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CHASE MANHATTAN MARINE OWNER TRUST 1997-A
Class A-1 [____]% Asset Backed Notes
Class A-2 [____]% Asset Backed Notes
Class A-3 [____]% Asset Backed Notes
Class A-4 [____]% Asset Backed Notes
Class A-5 [_____]% Asset Backed Notes
Class A-6 [_____]% Asset Backed Notes
Class B [____]% Asset Backed Notes
Class C [____]% Asset Backed Notes
INDENTURE
Dated as of October 1, 1997
Norwest Bank Minnesota, National Association
as Indenture Trustee
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.................................................. 2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act............ 2
SECTION 1.3 Usage of Terms............................................... 3
SECTION 1.4 Calculations of Interest..................................... 3
ARTICLE II
THE NOTES
SECTION 2.1 Form......................................................... 3
SECTION 2.2 Execution, Authentication and Delivery....................... 4
SECTION 2.3 Temporary Notes.............................................. 4
SECTION 2.4 Registration of Transfer and Exchange........................ 5
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes................... 7
SECTION 2.6 Persons Deemed Owner......................................... 8
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest........ 8
SECTION 2.8 Cancellation................................................. 9
SECTION 2.9 Release of Collateral........................................ 10
SECTION 2.10 Book-Entry Notes............................................. 10
SECTION 2.11 Notices to Clearing Agency................................... 11
SECTION 2.12 Definitive Notes............................................. 11
SECTION 2.13 Authenticating Agent......................................... 12
SECTION 2.14 Appointment of Paying Agent.................................. 13
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest............................ 15
SECTION 3.2 Maintenance of Office or Agency.............................. 15
SECTION 3.3 Money for Payments To Be Held in Trust....................... 15
SECTION 3.4 Existence.................................................... 16
SECTION 3.5 Protection of Trust Estate................................... 17
SECTION 3.6 Opinions as to Trust Estate.................................. 17
SECTION 3.7 Performance of Obligations; Servicing of Receivables......... 18
SECTION 3.8 Negative Covenants........................................... 19
SECTION 3.9 Annual Statement as to Compliance............................ 20
SECTION 3.10 The Issuer May Consolidate, Etc. Only on Certain Terms....... 20
SECTION 3.11 Successor or Transferee...................................... 22
SECTION 3.12 No Other Business............................................ 22
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SECTION 3.13 No Borrowing................................................. 22
SECTION 3.14 Servicer's Obligations....................................... 22
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities............ 22
SECTION 3.16 Capital Expenditures......................................... 23
SECTION 3.17 Restricted Payments.......................................... 23
SECTION 3.18 Notice of Events of Default.................................. 23
SECTION 3.19 Further Instruments and Acts................................. 23
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture...................... 23
SECTION 4.2 Application of Trust Money................................... 25
SECTION 4.3 Repayment of Moneys Held by Paying Agent..................... 25
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default............................................ 25
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment........... 26
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by the Indenture Trustee................................... 26
SECTION 5.4 Remedies; Priorities......................................... 29
SECTION 5.5 Optional Preservation of the Receivables..................... 30
SECTION 5.6 Limitation of Suits.......................................... 30
SECTION 5.7 Unconditional Rights of Noteholders to Receive
Principal and Interest..................................... 31
SECTION 5.8 Restoration of Rights and Remedies........................... 31
SECTION 5.9 Rights and Remedies Cumulative............................... 31
SECTION 5.10 Delay or Omission Not a Waiver............................... 32
SECTION 5.11 Controlling Noteholders...................................... 32
SECTION 5.12 Waiver of Past Defaults...................................... 32
SECTION 5.13 Undertaking for Costs........................................ 33
SECTION 5.14 Waiver of Stay or Extension Laws............................. 33
SECTION 5.15 Action on Notes.............................................. 34
SECTION 5.16 Performance and Enforcement of Certain Obligations........... 34
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of the Indenture Trustee.............................. 34
SECTION 6.2 Rights of the Indenture Trustee.............................. 36
SECTION 6.3 Individual Rights of the Indenture Trustee................... 37
SECTION 6.4 The Indenture Trustee's Disclaimer........................... 38
SECTION 6.5 Notice of Defaults........................................... 38
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SECTION 6.6 Reports by the Indenture Trustee to Holders.................. 38
SECTION 6.7 Compensation and Indemnity................................... 38
SECTION 6.8 Replacement of the Indenture Trustee......................... 39
SECTION 6.9 Successor Indenture Trustee by Xxxxxx........................ 40
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee.......................................... 40
SECTION 6.11 Eligibility; Disqualification................................ 42
SECTION 6.12 Preferential Collection of Claims Against the Issuer......... 43
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 The Issuer To Furnish the Indenture Trustee Names and
Addresses of the Noteholders............................... 44
SECTION 7.2 Preservation of Information; Communications to the
Noteholders................................................ 44
SECTION 7.3 Reports by the Issuer........................................ 44
SECTION 7.4 Reports by the Indenture Trustee............................. 44
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money.......................................... 45
SECTION 8.2 Accounts..................................................... 45
SECTION 8.3 General Provisions Regarding Accounts........................ 47
SECTION 8.4 Release of Trust Estate...................................... 48
SECTION 8.5 Opinion of Counsel........................................... 48
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders....... 49
SECTION 9.2 Supplemental Indentures with Consent of the Noteholders...... 50
SECTION 9.3 Effect of Supplemental Indenture............................. 52
SECTION 9.4 Conformity with Trust Indenture Act.......................... 52
SECTION 9.5 Reference in Notes to Supplemental Indentures................ 52
SECTION 9.6 Execution of Supplemental Indentures......................... 52
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption.................................................. 53
SECTION 10.2 Form of Redemption Notice................................... 53
SECTION 10.3 Notes Payable on Redemption Date............................ 53
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc.................... 54
SECTION 11.2 Form of Documents Delivered to the Indenture Trustee......... 56
SECTION 11.3 Actions of Noteholders....................................... 57
SECTION 11.4 Notices, etc., to the Indenture Trustee, the Issuer, and
Rating Agencies............................................ 57
SECTION 11.5 Notices to Noteholders; Waiver............................... 58
SECTION 11.6 Alternate Payment and Notice Provisions...................... 58
SECTION 11.7 Conflict with Trust Indenture Act............................ 59
SECTION 11.8 Effect of Headings and Table of Contents..................... 59
SECTION 11.9 Successors and Assigns....................................... 59
SECTION 11.10 Separability................................................. 59
SECTION 11.11 Benefits of Indenture........................................ 59
SECTION 11.12 Legal Holidays............................................... 59
SECTION 11.13 GOVERNING LAW................................................ 60
SECTION 11.14 Counterparts................................................. 60
SECTION 11.15 Recording of Indenture....................................... 60
SECTION 11.16 Trust Obligation............................................. 60
SECTION 11.17 No Petition.................................................. 60
SECTION 11.18 Inspection................................................... 61
Exhibit A - Schedule of Receivables
Exhibit B - Form of Class A Note
Exhibit C - Form of Class B Note
Exhibit D - Form of Class C Note
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CROSS REFERENCE TABLE(1)
TIA Section Indenture Section
310 (a)(1)....................................................... 6.11
(a)(2)....................................................... 6.11
(a)(3)....................................................... 6.10
(a)(4)....................................................... N.A.(2)
N.A.(2)
(a)(5)....................................................... 6.11
(b) ....................................................... 6.8;
6.11
(c) ....................................................... N.A.
311 (a) ....................................................... 6.12
(b) ....................................................... 6.12
(c) ....................................................... N.A.
312 (a) ....................................................... 7.1;
....................................................... 7.2
(b) ....................................................... 7.2
(c) ....................................................... 7.2
313 (a) ....................................................... 7.4
(b)(1)....................................................... 7.4
(b)(2)....................................................... 7.4
(c) ....................................................... 7.4
(d) ....................................................... 7.3
314 (a) ....................................................... 7.3
(b) ....................................................... 3.6
(c)(1)....................................................... 11.1
(c)(2)....................................................... 11.1
(c)(3)....................................................... 11.1
(d) ....................................................... 11.1
(e) ....................................................... 11.1
(f) ....................................................... N.A.
315 (a) ....................................................... 6.1
(b) ....................................................... 6.5;
....................................................... 11.5
(c) ....................................................... 6.1
(d) ....................................................... 6.1
(e) ....................................................... 5.13
316 (a) (last sentence).......................................... 1.1
(a)(1)(A).................................................... 5.11
(a)(1)(B).................................................... 5.12
(a)(2)....................................................... N.A.
(b) ....................................................... 5.7
(c) ....................................................... N.A.
317 (a)(1)....................................................... 5.3
(a)(2)....................................................... 5.3
(b) ....................................................... 3.3
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(1) Note: This Cross Reference Table shall not, for any purpose,
be deemed to be part of this Indenture.
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CROSS REFERENCE TABLE(3)
TIA Section Indenture Section
318 (a) ....................................................... 11.7
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(2) N.A. means Not Applicable.
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INDENTURE dated as of October 1, 1997, between CHASE MANHATTAN MARINE
OWNER TRUST 1997-A, a Delaware business trust (the "Issuer"), and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association, solely as
trustee and not in its individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Issuer's Class A-1 [____]%
Asset Backed Notes (the "Class A-1 Notes"), Class A-2 [____]% Asset Backed Notes
(the "Class A-2 Notes"), Class A-3 [____]% Asset Backed Notes (the "Class A-3
Notes"), Class A-4 [____]% Asset Backed Notes (the "Class A-4 Notes"), Class A-5
[____]% Asset Backed Notes (the "Class A-5 Notes"), Class A-6 [____]% Asset
Backed Notes (the "Class A-6 Notes"), Class B [____]% Asset Backed Notes (the
"Class B Notes") and Class C [____]% Asset Backed Notes (the "Class C Notes"
and, together with the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes, the Class A-5 Notes, the Class A- 6 Notes and the
Class B Notes, the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date,
as Indenture Trustee for the benefit of the Noteholders and (only to the extent
expressly provided herein) the Certificateholders, all of the Issuer's right,
title and interest in, to and under (a) the Receivables listed in Schedule A
hereto, all proceeds thereof and (i) with respect to the Simple Interest
Receivables, all amounts and monies received thereon after the Cutoff Date and
(ii) with respect to the Precomputed Receivables, all amounts and monies due
thereon on and after the Cutoff Date (including in the case of each Seller
proceeds of the repurchase by such Seller of the related Receivables pursuant to
Section 3.2 or 10.2(n) of the Sale and Servicing Agreement or the purchase of
Receivables by the Servicer pursuant to Section 4.6 or 9.1 of the Sale and
Servicing Agreement); (b) the security interests in the Financed Boats granted
by the Obligors pursuant to the Receivables and in any repossessed Financed
Boats; (c) Net Liquidation Proceeds and in any proceeds of any extended
warranties, theft and physical damage, credit life or credit disability policies
relating to the Financed Boats or the Obligors; (d) any proceeds from Dealer
repurchase obligations relating to the Receivables; (e) funds on deposit from
time to time in the Trust Accounts (including without limitation the Reserve
Account and the Paid-Ahead Account), and in all investments and proceeds thereof
(other than all investment income on funds on deposit in the Trust Accounts);
(f) the Sale and Servicing Agreement; and (g) 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 of
the conversion, voluntary or involuntary, into cash or other liquid property,
all cash
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(3) Note: This Cross Reference Table shall not, for any purpose,
be deemed to be part of this Indenture.
proceeds, accounts, accounts receivable, notes, drafts, contract rights,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of principal
of and interest on, and any other amounts owing in respect of, the Notes,
equally and ratably without prejudice, priority or distinction except as set
forth herein, and to secure compliance with the provisions of this Indenture,
all as provided in this Indenture.
The Indenture Trustee, as trustee on behalf of the Holders of the
Notes, acknowledges such Grant, accepts the trusts under this Indenture in
accordance with the provisions of this Indenture and agrees to perform its
duties required in this Indenture to the best of its ability to the end that the
interests of the Holders of the Notes and (only to the extent expressly provided
herein) Holders of the Certificates may be adequately and effectively protected.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Capitalized terms are used in this Indenture
as defined in Section 1.1 to the Sale and Servicing Agreement dated as of
October 1, 1997, among the Issuer and CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION and THE CHASE MANHATTAN BANK, as Sellers and THE CIT GROUP/SALES
FINANCING, INC., as Servicer (the "Sale and Servicing Agreement").
SECTION 1.2 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
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"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
SECTION 1.3 Usage of Terms. With respect to all terms in this
Indenture, the singular includes the plural and the plural the singular; words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Indenture; references to
Persons include their permitted successors and assigns; and the term "including"
means "including without limitation." All references herein to Articles,
Sections, Subsections and Exhibits are references to Articles, Sections,
Subsections and Exhibits contained in or attached to this Indenture unless
otherwise specified, and each such Exhibit is part of the terms of this
Indenture.
SECTION 1.4 Calculations of Interest. All calculations of interest made
hereunder shall be made on the basis of a year of 360 days of twelve 30-day
months.
ARTICLE II
THE NOTES
SECTION 2.1 Form. The Class A Notes of each class, the Class B Notes
and the Class C Notes, in each case, together with the Indenture Trustee's
certificate of authentication, shall be in substantially the form set forth in
Exhibits B, C and D, respectively, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may, consistently herewith,
be determined to be appropriate by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note. Each Note shall be dated the date of its
authentication. The Notes shall be issuable as registered Notes in the minimum
denomination of $1,000 and in integral multiples thereof (except, if applicable,
for one Note representing a residual portion of each class which may be issued
in a denomination other than an integral multiple of $1,000).
Notes bearing the manual or facsimile signature of individuals who were
at any time Authorized Officers of the Issuer shall bind
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the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the date of authentication and delivery of such Notes
or did not hold such offices at such date. 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 the manual
signature of one of its authorized signatories, and such certificate upon any
Note shall be conclusive evidence, and the only evidence, that such Note has
been duly authenticated and delivered hereunder. The terms of the Notes set
forth in Exhibits B, C and D are part of the terms of this Indenture.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
SECTION 2.2 Execution, Authentication and Delivery. The Notes shall be
executed on behalf of the Issuer by any of its Authorized Officers or by any
other authorized signatory of the Issuer. The signature of any such Authorized
Officer on the Notes may be manual or facsimile.
The Indenture Trustee shall, upon written order of the Sellers,
authenticate and deliver Class A-1 Notes for original issue in an aggregate
principal amount of $41,800,000.00, Class A-2 Notes for original issue in an
aggregate principal amount of $55,600,000.00, Class A-3 Notes for original issue
in the aggregate principal amount of $50,600,000.00, Class A-4 Notes for
original issue in the aggregate principal amount of $37,300,000.00, Class A-5
Notes for original issue in the aggregate principal amount of $29,300,000.00,
Class A-6 Notes for original issue in the aggregate principal amount of
$23,700,000.00, Class B Notes for original issue in the aggregate principal
amount of $10,650,000.00 and Class C Notes for original issue in the aggregate
principal amount of $17,312,029.25. The respective aggregate principal amount of
Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, Class A-5
Notes, Class A-6 Notes, Class B Notes and Class C Notes outstanding at any time
may not exceed such amounts, except as provided in Section 2.5.
SECTION 2.3 Temporary Notes. Pending the preparation of Definitive
Notes, the Issuer may execute, and at the direction of the Issuer, the Indenture
Trustee shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
not inconsistent with the terms of this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes.
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If temporary Notes are issued, the Issuer will cause Definitive Notes
to be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of the Issuer to be
maintained as provided in Section 3.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as Definitive Notes.
SECTION 2.4 Registration of Transfer and Exchange. The Issuer shall
cause to be kept a register (the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Note Registrar shall
provide for the registration of the Notes and the registration of transfers of
the Notes. Chase shall initially be "Note Registrar" for the purpose of
registering Notes and transfers of Notes as herein provided. In the event that,
subsequent to the date of issuance of the Notes, Chase notifies the Indenture
Trustee that it is unable to act as Note Registrar, the Indenture Trustee shall
act, or the Indenture Trustee shall, with the consent of the Issuer, appoint
another bank or trust company, having an office or agency located in The City of
New York and which agrees to act in accordance with the provisions of this
Indenture applicable to it, to act, as successor Note Registrar under this
Indenture.
The Indenture Trustee may revoke such appointment and remove Chase as
Note Registrar if the Indenture Trustee determines in its sole discretion that
Chase failed to perform its obligations under this Indenture in any material
respect. Chase shall be permitted to resign as Note Registrar upon 30 days'
written notice to the Indenture Trustee, the Sellers and the Servicer; provided,
however, that such resignation shall not be effective and Chase shall continue
to perform its duties as Note Registrar until the Indenture Trustee has
appointed a successor Note Registrar with the consent of the Issuer.
If a Person other than the Indenture Trustee is appointed by the Issuer
as the Note Registrar, the Issuer will give the Indenture Trustee prompt written
notice of the appointment of such Note Registrar and of the location, and any
change in the location, of the Note Register, and the Indenture Trustee shall
have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Indenture Trustee shall have the right to
conclusively rely upon a certificate executed on behalf of the Note Registrar by
an Executive Officer thereof as to the names and addresses of the Noteholders
and the principal amounts and number of such Notes.
An institution succeeding to the corporate agency business of the Note
Registrar shall continue to be the Note Registrar without
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the execution or filing of any paper or any further act on the part of the
Indenture Trustee or such Note Registrar.
The Note Registrar shall maintain in The City of New York an office or
offices or agency or agencies where Notes may be surrendered for registration of
transfer or exchange. The Note Registrar initially designates its corporate
trust office located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-2697 as
its office for such purposes. The Note Registrar shall give prompt written
notice to the Indenture Trustee, the Sellers, the Servicer and to the
Noteholders of any change in the location of such office or agency.
Upon surrender for registration of transfer of any Note at the office
or agency of the Issuer to be maintained as provided in Section 3.2, if the
requirements of Section 8-401(1) of the Uniform Commercial Code are met, the
Issuer shall execute, the Indenture Trustee shall authenticate and (if the Note
Registrar is different than the Indenture Trustee, then the Note Registrar
shall) deliver to the Noteholder, in the name of the designated transferee or
transferees, one or more new Notes, in any authorized denominations, of the same
class and a like aggregate principal amount.
At the option of the Holder, the Notes may be exchanged for other Notes
in any authorized denominations, of the same class and a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so surrendered for exchange, if the requirements
of Section 8-401(1) of the UCC are met, the Issuer shall execute and the
Indenture Trustee shall authenticate and (if the Note Registrar is different
than the Indenture Trustee, then the Note Registrar shall) deliver to the
Noteholder, the Notes which the Noteholder making the exchange is entitled to
receive.
All Notes issued upon any registration of transfer or exchange of the
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be (i) duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder thereof or such Xxxxxx's attorney duly authorized in
writing, with such signature guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the city
in which the Corporate Trust Office is located, or by a member firm of a
national securities exchange, and (ii) accompanied by such other documents as
the Indenture Trustee may require. Each Note surrendered for registration of
transfer or exchange shall be cancelled by the Note Registrar and disposed of
6
by the Indenture Trustee or Note Registrar in accordance with its customary
practice.
No service charge shall be made to a Holder for any registration of
transfer or exchange of the Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.3 or 9.5 not involving any transfer.
The preceding provisions of this section notwithstanding, the Issuer
shall not be required to make, and the Note Registrar need not register,
transfers or exchanges of the Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment in full with respect to
such Note.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Note Registrar, or the Note Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Note Registrar and the Indenture
Trustee such security or indemnity as may be required by them to hold the
Issuer, the Note Registrar and the Indenture Trustee harmless, then, in the
absence of notice to the Issuer, the Note Registrar or the Indenture Trustee
that such Note has been acquired by a bona fide purchaser, and provided that the
requirements of Section 8-405 of the UCC are met, the Issuer shall execute and
the Indenture Trustee shall authenticate and (if the Note Registrar is different
from the Indenture Trustee, the Note Registrar shall) deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement
Note of like class, tenor and denomination; provided that if any such destroyed,
lost or stolen Note, but not a mutilated Note, shall have become or within seven
days shall be due and payable, or shall have been called for redemption, instead
of issuing a replacement Note, the Issuer may pay such destroyed, lost or stolen
Note when so due or payable or upon the Redemption Date without surrender
thereof. If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a bona fide purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Issuer,
the Note Registrar and the Indenture Trustee shall be entitled to recover such
replacement Note (or such payment) from the Person to whom it was delivered or
any Person taking such replacement Note from such Person to whom such
replacement Note was delivered or any assignee of such Person, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
the Issuer, the Note Registrar or the Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer may require the payment by the Holder of such Note of a sum sufficient to
cover any tax or other governmental charge that
7
may be imposed in relation thereto and any other reasonable expenses (including
the fees and expenses of the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section 2.5 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee, the
Note Registrar and any agent of the Issuer, the Indenture Trustee or the Note
Registrar may treat the Person in whose name any Note is registered (as of the
day of determination) as the owner of such Note for the purpose of receiving
payments of principal of and interest, if any, on such Note and for all other
purposes whatsoever, whether or not such Note shall be overdue, and neither the
Issuer, the Indenture Trustee or the Note Registrar nor any agent of the Issuer,
the Indenture Trustee or the Note Registrar shall be bound by notice to the
contrary.
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest.
(a) The Notes shall accrue interest at the following Interest Rates:
Note Interest Rate
Class A-1 _____%
Class A-2 _____%
Class A-3 _____%
Class A-4 _____%
Class A-5 _____%
Class A-6 _____%
Class B _____%
Class C _____%
and such interest shall be payable on each Distribution Date as specified
therein. Any installment of interest or principal, if any, payable on any Note
which is punctually paid or duly provided for by the Issuer on the applicable
Distribution Date shall be paid to the Person in whose name such Note (or one or
more Predecessor Notes) is registered on the preceding Record Date, by check
mailed first-class, postage prepaid, to such Person's address as it appears on
the Note Register on such Record Date, except that, unless Definitive Notes have
been issued pursuant to Section 2.12, with respect to the Notes registered on
the Record Date in the name
8
of the nominee of the Clearing Agency (initially, such nominee to be Cede &
Co.), payment will be made by wire transfer in immediately available funds to
the account designated by such nominee, except for the final installment of
principal payable with respect to such Note on a Distribution Date or on a Note
Final Scheduled Distribution Date (and except for the Redemption Price for any
Note called for redemption pursuant to Section 10.1 which shall be payable as
provided below). The funds represented by any such checks returned undelivered
shall be held in accordance with Section 3.3.
(b) The principal of each Note shall be payable in installments no
later than 12 noon, New York City time, on each Distribution Date as provided in
the form of the Notes, set forth in Exhibits B, C and D. The outstanding
principal amount of the Notes, to the extent not previously paid, will be
payable on the Final Scheduled Distribution Date specified for such class in
the table below.
Note Final Scheduled
Distribution Date
Class A-1 Notes January 17, 2000
Class A-2 Notes March 15, 2002
Class A-3 Notes January 17, 2005
Class A-4 Notes April 16, 2007
Class A-5 Notes October 15, 2009
Class A-6 Notes April 16, 2012
Class B Notes August 15, 2013
Class C Notes October 16, 2017
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable, if not previously paid, on the date on which an Event
of Default shall have occurred and be continuing, if the Indenture Trustee or
the Holders of the Notes representing not less than a majority of the
Outstanding Amount of the Controlling Notes have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2. All principal
payments on each class of Notes shall be made pro rata to the Noteholders of
such class entitled thereto. The Indenture Trustee shall notify the Person in
whose name a Note is registered at the close of business on the Record Date
preceding the Distribution Date on which the Issuer expects that the final
installment of principal of and interest on such Note will be paid. Such notice
shall be (i) transmitted by facsimile on such Record Date if Book-Entry Notes
are outstanding or (ii) mailed as provided in Section 10.2 not later than three
Business Days after such Record Date if Definitive Notes are outstanding and
shall specify that such final installment will be payable only upon presentation
and surrender of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such installment.
9
SECTION 2.8 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Note Registrar, be delivered to the Note Registrar and
shall be promptly cancelled by the Note Registrar. The Issuer may at any time
deliver to the Note Registrar for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly cancelled by the
Note Registrar. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Notes may be held or disposed of by the Note
Registrar in accordance with its standard retention or disposal policy as in
effect at the time unless the Issuer shall direct that they be destroyed or
returned to it; provided that such direction is timely and the Notes have not
been previously disposed of by the Note Registrar.
SECTION 2.9 Release of Collateral. Subject to Section 11.1, the
Indenture Trustee shall release property from the lien of this Indenture only
upon request of the Issuer accompanied by an Officer's Certificate, an Opinion
of Counsel and Independent Certificates in accordance with the TIA ss.ss.314(c)
and 314(d)(1) or an Opinion of Counsel in lieu of such Independent Certificates
to the effect that the TIA does not require any such Independent Certificates.
SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance, will
be issued in the form of typewritten Notes representing the Book-Entry Notes, to
be delivered to The Depository Trust Company (the initial Clearing Agency) by,
or on behalf of, the Issuer. Such Notes shall initially be registered on the
Note Register in the name of Cede & Co., the nominee of the initial Clearing
Agency (except for a Class C Note registered in the name of Chase Securities
Inc. in an amount of $29.25) and no Note Owner will receive a Definitive Note
representing such Note Owner's interest in such Note, except as provided in
Section 2.12. Unless and until Definitive Notes have been issued to Note Owners
pursuant to Section 2.12:
(a) the provisions of this Section shall be in full force and effect;
(b) the Note Registrar, the Paying Agent and the Indenture Trustee
shall be entitled to deal with the Clearing Agency for all purposes of this
Indenture (including the payment of principal of and interest on the Notes and
the giving of instructions or directions hereunder) as the sole Holder of the
Notes, and shall have no obligation to the Note Owners;
(c) to the extent that the provisions of this Section conflict with any
other provisions of this Indenture, the provisions of this Section shall
control;
10
(d) the rights of the Note Owners shall be exercised only through the
Clearing Agency (or to the extent the Note Owners are not Clearing Agency
Participants, through the Clearing Agency Participants through which such Note
Owners own Book-Entry Notes) and shall be limited to those established by law
and agreements among such Note Owners and the Clearing Agency and/or the
Clearing Agency Participants, and all references in this Indenture to actions by
the Noteholders shall refer to actions taken by the Clearing Agency upon
instructions from the Clearing Agency Participants, and all references in this
Indenture to distributions, notices, reports and statements to the Noteholders
shall refer to distributions, notices, reports and statements to the Clearing
Agency, as registered holder of the Notes, as the case may be, for distribution
to the Note Owners in accordance with the procedures of the Clearing Agency.
Pursuant to the Note Depository Agreement, unless and until Definitive Notes are
issued pursuant to Section 2.12, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Notes to such Clearing
Agency Participants; and
(e) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of the Holders of the Notes evidencing a
specified percentage of the Outstanding Amount of the Notes, the Clearing Agency
shall be deemed to represent such percentage only to the extent that it has
received instructions to such effect from the Note Owners and/or Clearing Agency
Participants owning or representing, respectively, such required percentage of
the beneficial interest in the Notes and has delivered such instructions to the
Indenture Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to the Note Owners pursuant to
Section 2.12, the Indenture Trustee shall give all such notices and
communications specified herein to be given to the Holders of the Notes to the
Clearing Agency, and shall have no obligation to the Note Owners.
SECTION 2.12 Definitive Notes. If (a) the Sellers advise the Indenture
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to the Notes, and the
Sellers are unable to locate a qualified successor, (b) the Sellers at their
option advise the Indenture Trustee in writing that they elect to terminate the
book-entry system through the Clearing Agency, or (c) after the occurrence of an
Event of Default or an Event of Servicing Termination, the Note Owners
representing beneficial interests aggregating not less than a majority of the
Outstanding Amount of the Notes advise the Indenture Trustee and the Clearing
Agency through the Clearing Agency Participants in writing, and if the Clearing
Agency shall so notify the Indenture Trustee that the continuation of a
book-entry system through the Clearing Agency is no longer in the best interests
of the Note Owners, then the
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Clearing Agency shall notify all the Note Owners of the occurrence of any such
event and of the availability of Definitive Notes to the Note Owners requesting
the same. Upon surrender to the Note Registrar of the typewritten Note or Notes
representing the Book-Entry Notes by the Clearing Agency, accompanied by
re-registration instructions, the Issuer shall execute and the Indenture Trustee
shall authenticate and (if the Note Registrar is different than the Indenture
Trustee, then the Note Registrar shall) deliver the Definitive Notes in
accordance with the instructions of the Clearing Agency. None of the Issuer, the
Note Registrar or the Indenture Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of the Definitive
Notes, the Indenture Trustee shall recognize the Holders of the Definitive Notes
as the Noteholders.
SECTION 2.13 Authenticating Agent.
(a) The Indenture Trustee may appoint one or more authenticating agents
(each, an "Authenticating Agent") with respect to the Notes which shall be
authorized to act on behalf of the Indenture Trustee in authenticating the Notes
in connection with the issuance, delivery, registration of transfer, exchange or
repayment of the Notes. The Indenture Trustee hereby appoints Chase as
Authenticating Agent for the authentication of the Notes upon any registration
of transfer or exchange of such Notes. Whenever reference is made in this
Indenture to the authentication of the Notes by the Indenture Trustee or the
Indenture Trustee's certificate of authentication, such reference shall be
deemed to include authentication 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,
other than Chase, shall be acceptable to the Issuer.
(b) Any institution succeeding to the corporate agency business of an
Authenticating Agent shall continue to be an Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Indenture
Trustee or such Authenticating Agent.
(c) An Authenticating Agent may at any time resign by giving written
notice of resignation to the Indenture Trustee and the Issuer. The Indenture
Trustee may at any time terminate the agency of an Authenticating Agent by
giving notice of termination 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 an Authenticating Agent shall cease to be acceptable to the
Indenture Trustee or the Issuer, the Indenture Trustee promptly may appoint a
successor Authenticating Agent with the consent of the Issuer. 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
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Authenticating Agent shall be appointed unless acceptable to the Issuer.
(d) The Servicer shall pay the Authenticating Agent from time to time
reasonable compensation for its services under this Section 2.13 pursuant to
Section 4.7 of the Sale and Servicing Agreement.
(e) The provisions of Sections 6.1, 6.2, 6.3, 6.4, 6.7 and 6.9 shall be
applicable, mutatis mutandis, to any Authenticating Agent.
(f) Pursuant to an appointment made under this Section 2.13, the Notes
may have endorsed xxxxxxx, in lieu of the Indenture Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Notes referred to in the within mentioned Indenture.
------------------------------------,
as Indenture Trustee
By:
--------------------------------
Authorized Officer
or
---------------------------------------
as Authenticating Agent
for the Indenture Trustee,
---------------------------------------
Authorized Officer
SECTION 2.14 Appointment of Paying Agent.
(a) The Indenture Trustee may appoint a Paying Agent with respect to
the Notes. The Indenture Trustee hereby appoints Chase as the initial Paying
Agent. The Paying Agent shall have the revocable power to withdraw funds from
the Accounts and make distributions to the Noteholders, the Servicer and the
Owner Trustee pursuant to Section 5.5 of the Sale and Servicing Agreement. The
Indenture Trustee may revoke such power and remove the Paying Agent if the
Indenture Trustee determines in its sole discretion that the Paying Agent shall
have failed to perform its obligations under this Indenture in any material
respect or for other good cause. Chase shall be permitted to resign as Paying
Agent upon 30 days' written notice to the Sellers and the Indenture Trustee. In
the event that Chase shall
13
no longer be the Paying Agent, the Indenture Trustee shall appoint a successor
to act as Paying Agent (which shall be a bank or trust company and may be the
Indenture Trustee) with the consent of the Sellers, which consent shall not be
unreasonably withheld. If at any time the Indenture Trustee shall be acting as
the Paying Agent, the provisions of Sections 6.1, 6.3 and 6.4 shall apply,
mutatis mutandis, to the Indenture Trustee in its role as Paying Agent.
The Indenture Trustee will cause each Paying Agent other than itself
and Chase 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 hereby so agrees), subject to the provisions of
this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer (or any other obligor upon the Notes) of which it has actual
knowledge in the making of any payment required to be made with respect
to the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the payment of
the Notes if at any time it ceases to meet the standards required to be
met by the Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
(b) Chase in its capacity as initial Paying Agent xxxxxxxxx agrees that
it (i) will hold all sums held by it hereunder for payment to the Noteholders in
trust for the benefit of the Noteholders entitled thereto until such sums shall
be paid to such Noteholders and (ii) shall comply with all requirements of the
Code regarding the withholding by the Indenture Trustee of payments in respect
of United States federal income taxes due from Note Owners.
14
(c) An institution succeeding to the corporate agency business of the
Paying Agent shall continue to be the Paying Agent without the execution or
filing of any paper or any further act on the part of the Indenture Trustee or
such Paying Agent.
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest. The Issuer will duly and
punctually pay the principal of and interest on the Notes in accordance with the
terms of the Notes and this Indenture. Without limiting the foregoing, subject
to Section 8.2(c), the Issuer will cause to be distributed all amounts on
deposit in the Note Distribution Account on a Distribution Date deposited
therein pursuant to the Sale and Servicing Agreement (i) for the benefit of the
Class A-1 Notes, to the Holders of the Class A-1 Notes, (ii) for the benefit of
the Class A-2 Notes, to the Holders of the Class A-2 Notes, (iii) for the
benefit of the Class A-3 Notes, to the Holders of the Class A-3 Notes, (iv) for
the benefit of the Class A-4 Notes, to the Holders of the Class A-4 Notes, (v)
for the benefit of the Class A-5 Notes, to the Holders of the Class A-5 Notes,
(vi) for the benefit of the Class A-6 Notes, to the Holders of the Class A-6
Notes, (vii) for the benefit of the Class B Notes to the Holders of the Class B
Notes and (viii) for the benefit of the Class C Notes, to the Holders of the
Class C Notes. Amounts properly withheld under the Code by any Person from a
payment to any Noteholder of interest and/or principal shall be considered as
having been paid by the Issuer to such Noteholder for all purposes of this
Indenture.
SECTION 3.2 Maintenance of Office or Agency. The Issuer will maintain
in The City of New York, an office or agency where Notes may be surrendered for
registration of transfer or exchange. The Issuer hereby initially appoints the
Note Registrar to serve as its agent for the foregoing purposes. The Issuer will
give prompt written notice to the Indenture Trustee of the location, and of any
change in the location, of any such office or agency. If at any time the Issuer
shall fail to maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders, notices and demands
may be made or served at the Corporate Trust Office, and the Issuer hereby
appoints the Indenture Trustee as its agent to receive all such surrenders,
notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust. As provided in
Sections 8.2(a) and (b), all payments of amounts due and payable with respect to
any Notes that are to be made from amounts withdrawn from the Collection Account
and the Note Distribution Account pursuant to Section 8.2(c) shall be made on
behalf of the Issuer by the Indenture Trustee or by a Paying Agent, and no
amounts so withdrawn from the Collection Account and the
15
Note Distribution Account for payments on the Notes shall be paid over to the
Issuer except as provided in this Section 3.3.
On or before each Distribution Date and Redemption Date, at the
direction of the Servicer in accordance with Section 5.5 of the Sale and
Servicing Agreement, the Indenture Trustee or the Paying Agent shall deposit in
the Note Distribution Account an aggregate sum sufficient to pay the amounts
then becoming due under the Notes, such sum to be held in trust for the benefit
of the Persons entitled thereto and (unless the Paying Agent is the Indenture
Trustee or deposit was made by the Indenture Trustee) shall promptly notify the
Indenture Trustee of its action or failure so to act.
The Issuer may, at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, direct
any Paying Agent to pay to the Indenture Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts
as those upon which the sums were held by such Paying Agent; and upon such a
payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Subject to applicable laws with respect to the escheat of funds, any
money held by the Indenture Trustee or any Paying Agent in trust for the payment
of any amount due with respect to any Note and remaining unclaimed for two years
after such amount has become due and payable shall be discharged from such trust
and be paid to the Issuer on its request; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided that the Indenture Trustee or
such Paying Agent, before being required to make any such repayment, shall at
the expense of the Issuer cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in The City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Issuer. The Indenture Trustee shall also
adopt and employ, at the expense of the Issuer, any other reasonable means of
notification of such repayment (including, but not limited to, mailing notice of
such repayment to the Holders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in moneys due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
SECTION 3.4 Existence. Except as otherwise permitted by the provisions
of Section 3.10, the Issuer will keep in full effect its existence, rights and
franchises as a business trust under the
16
laws of the State of Delaware (unless it becomes, or any successor to the Issuer
hereunder is or becomes, organized under the laws of any other state or of the
United States of America, in which case the Issuer will keep in full effect its
existence, rights and franchises under the laws of such other jurisdiction) and
will obtain and preserve its qualification to do business in each jurisdiction
in which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
SECTION 3.5 Protection of Trust Estate. The Issuer will from time to
time prepare (or shall cause to be prepared), execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and will take such other action necessary or advisable to:
(a) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more effectively
the purposes hereof;
(b) perfect, publish notice of or protect the validity
of any Grant made or to be made by this Indenture;
(c) enforce the rights of the Indenture Trustee and the
Noteholders in any of the Collateral; or
(d) preserve and defend title to the Trust Estate and the
rights of the Indenture Trustee and the Noteholders in such Trust
Estate against the claims of all persons and parties.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be filed by the Indenture Trustee pursuant to this
Section.
SECTION 3.6 Opinions as to Trust Estate. (a) On the Closing Date, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording and filing of this Indenture, any indentures
supplemental hereto, and any other requisite documents, and with respect to the
execution and filing of any financing statements and continuation statements, as
are necessary to perfect and make effective the lien and security interest of
this Indenture and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such lien and
security interest effective.
(b) On or before March 31 of each calendar year, commencing with March
31, 1998, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion
17
of such counsel, such action has been taken with respect to the recording,
filing, re-recording and refiling of this Indenture, any indentures supplemental
hereto and any other requisite documents and with respect to the execution and
filing of any financing statements and continuation statements as are necessary
to maintain the perfection of the lien and security interest created by this
Indenture and reciting the details of such action or stating that in the opinion
of such counsel no such action is necessary to maintain the perfection of such
lien and security interest. Such Opinion of Counsel shall also describe the
recording, filing, rerecording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and the execution and
filing of any financing statements and continuation statements that will, in the
opinion of such counsel, be required to maintain the perfection of the lien and
security interest of this Indenture until March 31 in the following calendar
year.
SECTION 3.7 Performance of Obligations; Servicing of Receivables. (a)
The Issuer will not take any action and will use its best efforts not to permit
any action to be taken by others that would release any Person from any of such
Person's material covenants or obligations under any instrument or agreement
included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
ordered by any bankruptcy or other court or as expressly provided in this
Indenture, any other Basic Documents or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer. Initially, the
Issuer has contracted with the Servicer and the Administrators to assist the
Issuer in performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the other Basic
Documents and in the instruments and agreements included in the Trust Estate,
including but not limited to preparing (or causing to be prepared) and filing
(or causing to be filed) all UCC financing statements and continuation
statements required to be filed by the terms of this Indenture and the Sale and
Servicing Agreement in accordance with and within the time periods provided for
herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of an Event of
Servicing Termination under the Sale and Servicing Agreement, the Issuer shall
promptly notify the Indenture Trustee and the Rating Agencies thereof in
accordance with Section 11.4, and shall specify in such notice the action, if
any, the Issuer is taking in respect of such default. If an Event of Servicing
Termination shall arise from the failure of the Servicer to perform
18
any of its duties or obligations under the Sale and Servicing Agreement with
respect to the Receivables, the Issuer shall take all reasonable steps available
to it to remedy such failure.
(e) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees that, unless such action is
specifically permitted hereunder or under the other Basic Documents, it will
not, without the prior written consent of the Indenture Trustee or the Holders
of at least a majority of Outstanding Amount of the Notes, amend, xxxxxx, waive,
supplement, terminate or surrender, or agree to any amendment, modification,
supplement, termination, waiver or surrender of, the terms of any Collateral or
the Basic Documents, or waive timely performance or observance by the Servicer
or the Sellers under the Sale and Servicing Agreement; provided that no such
amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, distributions that are required to be made
for the benefit of the Noteholders, or (ii) reduce the aforesaid percentage of
the Notes which are required to consent to any such amendment, without the
consent of the Holders of all the Outstanding Notes. If any such amendment,
modification, supplement or waiver shall be so consented to by the Indenture
Trustee or such Holders, the Issuer agrees, promptly following a request by the
Indenture Trustee to do so, to execute and deliver, in its own name and at its
own expense, such agreements, instruments, consents and other documents as the
Indenture Trustee may deem necessary or appropriate under the circumstances.
SECTION 3.8 Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
(a) except as expressly permitted by this Indenture or the
other Basic Documents, sell, transfer, exchange or otherwise dispose of
any of the properties or assets of the Issuer, including those included
in the Trust Estate, unless directed to do so by the Indenture Trustee;
(b) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code) or assert
any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Trust
Estate; or
(c) (i) permit the validity or effectiveness of this Indenture
to be impaired, or permit the lien of 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, (ii) permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien of this Indenture)
to be created on or extend to or otherwise arise
19
upon or burden the Trust Estate or any part thereof or any interest
therein or the proceeds thereof (other than tax liens, mechanics' liens
and other liens that arise by operation of law, in each case on a
Financed Boat and arising solely as a result of an action or omission
of the related Obligor) or (iii) permit the lien of this Indenture not
to constitute a valid first priority (other than with respect to any
such tax, mechanics' or other lien) security interest in the Trust
Estate.
SECTION 3.9 Annual Statement as to Compliance. The Issuer will deliver
to the Indenture Trustee on or before March 31 of each year, commencing March
31, 1998, and otherwise in compliance with the requirements of TIA Section
314(a)(4), an Officer's Certificate stating, as to the Authorized Officer
signing such Officer's Certificate, that
(a) a review of the activities of the Issuer during such year
and of performance under this Indenture has been made under such
Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based
on such review, the Issuer has complied with all conditions and
covenants in all material respects under this Indenture throughout such
year, or, if there has been a default in the compliance of any such
condition or covenant, specifying each such default known to such
Authorized Officer and the nature and status thereof.
SECTION 3.10 The Issuer May Consolidate, Etc. Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other Person,
unless
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America or any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, 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 the 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;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture
20
Trustee) to the effect that such transaction will not have any material
adverse tax consequence to the Trust, any Noteholder or any
Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been
taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that
such consolidation or merger and such supplemental indenture comply
with this Section 3.10 and that all conditions precedent herein
provided for relating to such transaction have been complied with
(including any filing required by the Exchange Act).
(b) Except as otherwise expressly permitted by this Indenture or the
other Basic Documents, the Issuer shall not convey or transfer all or
substantially all of its properties or assets, including those included in the
Trust Estate, to any Person, unless
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of which
is hereby restricted shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States of America
or any State thereof, (B) expressly assume, by an indenture
supplemental hereto, 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 the 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 supplemental
indenture that all right, title and interest so conveyed or transferred
shall be subject and subordinate to the rights of the Holders of the
Notes, (D) unless otherwise provided in such supplemental indenture,
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 and (E) expressly agree by
means of such supplemental indenture that such Person (or if a group of
persons, then one specified Person) shall prepare (or cause to be
prepared) and make all filings with the Commission (and any other
appropriate Person) required by the Exchange Act in connection with the
Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
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(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture Trustee) to
the effect that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been
taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee
an Officers' Certificate and an Opinion of Counsel each stating that
such conveyance or transfer and such supplemental indenture comply with
this Section 3.10 and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act).
SECTION 3.11 Successor or Transferee. (a) Upon any consolidation or
merger of the Issuer in accordance with Section 3.10(a), the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer in accordance with Section 3.10(b), Chase Manhattan Marine Owner
Trust 1997-A will be released from every covenant and agreement of this
Indenture to be observed or performed on the part of the Issuer with respect to
the Notes immediately upon the delivery of written notice to the Indenture
Trustee from the Person acquiring such assets and properties stating that Chase
Manhattan Marine Owner Trust 1997-A is to be so released.
SECTION 3.12 No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the
Receivables in the manner contemplated by this Indenture and the other Basic
Documents, issuing the Notes and the Certificates, making payments thereon, and
such other activities that are necessary, suitable or desirable to accomplish
the foregoing or are incidental to the purposes as set forth in Section 2.3 of
the Trust Agreement.
SECTION 3.13 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for money borrowed in respect of the Notes or in accordance
with the Basic Documents.
SECTION 3.14 Servicer's Obligations. The Issuer shall use its best
efforts to cause the Servicer to comply with the Sale and Servicing Agreement.
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SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities. Except
as contemplated by the Sale and Servicing Agreement or this Indenture, the
Issuer shall not make any loan or advance or credit to, or guarantee (directly
or indirectly or by an instrument having the effect of assuming another's
payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or own,
purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.16 Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty) other than the purchase of the Receivables and
related property pursuant to the Sale and Servicing Agreement.
SECTION 3.17 Restricted Payments. The Issuer shall not, directly or
indirectly, (a) 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, (b) redeem, purchase, retire, or otherwise acquire for
value any such ownership or equity interest or security or (c) set aside or
otherwise segregate any amounts for any such purpose; provided that the Issuer
may make, or cause to be made, distributions to the Servicer, the Sellers, the
Owner Trustee, the Indenture Trustee and the Certificateholders as permitted by,
and to the extent funds are available for such purpose under, the Basic
Documents. The Issuer will not, directly or indirectly, make payments to or
distributions from the Collection Account or the Paid-Ahead Account except in
accordance with this Indenture and the other Basic Documents.
SECTION 3.18 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, any Event of Servicing Termination and each default on the part of
either Seller of its obligations under the Sale and Servicing Agreement.
SECTION 3.19 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Notes except as to (a)
rights of registration of transfer and exchange, (b) substitution of mutilated,
destroyed, lost or stolen Notes, (c) rights of Noteholders to receive payments
of principal thereof and interest thereon, (d) Sections 3.2, 3.3, 3.4, 3.5, 3.8,
3.10, 3.12, 3.13, 3.15, 3.16 and 3.18, (e) the rights, obligations and
immunities of the Indenture Trustee hereunder (including the rights of the
Indenture Trustee under Section 6.7 and the obligations of the Indenture Trustee
under Sections 4.2 and 4.4) and (f) the rights of Noteholders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them, 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 with respect to the Notes, when
(i) either
(A) All Notes theretofore authenticated and delivered
(other than (1) the Notes that have been destroyed, lost or
stolen and that have been replaced or paid as provided in
Section 2.5 and (2) the Notes for which payment money has
theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 3.3) have
been delivered to the Indenture Trustee for cancellation; or
(B) all Notes not theretofore delivered to the
Indenture Trustee for cancellation:
(1) have become due and payable,
(2) will become due and payable at their
respective Final Scheduled Distribution Dates
within one year, or
(3) are to be called for redemption within
one year under arrangements satisfactory to the
Indenture Trustee for the giving of notice of
redemption by the Indenture Trustee in the name, and
at the expense, of the Issuer,
and the Issuer, in the case of clauses (1), (2) or (3) of
Section 4.1(i)(B), has irrevocably deposited or caused to be
irrevocably deposited with the Indenture Trustee cash or
direct obligations of or obligations guaranteed by the United
States of America (which will mature prior to the date such
amounts are payable), in trust for such
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purpose, in an amount sufficient to pay and discharge the
entire unpaid principal and accrued interest on such Notes not
theretofore delivered to the Indenture Trustee for
cancellation when due on their respective Final Scheduled
Distribution Dates or Redemption Date (if the Notes shall have
been called for redemption pursuant to Section 10.1);
(ii) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(iii) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate, an Opinion of Counsel and (if required by the
TIA or the Indenture Trustee) an Independent Certificate from a firm of
certified public accountants, each meeting the applicable requirements
of Section 11.1 and each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
SECTION 4.2 Application of Trust Money. All moneys deposited with the
Indenture Trustee pursuant to Section 4.1(i)(B) shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Holders of the particular Notes for the
payment or redemption of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal and
interest; but such moneys need not be segregated from other funds except to the
extent required herein or in the Sale and Servicing Agreement or required by
law.
SECTION 4.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all moneys then held by any Paying Agent other than the Indenture Trustee under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer, be paid to the Indenture Trustee to be held and applied according
to Section 3.3 and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. "Event of Default", wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
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(a) default in the payment of any interest on any Note when
the same becomes due and payable, and such default shall continue for a
period of five days;
(b) default in the payment of the principal of or any
installment of the principal of any Note when the same becomes
due and payable;
(c) default in the observance or performance of any covenant
or agreement of the Issuer made in this Indenture (other than a
covenant or agreement, a default in the observance or performance of
which is elsewhere in this Section specifically dealt with) which
default materially and adversely affects the rights of the Noteholders,
and which default shall continue or not be cured for a period of 30
days (or for such longer period, not in excess of 90 days, as may be
reasonably necessary to remedy such default; provided that such default
is capable of remedy within 90 days or less and the Servicer on behalf
of the Issuer delivers an Officer's Certificate to the Indenture
Trustee to the effect that the Issuer has commenced, or will promptly
commence and diligently pursue, all reasonable efforts to remedy such
default) after there shall have been given, by registered or certified
mail, to the Issuer by the Indenture Trustee or to the Issuer and the
Indenture Trustee by the Holders representing not less than 25% of the
Outstanding Amount of the Controlling Notes, a written notice
specifying such default and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; and
(d) an Insolvency Event shall have occurred for the Issuer.
The Issuer shall deliver to the Indenture Trustee, within five days
after the occurrence thereof, written notice in the form of an Officer's
Certificate of any event which with the giving of notice and the lapse of time
would become an Event of Default under clause (c), its status and what action
the Issuer is taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. If an
Event of Default shall occur and be continuing, then and in every such case the
Indenture Trustee or the Holders of the Notes representing not less than a
majority of the Outstanding Amount of the Controlling Notes may declare all the
Notes to be immediately due and payable, by a notice in writing to the Issuer
(and to the Indenture Trustee if given by the Controlling Noteholders), and upon
any such declaration the unpaid principal amount of such Notes, together with
accrued and unpaid interest thereon through the date of acceleration, shall
become immediately due and payable.
At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the
26
money due has been obtained by the Indenture Trustee as hereinafter in this
Article V provided, the Holders of the Notes representing a majority of the
Outstanding Amount of the Controlling Notes, by written notice to the Issuer and
the Indenture Trustee, may rescind and annul such declaration and its
consequences; provided, that, no such rescission shall affect any subsequent
default or impair any right consequent thereto.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by the
Indenture Trustee. (a) The Issuer covenants that if (i) default is made in the
payment of any interest on any Note when the same becomes due and payable, and
such default continues for a period of five days, or (ii) default is made in the
payment of the principal of or any installment of the principal of any Note when
the same becomes due and payable, the Issuer will, upon demand of the Indenture
Trustee, pay to it, for the benefit of the Holders of the Notes, the whole
amount then due and payable on such Notes for principal and interest, with
interest upon the overdue principal, and, to the extent payment at such rate of
interest shall be legally enforceable, upon overdue installments of interest, at
the rate borne by the Notes, and in addition thereto such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the moneys adjudged or decreed to be
payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.4, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders, by
such appropriate proceedings as the Indenture Trustee shall deem most effective
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy or legal or
equitable right vested in the Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Trust Estate, proceedings under Title 11 of the United States Code or any
other applicable Federal or state bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been
27
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in the case of any other comparable judicial proceedings
relative to the Issuer or other obligor upon the Notes, or to the creditors or
property of the Issuer or such other obligor, the Indenture Trustee,
irrespective of whether the principal of any Notes shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Indenture Trustee (including any
claim for reasonable compensation to the Indenture Trustee and each
predecessor Indenture Trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee, except as a result of negligence, bad
faith or willful misconduct) and of the Noteholders allowed in such
proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Notes in any election of a
trustee, a standby trustee or person performing similar functions in
any such proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of the
Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee or the Holders of the Notes allowed in any
judicial proceedings relative to the Issuer, its creditors and its
property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Noteholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad faith.
28
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of 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 except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar person.
(f) All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Notes.
(g) In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Holders of the Notes, and it shall not be necessary to
make any Noteholder a party to any such proceedings.
SECTION 5.4 Remedies; Priorities. (a) If an Event of Default shall have
occurred and be continuing and the Notes have been accelerated under Section
5.2, the Indenture Trustee may do one or more of the following (subject to
Section 5.5):
(i) institute proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer and any other obligor upon such Notes moneys adjudged
due;
(ii) institute proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the Trust
Estate;
(iii) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the rights
and remedies of the Indenture Trustee and the Holders of the Notes; and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law;
29
provided that the Indenture Trustee may not sell or otherwise liquidate
the Trust Estate following an Event of Default, unless (A) the Holders
of 100% of the Outstanding Amount of the Notes consent thereto, (B) the
proceeds of such sale or liquidation distributable to the Noteholders
are sufficient to discharge in full all amounts then due and unpaid
upon such Notes for principal and interest, or (C)(1) there has been an
Event of Default described in Section 5.1(a) or (b), (2) the Indenture
Trustee determines that the Trust Estate will not continue to provide
sufficient funds for the payment of principal of and interest on the
Notes as they would have become due if the Notes had not been declared
due and payable, and (3) the Indenture Trustee obtains the consent of
Holders of 66-2/3% of the Outstanding Amount of the Controlling Notes.
In determining such sufficiency or insufficiency with respect to clause
(B) and (C), the Indenture Trustee may, but need not, obtain and rely
upon an opinion of an Independent investment banking or accounting firm
of national reputation as to the feasibility of such proposed action
and as to the sufficiency of the Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out such money or property (and other amounts
including amounts held on deposit in the Reserve Account and Paid-Ahead Account)
held as Collateral for the benefit of the Noteholders in the following order:
FIRST: to the Indenture Trustee for amounts due under
Section 6.7; and
SECOND: to the Collection Account for distribution
pursuant to Section 9.1(b) of the Sale and Servicing
Agreement.
SECTION 5.5 Optional Preservation of the Receivables. If the Notes have
been declared to be due and payable under Section 5.2 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, but need not, elect to maintain possession
of the Trust Estate. It is the desire of the parties hereto and the Noteholders
that there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Indenture Trustee shall take such desire into
account when determining whether to maintain possession of the Trust Estate. In
determining whether to maintain possession of the Trust Estate, the Indenture
Trustee may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment
30
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;
(b) the Holders representing not less than 25% of the
Outstanding Amount of the Controlling Notes have made written request
to the Indenture Trustee to institute such proceeding in respect of
such Event of Default in its own name as the Indenture Trustee
hereunder;
(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 complying with such request;
(d) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute
such proceedings; and
(e) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the
Holders representing not less than a majority of the Outstanding Amount
of the Controlling Notes;
it being understood and intended that no one or more Holders of the Notes shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of the Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture,
except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of the
Notes, each representing less than a majority of the Outstanding Amount of the
Notes, the Indenture Trustee in its sole discretion may determine what action,
if any, shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders to Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Note on or
after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder.
SECTION 5.8 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
31
Proceeding has been discontinued or abandoned for any reason or has been
determined adversely to the Indenture Trustee or to such Noteholder, 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 through
no such proceeding had been instituted.
SECTION 5.9 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 5.10 Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to the 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 5.11 Controlling Noteholders. The Holders of a majority of the
Outstanding Amount of the Controlling Notes shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Indenture Trustee with respect to the Notes or exercising any trust or power
conferred on the Indenture Trustee; provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) subject to the express terms of Section 5.4, any direction
to the Indenture Trustee to sell or liquidate the Trust Estate shall be
by the Holders of the Notes representing not less than 100% of the
Outstanding Amount of the Notes;
(c) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Trust Estate
pursuant to such Section, then any direction to the Indenture Trustee
by Holders of the Notes representing less than 100% of the Outstanding
Amount of the Notes to sell or liquidate the Trust Estate shall be of
no force and effect;
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(d) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction; and
(e) such direction shall be in writing;
provided, further, that, subject to Section 6.1, the Indenture Trustee need not
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholders not consenting to such
action.
SECTION 5.12 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.2, the
Holders of the Notes of not less than a majority of the Outstanding Amount of
the Controlling Notes may, on behalf of all such Holders, waive any past Default
or Event of Default and its consequences except a Default (a) in payment of
principal of or interest on any of the Notes or (b) in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of the
Holder of each Controlling Note then outstanding. In the case of any such
waiver, the Issuer, the Indenture Trustee and the Holders of the Notes shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto. The
Issuer shall give prompt written notice of any waiver to the Rating Agencies.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by such Xxxxxx's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
the Indenture Trustee, the filing by any party litigant in such Proceeding of an
undertaking to pay the costs of such Proceeding, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such Proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes, or, (c) any suit instituted by any Noteholder
for the enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in
33
this Indenture (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Indenture
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon any
of the assets of the Issuer.
SECTION 5.16 Performance and Enforcement of Certain Obligations. (a)
Promptly following a request from the Indenture Trustee to do so, the Issuer
agrees to take all such lawful action as the Indenture Trustee may request to
compel or secure the performance and observance by the Sellers and the Servicer,
as applicable, of each of their respective obligations to the Issuer under or in
connection with the Sale and Servicing Agreement in accordance with the terms
thereof, and to exercise any and all rights, remedies, powers and privileges
lawfully available to the Issuer under or in connection with the Sale and
Servicing Agreement to the extent and in the manner directed by the Indenture
Trustee, including the transmission of notices of default on the part of either
Seller or the Servicer thereunder and the institution of legal or administrative
actions or proceedings to compel or secure performance by the Sellers or the
Servicer of each of their respective obligations under the Sale and Servicing
Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the Controlling Notes shall,
foreclose upon its security interest in the Issuer's rights under the Sale and
Servicing Agreement and exercise all rights, remedies, powers, privileges and
claims of the Issuer against the Sellers or the Servicer under or in connection
with the Sale and Servicing Agreement, including the right or power to take any
action to compel or secure performance or observance by
34
the Sellers or the Servicer of each of their respective obligations to the
Issuer thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Sale and Servicing Agreement, and any right of the
Issuer to take such action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of the Indenture Trustee. (a) The Indenture Trustee,
both prior to and after the occurrence of an Event of Default, shall undertake
to perform such duties and only such duties as are specifically set forth in
this Indenture and the Sale and Servicing Agreement. If an Event of Default
known to the Indenture Trustee has occurred and is continuing, the Indenture
Trustee shall exercise the rights and powers vested in it by this Indenture and
the Sale and Servicing Agreement and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
The Indenture Trustee, upon receipt of any resolutions, certificates,
statements, opinions, reports, documents, orders, or other instruments furnished
to the Indenture Trustee that shall be specifically required to be furnished
pursuant to any provision of this Indenture or the Sale and Servicing Agreement,
shall examine them to determine whether they conform to the requirements of this
Indenture or the Sale and Servicing Agreement; provided, however, that the
Indenture Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Servicer to the Indenture Trustee pursuant to
this Indenture or the Sale and Servicing Agreement.
(b) No provision of this Indenture shall be construed to relieve the
Indenture Trustee from liability for its own negligent action, its own negligent
failure to act, or its own bad faith or wilful malfeasance; provided, however,
that:
(i) prior to the occurrence of an Event of Default, and after
the curing of all such Events of Default, the Indenture Trustee
undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and the Sale and Servicing
Agreement, and no implied covenants or obligations shall be read into
this Indenture or the Sale and Servicing Agreement against the
Indenture Trustee, and in the absence of bad faith on its part or
manifest error, the Indenture Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Indenture
Trustee and conforming to the requirements of this Indenture or the
Sale and Servicing Agreement; and
35
(ii) The Indenture Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts nor shall the Indenture Trustee be liable with respect
to any action it takes or omits to take in good faith in accordance
with this Indenture or in accordance with a direction received by it
pursuant to Section 5.11.
(c) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(d) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the Sale and Servicing Agreement.
(e) No provision of this Indenture shall require the Indenture Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or indemnity satisfactory to it against such risk or liability is
not assured to it, and none of the provisions contained in this Indenture shall
in any event require the Indenture Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer (including its
obligations as custodian) under this Indenture except during such time, if any,
as the Indenture Trustee shall be the successor to, and be vested with the
rights, duties, powers and privileges of, the Servicer in accordance with the
terms of the Sale and Servicing Agreement.
(f) The Indenture Trustee shall not be charged with knowledge of an
Event of Default until such time as a Responsible Officer shall have actual
knowledge or have received written notice thereof.
(g) Except for actions expressly authorized by this Indenture or, based
upon an Opinion of Counsel, in the best interests of the Noteholders, the
Indenture Trustee shall take no action reasonably likely to impair the security
interests created or existing under any Receivable or to impair the value of any
Receivable.
(h) 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 and to the provisions of the
TIA.
SECTION 6.2 Rights of the Indenture Trustee. (a) The Indenture Trustee
may conclusively rely on any document believed by it to be genuine and to have
been signed or presented by the proper person. The Indenture Trustee need not
investigate any fact or matter stated in the document.
36
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Opinion of Counsel. The Indenture Trustee shall not be liable for any
action it takes, suffers or omits to take in good faith in reliance on the
Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder. The Indenture Trustee shall have no duty to monitor
the performance of the Issuer.
(d) The Indenture Trustee shall not be personally liable for any action
it takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the written
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the written advice or opinion of
such counsel. A copy of such written advice or Opinion of Counsel shall be
provided to the Sellers, the Servicer and the Rating Agencies.
(f) [Reserved].
(g) Prior to the occurrence of an Event of Default and after the curing
of all Events of Default that may have occurred, the Indenture Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, or other paper or document, unless
requested in writing to do so by Holders of the Notes evidencing not less than
25% of the Outstanding Amount of the Notes; provided, however, that if the
payment within a reasonable time to the Indenture Trustee of the costs,
expenses, or liabilities likely to be incurred by it in the making of such
investigation shall be, in the opinion of the Indenture Trustee, not reasonably
assured to the Indenture Trustee by the security afforded to it by the terms of
this Indenture, the Indenture Trustee may require reasonable indemnity against
such cost, expense, or liability or payment of such expenses as a condition
precedent to so proceeding. The reasonable expense of every such examination
shall be paid by the Issuer or by the Sellers at the direction of the Issuer or,
if paid by the Indenture Trustee, shall be reimbursed by the Issuer or by the
Sellers at the direction of the Issuer upon demand. Nothing in this clause (g)
shall affect the obligation of the Issuer or the Sellers to observe any
applicable law prohibiting disclosure of information regarding the Obligors.
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SECTION 6.3 Individual Rights of the Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of the Notes and may otherwise deal with the Issuer or its Affiliates with the
same rights it would have if it were not the Indenture Trustee. Any Paying
Agent, the Note Registrar, co-registrar or co-paying agent may do the same with
like rights. However, the Indenture Trustee must comply with Sections 6.11 and
6.12.
SECTION 6.4 The Indenture Trustee's Disclaimer. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, shall not be accountable for the
Issuer's use of the proceeds from the Notes, and shall not be responsible for
any statement of the Issuer in the Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is continuing
and if it is either actually known or written notice of the existence thereof
has been delivered to a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall mail to each Noteholder notice of the Default within 90
days after such knowledge or notice occurs. Except in the case of a Default in
accordance with the provisions of Section 313(c) of the TIA in payment of
principal of or interest on any Note (including payments pursuant to the
mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interest of the
Noteholders.
SECTION 6.6 Reports by the Indenture Trustee to Holders. Within the
prescribed period of time for tax reporting purposes after the end of each
calendar year during the term of this Indenture, the Indenture Trustee shall
deliver to each Noteholder such information as may be reasonably required to
enable such Holder to prepare its United States federal, state and local income
or franchise tax returns for such calendar year.
SECTION 6.7 Compensation and Indemnity. The Issuer shall cause the
Servicer pursuant to Section 4.7 of the Sale and Servicing Agreement to pay to
the Indenture Trustee from time to time reasonable compensation for its
services. The Indenture Trustee's compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Issuer shall cause the
Servicer and the Sellers pursuant to Sections 4.7 and 6.2, respectively, of the
Sale and Servicing Agreement to reimburse the Indenture Trustee for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Indenture Trustee's agents, counsel, accountants and experts.
The Issuer shall cause the Sellers pursuant to the Sale and Servicing Agreement
to indemnify the Indenture Trustee
38
against any and all loss, liability or expense (including the fees of either
in-house counsel or outside counsel, but not both) incurred by it in connection
with the administration of this trust and the performance of its duties
hereunder. The Indenture Trustee shall notify the Issuer, the Servicer and the
Sellers promptly of any claim for which it may seek indemnity.
The Sellers' payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(d) with respect to the Issuer, the expenses are intended to constitute
expenses of administration under Title 11 of the United States Code or any other
applicable federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of the Indenture Trustee. (a) The Indenture
Trustee may give notice of its intent to resign at any time by so notifying the
Issuer and the Noteowners. The Holders of a majority in Outstanding Amount of
the Notes may remove the Indenture Trustee by so notifying the Indenture Trustee
and the Issuer may appoint a successor Indenture Trustee. Such resignation or
removal shall become effective as described below. The Issuer shall remove the
Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
(b) If the Indenture Trustee gives notice of its intent to resign or is
removed or if a vacancy exists in the office of the Indenture Trustee for any
reason (the Indenture Trustee in such event being referred to herein as the
retiring Indenture Trustee), the Issuer shall promptly appoint a successor
Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee and to the Issuer and
thereupon the resignation or removal of the Indenture Trustee shall become
effective, and the successor Indenture Trustee, without any further act, deed or
conveyance shall have all the rights, powers and duties of the Indenture Trustee
under this Indenture. The successor Indenture Trustee shall mail a notice of its
succession to Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as the Indenture Trustee to the successor
Indenture Trustee.
39
(d) If a successor Indenture Trustee does not take office within 60
days after the retiring Indenture Trustee gives notice of its intent to resign
or is removed, the retiring Indenture Trustee, the Issuer or the Holders of a
majority in Outstanding Amount of the Notes may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
(e) If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
(f) Any resignation or removal of the Indenture Trustee and appointment
of a successor Indenture Trustee pursuant to any of the provisions of this
Section shall not become effective until acceptance of appointment by the
successor Indenture Trustee pursuant to Section 6.8(c) and payment of all fees
and expenses owed to the outgoing Indenture Trustee.
(g) Notwithstanding the resignation or removal of the Indenture Trustee
pursuant to this Section, the Issuer's, the Servicer's and the Sellers'
obligations under Section 6.7 shall continue for the benefit of the retiring
Indenture Trustee. The Indenture Trustee shall not be liable for the acts or
omissions of any successor Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by Xxxxxx. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee. The Indenture
Trustee shall provide the Issuer and the Rating Agencies prior written notice of
any such transaction.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor Indenture Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor Indenture Trustee may authenticate such Notes
either in the name of any predecessor Indenture Trustee hereunder or in the name
of the successor Indenture Trustee; and in all such cases such certificate of
authentication shall have the same full force as is provided anywhere in the
Notes or in this Indenture with respect to the certificate of authentication of
the Indenture Trustee.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee. (a) Notwithstanding any other provisions of this Indenture,
at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Issuer may
40
at the time be located, the Indenture Trustee shall have the power and may
execute and deliver all instruments to appoint one or more Persons to act as a
co-trustee or co-trustees, or separate trustee or separate trustees, of all or
any part of the Issuer, and to vest in such Person or Persons, in such capacity
and for the benefit of the Noteholders, such title to the Issuer, or any part
hereof, and, subject to the other provisions of this Section, such power,
duties, obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. The Sellers will pay all reasonable fees and expenses of
any co-trustee or co-trustees or separate trustee or separate trustees. The
appointment of any separate trustee or co-trustee shall not absolve the
Indenture Trustee of its obligations under this Indenture. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
an Indenture Trustee under Section 6.11, and no notice to the Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to
be performed the Indenture Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Issuer or the
Trust Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder, including
acts or omissions of predecessor or successor trustees; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment,
41
either jointly with the Indenture Trustee or separately, as may be provided
therein, subject to all the provisions of this Indenture, specifically including
every provision of this Indenture relating to the conduct of, affecting the
liability of, or affording protection to, the Indenture Trustee. Every such
instrument shall be filed with the Indenture Trustee (with a copy given to the
Issuer).
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The Indenture Trustee shall
at all times satisfy the requirements of TIA ss.310(a) and be an approved
assignee of Preferred Mortgages under the Ship Mortgage Statutes. The Indenture
Trustee shall have a combined capital and surplus of at least $100,000,000 as of
the last day of the most recent fiscal quarter for such institution and shall be
subject to examination or supervision by federal or state authorities. The
long-term unsecured debt of the Indenture Trustee shall at all times be rated
not lower than "BBB-" by Standard & Poor's, "BBB-" by Xxxx & Xxxxxx (if rated by
Xxxx & Xxxxxx) and Baa3 by Xxxxx'x or such other ratings as are acceptable to
the Rating Agencies. The Indenture Trustee shall comply with TIA ss.310(b),
including the optional provision permitted by the second sentence of TIA
ss.310(b)(9); provided that there shall be excluded from the operation of TIA
ss.310(b)(1) any indenture or indentures under which other securities of the
Issuer are outstanding if the requirements for such exclusion set forth in the
TIA ss.310(b)(1) are met.
(b) If a Default occurs, the Indenture Trustee, within 90 days after
ascertaining the occurrence of such Default, shall resign with respect to the
Class A Notes, the Class B Notes and/or the Class C Notes in accordance with
Section 6.8 of this Indenture (and shall remain Indenture Trustee for no more
than one class of Notes), and the Issuer shall appoint a successor Indenture
Trustee for one, two or three of such classes, as applicable, so that there will
be separate Indenture Trustees for the Class A Notes, the Class B Notes and the
Class C Notes.
In the event the Indenture Trustee fails to comply with the terms of the
preceding sentence, the Indenture Trustee shall comply with TIA xx.xx.
3.10(b)(ii) and (iii). The appointment hereunder of a successor Trustee with
respect to any class of Notes shall not alter the voting rights of the Class A
Noteholders, the Class B Noteholders and the Class C Noteholders hereunder and
under the Basic Documents. However, so long as any amounts remain unpaid with
respect to the Controlling Notes, only the Indenture Trustee for the
Controlling Noteholders shall have the right to exercise remedies under this
Indenture and the Basic Documents, to make deposits to and withdrawals from the
Trust Accounts and to
42
make distributions to Noteholders from the Note Distribution Account.
In the case of the appointment hereunder of a successor Indenture
Trustee with respect to any class of Notes pursuant to this Section 6.11(b), the
Issuer, the retiring Indenture Trustee and the successor Indenture Trustee with
respect to such class of Notes shall execute and deliver an indenture
supplemental hereto wherein each successor Indenture Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, the successor Indenture
Trustee all the rights, powers, trusts and duties of the retiring Indenture
Trustee with respect to the Notes of the class to which the appointment of such
successor Indenture Trustee relates, (ii) if the retiring Indenture Trustee is
not retiring with respect to all classes of Notes, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Indenture Trustee with respect to the
Notes of each class as to which the retiring Indenture Trustee is not retiring
shall continue to be vested in the Indenture Trustee, and (iii) 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
supplemental indenture shall constitute such Indenture Trustees co-trustees of
the same trust and that each such Indenture Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Indenture Trustee; and upon the removal of the
retiring Indenture Trustee shall become effective to the extent provided
therein.
SECTION 6.12 Preferential Collection of Claims Against the Issuer. The
Indenture Trustee shall comply with TIA ss.311(a), excluding any creditor
relationship listed in TIA ss.311(b). An Indenture Trustee who has resigned or
been removed shall be subject to TIA ss.311(a) to the extent indicated therein.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 The Issuer To Furnish the Indenture Trustee Names and
Addresses of the Noteholders. The Issuer will furnish or cause to be furnished
to the Indenture Trustee (a) not more than five days after each Record Date, a
list, in such form as the Indenture Trustee may reasonably require, of the names
and
43
addresses of the Holders as of such Record Date and (b) at such other times as
the Indenture Trustee may request in writing, within 14 days after receipt by
the Issuer of any such request, a list of similar form and content as of a date
not more than 10 days prior to the time such list is furnished, provided that so
long as the Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.
SECTION 7.2 Preservation of Information; Communications to the
Noteholders. (a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Noteholders contained
in the most recent list furnished to the Indenture Trustee as provided in
Section 7.1 and the names and addresses of the Noteholders received by the
Indenture Trustee in its capacity as the Note Registrar. The Indenture Trustee
may destroy any list furnished to it as provided in such Section 7.1 upon
receipt of a new list so furnished.
(b) The Noteholders may communicate pursuant to TIA ss.312(b) with
other Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA ss.312(c).
SECTION 7.3 Reports by the Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within 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 15(d) of the Exchange Act;
(ii) 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
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA
ss.313(c)) such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to clauses (i) and (ii) of
this Section 7.3(a) as may be required by rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
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SECTION 7.4 Reports by the Indenture Trustee. If required by
TIAss.313(a), within 60 days after each March 31, beginning with March 31, 1998,
the Indenture Trustee shall mail to each Noteholder as required by TIAss.313(c)
a brief report dated as of such date that complies with TIAss.313(a). The
Indenture Trustee also shall comply with TIAss.313(b). A copy of each report at
the time of its mailing to Noteholders shall be filed by the Indenture Trustee
with the Commission and each stock exchange, if any, on which the Notes are
listed. The Issuer shall notify the Indenture Trustee if and when the Notes are
listed on any stock exchange. On each Distribution Date, the Indenture Trustee
shall include with each payment to each Noteholder a copy of the statement for
the related Collection Period provided to the Indenture Trustee pursuant to
Section 5.8 of the Sale and Servicing Agreement.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise provided herein,
the Indenture Trustee may demand payment or delivery of, and shall receive and
collect, directly and without intervention or assistance of any fiscal agent or
other intermediary, all money and other property payable to or receivable by the
Indenture Trustee pursuant to this Indenture. The Indenture Trustee shall apply
all such money received by it as provided in this Indenture and the Sale and
Servicing Agreement. Except as otherwise provided in this Indenture, if any
default occurs in the making of any payment or performance under any agreement
or instrument that is part of the Trust Estate, the Indenture Trustee may take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings. Any such
action shall be without prejudice to any right to claim a Default or Event of
Default under this Indenture and any right to proceed thereafter as provided in
Article V.
SECTION 8.2 Accounts. (a) On or prior to the Closing Date, the Issuer
shall cause the Sellers to establish and maintain, in the name of the Indenture
Trustee, for the benefit of the Noteholders and/or the Certificateholders, as
applicable, the Accounts as provided in Article V of the Sale and Servicing
Agreement.
(b) Before each Distribution Date, the Servicer and the Sellers are
required to deposit the Available Amount with respect to the preceding
Collection Period in the Collection Account pursuant to Sections 5.2 and 5.4 of
the Sale and Servicing Agreement. On each Deposit Date, the Indenture Trustee
shall withdraw the Reserve Account Transfer Amount for the related Distribution
Date from the Reserve Account and deposit it in the Collection Account in
accordance with Section 5.5(b) of the Sale and Servicing Agreement. On or before
each Distribution Date, the
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Indenture Trustee or the Paying Agent on behalf of the Indenture Trustee shall
transfer the Noteholders' Distributable Amount for such Distribution Date from
the Collection Account to the Note Distribution Account in accordance with
Section 5.5(c) of the Sale and Servicing Agreement.
(c) Not later than 12:00 noon, New York City time, on each Distribution
Date, the Indenture Trustee or the Paying Agent on behalf of the Indenture
Trustee shall distribute all amounts on deposit in the Note Distribution Account
to Noteholders to the extent of amounts due and unpaid on the Notes for
principal and interest in the following amounts and in the following order of
priority:
(i) to accrued and unpaid interest on the Class A Notes;
provided that if there are not sufficient funds in the Note
Distribution Account to pay the entire amount of accrued and unpaid
interest then due on the Class A Notes, the amount in the Note
Distribution Account shall be applied to the payment of such interest
on the Class A Notes pro rata on the basis of the total such interest
due on the Class A Notes;
(ii) unless otherwise provided in clause (xii) below, to
accrued and unpaid interest on the Class B Notes;
(iii) unless otherwise provided in clause (xii) below, to
accrued and unpaid interest on the Class C Notes;
(iv) unless otherwise provided in clause (xii) below, to the
Holders of the Class A-1 Notes until the Outstanding Amount of the
Class A-1 Notes is reduced to zero;
(v) unless otherwise provided in clause (xii) below, to the
Holders of the Class A-2 Notes until the Outstanding Amount of the
Class A-2 Notes is reduced to zero;
(vi) unless otherwise provided in clause (xii) below, to the
Holders of the Class A-3 Notes until the Outstanding Amount of the
Class A-3 Notes is reduced to zero;
(vii) unless otherwise provided in clause (xii) below, to the
Holders of the Class A-4 Notes until the Outstanding Amount of the
Class A-4 Notes is reduced to zero;
(viii) unless otherwise provided in clause (xii) below, to the
Holders of the Class A-5 Notes until the Outstanding Amount of the
Class A-5 Notes is reduced to zero;
(ix) unless otherwise provided clause (xii) below, to the
Holders of the Class A-6 Notes until the Outstanding Amount of the
Class A-6 Notes until the Class A-6 Notes is reduced to zero;
46
(x) unless otherwise provided in clause (xii) below, to the
Holders of the Class B Notes until the Outstanding Amount of the Class
B Notes is reduced to zero;
(xi) unless otherwise provided in clause (xii) below, to the
Holders of the Class C Notes until the Outstanding Amount of the Class
C Notes is reduced to zero; and
(xii) if the Notes have been declared immediately due and
payable as provided in Section 5.2, any amounts remaining in the Note
Distribution Account after the applications described in Section
8.2(c)(i) shall be applied to the repayment of principal on each of the
Class A Notes pro rata on the basis of the respective unpaid principal
amount of each such Note, and any remaining amounts will be distributed
pursuant to clauses (ii), (x), (iii) and (xi) of Section 8.2(c) in that
order.
SECTION 8.3 General Provisions Regarding Accounts. (a) In accordance
with Section 5.1(b) and Section 5.6(b) of the Sale and Servicing Agreement, all
funds in the Collection Account, the Reserve Account and the Paid-Ahead Account
shall be invested in Permitted Investments upon written direction of the
Sellers. All income or other gain from investments of moneys deposited in such
Accounts shall be paid as provided in the Sale and Servicing Agreement, and any
loss resulting from such investments shall be charged to such account. The
Sellers will not direct the Indenture Trustee to make any investment of any
funds or to sell any investment held in any of such Accounts unless the security
interest Granted and perfected in such account will continue to be perfected in
such investment or the proceeds of such sale, in either case without any further
action by any Person.
(b) Subject to Section 6.1(b), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in any of the 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 as principal obligor and not as trustee, in accordance with their
terms.
(c) If (i) the Sellers shall have failed to give investment directions
for any funds on deposit in the Collection Account, as the case may be, to the
Indenture Trustee by 11:00 a.m., New York City time (or such other time as may
be agreed by the Sellers and the Indenture Trustee) on any Business Day, or (ii)
a Default or Event of Default shall have occurred and be continuing with respect
to the Notes but the Notes shall not have been declared due and payable pursuant
to Section 5.2, or, if such Notes shall have been declared due and payable
following an Event of Default, amounts collected or receivable from the Trust
Estate are being applied in accordance with Section 5.5 as if there had not been
such a declaration, then the Indenture Trustee shall, to the fullest
47
extent practicable, invest and reinvest funds in such Accounts in one or more
Permitted Investments. The Indenture Trustee shall not be liable for losses in
respect of such investments in Permitted Investments that comply with the
requirements of the Basic Documents 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 as principal obligor
and not as trustee, in accordance with their terms.
SECTION 8.4 Release of Trust Estate. (a) Subject to the payment of its
fees and expenses pursuant to Section 6.7, the Indenture Trustee may, and when
required by the provisions of this Indenture shall, execute instruments to
release property from the lien of this Indenture, or convey the Indenture
Trustee's interest in the same, in a manner and under circumstances that are not
inconsistent with the provisions of this Indenture. No party relying upon an
instrument executed by the Indenture Trustee as provided in this Article VIII
shall be bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding, and all sums due the Indenture Trustee pursuant to Section 6.7 have
been paid, release any remaining portion of the Trust Estate that secured the
Notes from the lien of this Indenture and release to the Issuer or any other
Person entitled thereto any funds then on deposit in the Note Distribution
Account. The Indenture Trustee shall release to the Issuer or any other Person
entitled thereto any funds then on deposit in the Reserve Account, Paid-Ahead
Account or the Collection Account only to such time as (x) there are no Notes
Outstanding and (y) all sums due to the Indenture Trustee pursuant to Section
6.7 have been paid. The Indenture Trustee shall release property from the lien
of this Indenture pursuant to this Section 8.4(b) only upon receipt of an Issuer
Request accompanied by an Officer's Certificate, an Opinion of Counsel and (if
required by the TIA) Independent Certificates in accordance with TIA xx.xx.
314(c) and 314(d)(1) meeting the applicable requirements of Section 11.1.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall receive at
least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and the Indenture Trustee may also require as a condition of such action, an
Opinion of Counsel, in form and substance satisfactory to the Indenture Trustee,
stating the legal effect of any such action, outlining the steps required to
complete the same, and concluding that all such action will not materially and
adversely impair the security for the Notes or the rights of the Noteholders;
provided, however that such Opinion of Counsel shall not be required to express
an opinion
48
as to the fair value of the Trust Estate. Counsel rendering any such opinion may
rely, without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in connection
with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders. (a)
Without the consent of the Holders of any Notes but with prior notice to the
Rating Agencies by the Issuer, when authorized by an Issuer Request, the Issuer
and the Indenture Trustee at any time and from time to time, may enter into one
or more indentures supplemental hereto (which shall conform to the provisions of
the Trust Indenture Act as in force at the date of the execution thereof), in
form satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject
to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein
and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the
benefit of the Holders of the Notes, or to surrender any right
or power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; provided that such action shall not materially and adversely
affect the interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes
and to add to or change any of the provisions of this Indenture as
shall be necessary to facilitate the
49
administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI;
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA; and
(viii) to effect the appointment of a successor Indenture
Trustee in accordance with Section 6.11(b).
The Indenture Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Holders of the Notes but with
prior notice to the Rating Agencies by the Issuer, as evidenced to the Indenture
Trustee, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or of modifying in any manner the
rights of the Holders of the Notes under this Indenture; provided that such
action shall not, as evidenced by an Opinion of Counsel, materially and
adversely affect the interests of any Noteholder.
SECTION 9.2 Supplemental Indentures with Consent of the Noteholders.
The Issuer and the Indenture Trustee, when authorized by the Issuer, also may,
with prior notice to the Rating Agencies and with the consent of the Holders of
a majority of the Outstanding Amount of the Notes, by Act of such Holders
delivered to the Issuer and the Indenture Trustee, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this Indenture
or of modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(i) change the date of payment of any installment of
principal of or interest on any Note, or reduce the principal amount
thereof or the interest rate thereon or the Redemption Price with
respect thereto, change the provision of this Indenture relating to the
application of collections on, or the proceeds of the sale of, the
Trust Estate to payment of principal of or interest on the Notes, or
change any place of payment where, or the coin or currency in which,
any Note or the interest thereon is payable, or impair the right to
institute suit for the enforcement of the provisions of this Indenture
requiring the application of funds available
50
therefor, as provided in Article V, to the payment of any such amount
due on the Notes on or after the respective due dates thereof (or, in
the case of redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the
Notes, the consent of all the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided
for in this Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the
Notes required to direct the Indenture Trustee to sell or liquidate the
Trust Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to increase
any percentage specified herein or to provide that certain additional
provisions of this Indenture or any of the other Basic Documents cannot
be modified or waived without the consent of the Holder of each
Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Distribution Date
(including the calculation of any of the individual components of such
calculation) or to affect the rights of the Holders of the Notes to the
benefit of any provisions for the mandatory redemption of the Notes
contained herein; or
(vii) permit the creation of any Lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Trust Estate or, except as otherwise permitted or contemplated herein
or in the Basic Documents, terminate the lien of this Indenture on any
property at any time subject hereto or deprive the Holder of any Note
of the security provided by the lien of this Indenture.
The Indenture Trustee may determine whether any Notes would be affected
by any supplemental indenture and any such determination shall be conclusive
upon the Holders of all Notes, whether theretofore or thereafter authenticated
and delivered hereunder. The Indenture Trustee shall not be liable for any such
determination made in good faith.
It shall not be necessary for any Noteholders under this Section to
approve the particular form of any proposed supplemental
51
indenture, but it shall be sufficient if such Noteholders shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section, the Indenture Trustee shall
mail to the Holders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith with respect
to the Notes affected thereby, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under this Indenture of the
Indenture Trustee, the Issuer and the Holders of the Notes shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be an be deemed to be part of the terms and
conditions of this Indenture and the Notes affected thereby for any and all
purposes.
SECTION 9.4 Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall comply in all respects with the TIA.
SECTION 9.5 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so require, new Notes so modified as to conform, in the opinion of
the Indenture Trustee and the Issuer, to any such supplemental indenture may be
prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
SECTION 9.6 Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article IX or the modifications thereby of the trusts created by this
Indenture the Indenture Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Indenture Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Indenture
52
Trustee's own rights, duties or immunities under this Indenture or otherwise.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption. The Class C Notes are subject to redemption in
whole, but not in part, on any Distribution Date upon the exercise by the
Servicer of its option to purchase the Receivables pursuant to Section 9.1(a) of
the Sale and Servicing Agreement. Such Notes shall be redeemed for the
Redemption Price; provided that the Issuer has available funds sufficient to pay
the Redemption Price. The Servicer shall furnish notice of such election to the
Indenture Trustee and the Note Registrar not later than the 25th day of the
month prior to the Redemption Date and the Issuer shall deposit or cause the
Servicer to deposit with the Indenture Trustee in the Collection Account the
Redemption Price of the Class C Notes to be redeemed, whereupon all such Class C
Notes shall be due and payable on the Redemption Date.
SECTION 10.2 Form of Redemption Notice. Notice of redemption under
Section 10.1 shall be given by the Indenture Trustee by facsimile or by
first-class mail, postage prepaid, transmitted or mailed prior to the applicable
Redemption Date to each Holder of Class C Notes, as of the close of business on
the Record Date preceding the applicable Redemption Date, at such Holder's
address appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable and that payments shall be made
only upon presentation and surrender of such Class C Notes and the
place where such Class C Notes are to be surrendered for payment of the
Redemption Price (which shall be the office or agency to be maintained
as provided in Section 3.2); and
(iv) that interest on the Class C Notes shall cease to accrue
on the Redemption Date.
Notice of redemption of the Class C Notes shall be given by the
Indenture Trustee in the name and at the expense of the Issuer. Failure to give
notice of redemption, or any defect therein, to any Holder of any Class C Notes
shall not impair or affect the validity of the redemption of any other Class C
Notes.
53
SECTION 10.3 Notes Payable on Redemption Date. The Class C Notes to
be redeemed shall, following notice of redemption as required by Section 10.2,
on the Redemption Date become due and payable at the Redemption Price and
(unless the Issuer shall default in the payment of the Redemption Price) no
interest shall accrue on the Redemption Price for any period after the date to
which accrued interest is calculated for purposes of calculating the Redemption
Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc. (a) Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer shall furnish to the Indenture
Trustee (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with, (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, and
(iii) (if required by the TIA) an Independent Certificate from a firm of
certified public accountants or other experts meeting the applicable
requirements of this Section, except that, in the case of any such application
or request as to which the furnishing of such documents is specifically required
by any provision of this Indenture, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other
property or securities with the Indenture Trustee that is to be
54
made the basis for the release of any property or securities subject to the lien
of this Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.1(a) or elsewhere in this Indenture, furnish to the Indenture Trustee
an Officer's Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within 90 days of such deposit)
to the Issuer of the Collateral or other property or securities to be so
deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(i), the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to
the Issuer of the securities to be so deposited and of all other such
securities made the basis of any such withdrawal or release since the
commencement of the then-current fiscal year of the Issuer, as set
forth in the certificates delivered pursuant to clause (i) and this
clause (ii), is 10% or more of the Outstanding Amount of the Notes, but
such a certificate need not be furnished with respect to any securities
so deposited, if the fair value thereof to the Issuer as set forth in
the related Officer's Certificate is less than $25,000 or less than one
percent of the Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any
Repurchased Receivables or Liquidated Receivables, whenever any
property or securities are to be released from the lien of this
Indenture, the Issuer shall also furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within 90 days of such
release) of the property or securities proposed to be released and
stating that in the opinion of such person the proposed release will
not impair the security under this Indenture in contravention of the
provisions hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(iii), the Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value of the
property or securities and of all other property other than Repurchased
Receivables and Liquidated Receivables, or securities released from the
lien of this Indenture since the commencement of the then current
calendar year, as set forth in the certificates required by clause
(iii) and this clause (iv), equals 10% or more of the Outstanding
Amount of the Notes, but such certificate need not be furnished in the
case of any release of property or securities if the fair value thereof
as set forth in the related Officer's Certificate is less than
55
$25,000 or less than one percent of the then Outstanding Amount of
the Notes.
(v) Notwithstanding Section 2.9 or any provision of this
Section, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of the Receivables as and to the extent permitted or required
by the Basic Documents and (B) make cash payments out of the Trust
Accounts as and to the extent permitted or required by the Basic
Documents.
SECTION 11.2 Form of Documents Delivered to the Indenture Trustee. In
any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person my certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters
upon which his or her certificate or opinion is based are erroneous. Any such
certificate of an Authorized Officer or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Servicer, either Seller or the
Issuer, stating that the information with respect to such factual matters is in
the possession of the Servicer, such Seller or the Issuer, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application,
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document (x) as a condition of the granting of such
application, or (y) as evidence of the Issuer's compliance with any term hereof,
it is intended that the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or report (as the case
may be), of the facts and opinions stated in such document shall in each case be
conditions precedent to the right of the Issuer to have such application granted
or to the sufficiency of such certificate or report. The foregoing shall not,
however,
56
be construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 11.3 Actions of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by the
Noteholders 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, when required, to the Issuer or the
Servicer. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Indenture Trustee, the Issuer and the Servicer, if
made in the manner provided in this Section 11.3.
(b) The fact and date of the execution by any Noteholder of any such
instrument or writing may be proved in any reasonable manner which the Indenture
Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Noteholder shall bind every Holder of every Note issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done, or omitted to be done, by the Indenture
Trustee, the Issuer or the Servicer in reliance thereon, regardless of whether
notation of such action is made upon such Note.
(d) The Indenture Trustee may require such additional proof of any
matter referred to in this Section 11.3 as it shall deem necessary.
SECTION 11.4 Notices, etc., to the Indenture Trustee, the Issuer, and
Rating Agencies. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture 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 personally delivered
or mailed certified mail, return receipt requested and shall be deemed
to have been duly given upon receipt by the Indenture Trustee at its
Corporate Trust Office, or
(b) The Issuer by the Indenture Trustee or any Noteholder
shall be sufficient for every purpose hereunder if personally
delivered or mailed certified mail, return receipt to the Issuer
addressed to: Chase Manhattan Marine Owner Trust 1997-A, in care
of Wilmington Trust Company, 0000 Xxxxx
57
Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust
Administration or at any other address previously furnished in writing
to the Indenture Trustee by the Issuer. The Issuer shall promptly
transmit any notice received by it from the Noteholders to the
Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, personally delivered
or mailed certified mail, return receipt requested to (i) in the case of
Moody's, at the following address: Xxxxx'x Investors Service, 00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, (ii) in the case of S&P, at the following address:
Standard & Poor's Ratings Service, 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx
00000, Attention of Asset Backed Surveillance Department or (iii) in the case of
Duff & Xxxxxx, at the following address: Duff & Xxxxxx Credit Rating Company, 00
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; or as to each of the
foregoing, at such other address as shall be designated by written notice to the
other parties.
SECTION 11.5 Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to the Noteholders when such notice is required to
be given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other right or obligations
created hereunder, and shall not under any circumstance constitute a Default or
Event of Default.
58
SECTION 11.6 Alternate Payment and Notice Provisions. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the Issuer
may enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such Holder
that is different from the methods provided for in this Indenture for such
payments or notices, provided that such methods are reasonable and consented to
by the Indenture Trustee (which consent shall not be unreasonably withheld). The
Issuer will furnish to the Indenture Trustee a copy of each such agreement, and
the Indenture Trustee will cause payments to be made and notices to be given in
accordance with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this indenture by any of the provisions of the TIA, such required
provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns. All agreements of the Indenture Trustee in this Indenture shall bind
its successors.
SECTION 11.10 Separability. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not be affected or impaired
thereby.
SECTION 11.11 Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Noteholders and (only to the
extent expressly provided herein) the Certificateholders, and any other party
secured hereunder, and any other person with an ownership interest in any part
of the Trust Estate, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 11.12 Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect
59
as if made on the date on which nominally due, and no interest shall accrue for
the period from and after any such nominal date.
SECTION 11.13 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture or to satisfy any provision of the TIA.
SECTION 11.16 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Indenture
Trustee or the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed (it being understood that the Indenture Trustee
and the Owner Trustee have no such obligations in their individual capacity) and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing to
such entity. For all purposes of this Indenture, in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles VI, VII and VIII of the Trust Agreement.
SECTION 11.17 No Petition. The Indenture Trustee, by entering into this
Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree
that they will not at any time institute against the Issuer or join in any
institution against the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law in connection
60
with any obligations relating to the Notes, this Indenture or any of the other
Basic Documents.
SECTION 11.18 Inspection. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports, and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees and independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing) and except to
the extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its Obligations hereunder.
SECTION 11.19 Subordination. The Issuer and the Noteholder agree that
the Class B Notes are subordinated to the Class A Notes, and that the Class C
Notes are subordinated to the Class A Notes and the Class B Notes, in each case
in the manner set forth in this Indenture.
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized, all as of the day and year first above written.
CHASE MANHATTAN MARINE
OWNER TRUST 1997-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:
---------------------------------
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By:
---------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Assistant Vice
President
61
EXHIBIT A
SCHEDULE OF RECEIVABLES
Delivered to the Owner Trustee and the Indenture Trustee
on the Closing Date.
EXHIBIT B
FORM OF CLASS A NOTE
REGISTERED $________________(1)
No. R-____ CUSIP NO. [________]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CHASE MANHATTAN MARINE OWNER TRUST 1997-A
[____]% CLASS A-[__] ASSET BACKED NOTES
Chase Manhattan Marine Owner Trust 1997-A, a trust organized and
existing under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or its
registered assigns, the principal sum of DOLLARS
($_____________), partially payable on each Distribution Date in an amount equal
to the result obtained by multiplying (i) a fraction, the numerator of which is
$__________ and the denominator of which is $[________] by (ii) the aggregate
amount, if any, payable from the Note Distribution Account in respect of
principal on the Class A-[__] Notes pursuant to Section 3.1 of the Indenture;
provided that the entire unpaid principal amount of this Note shall be due and
payable on the earlier of the [__________] Distribution Date and the Redemption
Date, if any, pursuant to Section 10.1 of the Indenture. The Issuer will pay
interest on this Note at the rate per annum shown above, on each Distribution
Date until the principal of this Note is paid or made available for payment, on
the principal amount of this Note outstanding on the preceding Distribution Date
(after giving effect to all payments of principal made on the preceding
Distribution Date), subject to certain limitations contained in Sections 2.7,
3.1 and 8.2 of the Indenture. Interest on this Note will accrue for each
Distribution Date from the most recent Distribution Date on which interest has
been paid to but excluding the then current Distribution Date or, if no interest
has yet been paid, from October __, 1997. Interest will be computed on the basis
of a 360-day year of twelve 30-day months. Such principal of
and interest on this Note shall be paid in the manner specified in
the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the trustee whose name appears below by manual signature, this Note shall not be
entitled to any benefit under the Indenture referred to on the reverse hereof,
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: __________, 199_
CHASE MANHATTAN MARINE OWNER TRUST
1997-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By:
------------------------------------
Name:
Title:
B-2
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within
mentioned Indenture.
Dated: ________ __, 199_
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity
but solely as Indenture Trustee
By:
------------------------------------
Authorized Signatory
B-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its [____]% Class A-[__] Asset Backed Notes (herein called the
"Class A-[__] Notes" or the "Notes"), all issued under an Indenture dated as of
October 1, 1997 (such Indenture, as supplemented or amended, is herein called
the "Indenture"), between the Issuer and Norwest Bank Minnesota, National
Association, not in its individual capacity but solely as trustee (the
"Indenture Trustee", which term includes any successor Indenture Trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are not otherwise defined herein and that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
The Notes and the other Class A-[__] Notes, the Class B Notes and the
Class C Notes are and will be secured by the collateral pledged as security
therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Interest Rate applicable thereto to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
this Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in
its individual capacity, (ii) any owner of a beneficial interest in the Issuer
or (iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Indenture Trustee or the Owner Trustee in its individual capacity,
any holder of a beneficial interest in the Owner Trustee or the Indenture
Trustee or of any successor or assign of the Indenture Trustee or the Owner
Trustee in its individual capacity, except as any such Person may have expressly
agreed (it being understood that the Indenture Trustee and the Owner Trustee
have no such obligations in their individual capacity) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
It is the intent of the Sellers, the Noteholders and the Note Owners,
the Issuer, the Certificateholders and the Certificate Owners, that the Notes
will be classified as indebtedness of the Issuer for all United States tax
purposes. The Noteholders, by
acceptance of a Note, agree to treat, and to take no action inconsistent with
the treatment of, the Notes as indebtedness of the Issuer for such tax purposes.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that they
will not at any time institute against the Issuer or join in any institution
against the Issuer of, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings under any United States Federal
or State bankruptcy or similar law in connection with any obligations relating
to the Notes, this Indenture or any of the other Basic Documents.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Chase Manhattan Bank USA, National
Association nor The Chase Manhattan Bank, in its individual capacity, nor any
owner of a beneficial interest in the Issuer, nor any of their respective
partners, beneficiaries, agents, officers, directors, employees, successors or
assigns shall be personally liable for, nor shall recourse be had to any of them
for, the payment of principal of or interest on, or performance of, or omission
to perform, any of the covenants, obligations or indemnifications contained in
this Note or the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Indenture Trustee for the
sole purposes of binding the interests of the Indenture Trustee in the assets of
the Issuer. The Holder of this Note by the acceptance hereof agrees that, except
as expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
--------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
--------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ___________________________________________, attorney, to transfer
said Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ****/
--------------------- -------------------------------
Signature Guaranteed:
--------
****/ NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
(1) Denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
EXHIBIT C
FORM OF CLASS B NOTE
REGISTERED $_________________(1)
No. R-______________ CUSIP NO. [________]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CHASE MANHATTAN MARINE OWNER TRUST 1997-A
[____]% CLASS B ASSET BACKED NOTES
Chase Manhattan Marine Owner Trust 1997-A, a trust organized and
existing under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or its
registered assigns, the principal sum of DOLLARS
($________________), partially payable on each Distribution Date in an amount
equal to the result obtained by multiplying (i) a fraction, the numerator of
which is $_____________ and the denominator of which is $[________] by the (ii)
the aggregate amount, if any, payable from the Note Distribution Account in
respect of principal on the Class B Notes pursuant to Section 3.1 of the
Indenture; provided that the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the [________ ____] Distribution Date and
the Redemption Date, if any, pursuant to Section 10.1 of the Indenture. No
payments of principal of the Class B Notes will be made until the principal of
the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4
Notes, the Class A-5 Notes and the Class A-6 Notes have been paid in full. The
Issuer will pay interest on this Note at the rate per annum shown above, on each
Distribution Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Distribution Date (after giving effect to all payments of principal made on the
preceding Distribution Date), subject to certain limitations contained in
Sections 2.7, 3.1 and 8.2 of the Indenture. Interest on this Note will accrue
for each Distribution Date from the most recent Distribution Date on which
interest has been paid to but excluding the then current
Distribution Date or, if no interest has yet been paid, from October __, 1997.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: , 199
CHASE MANHATTAN MARINE OWNER TRUST
1997-A
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
as Owner Trustee under the Trust
Agreement
By:
----------------------------------------
Name:
Title:
C-2
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: ________ __, 199_
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Indenture
Trustee
By:
--------------------------------------
Authorized Signatory
C-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its [____]% Class B Asset Backed Notes (herein called the "Class B
Notes" or the "Notes"), all issued under an Indenture dated as of October 1,
1997 (such Indenture, as supplemented or amended, is herein called the
"Indenture"), between the Issuer and Norwest Bank Minnesota, National
Association, not in its individual capacity but solely as trustee (the
"Indenture Trustee", which term includes any successor Indenture Trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder the of the Issuer, the Indenture Trustee and the Holders
of the Notes. The Notes are subject to all terms of the Indenture. All terms
used in this Note that are not otherwise defined herein and that are defined in
the Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
The Notes and the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes, the Class A-5 Notes, the Class A-6 Notes and the
Class C Notes are and will be secured by the collateral pledged as security
therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class B Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
this Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in
its individual capacity, (ii) any owner of a beneficial interest in Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Indenture Trustee or the Owner Trustee in its individual capacity,
any holder of a beneficial interest in the Issuer, the Indenture Trustee or the
Owner Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except that any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacity) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
It is the intent of the Sellers, the Noteholders, the Note Owners, the
Issuer, the Certificateholders and the Certificate
Owners that, the Notes will be classified as indebtedness of the Issuer for all
United States tax purposes. The Noteholders, by acceptance of a Note, agree to
treat, and to take no action inconsistent with the treatment of, the Notes for
such tax purposes as indebtedness of the Issuer.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that they
will not at any time institute against the Issuer, or join in any institution
against the Issuer of, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings under any United States Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Notes, this Indenture or any of the other Basic Documents.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Chase Manhattan Bank USA, National
Association nor The Chase Manhattan Bank, in its individual capacity, nor any
owner of a beneficial interest in the Issuer, nor any of their respective
partners, beneficiaries, agents, officers, directors, employees, successors or
assigns shall be personally liable for, nor shall recourse be had to any of them
for, the payment of principal of or interest on, or performance of, or omission
to perform, any of the covenants, obligations or indemnifications contained in
this Note or the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Indenture Trustee for the
sole purpose of binding the interests of the Indenture Trustee in the assets of
the Issuer. The Holder of this Note by the acceptance hereof agrees that, except
as expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
--------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
--------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ***/
----------------- --------------------------------------
Signature Guaranteed:
--------
***/ NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
(1) Denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
EXHIBIT D
FORM OF CLASS C NOTE
REGISTERED $________________ (1)
No. R-_____________________ CUSIP NO. [________]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CHASE MANHATTAN MARINE OWNER TRUST 1997-A
[____]% CLASS C ASSET BACKED NOTES
Chase Manhattan Marine Owner Trust 1997-A, a trust organized and
existing under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or its
registered assigns, the principal sum of
DOLLARS ($ ), partially payable on each
Distribution Date in an amount equal to the result obtained by multiplying (i) a
fraction, the numerator of which is $_____________ and the denominator of which
is $[________] by the (ii) the aggregate amount, if any, payable from the Note
Distribution Account in respect of principal on the Class C Notes pursuant to
Section 3.1 of the Indenture; provided that the entire unpaid principal amount
of this Note shall be due and payable on the earlier of the [________ ____]
Distribution Date and the Redemption Date, if any, pursuant to Section 10.1 of
the Indenture. No payments of principal of the Class C Notes will be made until
the principal of the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes, the Class A-5 Notes, the Class A-6 Notes and the Class B
Notes have been paid in full. The Issuer will pay interest on this Note at the
rate per annum shown above, on each Distribution Date until the principal of
this Note is paid or made available for payment, on the principal amount of this
Note outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date), subject to
certain limitations contained in Sections 2.7, 3.1 and 8.2 of the Indenture.
Interest on this Note will accrue for each Distribution Date from the most
recent Distribution Date on which interest has been paid to but excluding
the then current Distribution Date or, if no interest has yet been paid, from
October __, 1997. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. Such principal of and interest on this Note shall be paid
in the manner specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: ________ __, 199_
CHASE MANHATTAN MARINE OWNER TRUST
1997-A
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
as Owner Trustee under the Trust
Agreement
By:
-------------------------------------
Name:
Title:
D-2
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: ________ __, 199_
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Indenture
Trustee
By:
--------------------------------------
Authorized Signatory
D-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its [____]% Class C Asset Backed Notes (herein called the "Class C
Notes" or the "Notes"), all issued under an Indenture dated as of October 1,
1997 (such Indenture, as supplemented or amended, is herein called the
"Indenture"), between the Issuer and Norwest Bank Minnesota, National
Association, not in its individual capacity but solely as trustee (the
"Indenture Trustee", which term includes any successor Indenture Trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder the of the Issuer, the Indenture Trustee and the Holders
of the Notes. The Notes are subject to all terms of the Indenture. All terms
used in this Note that are not otherwise defined herein and that are defined in
the Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
The Notes and the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes, the Class A-5 Notes, the Class A-6 Notes and the
Class B Notes are and will be secured by the collateral pledged as security
therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class C Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
this Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in
its individual capacity, (ii) any owner of a beneficial interest in Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Indenture Trustee or the Owner Trustee in its individual capacity,
any holder of a beneficial interest in the Issuer, the Indenture Trustee or the
Owner Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except that any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacity) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
It is the intent of the Sellers, the Noteholders, the Note Owners, the
Issuer, the Certificateholders and the Certificate
Owners that, the Notes will be classified as indebtedness of the Issuer for all
United States tax purposes. The Noteholders, by acceptance of a Note, agree to
treat, and to take no action inconsistent with the treatment of, the Notes for
such tax purposes as indebtedness of the Issuer.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that they
will not at any time institute against the Issuer, or join in any institution
against the Issuer of, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings under any United States Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Notes, this Indenture or any of the other Basic Documents.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Chase Manhattan Bank USA, National
Association nor The Chase Manhattan Bank, in its individual capacity, nor any
owner of a beneficial interest in the Issuer, nor any of their respective
partners, beneficiaries, agents, officers, directors, employees, successors or
assigns shall be personally liable for, nor shall recourse be had to any of them
for, the payment of principal of or interest on, or performance of, or omission
to perform, any of the covenants, obligations or indemnifications contained in
this Note or the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Indenture Trustee for the
sole purpose of binding the interests of the Indenture Trustee in the assets of
the Issuer. The Holder of this Note by the acceptance hereof agrees that, except
as expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
--------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
--------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: _________________ ___________________________________________***/
Signature Guaranteed:
--------
***/ NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
(1) Denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
