to such application specifying the action
be taken or omitted.
ARTICLE IX
NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY INDENTURE TRUSTEE,
ISSUER AND BENEFICIARY
Section 9.01. ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES
OF NOTEHOLDERS. The Issuer shall furnish or cause to be furnished to the
Indenture Trustee:
(a) not more than fifteen (15) days after each Record Date,
in each year in such form as the Indenture Trustee may reasonably
require, a list of the names and addresses of the Registered
Noteholders of such Series or Classes as of such date, and
(b) at such other times as the Indenture Trustee may request
in writing, within thirty (30) days after the receipt by the Issuer of
any such request, a list of similar form and content as of a date not
more than fifteen (15) days before the time such list is furnished;
provided, however, that so long as the Indenture Trustee is the Note
Registrar, no such list shall be required to be furnished.
Section 9.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
NOTEHOLDERS.
(a) The Indenture Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses of Registered
Noteholders contained in the most recent list furnished to the Indenture
Trustee as provided in Section 9.01 and the names and addresses of
Registered Noteholders received by the Indenture Trustee in its capacity as
Note Registrar. The Indenture Trustee may destroy any list furnished to it
as provided in Section 9.01 upon receipt of a new list so furnished.
68 MASTER INDENTURE
(b) If three (3) or more Holders of Notes of any Series or
Class (hereinafter referred to as "applicants") apply in writing to the
Indenture Trustee, and furnish to the Indenture Trustee reasonable proof
that each such applicant has owned a Note of such Series or Class for a
period of at least six (6) months preceding the date of such application,
and such application states that the applicants desire to communicate with
other Holders of Notes of such Series or Class or with the Holders of all
Notes with respect to their rights under this Indenture or under such Notes
and is accompanied by a copy of the form of proxy or other communication
which such applicants propose to transmit, then the Indenture Trustee
shall, within five (5) Business Days after the receipt of such application,
at its election, either
(i) afford such applicants access to the information
preserved at the time by the Indenture Trustee in accordance with
Section 9.02(a), or
(ii) inform such applicants as to the approximate number of
Holders of Notes of such Series or Class or all Notes, as the case may
be, whose names and addresses appear in the information preserved at
the time by the Indenture Trustee in accordance with Section 9.02(a),
and as to the approximate cost of mailing to such Noteholders the form
of proxy or other communication, if any, specified in such
application.
If the Indenture Trustee shall elect not to afford such applicants access
to such information, the Indenture Trustee shall, upon the written request of
such applicants, mail to each Holder of a Registered Note of such Series or
Class or to all Registered Noteholders, as the case may be, whose names and
addresses appear in the information preserved at the time by the Indenture
Trustee in accordance with Section 9.02(a), a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Indenture Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless, within five (5) days after such tender, the Indenture Trustee shall mail
to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Indenture Trustee, such mailing would be contrary to the best interests of
the Holders of Notes of such Series or Class or all Noteholders, as the case may
be, or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Indenture
Trustee shall mail copies of such material to all Registered Noteholders of such
Series or Class or all Registered Noteholders, as the case may be, with
reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Indenture Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Every Holder of Notes, by receiving and holding the same,
agrees with the Issuer and the Indenture Trustee that neither the Issuer
nor the Indenture Trustee shall be held accountable by reason of the
disclosure of any such information as to the
69 MASTER INDENTURE
names and addresses of the Holders of Notes in accordance with Section
9.02(b), regardless of the source from which such information was derived,
and that the Indenture Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 9.02(b).
Section 9.03. REPORTS BY INDENTURE TRUSTEE.
(a) The term "reporting date" as used in this Section means
March 31. Within sixty (60) days after the reporting date in each year,
beginning in 2004, the Indenture Trustee shall transmit to Noteholders, in
the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, a brief report dated as of such reporting date if required
by Section 313(a) of the Trust Indenture Act.
(b) To the extent required by the Trust Indenture Act, the
Indenture Trustee shall mail each year to all Registered Noteholders, with
a copy to the Rating Agencies a report concerning:
(i) its eligibility and qualifications to continue as trustee
under this Indenture;
(ii) any amounts advanced by the Indenture Trustee under this
Indenture;
(iii) the amount, interest rate and maturity date or
indebtedness owing by the Issuer to the Indenture Trustee in the
Indenture Trustee's individual capacity;
(iv) the property and funds physically held by the Indenture
Trustee as Indenture Trustee;
(v) any release or release and substitution of Collateral
subject to the lien of this Indenture which has not previously been
reported; and
(vi) any action taken by the Indenture Trustee that materially
affects the Notes and that has not previously been reported.
(c) The Indenture Trustee shall comply with Sections 313(b)
and 313(c) of the Trust Indenture Act.
(d) A copy of each such report shall, at the time of such
transmission to Noteholders, be filed by the Indenture Trustee with each
stock exchange upon which the Notes are listed, and also with the
Commission. The Issuer shall notify the Indenture Trustee in writing when
the Notes are admitted to trading on any stock exchange.
Section 9.04. MEETINGS OF NOTEHOLDERS; AMENDMENTS AND WAIVERS.
(a) The Indenture Trustee may call a meeting of the
Noteholders of a Series or Class at any time. The Indenture Trustee shall
call a meeting upon written
70 MASTER INDENTURE
request of the Issuer or the Holders of at least 10% in aggregate
Outstanding Dollar Principal Amount of the Outstanding Notes of such Series
or Class. In any case, a meeting shall be called after notice is given to
the Noteholders pursuant to Section 1.06.
(b) Except for any consent that must be given by the Holders
of each Outstanding Note affected or any action to be taken by the Issuer
as holder of the Collateral Certificate, any resolution presented at any
meeting at which a quorum is present may be adopted by the affirmative vote
of the Majority Holders of that Series or Class, as the case may be.
However, any resolution with respect to any consent, waiver, request,
demand, notice, authorization, direction or other action which may be given
by the Holders of not less than a specified percentage in aggregate
Outstanding Dollar Principal Amount of Outstanding Notes of a Series or
Class or all Notes may be adopted at any meeting at which a quorum is
present only by the affirmative vote of the Holders of not less than the
specified percentage in aggregate Outstanding Dollar Principal Amount of
the Outstanding Notes of that Series or Class or all Outstanding Notes, as
the case may be. Any resolution passed or decision taken at any meeting of
Noteholders duly held in accordance with this Indenture shall be binding on
all Noteholders of the affected Series or Class.
(c) The quorum at any meeting shall be persons holding or
representing the Majority Holders of a Series or Class or all Notes, as the
case may be; provided, however, that if any action is to be taken at that
meeting concerning a consent, waiver, request, demand, notice,
authorization, direction or other action that may be given by the Holders
of not less than a specified percentage in aggregate Outstanding Dollar
Principal Amount of the Outstanding Notes of a Series or Class or all
Notes, as applicable, the persons holding or representing such specified
percentage in aggregate Outstanding Dollar Principal Amount of the
Outstanding Notes of such Series or Class or all Notes shall constitute a
quorum.
(d) The ownership of Registered Notes shall be proved by the
Note Register. The Ownership of Bearer Notes shall be proved as provided in
Section 1.04(c)(ii).
(e) The Issuer may make reasonable rules for other matters
relating to action by or a meeting of Noteholders not otherwise covered by
this Section.
(f) Notes held by the Issuer or its Affiliates may not be
deemed outstanding for purposes of voting or calculating quorum at any
meeting of Noteholders.
Section 9.05. REPORTS BY ISSUER TO THE COMMISSION. The Issuer shall:
(a) file with the Indenture Trustee, within fifteen (15) days
after the Issuer is required to file the same with the Commission,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange
71 MASTER INDENTURE
Act; or, if the Issuer is not required to file information, documents
or reports pursuant to either of said Sections, then it shall file
with the Indenture Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities
Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(b) file with the Indenture Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports
with respect to compliance by the Issuer with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(c) transmit by mail to all Registered Noteholders, as their
names and addresses appear in the Note Register, and notify all
Holders of Bearer Notes of such Series or Class, by publication of
such notice in an Authorized Newspaper or as otherwise provided in the
applicable Indenture Supplement, within thirty (30) days after the
filing thereof with the Indenture Trustee, such summaries of any
information, documents and reports required to be filed by the Issuer
pursuant to paragraphs (a) and (b) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
Section 9.06. REPORTS BY INDENTURE TRUSTEE. The Indenture Trustee
shall report to the Issuer with respect to the amount on deposit in the
Accounts, and the identity of the investments included therein, as the
Issuer may from time to time reasonably request in writing which, absent
the occurrence of an Event of Default hereunder, shall not occur more often
than monthly.
Section 9.07. MONTHLY NOTEHOLDERS' STATEMENT. On each Transfer Date
the Issuer shall, in cooperation with the Servicer, complete and deliver to
the Indenture Trustee (with a copy to each Rating Agency) a Monthly
Noteholders' Statement.
ARTICLE X
INDENTURE SUPPLEMENTS; AMENDMENTS TO THE TRANSFER AND
SERVICING AGREEMENT AND AMENDMENTS TO THE TRUST AGREEMENT
Section 10.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
Without the consent of the Holders of any Notes, the Issuer and the
Indenture Trustee, at any time and from time to time, upon delivery of a
Tax Opinion and upon delivery by the Issuer to the Indenture Trustee of an
Officer's Certificate to the effect that the Issuer reasonably believes
that such amendment will not, and is not reasonably expected to, result in
the occurrence of an Early Amortization Event or Event of Default or will
not have an Adverse Effect and is not reasonably expected to have an
Adverse Effect, may amend this Indenture or any Indenture Supplement or
enter into one or more
72 MASTER INDENTURE
supplemental indentures hereto or thereto, in form satisfactory to the
Indenture Trustee, for any of the following purposes:
(a) to evidence the succession of another Entity to the
Issuer, and the assumption by any such successor of the covenants of
the Issuer herein and in the Notes; or
(b) to add to the covenants of the Issuer, or to surrender
any right or power herein conferred upon the Issuer for the benefit of
the Holders of the Notes of any or all Series or Classes (and if such
covenants or the surrender of such right or power are to be for the
benefit of less than all Series or Classes of Notes, stating that such
covenants are expressly being included or such surrenders are
expressly being made solely for the benefit of one or more specified
Series or Classes); or
(c) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; or
(d) to add to this Indenture such provisions as may be
expressly permitted by the Trust Indenture Act, excluding, however,
the provisions referred to in Section 3.16(a)(2) of the Trust
Indenture Act as in effect at the date as of which this Indenture was
executed or any corresponding provision in any similar federal statute
hereafter enacted; or
(e) to establish any form of Note, as provided in Article II,
and to provide for the issuance of any Series or Class of Notes as
provided in Article III and to set forth the terms thereof, and/or to
add to the rights of the Holders of the Notes of any Series or Class;
or
(f) to evidence and provide for the acceptance of appointment
of a successor Indenture Trustee hereunder with respect to one or more
Series or Classes of Notes and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Indenture Trustee, pursuant to Section 8.11; or
(g) if one or more additional Transferors under the Transfer
and Servicing Agreement are added to, or replaced under, the Transfer
and Servicing Agreement, or if one or more additional Originators
under the Receivables Purchase Agreements are added to, or replaced
under, the Receivables Purchase Agreements, or one or more additional
Beneficiaries under the Trust Agreement are added to, or replaced
under, the Trust Agreement, to make any necessary changes to the
Indenture or any other related document; or
(h) to provide for the additions of Collateral and the
issuance of Notes backed by any such additional Collateral; or
73 MASTER INDENTURE
(i) to provide for additional or alternative credit
enhancement for any Class of Notes.
Additionally, notwithstanding any provision of this Article X to the
contrary, this Indenture or any Indenture Supplement may be amended without the
consent of the Indenture Trustee or any of the Noteholders, upon delivery of a
Tax Opinion for the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, this Indenture or any Indenture
Supplement (which provisions do not affect the rights, duties, privileges or
immunities of the Indenture Trustee) or of modifying in any manner the rights of
the Holders of the Notes under this Indenture or any Indenture Supplement;
provided, however, that (i) the Issuer shall deliver to the Indenture Trustee
and the Owner Trustee an Officer's Certificate to the effect that the Issuer
reasonably believes that such amendment shall not result in the occurrence of an
Early Amortization Event or shall not have an Adverse Effect and is not
reasonably expected to have an Adverse Effect and (ii) the Rating Agencies have
provided written confirmation that such amendment shall not have a Ratings
Effect.
With the consent of CWRI, the Indenture or any Indenture Supplement may
also be amended without the consent of the Indenture Trustee or any Noteholders
for the purpose of (a) increasing the Reallocated Yield Percentage up to 9.00%
or (b) decreasing the Reallocated Yield Percentage, but not to less than 0.00%.
Section 10.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS.
With prior notice to each applicable Rating Agency and the consent of not
less than 66 2/3% in Outstanding Dollar Principal Amount of each Class or
Classes affected by such amendment of this Indenture or any Indenture
Supplement or any supplemental indenture hereto or thereto by Act of said
Holders delivered to the Issuer and the Indenture Trustee, the Issuer and
the Indenture Trustee, upon delivery of an Tax Opinion, may enter into an
amendment of this Indenture or such Indenture Supplement for the purpose of
adding any provisions to, or changing in any manner or eliminating any of
the provisions of, this Indenture or any Indenture Supplement or of
modifying in any manner the rights of the Holders of the Notes of each such
Series or Class under this Indenture or any Indenture Supplement; provided,
however, that no such amendment or supplemental indenture shall, without
the consent of the Holder of each Outstanding Note affected thereby:
(a) change the Interest Payment Date on any Note, or change a
Scheduled Final Payment Date or Legal Final Maturity Date of any Note;
(b) reduce the Stated Principal Amount of, or the interest
rate on any Note, or change the method of computing the Outstanding
Dollar Principal Amount, the Adjusted Outstanding Dollar Principal
Amount or the Collateral Amount in a manner that is adverse to the
Holder of any Note;
(c) reduce the amount of a Discount Note or Indexed Note
payable upon the occurrence of an Early Amortization Event or other
optional or mandatory redemption or upon the acceleration of its Legal
Final Maturity Date;
74 MASTER INDENTURE
(d) impair the right to institute suit for the enforcement of
any payment on any Note;
(e) reduce the percentage in Outstanding Dollar Principal
Amount of the Outstanding Notes of any Series or Class, the consent of
whose Holders is required for any such Indenture Supplement, or the
consent of whose Holders is required for any waiver of compliance with
the provisions of this Indenture or of defaults hereunder and their
consequences, provided for in this Indenture;
(f) modify any of the provisions of this Section or
Section 7.18, except to increase any percentage of Holders required to
consent to any such amendment or to provide that other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Note affected thereby;
(g) permit the creation of any Lien or other encumbrance on
the Collateral that secures any Class of Notes that is senior to the
Lien in favor of the Holders of the Notes of such Class;
(h) change any Place of Payment where any principal of, or
interest on, any Note is payable, unless otherwise provided in the
applicable Indenture Supplement;
(i) change the method of computing the amount of principal
of, or interest on, any Note on any date; or
(j) make any other amendment not permitted by Section 10.01.
An amendment of this Indenture or an Indenture Supplement which changes or
eliminates any covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular Series or Class
of Notes, or which modifies the rights of the Holders of Notes of such Series or
Class with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Notes of any other
Series or Class.
It will not be necessary for any Act of Noteholders under this Section to
approve the particular form of any proposed amendment or supplemental indenture,
but it will be sufficient if such Act shall approve the substance thereof.
Section 10.03. EXECUTION OF INDENTURE SUPPLEMENTS. In executing or
accepting the additional trusts created by any amendment of this Indenture
or Indenture Supplement or any supplemental indenture hereto or thereto
permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Indenture Trustee shall be entitled to
receive, and (subject to Section 8.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such amendment or
supplemental indenture is authorized or permitted by this Indenture and
that all conditions precedent thereto have been satisfied. The Indenture
Trustee may, but shall not (except to the extent required in the case of an
amendment or supplemental indenture
75 MASTER INDENTURE
entered into under Section 10.01(d) or 10.01(f)) be obligated to, enter
into any such amendment or supplemental indenture which affects the
Indenture Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Section 10.04. EFFECT OF INDENTURE SUPPLEMENTS. Upon the execution of
any amendment of this Indenture or Indenture Supplement or any supplemental
indenture under this Article, this Indenture shall be modified in
accordance therewith with respect to each Series or Class of Notes affected
thereby, or all Notes, as the case may be, and such amendment or
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Notes theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby to the extent provided
therein.
Section 10.05. CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of
this Indenture or Indenture Supplement or any supplemental indenture
executed pursuant to this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.
Section 10.06. REFERENCE IN NOTES TO INDENTURE SUPPLEMENTS. Notes
authenticated and delivered after the execution of any amendment of this
Indenture or Indenture Supplement or any supplemental indenture pursuant to
this Article may, and shall, if required by the Indenture Trustee, bear a
notation in form approved by the Indenture Trustee as to any matter
provided for in such amendment or supplemental indenture. If the Issuer
shall so determine, new Notes so modified as to conform, in the opinion of
the Indenture Trustee and the Issuer, to any such amendment or supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
Section 10.07. AMENDMENTS TO THE TRANSFER AND SERVICING AGREEMENT. By
their acceptance of a Note, the Noteholders acknowledge that the
Transferor, the Servicer and Issuer may amend the Transfer and Servicing
Agreement without the consent of any Noteholder, so long as such amendment
will not, as evidenced by an Opinion of Counsel, materially adversely
affect the interest of any Noteholders.
The Servicer, the Transferor and the Issuer may amend the Transfer and
Servicing Agreement with prior written notice to each Rating Agency and
with the consent of the Holders of Notes evidencing not less than 66 2/3%
of the aggregate Outstanding Dollar Principal Amount of the Notes of all
adversely affected Series for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Transfer
and Servicing Agreement or of modifying in any manner the rights of
Noteholders. No amendment, however, may:
(a) reduce in any manner the amount of or delay the timing of
distributions the Servicer is required to make to Noteholders or
deposits of amounts to be so distributed without the consent of each
affected Noteholder;
(b) change the definition or the manner of calculating the
interest on any Note without the consent of each affected Noteholder;
76 MASTER INDENTURE
(c) reduce the amount available under any Enhancement without
the consent of each affected Noteholder;
(d) adversely affect the rating of any Series or Class by any
Rating Agency without the consent of the Noteholders of the Series or
Class evidencing not less than 66 2/3% of the aggregate Outstanding
Dollar Principal Amount of Notes of the Holders of the Series or
Class; or
(e) reduce that percentage of the Outstanding Dollar
Principal Amount of Notes the Holders of which are required to consent
to any amendment without the consent of each Noteholder.
Promptly following the execution of any amendment to the Transfer and
Servicing Agreement other than an amendment described in the preceding
paragraph, the Indenture Trustee shall notify each Noteholder in writing of the
substance of the amendment.
The Issuer, and Servicer and the Transferor may amend the Transfer and
Servicing Agreement without the consent of any Noteholder in any manner that:
(i) provides that funds in the Collection Account may be
invested in any Eligible Investments;
(ii) provides that the Transferor need not make any deposit to
the Collection Account in respect of the Repurchased Receivables price
of any Designated Receivables repurchased from the Issuer so long as
the Transferor Amount exceeds the Trust Available Subordinated Amount
and the Adjusted Pool Balance and the amounts in the Principal Funding
Accounts exceeds the Required Pool Balance on the date of the
repurchase;
(iii) otherwise changes the procedures for removing Receivables
from the Issuer;
(iv) provides that, subject to the limitations set forth in
the Transfer and Servicing Agreement, Case Credit, in its capacity as
Servicer, need not deposit Collections with respect to any Collection
Period in the Collection Account until the related Payment Date;
(v) permits the designation of Automatic Additional Accounts;
or
(vi) provides for the conveyance to the Issuer of undivided
interests in the Receivables rather than the Receivables themselves.
The Transfer and Servicing Agreement may not be amended in any manner which
materially adversely affects the interests of any Enhancement Provider without
its prior written consent.
Section 10.08. AMENDMENTS TO THE TRUST AGREEMENT.
77 MASTER INDENTURE
(a) Subject to the provisions of the Trust Agreement, without
the consent of the Holders of any Notes or the Indenture Trustee, the Owner
Trustee (at the written direction of the Beneficiary) and the Beneficiary
may amend the Trust Agreement so long as such amendment shall not have an
Adverse Effect and is not reasonably expected to have an Adverse Effect at
any time in the future.
(b) Subject to the provisions of the Trust Agreement, (A) in
the case of a significant change in the permitted activities of the Issuer
which is not materially adverse to Holders of the Notes, with the consent
of the Majority Holders of each Class or Classes of Notes affected by such
change, and (B) in all other cases, with prior written notice to each of
the Rating Agencies and with the consent of the Holders of not less than 66
2/3% in Outstanding Dollar Principal Amount of each Class or Classes the
Outstanding Notes affected by such amendment, by Act of said Holders
delivered to the Issuer, CWRI, the Servicer and the Owner Trustee (at the
written direction of the Beneficiary) may amend the Trust Agreement for the
purpose of adding, changing or eliminating any provisions of the Trust
Agreement or of modifying the rights of those Noteholders.
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
Section 11.01. PAYMENT OF PRINCIPAL AND INTEREST. With respect to each
Series or Class of Notes, the Issuer shall duly and punctually pay the
principal of and interest on such Notes in accordance with their terms and
this Indenture, and shall duly comply with all the other terms, agreements
and conditions contained in, or made in this Indenture for the benefit of,
the Notes of such Series or Class.
Section 11.02. MAINTENANCE OF OFFICE OR AGENCY. The Issuer shall
maintain an office, agency or Paying Agent in each Place of Payment where
Notes may be presented or surrendered for payment, where Notes may be
surrendered for transfer or exchange and where notices and demands to or
upon the Issuer in respect of the Notes and this Indenture may be served.
The Issuer shall give prompt written notice to the Indenture Trustee of the
location, and of any change in the location, of such office or agency. If
at any time the Issuer shall fail to maintain such office or agency or
shall fail to furnish the Indenture Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Indenture Trustee, and the Issuer hereby
appoints the Indenture Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Section 11.03. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST. The Paying
Agent, on behalf of the Indenture Trustee, shall make distributions to
Noteholders from the Collection Account or other applicable Account
pursuant to the provisions of Article V of this Indenture or any Indenture
Supplement and shall report the amounts of such distributions to the
Indenture Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Collection Account or other applicable Account for
the purpose of making the distributions referred to above. The Indenture
Trustee may revoke
78 MASTER INDENTURE
such power and remove the Paying Agent if the Indenture Trustee determines
in its sole discretion that the Paying Agent has failed to perform its
obligations under this Indenture or any Indenture Supplement in any
material respect. The Paying Agent upon removal shall return all funds in
its possession to the Indenture Trustee.
The Issuer shall cause each Paying Agent (other than the Indenture Trustee)
for any Series or Class of Notes to execute and deliver to the Indenture Trustee
an instrument in which such Paying Agent shall agree with the Indenture Trustee
(and if the Indenture Trustee acts as Paying Agent, it so agrees), subject to
the provisions of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of principal of
or interest on Notes of such Series or Class in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) if such Paying Agent is not the Indenture Trustee, give
the Indenture Trustee notice of any default by the Issuer (or any
other obligor upon the Notes of such Series or Class) in the making of
any such payment of principal or interest on the Notes of such Series
or Class;
(c) if such Paying Agent is not the Indenture Trustee, at any
time during the continuance of any such default, upon the written
request of the Indenture Trustee, forthwith pay to the Indenture
Trustee all sums so held in trust by such Paying Agent;
(d) immediately resign as a Paying Agent and, if such Paying
Agent is not the Indenture Trustee, forthwith pay to the Indenture
Trustee all sums held by it in trust for the payment of Notes if at
any time it ceases to meet the standards described in this Section
required to be met by a Paying Agent at the time of its appointment;
and
(e) comply with all requirements of the Internal Revenue Code
with respect to the withholding from any payments made by it on any
Notes of any applicable withholding taxes imposed thereon and with
respect to any applicable reporting requirements in connection
therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture with respect to any Series or Class of Notes or
for any other purpose, pay, or by an Officer's Certificate direct any Paying
Agent to pay, to the Indenture Trustee all sums held in trust by the Issuer or
such Paying Agent in respect of each and every Series or Class of Notes as to
which it seeks to discharge this Indenture or, if for any other purpose, all
sums so held in trust by the Issuer in respect of all Notes, such sums to be
held by the Indenture Trustee upon the same trusts as those upon which such sums
were held by the Issuer or such Paying Agent; and, upon such payment by any
Paying Agent to the Indenture Trustee, such Paying Agent shall be released from
all further liability with respect to such money.
79 MASTER INDENTURE
Any money deposited with the Indenture Trustee or any Paying Agent, or then
held by the Issuer, in trust for the payment of the principal of or interest on
any Note of any Series or Class and remaining unclaimed for two years after such
principal or interest has become due and payable shall be paid to the Issuer
upon request in an Officer's Certificate, or (if then held by the Issuer) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Issuer for payment thereof, and
all liability of the Indenture Trustee or such Paying Agent with respect to such
trust money, and all liability of the Issuer as trustee thereof, shall thereupon
cease. The Indenture Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Issuer give notice to the Holders
of the Notes as to which the money to be repaid was held in trust, as provided
in Section 1.06, a notice that such funds remain unclaimed and that, after a
date specified in the notice, which shall not be less than thirty (30) days from
the date on which the notice was first mailed or published to the Holders of the
Notes as to which the money to be repaid was held in trust, any unclaimed
balance of such funds then remaining shall be paid to the Issuer free of the
trust formerly impressed upon it.
The Issuer initially authorizes the Indenture Trustee to act as Paying
Agent for the Notes on its behalf. The Issuer may at any time and from time to
time authorize one or more Persons (including the Indenture Trustee) to act as
Paying Agent in addition to or in place of the Indenture Trustee with respect to
any Series or Class of Notes issued under this Indenture.
Each Paying Agent shall at all times have a combined capital and surplus of
at least $50,000,000 and be subject to supervision or examination by a United
States federal or state authority or be regulated by or subject to the
supervision or examination of a governmental authority of a nation that is
member of the Organization for Economic Co-operation and Development. If such
Paying Agent publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Paying Agent shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition as so published.
Section 11.04. STATEMENT AS TO COMPLIANCE. The Issuer shall deliver to
the Indenture Trustee and the Rating Agencies, on or before April 30 of
each year, beginning in 2004, a written statement signed by an Issuer
Authorized Officer stating that:
(a) a review of the activities of the Issuer during the prior
year and of the Issuer's performance under this Indenture and under
the terms of the Notes has been made under such Issuer Authorized
Officer's supervision; and
(b) to the best of such Issuer Authorized Officer's
knowledge, based on such review, the Issuer has complied in all
material respects with all conditions and covenants under this
Indenture throughout such year, or, if there has been a default in the
fulfillment of any such condition or covenant (without regard to any
grace period or requirement of notice), specifying each such default
known to such Issuer Authorized Officer and the nature and status
thereof.
80 MASTER INDENTURE
Section 11.05. LEGAL EXISTENCE. The Issuer shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
legal existence.
Section 11.06. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Indenture Trustee, the Issuer shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
Section 11.07. COMPLIANCE WITH LAWS. The Issuer shall comply with the
requirements of all applicable laws, the noncompliance with which would,
individually or in the aggregate, materially and adversely affect the
ability of the Issuer to perform its obligations under the Notes or this
Indenture.
Section 11.08. NOTICE OF EVENTS OF DEFAULT. The Issuer agrees to give
the Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder and each default on the part of the Servicer or
the Transferor of their respective obligations under the Transfer and
Servicing Agreement and any default of an Enhancement Provider.
Section 11.09. CERTAIN NEGATIVE COVENANTS. The Issuer shall not:
(a) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts withheld in good faith from such payments under the Internal
Revenue Code or other applicable tax law);
(b) permit the validity or effectiveness of this Indenture to
be impaired, or permit the lien in favor of the Indenture Trustee, the
Noteholders and any applicable Enhancement Provider created by this
Indenture to be amended, hypothecated, subordinated, terminated or
discharged, or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture except as
may be expressly permitted hereby;
(c) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien in favor
of the Indenture Trustee, the Noteholders and any applicable
Enhancement Provider created by this Indenture) to be created on or
extend to or otherwise arise upon or burden the Collateral or any part
thereof or any interest therein or the proceeds thereof; or
(d) permit the lien in favor of the Indenture Trustee, the
Noteholders and any applicable Enhancement Provider created by this
Indenture not to constitute a valid first priority security interest
in the Collateral; or
(e) voluntarily dissolve or liquidate.
Section 11.10. NO OTHER BUSINESS. The Issuer shall not engage in any
business other than as permitted under the Trust Agreement.
81 MASTER INDENTURE
Section 11.11. NO BORROWING. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for
any indebtedness for borrowed money except for the Notes.
Section 11.12. RULE 144A INFORMATION. For so long as any of the Notes
of any Series or Class are "restricted securities" within the meaning of
Rule 144(a)(3) under the Securities Exchange Act, the Issuer agrees to
provide to any Noteholder of such Series or Class and to any prospective
purchaser of Notes designated by such Noteholder, upon the request of such
Noteholder or prospective purchaser, any information required to be
provided to such Holder or prospective purchaser to satisfy the conditions
set forth in Rule 144A(d)(4) under the Securities Exchange Act.
Section 11.13. PERFORMANCE OF OBLIGATIONS.
(a) The Issuer shall not take any action and shall use its
reasonable best efforts not to permit any action to be taken by others that
would release any Person from any of such Person's material covenants or
obligations under any instrument or agreement included in the Collateral or
that would result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of,
any such instrument or agreement, except as expressly provided in this
Indenture, the Trust Agreement or such other instrument or agreement.
(b) The Issuer shall punctually perform and observe all of
its obligations and agreements contained in this Indenture, any Indenture
Supplement, the Trust Agreement and in the instruments and agreements
relating to the Collateral, including but not limited to filing or causing
to be filed all UCC financing statements and continuation statements
required to be filed by the terms of this Indenture and the Trust Agreement
in accordance with and within the time periods provided for herein and
therein. Except as otherwise expressly provided herein or therein, the
Issuer shall not waive, amend, modify, supplement or terminate this
Indenture, any Indenture Supplement or the Trust Agreement or any provision
thereof without the consent of the Holders of a majority of the Outstanding
Amount of the Notes of each adversely affected Series or Class and, unless
notice to the Rating Agencies shall satisfy the obligations of the Issuer
with respect to such amendment under the applicable agreement, satisfaction
of the Rating Agency Condition with respect thereto.
(c) Without derogating from the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the
rights of the Indenture Trustee hereunder, the Issuer agrees (i) that it
shall not, without the prior written consent of the Indenture Trustee and a
majority in Outstanding Amount of the Notes of each affected Series or
Class and satisfaction of the Rating Agency Condition with respect thereto,
amend, modify, waive, supplement, terminate or surrender, or agree to any
amendment, modification, supplement, termination, waiver or surrender of,
the terms of any Collateral (except to the extent otherwise provided in
this Indenture or the Trust Agreement), or waive timely performance or
observance by the Servicer of its obligations under the Transfer and
Servicing Agreement; and (ii) that any such amendment, modification,
waiver, supplement, termination or surrender shall not (A) increase or
82 MASTER INDENTURE
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on the Receivables or distributions that are
required to be made for the benefit of the Noteholders or (B) reduce the
aforesaid percentage of the Notes that is required to consent to any such
amendment, modification, waiver, supplement, termination or surrender
without the consent of the Holders of all the Outstanding Notes. If any
such amendment, modification, waiver, supplement, termination or surrender
shall be so consented to by the Indenture Trustee and such Noteholders, the
Issuer agrees to execute and deliver, in its own name and at its own
expense, such agreements, instruments, consents and other documents as are
necessary or appropriate in the circumstances.
Section 11.14. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
(a) The Issuer shall not consolidate or merge with or into
any other Person, unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger (i) shall be a Person
organized and existing under the laws of the United States of
America or any state or the District of Columbia, (ii) shall not
be subject to regulation as an "investment company" under the
Investment Company Act and (iii) shall expressly assume, by an
Indenture Supplement, executed and delivered to the Indenture
Trustee, in a form satisfactory to the Indenture Trustee, the due
and punctual payment of the principal of and interest on all
Notes and the performance of every covenant of this Indenture on
the part of the Issuer to be performed or observed;
(ii) immediately after giving effect to such
transaction, no Event of Default or Early Amortization Event
shall have occurred and be continuing;
(iii) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each
stating that (i) such consolidation or merger and such Indenture
Supplement comply with this Section 11.14, (ii) all conditions
precedent in this Section 11.14 relating to such transaction have
been complied with (including any filing required by the
Securities Exchange Act), and (iii) such Indenture Supplement is
duly authorized, executed and delivered and is valid, binding and
enforceable against such person;
(iv) the Issuer shall have received written
confirmation from each Rating Agency that there shall be no
Ratings Effect with respect to any Outstanding Notes as a result
of such consolidation or merger;
(v) the Issuer shall have received an external Opinion
of Counsel (and shall have delivered copies thereof to the
Indenture Trustee) to the effect that such transaction shall not
have any material adverse tax consequence to any Noteholder;
83 MASTER INDENTURE
(vi) any action that is necessary to maintain the lien
and security interest created by this Indenture shall have been
taken; and
(vii) such action shall not be contrary to the status of
the Issuer as a qualified special purpose entity under existing
accounting literature.
(b) The Issuer shall not convey or transfer any of its
properties or assets, including those included in the Collateral,
substantially as an entirety to any Person, unless:
(i) the Person that acquires by conveyance or transfer
the properties and assets of the Issuer the conveyance or
transfer of which is hereby restricted shall (A) be a United
States citizen or a Person organized and existing under the laws
of the United States of America or any state, or the District of
Columbia, (B) expressly assume, by an Indenture Supplement,
executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed,
all as provided herein, (C) expressly agree by means of such
Indenture Supplement that all right, title and interest so
conveyed or transferred shall be subject and subordinate to the
rights of Holders of the Notes, (D) unless otherwise provided in
such Indenture Supplement, expressly agree to indemnify, defend
and hold harmless the Issuer against and from any loss, liability
or expense arising under or related to this Indenture and the
Notes, (E) expressly agree by means of such Indenture Supplement
that such Person (or if a group of Persons, then one specified
Person) shall make all filings with the Commission (and any other
appropriate Person) required by the Securities Exchange Act in
connection with the Notes and (F) not be an "investment company"
as defined in the Investment Company Act;
(ii) immediately after giving effect to such
transaction, no Event of Default or Early Amortization Event
shall have occurred and be continuing;
(iii) the Issuer shall have received written
confirmation from each Rating Agency that there shall be no
Ratings Effect with respect to any Outstanding Notes as a result
of such conveyance or transfer;
(iv) the Issuer shall have received an external Opinion
of Counsel (and shall have delivered copies thereof to the
Indenture Trustee) to the effect that such transaction shall not
have any material adverse tax consequence to any Noteholder;
(v) any action that is necessary to maintain the lien
and security interest created by this Indenture shall have been
taken; and
84 MASTER INDENTURE
(vi) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each
stating that such conveyance or transfer and such Indenture
Supplement comply with this Section 11.14 and that all conditions
precedent herein provided for relating to such transaction have
been complied with (including any filing required by the
Securities Exchange Act).
Section 11.15. SUCCESSOR SUBSTITUTED. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the
Issuer substantially as an entirety in accordance with Section 11.14
hereof, the Person formed by or surviving such consolidation or merger (if
other than the Issuer) or the Person to which such conveyance or transfer
is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Issuer under this Indenture with the same effect as
if such Person had been named as the Issuer herein. In the event of any
such conveyance or transfer, the Person named as the Issuer in the first
paragraph of this Indenture or any successor which shall theretofore have
become such in the manner prescribed in this Section 11.15 shall be
released from its obligations under this Indenture as issued immediately
upon the effectiveness of such conveyance or transfer, provided that the
Issuer shall not be released from any obligations or liabilities to the
Indenture Trustee or the Noteholders arising prior to such effectiveness.
Section 11.16. GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES.
Except as contemplated by this Indenture or the Trust Agreement, the Issuer
shall not make any loan or advance or credit to, or guarantee (directly or
indirectly or by an instrument having the effect of assuring another's
payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any
stock, obligations, assets or securities of, or any other interest in, or
make any capital contribution to, any other Person.
Section 11.17. CAPITAL EXPENDITURES. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).
Section 11.18. RESTRICTED PAYMENTS. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a
combination thereof, to the Owner Trustee or any owner of a beneficial
interest in the Issuer or otherwise with respect to any ownership or equity
interest or security in or of the Issuer or to the Servicer, (ii) redeem,
purchase, retire or otherwise acquire for value any such ownership or
equity interest or security or (iii) set aside or otherwise segregate any
amounts for any such purpose; provided, however, that the Issuer may make,
or cause to be made, (x) distributions as contemplated by, and to the
extent funds are available for such purpose under, the Trust Agreement and
(y) payments to the Indenture Trustee pursuant to Section 8.07 hereof. The
Issuer shall not, directly or indirectly, make payments to or distributions
from the
85 MASTER INDENTURE
Collection Account except in accordance with this Indenture or any
Indenture Supplement.
Section 11.19. PERFECTION REPRESENTATIONS AND WARRANTIES. Debtor
hereby makes the Perfection Representations and Warranties to the Secured
Party. For purposes of this SECTION 11.19 Debtor shall mean Issuer, Secured
Party shall mean Indenture Trustee, and Specified Agreement shall mean this
Agreement. The rights and remedies with respect to any breach of the
Perfection Representations and Warranties made under this SECTION 11.19
shall be continuing and shall survive any termination of the Specified
Agreement. Secured Party shall not waive a breach of any Perfection
Representation and Warranty. In order to evidence the interests of Debtor
and Secured Party under the Specified Agreement, the Debtor and Servicer
shall, from time to time take such action, and execute and deliver such
instruments (including, without limitation, such actions or filings as are
requested by the Secured Party and financing statements under the UCC as
enacted and then in effect in any other jurisdiction in which the Debtor is
organized, has its principal place of business or maintains any books,
records, files or other information concerning the Receivables) in order to
maintain and perfect, as a first priority interest, the Secured Party's
security interest in the Receivables. The Debtor hereby authorizes Servicer
to file financing statements under the UCC without the Debtor's signature
where allowed by applicable law.
ARTICLE XII
EARLY REDEMPTION OF NOTES
Section 12.01. APPLICABILITY OF ARTICLE. Unless otherwise specified in
the applicable Indenture Supplement related to a Series or Class of Notes,
pursuant to the terms of this Article, the Issuer shall pay, provided that
funds are available, Monthly Principal to Holders of each affected Series
or Class of Notes upon the occurrence of any Early Amortization Event. Upon
the occurrence of any Amortization Event, Issuer shall give the Rating
Agencies prompt written notice with respect thereto. Unless otherwise
specified in the applicable Indenture Supplement relating to a Series or
Class of Notes, or in the form of Notes for such Series or Class, the
following are "Early Amortization Events":
(a) the occurrence of an Insolvency Event relating to the
Transferor or an Originator;
(b) the Issuer or the Transferor becomes an investment
company within the meaning of the Investment Company Act; or
(c) with respect to any Series or Class of Notes, any
additional Early Amortization Event specified in the Indenture
Supplement for such Series or Class as applying to such Series or
Class.
On each Monthly Principal Accrual Date following the end of the Monthly
Period in which the Early Amortization Event occurs, Monthly Principal payments
on such Class of Notes shall thereafter be made on each following Monthly
Principal Accrual Date until the Outstanding
86 MASTER INDENTURE
Dollar Principal Amount of such Class, plus all accrued and unpaid interest, is
paid in full or the Legal Final Maturity Date occurs, whichever is earlier,
subject to Article V, Article VII and the allocations, deposits and payments
provisions of the related Indenture Supplement. Any funds in any Supplemental
Account for a redeemed Class shall be applied to make the principal and interest
payments on that Class on the redemption date, subject to Article V, Article VII
and the allocations, deposits and payments sections of the related Indenture
Supplement. Principal payments on redeemed Classes shall be made first to the
senior-most Notes until paid in full, then to the subordinated Notes, if any,
until paid in full.
Section 12.02. OPTIONAL REPURCHASE. Unless otherwise provided in the
applicable Indenture Supplement for a Series or Class of Notes, the
Servicer has the right, but not the obligation, to redeem a Series or Class
of Notes in whole but not in part on any day on or after the day on which
the Outstanding Dollar Principal Amount of such Series or Class is reduced
to less than 10% of its Initial Dollar Principal Amount; provided, however,
that if such Series or Class of Notes is of a subordinated Class, the
Servicer shall not redeem such Notes if the provisions of the related
Indenture Supplement would prevent the payment of such subordinated Note
until a level of prefunding of the principal funding sub-accounts for the
senior Classes of Notes for that Series has been reached such that the
amount of such deficiency in the required subordination of a senior Class
of Notes is no longer required to provide subordination protection for the
senior Classes of that Series. If the Servicer elects to redeem a Series or
Class of Notes, it shall cause the Issuer to notify the Holders of such
redemption at least thirty (30) days prior to the redemption date. The
redemption price of a Series or Class so redeemed shall equal the
Outstanding Dollar Principal Amount of such Class, plus interest accrued
and unpaid or principal accreted and unpaid on such Class to but excluding
the date of redemption, the payment of which shall be subject to Article V,
Article VII and the allocations, deposits and payments provisions of the
related Indenture Supplement.
If the Servicer is unable to pay the redemption price in full on the
redemption date, monthly payments on such Class of Notes shall thereafter be
made until the Outstanding Dollar Principal Amount of such Class, plus all
accrued and unpaid interest, is paid in full or the Legal Final Maturity Date
occurs, whichever is earlier, subject to Article V, Article VII and the
allocations, deposits and payments provisions of the related Indenture
Supplement. Any funds in any Supplemental Account for a redeemed Class shall be
applied to make the principal and interest payments on that Class on the
redemption date in accordance with the related Indenture Supplement. Principal
payments on redeemed Classes shall be made in accordance with the related
Indenture Supplement.
Section 12.03. NOTICE. Promptly after the occurrence of a redemption
pursuant to Section 12.02, the Issuer shall notify the Indenture Trustee
and the Rating Agencies in writing of the identity, Stated Principal Amount
and Outstanding Dollar Principal Amount of the affected Series or Class of
Notes to be redeemed. Notice of redemption shall promptly be given as
provided in Section 1.06. All notices of redemption shall state (a) the
date on which the redemption of the applicable Series or Class of Notes
pursuant to this Article shall begin, which shall be the Principal Payment
Date next following the end of the Monthly Period in which the applicable
redemption pursuant to Section 12.02 occurs, (b) the redemption price for
such Series or Class of Notes, which shall be equal to
87 MASTER INDENTURE
the Outstanding Dollar Principal Amount of such Series or Class plus
interest accrued or principal accreted and unpaid (if any), the payment of
which shall be subject to Article V, Article VII and the allocations,
deposits and payments provisions of the related Indenture Supplement and
(c) the Series or Class of Notes to be redeemed pursuant to this Article.
ARTICLE XIII
COLLATERAL
Section 13.01. RECORDING, ETC.
(a) The Issuer intends the Security Interest granted pursuant
to this Indenture in favor of the Indenture Trustee to be prior to all
other liens in respect of the Collateral. Subject to Section 13.03, the
Issuer shall take all actions necessary to obtain and maintain a perfected
lien on and security interest in the Collateral in favor of the Indenture
Trustee. The Issuer shall from time to time execute or authorize and
deliver all such supplements and amendments hereto and all such financing
statements, continuation statements, instruments of further assurance and
other instruments, all as prepared by the Issuer, and shall take such other
action necessary or advisable to:
(i) grant a Security Interest more effectively in all or any
portion of the Collateral;
(ii) maintain or preserve the Security Interest (and the
priority thereof) created by this Indenture or carry out more
effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity of any
grant made or to be made by this Indenture;
(iv) enforce the Enhancement Agreements and each other
instrument or agreement included in the Collateral;
(v) preserve and defend title to the Collateral and the
rights of the Indenture Trustee in such Collateral against the claims
of all persons and parties; or
(vi) pay all taxes or assessments levied or assessed upon the
Collateral when due.
(b) The Issuer shall from time to time promptly pay and
discharge all financing and continuation statement recording and/or filing
fees, charges and taxes relating to this Indenture, any amendments thereto
and any other instruments of further assurance. The Issuer hereby
designates the Indenture Trustee its agent and attorney- in-fact to execute
upon the Issuer's failure to do so, any financing statement, continuation
statement or other instrument required by the Indenture Trustee pursuant to
this Section.
(c) Without limiting the generality of clauses (a)(ii) or
(a)(iii):
88 MASTER INDENTURE
(i) The Issuer shall cause this Indenture, all amendments and
supplements hereto and/or all financing statements and continuation
statements and any other necessary documents covering the Indenture
Trustee's right, title and interest to the Collateral to be promptly
recorded, registered and filed, and at all times to be kept, recorded,
registered and filed, all in such manner and in such places as may be
required by law fully to preserve and protect the right, title and
interest of the Indenture Trustee to all property comprising the
Collateral. The Issuer shall deliver to the Indenture Trustee
file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following
such recording, registration or filing.
(ii) Within 30 days after the Issuer makes any change in its
name, identity or corporate structure which would make any financing
statement or continuation statement filed in accordance with paragraph
(d)(i) seriously misleading within the meaning of Section 9-506, 9-507
or 9-508 (or any comparable provision) of the UCC, the Issuer shall
give the Indenture Trustee notice of any such change and shall file
such financing statements or amendments as may be necessary to
continue the perfection of the Indenture Trustee's security interest
in the Collateral.
(iii) The Issuer shall give the Indenture Trustee prompt notice
of any relocation of its chief executive office, place of business or
State of location, and any change in the jurisdiction of its
organization, and whether, as a result of such relocation or change,
the applicable provision of the UCC would require the filing of any
amendment of any previously filed financing or continuation statement
or of any new financing statement and shall file such financing
statements or amendments as may be necessary to perfect or to continue
the perfection of the Indenture Trustee's security interest in the
Collateral. The Issuer shall at all times maintain its chief executive
office within the United States.
(b) The duty of the Indenture Trustee to execute any
instrument required pursuant to this Section shall arise only if the
Indenture Trustee has knowledge of the type described in Section
7.01(c) of any default of the Issuer in complying with the provisions
of this Section.
Section 13.02. TRUST INDENTURE ACT REQUIREMENTS. The release of any
Collateral from the lien created by this Indenture or the release of, in
whole or in part, such liens, shall not be deemed to impair the Security
Interests in contravention of the provisions hereof if and to the extent
the Collateral or liens are released pursuant to the terms hereof. The
Indenture Trustee and each of the Noteholders and any applicable
Enhancement Provider acknowledge that a release of Collateral or liens in
accordance with the terms hereof shall not be deemed for any purpose to be
an impairment of the Security Interests in contravention of the terms of
this Indenture. To the extent applicable, without limitation, the Issuer
and each other obligor on the Notes shall cause Trust Indenture Act Section
314(d) relating to the release of property or securities from the liens
hereof to be complied with. Any certificate or opinion required by Trust
Indenture Act Section 314(d) may be made by an officer of the appropriate
obligor, except in cases in which Trust
89 MASTER INDENTURE
Indenture Act Section 314(d) requires that such certificate or opinion be
made by an independent person.
Section 13.03. SUITS TO PROTECT THE COLLATERAL. Subject to the
provisions of this Indenture, the Indenture Trustee shall have power to
institute and to maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts which may
be unlawful or in violation of this Indenture, and such suits and
proceedings as the Indenture Trustee may deem expedient to preserve or
protect the interests of the Noteholders and any applicable Enhancement
Provider and the interests of the Indenture Trustee and the Holders of the
Notes in the Collateral (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the Security Interests or
be prejudicial to the interests of the Holders of the Notes or the
Indenture Trustee). No counterparties to an Enhancement Agreement may
direct the Indenture Trustee to enforce the Security Interest. Each
Enhancement Provider's rights consist solely of the right to receive
collections allocated for its benefit pursuant to the related Indenture
Supplement.
Section 13.04. PURCHASER PROTECTED. In no event shall any purchaser in
good faith of any property purported to be released hereunder be bound to
ascertain the authority of the Indenture Trustee to execute the release or
to inquire as to the satisfaction of any conditions required by the
provisions hereof for the exercise of such authority or to see to the
application of any consideration given by such purchaser or other
transferee; nor shall any purchaser or other transferee of any property or
rights permitted by this Article to be sold be under any obligation to
ascertain or inquire into the authority of the Issuer or any other obligor,
as applicable, to make any such sale or other transfer.
Section 13.05. POWERS EXERCISABLE BY RECEIVER OR TRUSTEE. In case the
Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article upon the Issuer or any
other obligor, as applicable, with respect to the release, sale or other
disposition of such property may be exercised by such receiver or trustee,
and an instrument signed by such receiver or trustee shall be deemed the
equivalent of any similar instrument of the Issuer or any other obligor, as
applicable, or of any officer or officers thereof required by the
provisions of this Article.
Section 13.06. DETERMINATIONS RELATING TO COLLATERAL. In the event (i)
the Indenture Trustee shall receive any written request from the Issuer or
any other obligor for consent or approval with respect to any matter or
thing relating to any Collateral or the Issuer's or any other obligor's
obligations with respect thereto or (ii) there shall be due to or from the
Indenture Trustee under the provisions hereof any performance or the
delivery of any instrument or (iii) the Indenture Trustee shall become
aware of any nonperformance by the Issuer or any other obligor of any
covenant or any breach of any representation or warranty of the Issuer or
any other obligor set forth in this Indenture, then, in each such event,
the Indenture Trustee shall be entitled to hire experts, consultants,
agents and attorneys to advise the Indenture Trustee on the manner in which
the Indenture Trustee should respond to such request or render any
requested
90 MASTER INDENTURE
performance or response to such nonperformance or breach (the expenses of
which shall be reimbursed to the Indenture Trustee pursuant to Section
8.07). The Indenture Trustee shall be fully protected in the taking of any
action recommended or approved by any such expert, consultant, agent or
attorney or agreed to by the Majority Holders of the Outstanding Notes.
Section 13.07. RELEASE OF COLLATERAL.
(a) Subject to the payment of its fees and expenses pursuant
to Section 8.07, the Indenture Trustee shall, at the request of the Issuer
or when otherwise required by the provisions of this Indenture, execute
instruments to release property from the lien of this Indenture, or convey
the Indenture Trustee's interest in the same, in a manner and under
circumstances which are not inconsistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Indenture
Trustee as provided in this Article shall be bound to ascertain the
Indenture Trustee's authority, inquire into the satisfaction of any
conditions precedent or see to the application of any funds.
(b) Upon delivery of an Officer's Certificate certifying that
the Issuer's obligations under this Indenture have been satisfied and
discharged by complying with the provisions of this Article, the Indenture
Trustee shall (i) execute and deliver such releases, termination statements
and other instruments (in recordable form, where appropriate) as the Issuer
or any other obligor, as applicable, may reasonably request evidencing the
termination of the Security Interests created by this Indenture and (ii)
not to be deemed to hold the Security Interests for the benefit of the
Indenture Trustee, the Noteholders and any applicable Enhancement Provider.
(c) CWRI and the Noteholders shall be entitled to receive at
least ten (10) days written notice of any action pursuant to clause (a),
accompanied by copies of any instruments involved, and the Indenture
Trustee shall also be entitled to require, as a condition to such action,
an Opinion of Counsel, stating the legal effect of any such action,
outlining the steps required to complete the same, and concluding that all
conditions precedent to the taking of such action have been complied with.
Counsel rendering any such opinion may rely, without independent
investigation, on the accuracy and validity of any certificate or other
instrument delivered to the Indenture Trustee in connection with any such
action.
Section 13.08. CERTAIN ACTIONS BY INDENTURE TRUSTEE. Any action taken
by the Indenture Trustee pursuant to this Article in respect of the release
of Collateral shall be taken by the Indenture Trustee as its interest in
such Collateral may appear, and no provision of this Article is intended
to, or shall, excuse compliance with any provision hereof.
Section 13.09. OPINIONS AS TO COLLATERAL.
(a) On the Effective Date, the Issuer shall furnish to the
Indenture Trustee an Opinion of Counsel either stating that, in the opinion
of such counsel, such action has been taken with respect to the recording
and filing of this Indenture, any
91 MASTER INDENTURE
indentures supplemental hereto, and any other requisite documents, and with
respect to the filing of any financing statements and continuation
statements, as are necessary to perfect and maintain the perfection of the
Security Interest granted by this Indenture in favor of the Indenture
Trustee and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such lien and
security interest perfected.
(b) On or before March 31 in each calendar year, beginning in
2004, the Issuer shall furnish to the Indenture Trustee an external Opinion
of Counsel with respect to each Uniform Commercial Code financing statement
which has been filed by the Issuer either stating that, (i) in the opinion
of such counsel, such action has been taken with respect to the recording,
filing, re-recording and refilling of this Indenture, any indentures
supplemental hereto and any other requisite documents and with respect to
the execution and filing of any financing statements and continuation
statements as is necessary to maintain the first priority lien and Security
Interest created by this Indenture and reciting the details of such action
or (ii) in the opinion of such counsel no such action is necessary to
maintain such lien and Security Interest. Such Opinion of Counsel shall
also describe the recording, filing, re-recording and refilling of this
Indenture, any indentures supplemental hereto and any other requisite
documents and the execution and filing of any financing statements and
continuation statements that shall, in the opinion of such counsel, be
required to maintain the lien and Security Interest of this Indenture until
March 31 in the following calendar year.
Section 13.10. DELEGATION OF DUTIES. The Issuer may contract with or
appoint other Persons (including CWRI and its Affiliates) to assist it in
performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Indenture Trustee in an Officer's
Certificate shall be deemed to be action taken by the Issuer.
ARTICLE XIV
MISCELLANEOUS
Section 14.01. NO PETITION. The Indenture Trustee, by entering into
this Indenture, each Enhancement Provider, by designating that the
obligations of the Issuer pursuant to the applicable Enhancement Agreement,
as applicable are secured by the Collateral, and each Noteholder, by
accepting a Note, agrees that it shall not at any time institute against
CWRI or the Issuer, or join in any institution against CWRI or the Issuer
of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to
the Notes, this Indenture or any Enhancement Agreement.
Section 14.02. TRUST OBLIGATIONS. No recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer on the Notes
or under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against (i) the Owner Trustee in its
individual capacity, (ii) any owner of a
92 MASTER INDENTURE
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director, employee or agent of the Owner Trustee in its
individual capacity, any holder of a beneficial interest in the Issuer or
the Owner Trustee or of any successor or assign of the Owner Trustee in its
individual capacity, except as any such Person may have expressly agreed
(it being understood that the Owner Trustee has no such obligations in its
individual capacity).
Section 14.03. LIMITATIONS ON LIABILITY.
(a) It is expressly understood and agreed by the parties
hereto that (i) this Indenture is executed and delivered by the Owner
Trustee not individually or personally but solely as Owner Trustee, in the
exercise of the powers and authority conferred and vested in it, (ii) each
of the representations, undertakings and agreements herein made on the part
of the Issuer is made and intended not as a personal representation,
undertaking or agreement by the Owner Trustee but is made and intended for
the purpose of binding only the Issuer, (iii) nothing herein contained
shall be construed as creating any liability on the Owner Trustee
individually or personally, to perform any covenant of the Issuer either
expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties to this Indenture and by any Person
claiming by, through or under them and (iv) under no circumstances shall
the Owner Trustee be personally liable for the payment of any indebtedness
or expenses of the Issuer or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
Issuer under this Indenture or any related documents.
(b) None of the Indenture Trustee, the Owner Trustee, CWRI or
any other beneficiary of the Issuer or any of their respective officers,
directors, employers or agents shall have any liability with respect to
this Indenture, and recourse may be had solely to the Collateral pledged to
secure the Notes issued by the Issuer.
Section 14.04. TAX TREATMENT. The Issuer and the Noteholders agree
that the Notes are intended to be debt of the Issuer for federal, state and
local income, franchise and single business tax purposes and agree to treat
the Notes accordingly for all such purposes, unless otherwise required by a
taxing authority.
Section 14.05. ACTIONS TAKEN BY THE ISSUER. Any and all actions that
are to be taken by the Issuer may be taken by either the Beneficiary or the
Owner Trustee on behalf of the Issuer.
Section 14.06. TERMINATION OF ISSUER. The Issuer and the respective
obligations and responsibilities of the Indenture Trustee created hereby
(other than the obligation of the Indenture Trustee to make payments to
Noteholders as hereinafter set forth) shall terminate, except with respect
to the duties described in Section 14.08(b), as provided in the Trust
Agreement.
Section 14.07. FINAL DISTRIBUTION.
93 MASTER INDENTURE
(a) The Servicer shall give the Indenture Trustee at least
thirty (30) days prior written notice of the Payment Date on which the
Noteholders of any Series or Class may surrender their Notes for payment of
the final distribution on and cancellation of such Notes. Not later than
the fifth day of the month in which the final distribution in respect of
such Series or Class is payable to Noteholders, the Indenture Trustee shall
provide notice to Noteholders of such Series or Class specifying (i) the
date upon which final payment of such Series or Class shall be made upon
presentation and surrender of Notes of such Series or Class at the office
or offices therein designated, (ii) the amount of any such final payment
and (iii) that the Record Date otherwise applicable to such payment date is
not applicable, payments being made only upon presentation and surrender of
such Notes at the office or offices therein specified (which, in the case
of Bearer Notes, shall be outside the United States). The Indenture Trustee
shall give such notice to the Note Registrar and the Paying Agent at the
time such notice is given to Noteholders.
(b) Notwithstanding a final distribution to the Noteholders
of any Series or Class (or the termination of the Issuer), except as
otherwise provided in this paragraph, all funds then on deposit in any
Account allocated to such Noteholders shall continue to be held in trust
for the benefit of such Noteholders, and the Paying Agent or the Indenture
Trustee shall pay such funds to such Noteholders upon surrender of their
Notes, if certificated. In the event that all such Noteholders shall not
surrender their Notes for cancellation within six (6) months after the date
specified in the notice from the Indenture Trustee described in paragraph
(a), the Indenture Trustee shall give a second notice to the remaining such
Noteholders to surrender their Notes for cancellation and receive the final
distribution with respect thereto (which surrender and payment, in the case
of Bearer Notes, shall be outside the United States). If within one year
after the second notice all such Notes shall not have been surrendered for
cancellation, the Indenture Trustee may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining such
Noteholders concerning surrender of their Notes, and the cost thereof shall
be paid out of the funds in the Collection Account or any Supplemental
Account held for the benefit of such Noteholders. The Indenture Trustee and
the Paying Agent shall pay to the Issuer any monies held by them for the
payment of principal or interest that remains unclaimed for two (2) years.
After payment to the Issuer, Noteholders entitled to the money must look to
the Issuer for payment as general creditors unless an applicable abandoned
property law designates another Person.
Section 14.08. TERMINATION DISTRIBUTIONS. Upon the termination of the
Issuer pursuant to the terms of the Trust Agreement, the Indenture Trustee
shall release, assign and convey to the Beneficiary or any of its
designees, without recourse, representation or warranty, all of its right,
title and interest in the Collateral, whether then existing or thereafter
created, all monies due or to become due and all amounts received or
receivable with respect thereto (including all moneys then held in any
Account) and all proceeds thereof, except for amounts held by the Indenture
Trustee pursuant to Section 14.08(b). The Indenture Trustee shall execute
and deliver such instruments of transfer and assignment as shall be
provided to it, in each case without recourse, as shall be reasonably
requested by the Beneficiary to vest in the Beneficiary or any of its
designees
94 MASTER INDENTURE
all right, title and interest which the Indenture Trustee had in the
Collateral and such other property.
Section 14.09. ENHANCEMENT PROVIDER AS THIRD-PARTY BENEFICIARY. Each
Enhancement Provider is a third-party beneficiary of this Indenture to the
extent specified in the applicable Enhancement Agreement or Indenture
Supplement.
95 MASTER INDENTURE
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
CNH WHOLESALE MASTER NOTE TRUST, by
The Bank of New York, as Owner Trustee
By: /s/ Xxx Xxxxxx
------------------------------------
Name: Xxx Xxxxxx
Title: Assistant Treasurer
JPMORGAN CHASE BANK, as Indenture Trustee
and not in its
individual capacity
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Trust Officer
Acknowledged and Accepted:
CASE CREDIT CORPORATION,
as Servicer
By: /s/ Xxxxx X'Xxxxx
-------------------------------
Name: Xxxxx X'Xxxxx
Title: Assistant Treasurer
96 MASTER INDENTURE
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION ....................3
Section 1.01. Definitions .........................................................3
Section 1.02. Compliance Certificates and Opinions ...............................21
Section 1.03. Form of Documents Delivered to Indenture Trustee ...................21
Section 1.04. Acts of Noteholders ................................................22
Section 1.05. Notices, etc., to Indenture Trustee and Issuer .....................23
Section 1.06. Notices to Noteholders; Waiver .....................................23
Section 1.07. Conflict with Trust Indenture Act ..................................24
Section 1.08. Effect of Headings and Table of Contents ...........................25
Section 1.09. Successors and Assigns .............................................25
Section 1.10. Separability .......................................................25
Section 1.11. Benefits of Indenture ..............................................25
Section 1.12. Governing Law ......................................................25
Section 1.13. Counterparts .......................................................25
Section 1.14. Indenture Referred to in the Trust Agreement .......................25
ARTICLE II NOTE FORMS ................................................................25
Section 2.01. Forms Generally ....................................................25
Section 2.02. Forms of Notes .....................................................26
Section 2.03. Form of Indenture Trustee's Certificate of Authentication ..........26
Section 2.04. Notes Issuable in the Form of a Global Note ........................26
Section 2.05. Temporary Global Notes and Permanent Global Notes ..................29
Section 2.06. Beneficial Ownership of Global Notes ...............................30
Section 2.07. Notices to Depository ..............................................31
ARTICLE III THE NOTES .................................................................31
Section 3.01. General Title; General Limitations; Issuable in Series;
Terms of a Series or Class .........................................31
Section 3.02. Denominations ......................................................34
Section 3.03. Execution, Authentication and Delivery and Dating ..................34
Section 3.04. Temporary Notes ....................................................35
Section 3.05. Registration, Transfer and Exchange ................................35
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PAGE
Section 3.06. Mutilated, Destroyed, Lost and Stolen Notes ........................38
Section 3.07. Payment of Interest; Interest Rights Preserved .....................39
Section 3.08. Persons Deemed Owners ..............................................39
Section 3.09. Cancellation .......................................................39
Section 3.10. New Issuances of Notes .............................................39
Section 3.11. Specification of Required Subordinated Amount and other
Terms with Respect to each Class ...................................41
Section 3.12. Reallocation of Available Interest Amounts .........................41
Section 3.13. Excess Available Interest Amounts Sharing ..........................41
Section 3.14. Excess Available Principal Amounts Sharing .........................42
Section 3.15. Excess Funding Amounts .............................................42
ARTICLE IV ACCOUNTS AND INVESTMENTS ..................................................42
Section 4.01. Collections ........................................................42
Section 4.02. Accounts ...........................................................42
Section 4.03. Investment of Funds in the Accounts ................................44
ARTICLE V ALLOCATIONS, DEPOSITS AND PAYMENTS ........................................46
Section 5.01. Allocations of Available Interest Amounts ..........................46
Section 5.02. Allocations of Available Principal Amounts .........................46
Section 5.03. Allocations of Investor Default Amounts ............................46
Section 5.04. Allocations of Investor Uncovered Dilution Amounts .................46
Section 5.05. Allocations to the Excess Funding Account and the Transferor .......46
Section 5.06. Final Payment ......................................................47
Section 5.07. Payments within a Series or Class ..................................47
ARTICLE VI SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES HELD BY THE
ISSUER OR CWRI ............................................................47
Section 6.01. Satisfaction and Discharge of Indenture ............................47
Section 6.02. Application of Trust Money .........................................48
Section 6.03. Cancellation of Notes Held by the Issuer or CWRI ...................48
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES ............................................48
Section 7.01. Events of Default ..................................................48
Section 7.02. Acceleration of Maturity; Rescission and Annulment .................50
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Section 7.03. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee ..................................................51
Section 7.04. Indenture Trustee May File Proofs of Claim .........................52
Section 7.05. Indenture Trustee May Enforce Claims Without Possession of
Notes ..............................................................52
Section 7.06. Application of Money Collected .....................................53
Section 7.07. Indenture Trustee May Elect to Hold the Collateral .................53
Section 7.08. Sale of Receivables for Accelerated Notes ..........................53
Section 7.09. Noteholders Have the Right to Direct the Time, Method and
Place of Conducting Any Proceeding for Any Remedy
Available to the Indenture Trustee .................................54
Section 7.10. Limitation on Suits ................................................55
Section 7.11. Unconditional Right of Noteholders to Receive Principal and
Interest; Limited Recourse .........................................55
Section 7.12. Restoration of Rights and Remedies .................................56
Section 7.13. Rights and Remedies Cumulative .....................................56
Section 7.14. Delay or Omission Not Waiver .......................................56
Section 7.15. Control by Noteholders .............................................56
Section 7.16. Waiver of Past Defaults ............................................56
Section 7.17. Undertaking for Costs ..............................................57
Section 7.18. Waiver of Stay or Extension Laws ...................................57
ARTICLE VIII THE INDENTURE TRUSTEE .....................................................58
Section 8.01. Certain Duties and Responsibilities ................................58
Section 8.02. Notice of Defaults .................................................59
Section 8.03. Certain Rights of Indenture Trustee ................................59
Section 8.04. Not Responsible for Recitals or Issuance of Notes ..................60
Section 8.05. May Hold Notes .....................................................61
Section 8.06. Money Held in Trust ................................................61
Section 8.07. Compensation and Reimbursement, Limit on Compensation,
Reimbursement and Indemnity ........................................61
Section 8.08. Disqualification; Conflicting Interests ............................62
Section 8.09. Corporate Indenture Trustee Required; Eligibility ..................62
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Section 8.10. Resignation and Removal; Appointment of Successor ..................62
Section 8.11. Acceptance of Appointment by Successor .............................64
Section 8.12. Merger, Conversion, Consolidation or Succession to Business ........64
Section 8.13. Preferential Collection of Claims Against Issuer ...................65
Section 8.14. Appointment of Authenticating Agent ................................65
Section 8.15. Tax Returns ........................................................66
Section 8.16. Representations and Covenants of the Indenture Trustee .............67
Section 8.17. Custody of the Collateral ..........................................67
Section 8.18. Indenture Trustee's Application for Instructions from the
Issuer .............................................................68
ARTICLE IX NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY INDENTURE TRUSTEE,
ISSUER AND BENEFICIARY ....................................................68
Section 9.01. Issuer To Furnish Indenture Trustee Names and Addresses of
Noteholders ........................................................68
Section 9.02. Preservation of Information; Communications to Noteholders .........68
Section 9.03. Reports by Indenture Trustee .......................................70
Section 9.04. Meetings of Noteholders; Amendments and Waivers ....................70
Section 9.05. Reports by Issuer to the Commission ................................71
Section 9.06. Reports by Indenture Trustee .......................................72
Section 9.07. Monthly Noteholders' Statement .....................................72
ARTICLE X INDENTURE SUPPLEMENTS; AMENDMENTS TO THE TRANSFER AND SERVICING
AGREEMENT AND AMENDMENTS TO THE TRUST AGREEMENT ...........................72
Section 10.01. Supplemental Indentures Without Consent of Noteholders .............72
Section 10.02. Supplemental Indentures with Consent of Noteholders ................74
Section 10.03. Execution of Indenture Supplements .................................75
Section 10.04. Effect of Indenture Supplements ....................................76
Section 10.05. Conformity with Trust Indenture Act ................................76
Section 10.06. Reference in Notes to Indenture Supplements ........................76
Section 10.07. Amendments to the Transfer and Servicing Agreement .................76
Section 10.08. Amendments to the Trust Agreement ..................................77
ARTICLE XI REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER .......................78
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Section 11.01. Payment of Principal and Interest ..................................78
Section 11.02. Maintenance of Office or Agency ....................................78
Section 11.03. Money for Note Payments to be Held in Trust ........................78
Section 11.04. Statement as to Compliance .........................................80
Section 11.05. Legal Existence ....................................................80
Section 11.06. Further Instruments and Acts .......................................80
Section 11.07. Compliance with Laws ...............................................81
Section 11.08. Notice of Events of Default ........................................81
Section 11.09. Certain Negative Covenants .........................................81
Section 11.10. No Other Business ..................................................81
Section 11.11. No Borrowing .......................................................81
Section 11.12. Rule 144A Information ..............................................82
Section 11.13. Performance of Obligations .........................................82
Section 11.14. Issuer May Consolidate, Etc., Only on Certain Terms ................83
Section 11.15. Successor Substituted ..............................................85
Section 11.16. Guarantees, Loans, Advances and Other Liabilities ..................85
Section 11.17. Capital Expenditures ...............................................85
Section 11.18. Restricted Payments ................................................85
Section 11.19. Perfection Representations and Warranties ..........................86
ARTICLE XII EARLY REDEMPTION OF NOTES .................................................86
Section 12.01. Applicability of Article ...........................................86
Section 12.02. Optional Repurchase ................................................87
Section 12.03. Notice .............................................................87
ARTICLE XIII COLLATERAL ................................................................88
Section 13.01. Recording, Etc .....................................................88
Section 13.02. Trust Indenture Act Requirements ...................................89
Section 13.03. Suits To Protect the Collateral ....................................90
Section 13.04. Purchaser Protected ................................................90
Section 13.05. Powers Exercisable by Receiver or Trustee ..........................90
Section 13.06. Determinations Relating to Collateral ..............................90
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Section 13.07. Release of Collateral ..............................................91
Section 13.08. Certain Actions by Indenture Trustee ...............................91
Section 13.09. Opinions as to Collateral ..........................................91
Section 13.10. Delegation of Duties ...............................................92
ARTICLE XIV MISCELLANEOUS .............................................................92
Section 14.01. No Petition ........................................................92
Section 14.02. Trust Obligations ..................................................92
Section 14.03. Limitations on Liability ...........................................93
Section 14.04. Tax Treatment ......................................................93
Section 14.05. Actions Taken by the Issuer ........................................93
Section 14.06. Termination of Issuer ..............................................93
Section 14.07. Final Distribution .................................................93
Section 14.08. Termination Distributions ..........................................94
Section 14.09. Enhancement Provider as Third-Party Beneficiary ....................95
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