Exhibit 4.49
GREYHOUND FUNDING LLC,
as Issuer
and
THE CHASE MANHATTAN BANK,
as Indenture Trustee
------------------------------
BASE INDENTURE
Dated as of June 30, 1999
------------------------------
Asset Backed Notes
(Each Issuable in Series)
TABLE OF CONTENTS
Section Page
BASE INDENTURE, dated as of June 30, 1999, between GREYHOUND FUNDING
LLC, a special purpose limited liability company established under the laws of
Delaware, as issuer (the "Issuer"), and THE CHASE MANHATTAN BANK, a New York
banking corporation, as trustee (in such capacity, the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of one or more
series of Notes from time to time, issuable as provided in this Indenture;
WHEREAS, all things necessary to make this Indenture a legal, valid
and binding agreement of the Issuer, in accordance with its terms, have been
done, and the Issuer proposes to do all the things necessary to make the
Investor Notes, when executed by the Issuer and authenticated and delivered by
the Indenture Trustee hereunder and duly issued by the Issuer, the legal, valid
and binding obligations of the Issuer as hereinafter provided;
NOW, THEREFORE, for and in consideration of the premises and the
receipt of the Investor Notes by the Investor Noteholders, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Investor
Noteholders as follows:
Certain capitalized terms used herein (including the preamble and
the recitals hereto) shall have the meanings assigned to such terms in the
Definitions List attached hereto as Schedule 1 (the "Definitions List"), as such
Definitions List may be amended or modified from time to time in accordance with
the provisions hereof.
Unless otherwise specified, references in this Indenture and in each
other Transaction Document to any Article or Section are references to such
Article or Section of this Indenture or such other Transaction Document, as the
case may be and, unless otherwise specified, references in any Article, Section
or definition to any clause are references to such clause of such Article,
Section or definition.
Where the character or amount of any asset or liability or item of
income or expense is required to be determined, or any accounting computation is
required to be made, for the purpose of this Indenture, such determination or
calculation shall be made, to the extent applicable and except as otherwise
specified in this Indenture, in accordance with GAAP. When
used herein, the term "financial statement" shall include the notes and
schedules thereto. All accounting determinations and computations hereunder or
under any other Transaction Documents shall be made without duplication.
In this Indenture, unless the context otherwise requires:
(i) the singular includes the plural and vice versa;
(ii) reference to any Person includes such Person's successors
and assigns but, if applicable, only if such successors and assigns are
permitted by this Indenture, and reference to any Person in a particular
capacity only refers to such Person in such capacity;
(iii) reference to any gender includes the other gender;
(iv) reference to any Requirement of Law means such
Requirement of Law as amended, modified, codified or reenacted, in whole
or in part, and in effect from time to time;
(v) "including" (and with correlative meaning "include") means
including without limiting the generality of any description preceding
such term; and
(vi) with respect to the determination of any period of time,
"from" means "from and including" and "to" means "to but excluding".
Each Series of Investor Notes and any Class thereof may be issued in
bearer form (the "Bearer Notes") with attached interest coupons and a special
coupon (collectively, the "Coupons") or in fully registered form (the
"Registered Notes"), and, in each case, substantially in the form specified in
the applicable Indenture Supplement, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
hereby or by the related Indenture Supplement and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may, consistently herewith, be determined to be appropriate by the Authorized
Officers executing such Investor Notes, as evidenced by their execution of the
Investor Notes. All Investor Notes of any Series shall, except as specified in
the related Indenture Supplement, be equally and ratably entitled as provided
herein to the benefits hereof without preference, priority or distinction on
account of the actual time or times of authentication and delivery, all in
accordance with the terms and provisions of this Indenture and the applicable
Indenture Supplement. The aggregate principal amount of Investor Notes which
-2-
may be authenticated and delivered under this Indenture is unlimited. The
Investor Notes shall be issued in the denominations set forth in the related
Indenture Supplement.
(a) The Investor Notes may be issued in one or more Series. Each
Series of Investor Notes shall be created by an Indenture Supplement.
(b) Investor Notes of a new Series may from time to time be executed
by the Issuer and delivered to the Indenture Trustee for authentication and
thereupon the same shall be authenticated and delivered by the Indenture Trustee
upon the receipt of an Issuer Request at least three (3) Business Days (or such
shorter time as is acceptable to the Indenture Trustee) in advance of the
related Series Closing Date and upon delivery by the Issuer to the Indenture
Trustee, and receipt by the Indenture Trustee, of the following:
(i) an Issuer Order authorizing and directing the authentication and
delivery of the Investor Notes of such new Series by the Indenture Trustee
and specifying the designation of such new Series, the Initial Invested
Amount (or the method for calculating such Initial Invested Amount) and
the Note Rate (or the method for allocating interest payments or other
cash flows to such Series), if any, with respect to such Series;
(ii) an Indenture Supplement satisfying the criteria set forth in
Section 2.2(c) executed by the Issuer and specifying the Principal Terms
of such Series;
(iii) a Tax Opinion;
(iv) written confirmation from each Rating Agency that the Rating
Agency Condition shall have been satisfied with respect to such issuance;
(v) an Officer's Certificate of the Issuer, that on the Series
Closing Date after giving effect to the issuance of such new Series, (i)
neither an Amortization Event nor a Potential Amortization Event with
respect to any Series of Investor Notes nor an Asset Deficiency is
continuing or will occur, (ii) the issuance of the new Series of Investor
Notes will not result in any breach of any of the terms, conditions or
provisions of or constitute a default under any indenture, mortgage, deed
of trust or other agreement or instrument to which the Issuer is a party
or by which it or its property is bound or any order of any court or
administrative agency entered in any suit, action or other judicial or
administrative proceeding to which the Issuer is a party or by which it or
its property may be bound or to which it or its property may be subject
and (iii) all conditions precedent provided in this Base Indenture and the
related Indenture Supplement with respect to the authentication and
delivery of the new Series of Investor Notes have been complied with; and
(vi) such other documents, instruments, certifications, agreements
or other items as the Indenture Trustee may reasonably require.
-3-
(c) In conjunction with the issuance of a new Series of Investor
Notes, the parties hereto shall execute an Indenture Supplement, which shall
specify the relevant terms with respect to any newly issued Series of Investor
Notes, which may include without limitation:
(i) its name or designation;
(ii) an Initial Invested Amount or the method of calculating the
Initial Invested Amount;
(iii) the Note Rate (or formula for the determination thereof);
(iv) the Series Closing Date;
(v) each Rating Agency rating such Series;
(vi) the name of the Clearing Agency or Foreign Clearing Agency, if
any;
(vii) the interest payment date or dates and the date or dates from
which interest shall accrue;
(viii) the method of allocating Collections with respect to such
Series;
(ix) the method by which the principal amount of Investor Notes of
such Series shall amortize or accrete;
(x) the names of any Series Accounts to be used by such Series and
the terms governing the operation of any such accounts and use of moneys
therein;
(xi) the Series Servicing Fee and the Series Servicing Fee
Percentage;
(xii) the terms on which the Investor Notes of such Series may be
redeemed, repurchased or remarketed to other investors;
(xiii) any deposit into any Series Account;
(xiv) the number of Classes of such Series, and if more than one
Class, the rights and priorities of each such Class;
(xv) the priority of any Series with respect to any other Series;
(xvi) the Lease Rate Caps required to be maintained with respect to
such Series; and
(xvii) any other relevant terms of such Series (including whether or
not such Series will be pledged as collateral for an issuance of any other
securities, including commercial paper) (all such terms, the "Principal
Terms" of such Series).
-4-
The terms of such Indenture Supplement may modify or amend the terms of this
Indenture solely as applied to such new Series. If on the date of the issuance
of such Series there is issued and outstanding one or more Series of Investor
Notes and no Series of Investor Notes is currently rated by a Rating Agency,
then as a condition to such issuance a nationally recognized investment banking
firm or commercial bank shall also deliver to the Indenture Trustee a
certificate of an officer thereof stating, in substance, that, to the best of
such officer's knowledge and belief, the issuance of such new Series of Investor
Notes will not have a material adverse effect on the timing or distribution of
payments to such other Series of Investor Notes then issued and outstanding.
(d) The Issuer may direct the Indenture Trustee to deposit all or a
portion of the net proceeds from the issuance of any new Series of Investor
Notes into a Series Account for another Series of Investor Notes and may specify
that the proceeds from the sale of such new Series of Investor Notes may be used
to reduce the Invested Amount of another Series of Investor Notes.
(a) The Investor Notes shall, upon issue pursuant to Section 2.2, be
executed on behalf of the Issuer by an Authorized Officer and delivered by the
Issuer to the Indenture Trustee for authentication and redelivery as provided
herein. If an Authorized Officer whose signature is on an Investor Note no
longer holds that office at the time the Investor Note is authenticated, the
Investor Note shall nevertheless be valid.
(b) At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Investor Notes of any
particular Series executed by the Issuer to the Indenture Trustee for
authentication, together with one or more Issuer Orders for the authentication
and delivery of such Investor Notes, and the Indenture Trustee, in accordance
with such Issuer Order and this Indenture, shall authenticate and deliver such
Investor Notes. If specified in the related Indenture Supplement for any Series
of Investor Notes, the Indenture Trustee shall authenticate and deliver outside
the United States the Global Note that is issued upon original issuance thereof,
upon receipt of an Issuer Order, to the Depository against payment of the
purchase price therefor. If specified in the related Indenture Supplement for
any Series of Investor Notes, the Indenture Trustee shall authenticate
Book-Entry Notes that are issued upon original issuance thereof, upon receipt of
an Issuer Order, to a Clearing Agency, a Foreign Clearing Agency or its nominee
as provided in Section 2.10 against payment of the purchase price thereof.
(c) No Investor Note shall be entitled to any benefit under this
Indenture or be valid for any purpose unless there appears on such Investor Note
a certificate of authentication substantially in the form provided for herein,
duly executed by the Indenture Trustee by the manual signature of a Responsible
Officer (and the Luxembourg agent (the "Luxembourg Agent"), if such Investor
Notes are listed on the Luxembourg Stock Exchange). Such signatures on such
certificate shall be conclusive evidence, and the only evidence, that the
Investor Note has been duly authenticated under this Indenture. The Indenture
Trustee may appoint an
-5-
authenticating agent acceptable to the Issuer to authenticate Investor Notes.
Unless limited by the term of such appointment, an authenticating agent may
authenticate Investor Notes whenever the Indenture Trustee may do so. Each
reference in this Indenture to authentication by the Indenture Trustee includes
authentication by such agent. The Indenture Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Investor Notes of a series issued under the
within mentioned Indenture.
THE CHASE MANHATTAN BANK, as
Indenture Trustee
By:
Authorized Signatory
(d) Each Investor Note shall be dated and issued as of the date of
its authentication by the Indenture Trustee, except Bearer Notes which shall be
dated the applicable Series Closing Date as provided in the related Indenture
Supplement..
(e) Notwithstanding the foregoing, if any Investor Note shall have
been authenticated and delivered hereunder but never issued and sold by the
Issuer, and the Issuer shall deliver such Investor Note to the Indenture Trustee
for cancellation, together with a written statement (which need not comply with
Section 13.2 and need not be accompanied by an Opinion of Counsel) stating that
such Investor Note has never been issued and sold by the Issuer, for all
purposes of this Indenture such Investor Note shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
(a) The Issuer shall cause to be kept at the office or agency to be
maintained by a transfer agent and registrar (the "Transfer Agent and
Registrar"), a register (the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Transfer Agent and Registrar
shall provide for the registration of the Investor Notes of each Series (unless
otherwise provided in the related Indenture Supplement) and of transfers and
exchanges of the Investor Notes as herein provided. Chase is hereby initially
appointed Transfer Agent and Registrar for the purposes of registering the
Investor Notes and transfers and exchanges of the Investor Notes as herein
provided. If any form of Investor Note is issued as a Global Note, the Indenture
Trustee may, or if and so long as any Series of Investor Notes is listed on the
Luxembourg Stock Exchange and such exchange shall so require, the Indenture
Trustee shall appoint a co-transfer agent and co-registrar in Luxembourg or
another European city. Any reference in this Indenture to the Transfer Agent and
Registrar shall include any co-transfer agent and co-registrar unless the
context otherwise requires. Chase shall be permitted to resign as Transfer Agent
and Registrar upon 30 days' written notice to the Indenture Trustee; provided,
however, that such resig-nation shall not be effective and Chase shall contin-ue
to perform its
-6-
duties as Transfer Agent and Registrar until the Indenture Trustee has appointed
a succes-sor Transfer Agent and Registrar with the consent of the Issuer.
If a Person other than the Indenture Trustee is appointed by the
Issuer as the Transfer Agent and Registrar, the Issuer will give the Indenture
Trustee prompt written notice of the appointment of such Transfer Agent and
Registrar and of the location, and any change in the location, of the Transfer
Agent and Register, and the Indenture Trustee shall have the right to inspect
the Transfer Agent and Register at all reasonable times and to obtain copies
thereof.
An institution succeeding to the corporate agency business of the
Transfer Agent and Registrar shall continue to be the Transfer Agent and
Registrar without the execution or filing of any paper or any further act on the
part of the Indenture Trustee or such Transfer Agent and Registrar.
The Transfer Agent and Registrar shall maintain in The City of New
York (and, if so specified in the related Indenture Supplement for any Series of
Notes, any other city designated in such Indenture Supplement) an office or
offices or agency or agencies where Investor Notes may be surrendered for
registration of transfer or exchange. The Transfer Agent and Registrar initially
designates its corporate trust office located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000 as its office for such purposes. The Transfer Agent and
Registrar shall give prompt written notice to the Indenture Trustee, the Issuer
and to the Investor Noteholders of any change in the location of such office or
agency.
Upon surrender for registration of transfer of any Investor Note at
the office or agency of the Transfer Agent and Registrar, if the requirements of
Section 2.4(b) and Section 8-401(a) of the UCC are met, the Issuer shall execute
and after the Issuer has executed, the Indenture Trustee shall authenticate and
(if the Transfer Agent and Registrar is different than the Indenture Trustee,
then the Transfer Agent and Registrar shall) deliver to the Investor Noteholder,
in the name of the designated transferee or transferees, one or more new
Investor Notes, in any authorized denominations, of the same Class and a like
aggregate principal amount; provided, however that the provisions of this
paragraph shall not apply to Bearer Notes.
At the option of any Holder of Registered Notes, Registered Notes
may be exchanged for other Registered Notes of the same Series in authorized
denominations of like aggregate principal amount, upon surrender of the
Registered Notes to be exchanged at any office or agency of the Transfer Agent
and Registrar maintained for such purpose. At the option of any holder of Bearer
Notes, subject to applicable laws and regulations (including without limitation,
the Bearer Rules), Bearer Notes may be exchanged for other Bearer Notes or
Registered Notes of the same Series in authorized denominations of like
aggregate principal amount, in the manner specified in the Indenture Supplement
for such Series, upon surrender of the Bearer Notes to be exchanged at an office
or agency of the Transfer Agent and Registrar located outside the United States.
Each Bearer Note surrendered pursuant to this Section 2.4 shall have attached
thereto (or be accompanied by) all unmatured Coupons, provided that any Bearer
Note so surrendered after the close of business on the Record Date preceding the
relevant Payment Date need not have attached the Coupons relating to such
Payment Date.
-7-
Whenever any Investor Notes of any Series are so surrendered for
exchange, if the requirements of Section 8-401(a) of the UCC are met, the Issuer
shall execute and after the Issuer has executed, the Indenture Trustee shall
authenticate and (if the Transfer Agent and Registrar is different than the
Indenture Trustee, then the Transfer Agent and Registrar shall) deliver to the
Investor Noteholder, the Investor Notes which the Investor Noteholder making the
exchange is entitled to receive.
All Investor Notes issued upon any registration of transfer or
exchange of the Investor Notes shall be the valid obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Investor Notes surrendered upon such registration of transfer
or exchange.
Every Investor 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 Holder'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.
The preceding provisions of this Section 2.4 notwithstanding, the
Indenture Trustee or the Transfer Agent and Registrar, as the case may be, shall
not be required to register the transfer of or exchange any Investor Note of any
Series for a period of 15 days preceding the due date for any payment in full of
the Investor Notes of such Series.
Unless otherwise provided in the related Indenture Supplement, no
service charge shall be made for any registration of transfer or exchange of
Investor Notes, but the Transfer Agent and Registrar may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Investor Notes.
All Investor Notes (together with any Coupons attached to Bearer
Notes) surrendered for registration of transfer and exchange shall be canceled
by the Transfer Agent and Registrar and disposed of in a manner satisfactory to
the Indenture Trustee. The Indenture Trustee shall cancel and destroy any Global
Notes upon its exchange in full for Definitive Notes and shall deliver a
certificate of destruction to the Issuer. Such certificate shall also state that
a certificate or certificates of each Foreign Clearing Agency was received with
respect to each portion of such Global Note exchanged for Definitive Notes in
accordance with the related Indenture Supplement.
The Issuer shall execute and deliver to the Indenture Trustee or the
Transfer Agent and Registrar, as applicable, Bearer Notes and Registered Notes
in such amounts and at such times as are necessary to enable the Indenture
Trustee to fulfill its responsibilities under this Indenture and the Investor
Notes.
-8-
(b) Unless otherwise provided in the related Indenture Supplement,
registration of transfer of Registered Notes containing a legend relating to the
restrictions on transfer of such Registered Notes (which legend shall be set
forth in the Indenture Supplement relating to such Investor Notes) shall be
effected only if the conditions set forth in such related Indenture Supplement
are satisfied.
If (a) any mutilated Investor Note (together, in the case of Bearer
Notes, with all unmatured Coupons, if any, appertaining thereto) is surrendered
to the Transfer Agent and Registrar, or the Transfer Agent and Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Investor Note and (b) there is delivered to the Transfer Agent and Registrar and
the Indenture Trustee such security or indemnity as may be reasonably required
by them to save each of them harmless, then provided that the requirements of
Section 8-405 of the UCC are met, the Issuer shall execute and after the Issuer
has executed, the Indenture Trustee shall authenticate and (unless the Transfer
Agent and Registrar is different from the Indenture Trustee, in which case the
Transfer Agent and Registrar shall) deliver (in compliance with applicable law),
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Investor Note, a new Investor Note of like tenor and aggregate principal amount;
provided, however, that if any such destroyed, lost or stolen Investor Note, but
not a mutilated Investor Note, shall have become or within seven days shall be
due and payable, instead of issuing a replacement Investor Note, the Issuer may
pay such destroyed, lost or stolen Investor Note when so due or payable without
surrender thereof. If, after the delivery of such replacement Investor Note or
payment of a destroyed, lost or stolen Investor Note pursuant to the proviso to
the preceding sentence, a purchaser for value of the original Investor Note in
lieu of which such replacement Investor Note was issued presents for payment
such original Investor Note, the Issuer, the Transfer Agent and Registrar and
the Indenture Trustee shall be entitled to recover such replacement Investor
Note (or such payment) from the Person to whom it was delivered or any Person
taking such replacement Investor Note from such Person to whom such replacement
Investor Note was delivered or any assignee of such Person, except a purchaser
for value, 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 Transfer Agent and Registrar or the Indenture Trustee in
connection therewith.
In connection with the issuance of any new Investor Note under this
Section 2.5, the Indenture Trustee or the Transfer Agent and Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Indenture Trustee and the Transfer Agent and
Registrar) connected therewith. Any duplicate Investor Note issued pursuant to
this Section 2.5 shall constitute an original contractual obligation of the
Issuer whether or not the lost, stolen or destroyed note shall be found at any
time.
-9-
(a) The Indenture Trustee may appoint a Paying Agent with respect to
the Investor Notes. The Indenture Trustee hereby appoints Chase as the initial
Paying Agent. The Paying Agent shall have the revocable power to withdraw funds
and make distributions to Investor Noteholders from the appropriate account or
accounts maintained for the benefit of Noteholders as specified in this
Indenture or the related Indenture Supplement for any Series pursuant to Article
5. 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. The Indenture Trustee shall notify the
Rating Agency of the removal of any Paying Agent. If any form of Investor Note
is issued as a Global Note, or if and so long as any Series of Investor Notes
are listed on the Luxembourg Stock Exchange and such exchange shall so require,
the Indenture Trustee shall appoint a co-paying agent in Luxembourg or another
European city. The Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' written notice to the Indenture Trustee. In the event that any
Paying Agent shall 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 Issuer. The
provisions of Sections 10.01, 10.02, 10.03 and 10.06 shall apply to the
Indenture Trustee also in the capacity of Paying Agent, for so long as the
Indenture Trustee shall act as Paying Agent. Any reference in this Indenture to
the Paying Agent shall include any co-paying agent unless the context requires
otherwise.
(b) The Indenture Trustee shall cause each Paying Agent (other than
itself) to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee that such Paying Agent
will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Investor 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
of which it has actual knowledge in the making of any payment required to
be made with respect to the Investor 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
Investor 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 Investor Notes of any
applicable withholding taxes
-10-
imposed thereon and with respect to any applicable reporting requirements
in connection therewith.
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.
(c) Subject to applicable laws with respect to escheat of funds, any
money held by the Indenture Trustee or any Paying Agent or a Clearing Agency or
a Foreign Clearing Agency in trust for the payment of any amount due with
respect to any Investor 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 Issuer Request; and the Holder of such Investor 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, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
may 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 New York City, and London and Luxembourg (if the
related Series of Investor Notes has been listed on the Luxembourg Stock
Exchange), if applicable, 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 may also adopt and employ,
at the expense of the Issuer, any other reasonable means of notification of such
repayment.
Prior to due presentation of an Investor Note for registration of
transfer, the Indenture Trustee, the Paying Agent, the Transfer Agent and
Registrar and any agent of any of them may treat the Person in whose name any
Investor Note is registered as the owner of such Investor Note for the purpose
of receiving distributions pursuant to Article 5 (as described in any Indenture
Supplement) and for all other purposes whatsoever, and neither the Indenture
Trustee, the Paying Agent, the Transfer Agent and Registrar nor any agent of any
of them shall be affected by any notice to the contrary.
In the case of a Bearer Note, the Indenture Trustee, the Paying
Agent, the Transfer Agent and Registrar and any agent of any of them may treat
the holder of a Bearer Note or Coupon as the owner of such Bearer Note or Coupon
for the purpose of receiving distributions pursuant to Article 5 and for all
other purposes whatsoever, and neither the Indenture Trustee, the Paying Agent,
the Transfer Agent and Registrar nor any agent of any of them shall be affected
by any notice to the contrary.
-11-
The Indenture Trustee will furnish or cause to be furnished by the
Transfer Agent and Registrar to the Issuer or the Paying Agent, within five
Business Days after receipt by the Indenture Trustee of a request therefor from
the Issuer or the Paying Agent, respectively, in writing, a list in such form as
the Issuer or the Paying Agent may reasonably require, of the names and
addresses of the Investor Noteholders of each Series as of the most recent
Record Date for payments to such Investor Noteholders. Unless otherwise provided
in the related Indenture Supplement, holders of Investor Notes of any Series in
a principal amount aggregating not less than 10% of the Investor Interest of
such Series (the "Applicants") may apply in writing to the Indenture Trustee,
and if such application states that the Applicants desire to communicate with
other Investor Noteholders of any Series with respect to their rights under this
Indenture or under the Investor Notes and is accompanied by a copy of the
communication which such Applicants propose to transmit, then the Indenture
Trustee, after having been adequately indemnified by such Applicants for its
costs and expenses, shall afford or shall cause the Transfer Agent and Registrar
to afford such Applicants access during normal business hours to the most recent
list of Investor Noteholders held by the Indenture Trustee and shall give the
Issuer notice that such request has been made, within five Business Days after
the receipt of such application. Such list shall be as of a date no more than 45
days prior to the date of receipt of such Applicants' request. Every Investor
Noteholder, by receiving and holding an Investor Note, agrees with the Indenture
Trustee that neither the Indenture Trustee, the Transfer Agent and Registrar,
nor any of their respective agents shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Investor
Noteholders hereunder, regardless of the source from which such information was
obtained.
The Indenture Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Investor Noteholders of each Series of Investor Notes. If the
Indenture Trustee is not the Registrar, the Issuer shall furnish to the
Indenture Trustee at least seven Business Days before each Payment Date and at
such other time as the Indenture Trustee may request in writing, a list in such
form and as of such date as the Indenture Trustee may reasonably require of the
names and addresses of Investor Noteholders of each Series of Investor Notes.
In determining whether the Investor Noteholders of the required
principal amount of Investor Notes have concurred in any direction, waiver or
consent, Investor Notes owned by the Issuer or any Affiliate of the Issuer shall
be considered as though they are not Outstanding, except that for the purpose of
determining whether the Indenture Trustee shall be protected in relying on any
such direction, waiver or consent, only Investor Notes of which the Indenture
Trustee has received written notice of such ownership shall be so disregarded.
Absent written notice to the Indenture Trustee of such ownership, the Indenture
Trustee shall not be deemed to have knowledge of the identity of the individual
beneficial owners of the Investor Notes.
-12-
Unless otherwise provided in any related Indenture Supplement, the
Investor Notes, upon original issuance, shall be issued in the form of
typewritten Notes representing the Book-Entry Notes, to be delivered to the
depository specified in such Indenture Supplement (the "Depository") which shall
be the Clearing Agency or the Foreign Clearing Agency, by or on behalf of such
Series. The Investor Notes of each Series shall, unless otherwise provided in
the related Indenture Supplement, initially be registered on the Note Register
in the name of the nominee of the Clearing Agency or the Foreign Clearing
Agency. No Beneficial Owner will receive a definitive note representing such
Beneficial Owner's interest in the related Series of Investor Notes, except as
provided in Section 2.11. Unless and until definitive, fully registered Investor
Notes of any Series ("Definitive Notes") have been issued to Beneficial Owners
pursuant to Section 2.11:
(a) the provisions of this Section 2.10 shall be in full force and
effect with respect to each such Series;
(b) the Issuer, the Paying Agent, the Transfer Agent and Registrar
and the Indenture Trustee may deal with the Clearing Agency or the Foreign
Clearing Agency and the applicable Clearing Agency Participants for all
purposes (including the payment of principal of and interest on the
Investor Notes and the giving of instructions or directions hereunder) as
the sole Holder of the Investor Notes, and shall have no obligation to the
Beneficial Owners;
(c) to the extent that the provisions of this Section 2.10 conflict
with any other provisions of this Indenture, the provisions of this
Section 2.10 shall control with respect to each such Series; and
(d) the rights of Beneficial Owners of each such Series shall be
exercised only through the Clearing Agency or the Foreign Clearing Agency
and the applicable Clearing Agency Participants and shall be limited to
those established by law and agreements between such Beneficial Owners and
the Clearing Agency or the Foreign Clearing Agency and/or the Clearing
Agency Participants, and all references in this Indenture to ac-tions by
the Not-e-holders shall refer to actions taken by the Clearing Agency or
the Foreign Clearing Agency upon in-struc-tions from the Clear-ing Agency
Partici-pants, and all refer-ences in this Indenture to dis-tribu-tions,
no-tices, reports and statements to the Note--holders shall refer to
distributions, notices, reports and statements to the Clearing Agency or
the Foreign Clearing Agency, as regis-tered holder of the Investor Notes
of such Series for distribu-tion to the Beneficial Owners in accor-dance
with the proce-dures of the Clearing Agency. Pursuant to the Depository
Agreement applicable to a Series, unless and until Definitive Notes of
such Series are issued pursuant to Section 2.11, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit distributions of principal and
interest on the Investor Notes to such Clearing Agency Participants.
-13-
If (i) (A) the Issuer advises the Indenture Trustee in writing that
the Clearing Agency or the Foreign Clearing Agency is no longer willing or able
to discharge properly its responsibilities under the applicable Depository
Agreement, and (B) the Indenture Trustee or the Issuer is unable to locate a
qualified successor, (ii) the Issuer, at its option, advises the Indenture
Trustee in writing that it elects to terminate the book-entry system through the
Clearing Agency or the Foreign Clearing Agency with respect to any Series or
(iii) after the occurrence of an Event of Default, Beneficial Owners of a
Majority in Interest of a Series of Investor Notes advise the Indenture Trustee
and the applicable Clearing Agency or the Foreign Clearing Agency through the
applicable Clearing Agency Participants in writing that the continuation of a
book-entry system through the applicable Clearing Agency or Foreign Clearing
Agency is no longer in the best interests of such Beneficial Owners, the
Indenture Trustee shall notify all Beneficial Owners of such Series, through the
applicable Clearing Agency Participants, of the occurrence of any such event and
of the availability of Definitive Notes to Beneficial Owners of such Series
requesting the same. Upon surrender to the Indenture Trustee of the Investor
Notes of such Series by the applicable Clearing Agency or the Foreign Clearing
Agency, accompanied by registration instructions from the applicable Clearing
Agency or the applicable Foreign Clearing Agency for registration, the Issuer
shall execute and the Indenture Trustee shall authenticate and (if the Transfer
Agent and Registrar is different than the Indenture Trustee, then the Transfer
Agent and Registrar shall) deliver the Definitive Notes in accordance with the
instructions of the Clearing Agency. Neither the Issuer nor 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 Definitive Notes of such Series all references herein to
obligations imposed upon or to be performed by the applicable Clearing Agency or
Foreign Clearing Agency shall be deemed to be imposed upon and performed by the
Indenture Trustee, to the extent applicable with respect to such Definitive
Notes, and the Indenture Trustee shall recognize the Holders of the Definitive
Notes of such Series as Noteholders of such Series hereunder.
If specified in the related Indenture Supplement for any Series, the
Investor Notes may be initially issued in the form of a single temporary Global
Note (the "Global Note") in bearer form, without interest coupons, in the
denomination of the Initial Invested Amount and substantially in the form
attached to the related Indenture Supplement. Unless otherwise specified in the
related Indenture Supplement, the provisions of this Section 2.12 shall apply to
such Global Note. The Global Note will be authenticated by the Indenture Trustee
upon the same conditions, in substantially the same manner and with the same
effect as the Definitive Notes. The Global Note may be exchanged in the manner
described in the related Indenture Supplement for Registered or Bearer Notes in
definitive form.
(a) The principal of each Series of Investor Notes shall be payable
at the times and in the amount set forth in the related Indenture Supplement and
in accordance with Section 6.1.
-14-
(b) Each Series of Investor Notes shall accrue interest as provided
in the related Indenture Supplement and such interest shall be payable on each
Payment Date for such Series in accordance with Section 6.1 and the related
Indenture Supplement.
(c) Except as provided in the following sentence, the Person in
whose name any Investor Note is registered at the close of business on any
Record Date with respect to a Payment Date for such Investor Note shall be
entitled to receive the principal and interest payable on such Payment Date
notwithstanding the cancellation of such Investor Note upon any registration of
transfer, exchange or substitution of such Investor Note subsequent to such
Record Date. Any interest payable at maturity shall be paid to the Person to
whom the principal of such Investor Note is payable.
(d) If the Issuer defaults in the payment of interest on the
Investor Notes of any Series, such interest, to the extent paid on any date that
is more than five (5) Business Days after the applicable due date, shall, at the
option of the Issuer, cease to be payable to the Persons who were Investor
Noteholders of such Series at the applicable Record Date and the Issuer shall
pay the defaulted interest in any lawful manner, plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Investor
Noteholders of such Series on a subsequent special record date which date shall
be at least five (5) Business Days prior to the payment date, at the rate
provided in this Indenture and in the Investor Notes of such Series. The Issuer
shall fix or cause to be fixed each such special record date and payment date,
and at least 15 days before the special record date, the Issuer (or the
Indenture Trustee, in the name of and at the expense of the Issuer) shall mail
to Investor Noteholders of such Series a notice that states the special record
date, the related payment date and the amount of such interest to be paid.
The Issuer has structured this Indenture and the Investor Notes have
been (or will be) issued with the intention that the Investor Notes will qualify
under applicable tax law as indebtedness of the Issuer and any entity acquiring
any direct or indirect interest in any Investor Note by acceptance of its
Investor Notes (or, in the case of a Beneficial Owner, by virtue of such
Beneficial Owner's acquisition of a beneficial interest therein) agrees to treat
the Investor Notes (or beneficial interests therein) for purposes of Federal,
state and local and income or franchise taxes and any other tax imposed on or
measured by income, as indebtedness of the Issuer. Each Investor Noteholder
agrees that it will cause any Beneficial Owner's acquiring an interest in an
Investor Note through it to comply with this Indenture as to treatment as
indebtedness for such tax purposes.
(a) To secure the Issuer Obligations, the Issuer hereby pledges,
assigns, conveys, delivers, transfers and sets over to the Indenture Trustee,
for the benefit of the Investor
-15-
Noteholders, and hereby grants to the Indenture Trustee, for the benefit of the
Investor Noteholders, a security interest in, all of the Issuer's right, title
and interest in and to all of the Issuer's assets, property and interests in
property of any kind or nature whatsoever (other than as specified below)
whether now or hereafter existing, acquired or created (all of the foregoing
being referred to as the "Collateral"), including without limitation, all right,
title and interest of the Issuer in the following property and interests in
property:
(i) the SUBIs, the SUBI Certificates and any related rights,
authority, powers and privileges of the holder thereof under the related
Origination Trust Documents and all payments and distributions thereunder
of whatever kind or character and whether in cash or other property, at
any time made or distributable to the Issuer thereunder or in respect
thereof, whether due or to become due, including, without limitation, the
immediate and continuing right of the Issuer to receive and collect all
amounts payable to the holder thereof and all of the Issuer's rights,
remedies, powers, interests and privileges under the Origination Trust
Documents (whether arising pursuant to the terms thereof or otherwise
available to the Issuer), including, without limitation, the right to
enforce the Origination Trust Documents, to give or withhold any and all
consents, requests, notices, directions, approvals or waivers thereunder
and all amounts due and to become due thereunder, whether payable as
indemnities or damages for breach thereof;
(ii) a beneficial interest in the Initial Units and any Unit
Leases, Unit Vehicles and the Related Rights associated therewith, and all
Additional Units and any Unit Leases, Unit Vehicles and the Related Rights
associated therewith hereafter acquired by the Issuer, including, without
limitation, all monies due or to become due with respect thereto and all
proceeds thereof;
(iii) the Transfer Agreement, including, without limitation,
all of the Issuer's rights, remedies, powers, interests and privileges
under the Transfer Agreement (whether arising pursuant to the terms
thereof or otherwise available to the Issuer), including, without
limitation, the right to enforce the Transfer Agreement, to give or
withhold any and all consents, requests, notices, directions, approvals or
waivers thereunder and all amounts due and to become due thereunder,
whether payable as indemnities or damages for breach thereof;
(iv) the Administration Agreement, including, without
limitation, all of the Issuer's rights, remedies, powers, interests and
privileges under the Administration Agreement (whether arising pursuant to
the terms thereof or otherwise available to the Issuer), including,
without limitation, the right to enforce the Administration Agreement, to
give or withhold any and all consents, requests, notices, directions,
approvals or waivers thereunder and all amounts due and to become due
thereunder, whether payable as indemnities or damages for breach thereof;
(v) the Collection Account and the Gain on Sale Account and
all monies on deposit from time to time in the Collection Account and the
Gain on Sale
-16-
Account and all proceeds thereof (including any Permitted Investments
purchased with monies from any account held for the benefit of the Issuer
or the Investor Noteholders and any investment earnings thereon);
(vi) each Series Account and all monies on deposit from time
to time in such Series Account and all proceeds thereof (including any
Permitted Investments purchased with monies from any account held for the
benefit of the Issuer or the Investor Noteholders and any investment
earnings thereon);
(vii) all additional property that may from time to time
hereafter (pursuant to the terms of any Indenture Supplement or otherwise)
be subjected to the grant and pledge hereof by the Issuer, including,
without limitation, any Hedging Instruments; and
(viii) all proceeds of any and all of the foregoing including,
without limitation, all present and future claims, demands, causes of
action and chooses 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 thereof, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, 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.
(b) The foregoing grant is made in trust to secure the Issuer
Obligations and to secure compliance with the provisions of this Indenture and
any Indenture Supplement, all as provided in this Indenture. The Indenture
Trustee, as Indenture Trustee on behalf of the Investor Noteholders,
acknowledges such grant, accepts the trusts under this Indenture in accordance
with the provisions of this Indenture and subject to Section 10.1 and 10.2,
agrees to perform its duties required in this Indenture to the best of its
abilities to the end that the interests of the Investor Noteholders may be
adequately and effectively protected. The Collateral shall secure the Investor
Notes equally and ratably without prejudice, priority (except, with respect to
any Series of Investor Notes, as otherwise stated in the applicable Indenture
Supplement) or distinction.
Upon the occurrence of a default or breach by any Person party to a
Transaction Document, promptly following a request from the Indenture Trustee to
do so and at the Issuer's expense, the Issuer agrees to take all such lawful
action as permitted under this Indenture as the Indenture Trustee may request to
compel or secure the performance and observance by SPV, the Servicer, the
Administrator, VMS or PHH Consumer Lease or any other party to any of the
Transaction Documents of its obligations thereunder, in each case in accordance
with the applicable terms thereof, and to exercise any and all rights, remedies,
powers and privileges lawfully available to the Issuer to the extent and in the
manner directed by the Indenture Trustee,
-17-
including, without limitation, the transmission of notices of default and the
institution of legal or administrative actions or proceedings to compel or
secure performance by each of SPV, the Servicer, the Administrator, VMS or PHH
Consumer Lease (or such other party to any Transaction Document), of their
respective obligations thereunder. If (i) the Issuer shall have failed, within
30 days of receiving the direction of the Indenture Trustee, to take
commercially reasonable action to accomplish such directions of the Indenture,
(ii) the Issuer refuses to take any such action, or (iii) the Indenture Trustee
reasonably determines that such action must be taken immediately, the Indenture
Trustee may take such previously directed action and any related action
permitted under this Indenture which the Indenture Trustee thereafter determines
is appropriate (without the need under this provision or any other provision
under the Indenture to direct the Issuer to take such action), on behalf of the
Issuer and the Investor Noteholders.
(a) The Indenture Trustee shall when required by the provisions of
this Indenture execute instruments to release property from the lien of this
Indenture, or convey the Indenture Trustee's interest in the same, in a manner
and under circumstances 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 Section 3.2 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
Investor Notes Outstanding, release any remaining portion of the Issuer Assets
that secured the Investor Notes from the lien of this Indenture and release to
the Issuer any funds then on deposit in the Issuer Accounts. The Indenture
Trustee shall release property from the lien of this Indenture pursuant to this
Section 3.2(b) only upon receipt of an Issuer Order accompanied by an Officer's
Certificate, an Opinion of Counsel and (if this Indenture is qualified under the
TIA and the TIA so requires) Independent Certificates in accordance with TIA
xx.xx. 314(c) and 314(d)(1) meeting the applicable requirements of Section 13.1.
The Indenture Trustee shall receive at least seven days' notice when
requested by the Issuer to take any action pursuant to Section 3.2(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 Investor Notes or the rights of the Noteholders; provided, however that such
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Issuer Assets. 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.
-18-
The Issuer shall indemnify and hold harmless the Indenture Trustee
and each Investor Noteholder from any present or future claim for liability for
any stamp or other similar tax and any penalties or interest with respect
thereto, that may be assessed, levied or collected by any jurisdiction in
connection with this Indenture or any Collateral. The Issuer shall pay, or
reimburse the Indenture Trustee for, any and all amounts in respect of, all
search, filing, recording and registration fees, taxes, excise taxes and other
similar imposts that may be payable or determined to be payable in respect of
the execution, delivery, performance and/or enforcement of this Indenture.
The Issuer will deliver or cause to be delivered to the Indenture
Trustee:
(i) prior to 1:00 p.m., New York City time, on each Deposit Date, a
copy of the Deposit Report (a "Deposit Report ") prepared and delivered by
the Servicer to the Issuer pursuant to the Origination Trust Servicing
Agreement, setting forth the aggregate amount of Collections deposited in
the Collection Account on such Deposit Date;
(ii) on each Determination Date, a copy of the Settlement Statement
(a "Settlement Statement") prepared and delivered by the Servicer to the
Issuer pursuant to the Origination Trust Servicing Agreement, setting
forth the information required to be set forth therein under the
Origination Trust Servicing Agreement and each Indenture Supplement and
such other information as the Indenture Trustee may reasonably request;
(iii) within ten Business Days of the last Business Day of each
fiscal quarter of the Issuer, a copy of the Quarterly Compliance
Certificate (a "Quarterly Compliance Certificate") prepared and delivered
by the Servicer pursuant to the Origination Trust Servicing Agreement,
setting forth the information required to be set forth therein under the
Origination Trust Servicing Agreement;
(iv) on or before March 31 of each year, a copy of the Annual
Servicing Report (an "Annual Servicing Report" ) prepared by the
Servicer's independent auditors in accordance with the Origination Trust
Servicing Agreement, setting forth the information required to be set
forth therein under the Origination Trust Servicing Agreement;
(v) within 45 days following the end of each fiscal quarter of the
Servicer, a copy of the certificate prepared and delivered by the Servicer
pursuant Section 8.3(b) of the Origination Trust Servicing Agreement;
-19-
(vi) promptly upon the delivery by the Servicer to the Issuer, a
copy of any other information, reports or other materials required to be
delivered by the Servicer to the Issuer pursuant to the Origination Trust
Servicing Agreement;
(vii) from time to time such additional information regarding the
financial position, results of operations or business of the Origination
Trust or VMS as the Indenture Trustee may reasonably request to the extent
that the Servicer delivers such information to the Issuer pursuant to the
Origination Trust Servicing Agreement; and
(viii) at the time of delivery of the item described in clause (iii)
above, a certificate of an officer of the Issuer that, except as provided
in any certificate delivered in accordance with Section 8.8, no
Amortization Event, Potential Amortization Event, Termination Event,
Default or Event of Default under any of the Transaction Documents to
which it is a party has occurred or is continuing during such fiscal
quarter.
(a) If this Indenture is qualified under the TIA, the Investor
Noteholders may communicate pursuant to TIA ss.312(b) with other Investor
Noteholders with respect to their rights under this Indenture or under the
Investor Notes.
(b) If this Indenture is qualified under the TIA, the Issuer, the
Indenture Trustee and the Transfer Agent and Registrar shall have the protection
of TIA ss.312(c).
For so long as any of the Investor Notes are "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, the Issuer agrees
to provide to any Investor Noteholder or Beneficial Owner and to any prospective
purchaser of Investor Notes designated by such Investor Noteholder or Beneficial
Owner upon the request of such Investor Noteholder or Beneficial Owner or
prospective purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the conditions set forth in Rule 144A(d)(4)
under the Securities Act.
(a) Unless otherwise specified in the related Indenture Supplement,
on each Settlement Date, the Issuer shall deliver to the Indenture Trustee or
the Paying Agent and the Indenture Trustee or the Paying Agent, as the case may
be, shall forward to each Investor Noteholder of each Outstanding Series the
Monthly Settlement Statement with respect to such Series, with a copy to the
Rating Agencies.
(b) As soon as available, but in any event within 90 days after the
end of each fiscal year of the Issuer, the Issuer shall deliver to the Indenture
Trustee or the Paying Agent and the Indenture Trustee or the Paying Agent, as
the case may be, shall forward to each Investor
-20-
Noteholder of each Outstanding Series a copy of the audited financial statements
of the Issuer at the end of such year, prepared by independent certified public
accountants of nationally recognized standing.
(c) Unless otherwise specified in the related Indenture Supplement,
on or before January 31 of each calendar year, beginning with calendar year
2000, the Indenture Trustee or the Paying Agent shall furnish to each Person who
at any time during the preceding calendar year was an Investor Noteholder of a
Series of Investor Notes a statement prepared by or on behalf of the Issuer
containing the information which is required to be contained in the Monthly
Settlement Statements with respect to such Series of Investor Notes aggregated
for such calendar year or the applicable portion thereof during which such
Person was an Investor Noteholder, together with such other customary
information (consistent with the treatment of the Investor Notes as debt) as the
Issuer deems necessary or desirable to enable the Investor Noteholders to
prepare their tax returns (each such statement, an "Annual Noteholders' Tax
Statement"). Such obligations of the Issuer to prepare and the Indenture Trustee
or the Paying Agent to distribute the Annual Noteholders' Tax Statement shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Indenture Trustee or the Paying Agent
pursuant to any requirements of the Code as from time to time in effect.
If this Indenture is qualified under the TIA, within 60 days after
each March 31, beginning on March 31 in the first year after this Indenture is
qualified under the TIA, if required by TIA ss. 313(a), the Indenture Trustee
shall mail to each Investor Noteholder as required by TIA ss. 313(c) a brief
report dated as of such date that complies with TIA ss. 313(a). The Indenture
Trustee also shall comply with TIA ss. 313(b). A copy of such each report at the
time of its mailing to Investor Noteholders shall be filed by the Indenture
Trustee with the Securities and Exchange Commission and each stock exchange, if
any, on which the Investor Notes are listed. The Issuer shall notify the
Indenture Trustee if and when the Investor Notes are listed on any stock
exchange.
(a) Establishment of Collection Account. The Indenture Trustee shall
establish and maintain in the name of the Indenture Trustee, for the benefit of
the Noteholders, an Eligible Deposit Account bearing a designation clearly
indicating that the funds deposited therein are held in trust for the benefit of
the Noteholders (the "Collection Account"). If at any time the Indenture Trustee
obtains knowledge that the Collection Account is no longer an Eligible Deposit
Account, the Indenture Trustee shall, within 30 days of obtaining such
knowledge, establish a new
-21-
Collection Account that is an Eligible Deposit Account and transfer into the new
Collection Account all cash and investments from the non-qualifying Collection
Account. Initially, the Collection Account will be established with Chase. The
Indenture Trustee shall possess all right, title and interest in all moneys,
instruments, securities and other property on deposit from time to time in the
Collection Account and the proceeds thereof for the benefit of the Noteholders.
The Collection Account shall be under the sole dominion and control of the
Indenture Trustee for the benefit of the Noteholders.
(b) Series Accounts. If so provided in the related Indenture
Supplement, the Indenture Trustee, for the benefit of the Investor Noteholders,
shall cause to be established and maintained, one or more Series Accounts and/or
administrative sub-accounts of the Collection Account to facilitate the proper
allocation of Collections in accordance with the terms of such Indenture
Supplement. Each such Series Account shall bear a designation clearly indicating
that the funds deposited therein are held for the benefit of the Investor
Noteholders of such Series. Each such Series Account will be an Eligible Deposit
Account, if so provided in the related Indenture Supplement and will have the
other features and be applied as set forth in the related Indenture Supplement.
(c) Administration of the Collection Account. The Issuer shall
instruct the institution maintaining the Collection Account in writing to invest
the funds on deposit in the Collection Account in Permitted Investments. Any
such investment shall mature and such funds shall be available for withdrawal on
or prior to the Transfer Date related to the Monthly Period in which such funds
were processed for collection, or if so specified in the related Indenture
Supplement, on the immediately succeeding Payment Date. All such Permitted
Investments will be credited to the Collection Account and any such Permitted
Investments that constitute (i) Physical Property (and that is not either a
United States Security Entitlement or a Security Entitlement) shall be delivered
to the Indenture Trustee in accordance with paragraph (a) of the definition of
"Delivery" and shall be held by the Indenture Trustee pending maturity or
disposition; (ii) United States Security Entitlements or Security Entitlements
shall be Controlled by the Indenture Trustee pending maturity or disposition;
and (iii) Uncertificated Securities (and not United States Security
Entitlements) shall be delivered to the Indenture Trustee in accordance with
paragraph (b) of the definition of "Delivery" and shall be maintained by the
Indenture Trustee pending maturity or disposition. The Indenture Trustee shall
take such action as is required to maintain the Indenture Trustee's security
interest in the Permitted Investments credited to the Collection Account. In the
absence of written investment instructions hereunder, funds on deposit in the
Collection Account shall remain uninvested. Neither the Issuer nor the Indenture
Trustee shall dispose of (or permit the disposal of) any Permitted Investments
prior to the maturity thereof to the extent such disposal would result in a loss
of principal of such Permitted Investment.
(a) Establishment of Gain on Sale Account. The Indenture Trustee
shall establish and maintain in the name of the Indenture Trustee, for the
benefit of the Noteholders, an Eligible Deposit Account bearing a designation
clearly indicating that the funds deposited therein are held in trust for the
benefit of the Noteholders (the "Gain on Sale Account"). If at any time
-22-
the Indenture Trustee obtains knowledge that the Gain on Sale Account is no
longer an Eligible Deposit Account, the Indenture Trustee shall, within 30 days
of obtaining such knowledge, establish a new Gain on Sale Account that is an
Eligible Deposit Account and transfer into the new Gain on Sale Account all cash
and investments from the non-qualifying Gain on Sale Account. Initially, the
Gain on Sale Account will be established with Chase. The Indenture Trustee shall
possess all right, title and interest in all moneys, instruments, securities and
other property on deposit from time to time in the Gain on Sale Account and the
proceeds thereof for the benefit of the Noteholders. The Gain on Sale Account
shall be under the sole dominion and control of the Indenture Trustee for the
benefit of the Noteholders.
(b) Investment of Funds in the Gain on Sale Account. The Issuer
shall instruct the institution maintaining the Gain on Sale Account in writing
to invest the funds on deposit in the Gain on Sale Account in Permitted
Investments. Any such investment shall mature and such funds shall be available
for withdrawal on or prior to each Transfer Date. All such Permitted Investments
will be credited to the Gain on Sale Account and any such Permitted Investments
that constitute (i) Physical Property (and that is not either a United States
Security Entitlement or a Security Entitlement) shall be delivered to the
Indenture Trustee in accordance with paragraph (a) of the definition of
"Delivery" and shall be held by the Indenture Trustee pending maturity or
disposition; (ii) United States Security Entitlements or Security Entitlements
shall be Controlled by the Indenture Trustee pending maturity or disposition;
and (iii) Uncertificated Securities (and not United States Security
Entitlements) shall be delivered to the Indenture Trustee in accordance with
paragraph (b) of the definition of "Delivery" and shall be maintained by the
Indenture Trustee pending maturity or disposition. The Indenture Trustee shall
take such action as is required to maintain the Indenture Trustee's security
interest in the Permitted Investments credited to the Gain on Sale Account. In
the absence of written investment instructions hereunder, funds on deposit in
the Gain on Sale Account shall remain uninvested. Neither the Issuer nor the
Indenture Trustee shall dispose of (or permit the disposal of) any Permitted
Investments prior to the maturity thereof to the extent such disposal would
result in a loss of principal of such Permitted Investment.
(c) Earnings from Gain on Sale Account. All interest and earnings
(net of losses and investment expenses) paid on funds on deposit in the Gain on
Sale Account shall be deemed to be available and on deposit for distribution.
(d) Deposits to Gain on Sale Account. Amounts will be deposited in
the Gain on Sale Account in accordance with this Article 5, as modified by any
Indenture Supplement.
(e) Withdrawals from Gain on Sale Account. No later than 2:00 p.m.,
New York City time, on each Transfer Date, the Issuer shall direct the Indenture
Trustee in writing to withdraw from the Gain on Sale Account an amount equal to
the lesser of (x) the Monthly Residual Value Loss for the immediately preceding
Monthly Period and (y) the amount then on deposit in the Gain on Sale Account
and deposit such amount into the Collection Account for allocation in accordance
with Article 5, as modified by any Indenture Supplement. On any Transfer Date on
which the amount on deposit in the Gain on Sale Account (after giving effect to
any withdrawals therefrom pursuant to the immediately preceding sentence) is
greater than an
-23-
amount equal to the Applicable Gain on Sale Account Percentage of the sum of the
aggregate Lease Balance of each Eligible Lease that is a Closed-End Lease
allocated to the Lease SUBI as of last day of the Monthly Period immediately
preceding such Transfer Date and the Aggregate Residual Value Amount as of such
date, the Issuer shall direct the Indenture Trustee in writing to withdraw such
excess from the Gain on Sale Account and deposit it in the Issuer General
Account.
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. 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 Issuer Assets,
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 proceeds
thereafter as provided in Article 9.
(a) Collections in General. Until this Indenture is terminated
pursuant to Section 11.1 , the Issuer shall, and the Indenture Trustee is
authorized to, cause all Collections due and to become due to the Issuer or the
Indenture Trustee, as the case may be, under or in connection with the
Collateral to be paid directly to the Indenture Trustee for deposit into the
Collection Account. The Issuer agrees that if any Collections shall be received
by the Issuer in an account other than the Collection Account, such monies,
instruments, cash and other proceeds will not be commingled by the Issuer with
any of its other funds or property, if any, but will be held separate and apart
therefrom and shall be held in trust by the Issuer for, and immediately remitted
to, the Indenture Trustee, with any necessary endorsement. All monies,
instruments, cash and other proceeds received by the Indenture Trustee pursuant
to this Indenture shall be in immediately available funds and shall be
immediately deposited in the Collection Account and shall be applied as provided
in this Article 5.
(b) Allocations for Investor Noteholders. On each Deposit Date, the
Issuer shall allocate Collections deposited into the Collection Account in
accordance with this Article 5 and shall instruct the Indenture Trustee to
withdraw the required amounts from the Collection Account and make the required
deposits in any Series Account in accordance with this Article 5, as modified by
any Indenture Supplement. The Issuer shall make such deposits or payments on the
date indicated therein in immediately available funds or as otherwise provided
in the Indenture Supplement for any Series with respect to such Series. The
Administrator, on behalf of the Issuer, has agreed to furnish to the Indenture
Trustee or the Paying Agent, as applicable, written instructions to make the
aforementioned withdrawals and payments from the Collection Account
-24-
and any Issuer Accounts specified herein or in an Indenture Supplement. The
Indenture Trustee and the Paying Agent shall promptly follow any such written
instructions.
(c) Sharing Collections . In the manner described in the related
Indenture Supplement, to the extent that Collections that are allocated to any
Series on a Deposit Date are not needed to make payments to Investor Noteholders
of such Series or required to be deposited in a Series Account for such Series
on such Deposit Date, such Collections may, at the direction of the Issuer, be
applied to cover principal payments due to or for the benefit of Investor
Noteholders of another Series. Any such reallocation will not result in a
reduction in the Invested Amount of the Series to which such Collections were
initially allocated.
(d) Allocations After Certain Events of Default. After each
Outstanding Series of Investor Notes shall have been declared to be immediately
due and payable pursuant to Section 9.2 as a result of the occurrence of an
Event of Default defined in clause (a) or (b) of Section 9.1, to the extent that
Collections that are allocated to any Series of Investor Notes on a Settlement
Date are not needed to make payments of principal of, or interest on, the
Investor Notes of such Series, such Collections shall be applied to cover
principal payments due on the Investor Notes of all other Series then
Outstanding on a pro rata basis based on the Invested Percentages of such other
Series of Investor Notes.
[THE REMAINDER OF ARTICLE 5 IS RESERVED AND MAY BE SPECIFIED IN ANY INDENTURE
SUPPLEMENT WITH RESPECT TO ANY SERIES.]
(a) Unless otherwise specified in the applicable Indenture
Supplement, amounts payable to an Investor Noteholder hereunder shall be payable
by check mailed first-class postage prepaid to such Investor Noteholder at the
address for such Investor Noteholder appearing in the Note Register except that
with respect to Investor Notes registered in the name of a Clearing Agency or
its nominee, such amounts shall be payable by wire transfer of immediately
available funds released by the Indenture Trustee or the Paying Agent from the
applicable Series Account no later than Noon on the Payment Date (New York City
time) for credit to the account designated by such Clearing Agency or its
nominee, as applicable.
(b) Unless otherwise specified in the applicable Indenture
Supplement (i) all distributions to Investor Noteholders of all classes within a
Series of Investor Notes will have the same priority and (ii) in the event that
on any date of determination the amount available to make payments to the
Investor Noteholders of a Series is not sufficient to pay all sums required to
be paid to such Investor Noteholders on such date, then each class of Investor
Noteholders will receive its ratable share (based upon the aggregate amount due
to such class of Investor
-25-
Noteholders) of the aggregate amount available to be distributed in respect of
the Investor Notes of such Series.
On any Payment Date occurring on or after the date on which the
Invested Amount of any Series or class of such Series is equal to or less than
the Repurchase Amount (if any) for such Series or class set forth in the
Indenture Supplement related to such Series, or at such other time otherwise
provided for in the Indenture Supplement relating to such Series, the Issuer
shall have the option to purchase all Outstanding Investor Notes of such Series,
or class of such Series, at a purchase price (determined after giving effect to
any payment of principal and interest on such Payment Date) equal to (unless
otherwise specified in the related Indenture Supplement) the Invested Amount of
such Series on such Payment Date, plus accrued and unpaid interest on the unpaid
principal balance of the Investor Notes of such Series (calculated at the
Investor Note Rate of such Series) through the day immediately prior to the date
of such purchase plus, if provided for in the related Indenture Supplement, any
premium payable at such time. The Issuer shall give the Indenture Trustee at
least 30 days' prior written notice of the date on which the Issuer intends to
exercise such option to purchase. Not later than 12:00 noon, New York City time,
on such Payment Date, an amount of the purchase price equal to the Invested
Amount of all Investor Notes of such Series on such Payment Date and the amount
of accrued and unpaid interest with respect to such Investor Notes and any
applicable premium will be deposited into the applicable Series Account for such
Series in immediately available funds. The funds deposited into such Series
Account or distributed to the Paying Agent will be passed through in full to the
Investor Noteholders on such Payment Date.
The Issuer hereby represents and warrants, for the benefit of the
Indenture Trustee and the Noteholders, as follows as of each Series Closing
Date:
The Issuer (a) is a special purpose limited liability company duly
formed, validly existing and in good standing under the laws of the State of
Delaware, (b) is duly qualified to do business as a foreign limited liability
company and in good standing under the laws of each jurisdiction where the
character of its property, the nature of its business or the performance of its
obligations make such qualification necessary, and (c) has all powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted and for purposes of the transactions
contemplated by this Indenture and the other Transaction Documents.
The execution, delivery and performance by the Issuer of this
Indenture, the related Indenture Supplement and the other Transaction Documents
to which it is a party (a) is
-26-
within the Issuer's power, has been duly authorized by all necessary action, (b)
requires no action by or in respect of, or filing with, any governmental body,
agency or official which has not been obtained and (c) does not contravene, or
constitute a default under, any Requirement of Law or any provision of its
certificate of formation or the LLC Agreement or result in the creation or
imposition of any Lien on any of the Issuer Assets, except for Liens created by
this Indenture or the other Transaction Documents. This Indenture and each of
the other Transaction Documents to which the Issuer is a party has been executed
and delivered by a duly authorized officer of the Issuer.
This Indenture and each other Transaction Document is a legal, valid
and binding obligation of the Issuer enforceable against the Issuer in
accordance with its terms (except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws affecting creditors' rights generally or by general equitable
principles, whether considered in a proceeding at law or in equity and by an
implied covenant of good faith and fair dealing).
All balance sheets, all statements of operations, of shareholders'
equity and of cash flow, and other financial data (other than projections) which
have been or shall hereafter be furnished by the Issuer to the Indenture Trustee
and the Rating Agencies pursuant to Section 4.4 have been and will be prepared
in accordance with GAAP (to the extent applicable) and do and will present
fairly the financial condition of the Issuer as of the dates thereof and the
results of its operations for the periods covered thereby, subject, in the case
of all unaudited statements, to normal year-end adjustments and lack of
footnotes and presentation items.
There is no action, suit or proceeding pending against or, to the
knowledge of the Issuer, threatened against or affecting the Issuer before any
court or arbitrator or any Governmental Authority that could materially
adversely affect the financial position, results of operations, business,
properties, performance, prospects or condition (financial or otherwise) of the
Issuer or which in any manner draws into question the validity or enforceability
of this Indenture, any Indenture Supplement or any other Transaction Document or
the ability of the Issuer to perform its obligations hereunder or thereunder.
The Issuer has not established and does not maintain or contribute
to any Pension Plan that is covered by Title IV of ERISA and will not do so, as
long as any Investor Notes are Outstanding.
-27-
The Issuer has filed all federal, state and local tax returns and
all other tax returns which, to the knowledge of the Issuer, are required to be
filed (whether informational returns or not), and has paid all taxes due, if
any, pursuant to said returns or pursuant to any assessment received by the
Issuer, except such taxes, if any, as are being contested in good faith and for
which adequate reserves have been set aside on its books. The Issuer has paid
all fees and expenses required to be paid by it in connection with the conduct
of its business, the maintenance of its existence and its qualification as a
foreign limited liability company authorized to do business in each State in
which it is required to so qualify.
All certificates, reports, statements, documents and other
information furnished to the Indenture Trustee by or on behalf of the Issuer
pursuant to any provision of this Indenture or any Transaction Document, or in
connection with or pursuant to any amendment or modification of, or waiver
under, this Indenture or any Transaction Document, shall, at the time the same
are so furnished, be complete and correct to the extent necessary to give the
Indenture Trustee true and accurate knowledge of the subject matter thereof in
all material respects, and the furnishing of the same to the Indenture Trustee
shall constitute a representation and warranty by the Issuer made on the date
the same are furnished to the Indenture Trustee to the effect specified herein.
The Issuer is not, and is not controlled by, an "investment company"
within the meaning of, and is not required to register as an "investment
company" under, the Investment Company Act of 1940.
The proceeds of the Investor Notes will not be used to purchase or
carry any "margin stock" (as defined or used in the regulations of the Board of
Governors of the Federal Reserve System, including Regulations T, U and X
thereof). The Issuer is not engaged in the business of extending credit for the
purpose of purchasing or carrying any margin stock.
No consent, action by or in respect of, approval or other
authorization of, or registration, declaration or filing with, any Governmental
Authority or other Person is required for the valid execution and delivery of
this Indenture or any Indenture Supplement or for the performance of any of the
Issuer's obligations hereunder or thereunder or under any other Transaction
Document other than such consents, approvals, authorizations, registrations,
declarations or filings as shall have been obtained by the Issuer prior to the
Initial Closing Date or as contemplated in Section 7.13.
-28-
Both before and after giving effect to the transactions contemplated
by this Indenture and the other Transaction Documents, the Issuer is solvent
within the meaning of the Bankruptcy Code and the Issuer is not the subject of
any voluntary or involuntary case or proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy or insolvency law and no Insolvency Event has occurred with respect
to the Issuer.
(a) Each of the SUBI Certificates has been duly registered in the
name of the Indenture Trustee and all other action necessary (including the
filing of UCC-1 financing statements) to protect and perfect the Indenture
Trustee's security interest in the Collateral now in existence and hereafter
acquired or created has been duly and effectively taken.
(b) No security agreement, financing statement, equivalent security
or lien instrument or continuation statement listing the Issuer as debtor
covering all or any part of the Collateral is on file or of record in any
jurisdiction, except such as may have been filed, recorded or made by the Issuer
in favor of the Indenture Trustee on behalf of the Noteholders in connection
with this Indenture.
(c) This Indenture constitutes a valid and continuing Lien on the
Collateral in favor of the Indenture Trustee on behalf of the Noteholders, which
Lien will be prior to all other Liens (other than Permitted Liens), will be
enforceable as such as against creditors of and purchasers from the Issuer in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws affecting creditors' rights generally or by general equitable
principles, whether considered in a proceeding at law or in equity and by an
implied covenant of good faith and fair dealing. All action necessary to perfect
such prior security interest has been duly taken.
(d) Except for a change made pursuant to Section 8.19, the Issuer's
principal place of business and chief executive office shall be at: 000 Xxx
Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxx Xxxx 00000, and the place where its records
concerning the Collateral are kept is at: 000 Xxxxx Xxxx, Xxxxx 000-00,
Xxxxxxxxxx, Xxxxxxxx 00000. The Issuer does not transact, and has not
transacted, business under any other name.
(e) All authorizations in this Indenture for the Indenture Trustee
to endorse checks, instruments and securities and to execute financing
statements, continuation statements, security agreements, and other instruments
with respect to the Collateral are powers coupled with an interest and are
irrevocable.
Each of the Origination Trust Documents and the Transfer Agreement
is in full force and effect and there are no outstanding events of default
thereunder nor have events
-29-
occurred which, with the giving of notice, the passage of time or both, would
constitute such an event of default.
(a) Other than as permitted by Section 8.23, (i) the Issuer is not a
party to any contract or agreement of any kind or nature and (ii) the Issuer is
not subject to any obligations or liabilities of any kind or nature in favor of
any third party, including, without limitation, Contingent Obligations.
(b) The Issuer has not engaged in any activities since its formation
(other than those incidental to its formation and other appropriate actions
including the proposed purchase of the SUBI Certificates, the authorization and
the issue of the initial Series of Notes, the execution of the Transaction
Documents to which it is a party and the performance of the activities referred
to in or contemplated by such agreements).
The Issuer is not (i) in violation of the LLC Agreement, (ii) in
violation of any Requirement of Law to which it or its property or assets may be
subject or (iii) in violation of any Contractual Obligation with respect to the
Issuer.
All representations and warranties of the Issuer made in each
Transaction Document to which it is a party are true and correct and are
repeated herein as though fully set forth herein.
The Issuer shall pay the principal of (and premium, if any) and
interest on the Investor Notes pursuant to the provisions of this Indenture and
any applicable Indenture Supplement. Principal and interest shall be considered
paid on the date due if the Paying Agent holds on that date money designated for
and sufficient to pay all principal and interest then due.
The Issuer will maintain in The City of New York, an office or
agency where Investor Notes may be surrendered for registration of transfer or
exchange. The Issuer hereby initially appoints the Transfer Agent and 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
-30-
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.
The Issuer may also from time to time designate one or more other
offices or agencies where the Investor Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Issuer will give prompt written notice to the Indenture Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Issuer hereby designates the Corporate Trust Office of the
Indenture Trustee as one such office or agency of the Issuer.
The Issuer will pay and discharge, at or before maturity, all of its
respective material obligations and liabilities, including, without limitation,
tax liabilities and other governmental claims, except where the same may be
contested in good faith by appropriate proceedings, and will maintain, in
accordance with GAAP, reserves as appropriate for the accrual of any of the
same.
The Issuer will keep in full effect its existence, rights and
franchises as a limited liability company under the laws of the State of
Delaware and will obtain and preserve its qualification to do business in each
jurisdiction in which the failure to so qualify would have a material adverse
effect on the business and operations of the Issuer or which qualification shall
be necessary to protect the validity and enforceability of this Indenture, the
Investor Notes and any instrument or agreement included in the Issuer Assets.
The Issuer will comply in all respects with all Requirements of Law
and all applicable laws, ordinances, rules, regulations, and requirements of
Governmental Authorities (including, without limitation, ERISA and the rules and
regulations thereunder) except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings and where such noncompliance
would not materially and adversely affect the condition, financial or otherwise,
operations, performance, properties or prospects of the Issuer or its ability to
carry out the transactions contemplated in this Indenture and each other
Transaction Document; provided, however, such noncompliance will not result in a
Lien (other than a Permitted Lien) on any Issuer Asset.
-31-
The Issuer will keep proper books of record and account in which
full, true and correct entries shall be made of all dealings and transactions in
relation to the Issuer Assets and its business activities in accordance with
GAAP; and will permit the Indenture Trustee to visit and inspect any of its
properties, to examine and make abstracts from any of its books and records and
to discuss its affairs, finances and accounts with its officers, directors,
employees and independent public accountants, all at such reasonable times upon
reasonable notice and as often as may reasonably be requested.
(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 covenants or obligations under any instrument
or agreement included in the Issuer Assets or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture, any other Transaction Document or such
other instrument or agreement.
(b) Promptly upon becoming aware of any default under any
Transaction Document, the Issuer shall give the Indenture Trustee and the Rating
Agencies notice thereof.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the other Transaction
Documents and in the instruments and agreements included in the Issuer Assets,
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 Transfer
Agreement in accordance with and within the time periods provided for herein and
therein.
(d) 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 Transaction Documents, it
will not, without the prior written consent of the Indenture Trustee or the
Holders of a Majority in Interest of each Series of Outstanding Notes, amend,
modify, waive, supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms of any
of the Issuer Assets, including any of the Transaction Documents, or waive
timely performance or observance by SPV under the Transfer Agreement or the
Origination Trust, VMS or the Servicer under the Origination Trust Documents.
Upon the occurrence of a Servicer Termination Event, the Issuer will not,
without the prior written consent of the Indenture Trustee or the Holders of a
Majority in Interest of each Series of Outstanding Notes, terminate the Servicer
and appoint a successor Servicer in accordance with the Servicing Agreement and
will terminate the Servicer and appoint a successor Servicer in accordance with
the Servicing Agreement if so directed by the Indenture Trustee or the Holders
of a Majority in Interest of each Series of Outstanding Notes.
-32-
(e) 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 Administrator to assist the Issuer in performing
its duties under this Indenture.
Promptly upon becoming aware of any Potential Amortization Event,
Amortization Event, Potential Termination Event, Termination Event, Servicer
Termination Event, Event of Default or Default under any of the Transaction
Documents, the Issuer shall give the Indenture Trustee and the Rating Agencies
written notice thereof, together with an Officer's Certificate, setting forth
the details thereof and any action with respect thereto taken or contemplated to
be taken by the Issuer.
Promptly upon becoming aware thereof, the Issuer shall give the
Indenture Trustee and the Rating Agencies written notice of the commencement or
existence of any proceeding by or before any Governmental Authority against or
affecting the Issuer which is reasonably likely to have a material adverse
effect on the business, condition (financial or otherwise), results of
operations, properties or performance of the Issuer or the ability of the Issuer
to perform its obligations under this Indenture or under any other Transaction
Document to which it is a party.
The Issuer will promptly furnish to the Indenture Trustee and the
Rating Agencies such other information as, and in such form as, the Indenture
Trustee or the Rating Agencies may reasonably request in connection with the
transactions contemplated hereby.
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 the lien
and security interest created by this Indenture;
(c) enforce the rights of the Indenture Trustee and the Noteholders
in any of the Issuer Assets; or
-33-
(d) preserve and defend title to the Issuer Assets and the rights of
the Indenture Trustee and the Noteholders in such Issuer Assets 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.
On or before March 31 of each calendar year, commencing with March
31, 2000, 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, 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, re-recording and refiling of this Indenture, any indentures supplemental
hereto and any other requisite documents and the execution and filing of any
financing statements and continuation statements that will, in the opinion of
such counsel, be required to maintain the perfection of the lien and security
interest of this Indenture until March 31 in the following calendar year.
The Issuer will not create, incur, assume or permit to exist any
Lien upon any of the Issuer Assets (including the Collateral), other than
Permitted Liens.
The Issuer will not create, assume, incur, suffer to exist or
otherwise become or remain liable in respect of any Indebtedness other than (i)
Indebtedness hereunder and (ii) Indebtedness permitted under any other
Transaction Document.
The Issuer will not merge or consolidate with or into any other
Person.
The Issuer will not sell, lease, transfer, liquidate or otherwise
dispose of any Issuer Assets, except as contemplated by the Transaction
Documents unless directed to do so by the Indenture Trustee.
-34-
The Issuer will not acquire, by long-term or operating lease or
otherwise, any assets except in accordance with the terms of the Transaction
Documents.
The Issuer will not declare any dividends on any of the Membership
Interests or make any purchase, redemption or other acquisition of, any of the
Membership Interests, other than as provided in the Transaction Documents. The
Issuer will not redeem any Preferred Membership Interests if any such redemption
would result in the occurrence of an Amortization Event with respect to any
Series of Investor Notes Outstanding.
The Issuer will neither (a) change the location of its chief
executive office or principal place of business (within the meaning of the
applicable UCC) without sixty (60) days' prior written notice to the Indenture
Trustee nor (b) change its name without prior written notice to the Indenture
Trustee sufficient to allow the Indenture Trustee to execute all filings
prepared by the Issuer (including filings of financing statements on form UCC-1)
and recordings necessary to maintain the perfection of the interest of the
Indenture Trustee on behalf of the Noteholders in the Collateral pursuant to
this Indenture. In the event that the Issuer desires to so change its office or
change its name, the Issuer will make any required filings and prior to actually
changing its office or its name the Issuer will deliver to the Indenture Trustee
(i) an Officer's Certificate and (except with respect to a change of the
location of the Issuer's chief executive office or principal place of business
to a new location in the same county) an Opinion of Counsel confirming that all
required filings have been made to continue the perfected interest of the
Indenture Trustee on behalf of the Noteholders in the Collateral in respect of
the new office or new name of the Issuer and (ii) copies of all such required
filings with the filing information duly noted thereon by the office in which
such filings were made.
The Issuer will not amend the LLC Agreement unless, prior to such
amendment, each Rating Agency confirms that after such amendment the Rating
Agency Condition will be met.
The Issuer will not make, incur, or suffer to exist any loan,
advance, extension of credit or other investment in any Person other than in
accordance with the Transaction Documents and, in addition, without limiting the
generality of the foregoing, the Issuer will not cause the Indenture Trustee to
make any Permitted Investments on the Issuer's behalf that would
-35-
have the effect of causing the Issuer to be an "investment company" within the
meaning of the Investment Company Act.
The Issuer will not enter into or be a party to any agreement or
instrument other than any Transaction Document or documents and agreements
incidental thereto.
The Issuer will not engage in any business or enterprise or enter
into any transaction other than acquiring the SUBI Certificates pursuant to the
Transfer Agreement, funding such acquisitions through the issuance and sale of
the Investor Notes, issuing the Membership Interests pursuant to the LLC
Agreement, incurring and paying ordinary course operating expenses and other
activities related to or incidental to any of the foregoing.
The Issuer will do all things necessary to continue to be readily
distinguishable from VMS, ARAC and the Affiliates of each of the foregoing and
maintain its existence separate and apart from that of VMS, ARAC and the
Affiliates of each of the foregoing including, without limitation:
(i) practicing and adhering to organizational formalities, such as
maintaining appropriate books and records;
(ii) observing all organizational formalities in connection with all
dealings between itself and VMS, ARAC and the Affiliates of each of the
foregoing or any other unaffiliated entity;
(iii) observing all procedures required by its certificate of
formation and the LLC Agreement and the laws of the State of Delaware;
(iv) acting solely in its name and through its duly authorized
officers or agents in the conduct of its businesses;
(v) managing its business and affairs by or under the direction of
the Managers;
(vi) ensuring that its Authorized Officers duly authorize all of its
actions;
(vii) ensuring the receipt of proper authorization, when necessary,
in accordance with the terms of the LLC Agreement for its actions;
(viii) owning or leasing (including through shared arrangements with
Affiliates) all office furniture and equipment necessary to operate its
business;
-36-
(ix) maintaining at least one Manager who is an Independent Manager;
(x) not (A) having or incurring any indebtedness to VMS, ARAC or any
Affiliates of VMS or ARAC; (B) guaranteeing or otherwise becoming liable
for any obligations of VMS, ARAC or any Affiliates of VMS or ARAC; (C)
having obligations guaranteed by VMS, ARAC or any Affiliates of VMS or
ARAC; (D) holding itself out as responsible for debts of VMS, ARAC or any
Affiliates of VMS or ARAC or for decisions or actions with respect to the
affairs of VMS, ARAC or any Affiliates of VMS or ARAC; (E) operating or
purporting to operate as an integrated, single economic unit with respect
to VMS or ARAC or any Affiliates of VMS or ARAC or any other unaffiliated
entity; (F) seeking to obtain credit or incur any obligation to any third
party based upon the assets of VMS or ARAC or any Affiliates of VMS or
ARAC or any other unaffiliated entity; (G) induce any such third party to
reasonably rely on the creditworthiness of VMS or ARAC or any Affiliates
of VMS or ARAC or any other unaffiliated entity; and (H) being directly or
indirectly named as a direct or contingent beneficiary or loss payee on
any insurance policy of VMS, ARAC or any Affiliates of VMS or ARAC other
than as required by the Transaction Documents with respect to insurance on
the Leased Vehicles;
(xi) other than as provided in the Transaction Documents,
maintaining its deposit and other bank accounts and all of its assets
separate from those of any other Person;
(xii) maintaining its financial records separate and apart from
those of any other Person;
(xiii) not suggesting in any way, within its financial statements,
that its assets are available to pay the claims of creditors of VMS, ARAC,
any Affiliates of VMS or ARAC or any other affiliated or unaffiliated
entity;
(xiv) compensating all its employees, officers, consultants and
agents for services provided to it by such Persons out of its own funds or
reimbursing any of its Affiliates in respect of amounts paid by such
Affiliates for such services;
(xv) maintaining office space separate and apart from that of VMS or
ARAC or any Affiliates of VMS or ARAC (even if such office space is
subleased from or is on or near premises occupied by VMS, ARAC or any
Affiliates of VMS or ARAC) and a telephone number separate and apart from
that of VMS or ARAC or any Affiliates of VMS or ARAC;
(xvi) conducting all oral and written communications, including,
without limitation, letters, invoices, purchase orders, contracts,
statements, and applications solely in its own name;
(xvii) having separate stationery from VMS, ARAC, any Affiliates of
VMS or ARAC or any other unaffiliated entity;
-37-
(xviii) accounting for and managing all of its liabilities
separately from those of VMS, ARAC or any Affiliates of VMS or ARAC;
(xix) allocating, on an arm's length basis, all shared corporate
operating services, leases and expenses, including, without limitation,
those associated with the services of shared consultants and agents and
shared computer and other office equipment and software; and otherwise
maintaining an arm's-length relationship with each of VMS, ARAC, any
Affiliates of VMS or ARAC or any other unaffiliated entity;
(xx) refraining from filing or otherwise initiating or supporting
the filing of a motion in any bankruptcy or other insolvency proceeding
involving VMS, ARAC or any Affiliate of VMS or ARAC to substantively
consolidate VMS, ARAC or any Affiliate of VMS or ARAC with the Issuer;
(xxi) remaining solvent; and
(xxii) conducting all of its business (whether written or oral)
solely in its own name so as not to mislead others as to the identity of
each of the Issuer, SPV, VMS, ARAC and any Affiliates of VMS or ARAC.
The Issuer shall use the net proceeds of each Series of Investor
Notes in accordance with the provisions of the related Indenture Supplement.
The Issuer will not establish or maintain or contribute to any
Pension Plan that is covered by Title IV of ERISA.
"Event of Default", wherever used herein, with respect to any Series
of Investor Notes, 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):
(a) default in the payment of any interest on any Investor Note of
any Series when the same becomes due and payable, and such default shall
continue for a period of five Business Days;
-38-
(b) default in the payment of the principal of any Investor Note of
any Series on the Series Termination Date with respect to such Series;
(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 Investor Noteholders of
such Series, and which default shall continue or not be cured for a period
of 30 days (or for such longer period, not in excess of 60 days, as may be
reasonably necessary to remedy such default; provided that such default is
capable of remedy within 60 days or less and 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 Investor Noteholders
of such Series holding Investor Notes evidencing at least 25% of the
Invested Amount of each Class of Investor Notes of such Series, a written
notice specifying such default and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder;
(d) the Issuer at any time receives a final determination that it
will be treated as an association taxable as a corporation for federal
income tax purposes;
(e) the Securities and Exchange Commission or other regulatory body
having jurisdiction reaches a final determination that the Issuer is an
"investment company" within the meaning of the Investment Company Act; or
(f) an Insolvency Event shall have occurred with respect to the
Issuer.
If an Event of Default referred to in clause (f) of Section 9.2 has
occurred, the unpaid principal amount of all Series of Investor Notes, together
with interest accrued but unpaid thereon, and all other amounts due to the
Investor Noteholders under this Indenture, shall immediately and without further
act become due and payable. If an Event of Default referred to in clause (a),
(b), (d) or (e) of Section 9.1 has occurred, then the Indenture Trustee or the
Holders of a Majority in Interest of each Series of Outstanding Investor Notes
may declare all of the Investor Notes to be immediately due and payable, by a
notice in writing to the Issuer (and to the Indenture Trustee if given by the
Investor Noteholders), and upon any such declaration the unpaid principal amount
of the Investor Notes, together with accrued and unpaid interest thereon through
the date of acceleration, shall become immediately due and payable. If an Event
of Default referred to in clause (c) of Section 9.1 shall occur and be
continuing with respect to any Series of Investor Notes, then and in every such
case the Indenture Trustee or Holders of a Majority in Interest of such Series
of Investor Notes may declare all the Investor Notes of such Series to be
immediately due and payable, by a notice in writing to the Issuer (and to the
Indenture Trustee if given by the Investor Noteholders), and upon any such
declaration the unpaid
-39-
principal amount of such Investor 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 with respect to the Investor Notes (or a particular Series of Investor
Notes) and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter in this Article 9, provided,
the Holders of a Majority in Interest of each Series of Outstanding Investor
Notes (or, in the case of the acceleration of a particular Series of Investor
Notes, the Holders of a Majority in Interest of the Investor Notes of such
Series), 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.
(a) The Issuer covenants that if (i) default is made in the payment
of any interest on any Investor Note when the same becomes due and payable, and
such default continues for a period of five Business Days or (ii) default is
made in the payment of the principal of any Investor Note when the same becomes
due and payable, by acceleration or at stated maturity, the Issuer will, upon
demand of the Indenture Trustee, pay to it, for the benefit of the Holders of
such Investor Notes, the whole amount then due and payable on such Investor
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 Note Rate borne by the Investor
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 Investor Notes
and collect in the manner provided by law out of the property of the Issuer or
other obligor upon such Investor 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 9.4, in its discretion,
proceed to protect and enforce its rights and the rights of the Investor
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 Investor Notes or any Person having or claiming an
ownership interest in the Issuer Assets,
-40-
proceedings under the Bankruptcy Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Issuer or its
property or such other obligor or Person, or in the case of any other comparable
judicial proceedings relative to the Issuer or other obligor upon the Investor
Notes, or to the creditors or property of the Issuer or such other obligor, the
Indenture Trustee, irrespective of whether the principal of any Investor 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 Investor 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 Investor Noteholders allowed in such proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Investor 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 Investor 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 Investor 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 Investor 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 Investor
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.
(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 Investor
-41-
Noteholder any plan of reorganization, arrangement, adjustment or composition
affecting the Investor Notes or the rights of any Holder thereof or to authorize
the Indenture Trustee to vote in respect of the claim of any Investor 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 Investor Notes, may be enforced by the Indenture
Trustee without the possession of any of the Investor 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 Investor
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 Investor Notes, and it shall not be
necessary to make any Investor Noteholder a party to any such proceedings.
(a) If an Event of Default shall have occurred and be continuing
with respect to any Series of Outstanding Investor Notes and such Series of
Investor Notes has been accelerated under Section 9.4, the Indenture Trustee may
institute proceedings to enforce the obligations of the Issuer hereunder in its
own name and as trustee of an express trust for the collection of all amounts
then payable on the Investor Notes of such Series 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 Investor
Notes moneys adjudged due.
(b) If an Event of Default shall have occurred and be continuing
with respect to all Series of Outstanding Investor Notes and all Series of
Outstanding Investor Notes have been accelerated under Section 9.2, the
Indenture Trustee (subject to Section 9.5) may do one or more of the following:
(i) institute proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Issuer Assets;
(ii) 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 Investor Notes;
and
(iii) in the case of an Event of Default referred to in clause (a)
or (b) of Section 9.1, sell the Issuer Assets 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;
-42-
provided that the Indenture Trustee may not sell or otherwise liquidate the
Issuer Assets following an Event of Default referred to in clause (a) or (b) of
Section 9.1, unless (A) the Holders of Investor Notes representing 100% of the
Aggregate Invested Amount consent thereto, (B) the proceeds of such sale or
liquidation distributable to the Investor Noteholders are sufficient to
discharge in full all amounts then due and unpaid upon the Investor Notes for
principal and interest, or (C) (1) the Indenture Trustee determines that the
Issuer Assets will not continue to provide sufficient funds for the payment of
principal of and interest on the Investor Notes as they would have become due if
the Investor Notes had not been declared due and payable and (2) the Indenture
Trustee obtains the consent of a Majority in Interest of the Holders of each
Series of Outstanding Investor 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 Issuer Assets for such purpose.
(c) If the Indenture Trustee collects any money or property pursuant
to this Article 9, such money or property shall be held by the Indenture Trustee
as additional collateral hereunder and the Indenture Trustee shall pay out such
money or property in the following order:
FIRST: to the Indenture Trustee for amounts due under Section 10.6;
and
SECOND: to the Collection Account for distribution in accordance
with the provisions of Article 5.
If the Investor Notes of each Series Outstanding have been declared
to be due and payable under Section 9.2 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 Issuer
Assets. It is the desire of the parties hereto and the Investor Noteholders that
there be at all times sufficient funds for the payment of principal of and
interest on the Investor Notes, and the Indenture Trustee shall take such desire
into account when determining whether to maintain possession of the Issuer
Assets. In determining whether to maintain possession of the Issuer Assets, 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 Issuer
Assets for such purpose. Nothing contained in this Section 9.5 shall be
construed to require the Indenture Trustee to preserve the Issuer Assets
securing the Issuer Obligations if prohibited by applicable law or if the
Indenture Trustee is authorized, directed or permitted to liquidate the Issuer
Assets pursuant to Section 9.4(b).
(a) Promptly following a request from the Indenture Trustee to do so
and at the Administrator's expense, the Issuer agrees to take all such lawful
action as the Indenture Trustee
-43-
may request to compel or secure the performance and observance by SPV, the
Origination Trust and the Servicer, as applicable, of each of their respective
obligations to the Issuer under or in connection with the Transfer Agreement and
the Origination Trust Documents, respectively, in accordance with their
respective terms, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the
Transaction Documents to the extent and in the manner directed by the Indenture
Trustee, including the transmission of notices of default on the part of SPV,
the Origination Trust or the Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by SPV,
the Origination Trust or the Servicer of each of their respective obligations
thereunder.
(b) If an Event of Default has occurred and is continuing with
respect to any Series of Outstanding Investor Notes, the Indenture Trustee may,
and, at the direction (which direction shall be in writing) of the Holders of a
Majority in Interest of such Series of Outstanding Investor Notes (or, if an
Event of Default with respect to more than one Series of Investor Notes has
occurred, a Majority in Interest of each Series of Investor Notes with respect
to which an Event of Default shall have occurred) shall exercise all rights,
remedies, powers, privileges and claims of the Issuer against SPV, the
Origination Trust or the Servicer under or in connection with the Transfer
Agreement and the Origination Trust Documents, including the right or power to
take any action to compel or secure performance or observance by SPV, the
Origination Trust 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 Transfer Agreement and the Origination Trust
Documents, and any right of the Issuer to take such action shall be suspended;
provided that, if an Event of Default has occurred and is continuing with
respect to less than all Series of Outstanding Investor Notes, the Indenture
Trustee may not take any action hereunder that is detrimental to the rights of
the Holders of the Investor Notes with respect to which no Event of Default
shall have occurred.
No Holder of any Investor Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(b) Holders of each Series of Outstanding Investor Notes holding
Investor Notes evidencing at least 25% of each Class of Investor Notes of
such Series 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;
-44-
(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 of
a Majority in Interest of each Series of Outstanding Investor Notes;
it being understood and intended that no one or more Holders of the Investor
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 Investor 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
Investor Notes, each representing less than a Majority in Interest of each
Series of Outstanding Investor Notes, the Indenture Trustee shall act at the
direction of the group of Holders of Investor Notes with the greater amount of
Investor Notes, however, should the Indenture Trustee receive conflicting or
inconsistent requests on indemnity from two or more groups of Holders with an
equal amount of Investor Notes the Indenture Trustee in its sole discretion may
determine what action, if any, shall be taken, notwithstanding any other
provisions of this Indenture.
Notwithstanding any other provisions in this Indenture, the Holder of any
Investor Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Investor Note
on or after the respective due dates thereof expressed in such Investor Note or
in this Indenture and to institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent of such Holder.
If the Indenture Trustee or any Investor Noteholder has instituted
any Proceeding to enforce any right or remedy under this Indenture and such
Proceeding has been discontinued or abandoned for any reason or has been
determined adversely to the Indenture Trustee or to such Investor Noteholder,
then and in every such case the Issuer, the Indenture Trustee and the Investor
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 Investor Noteholders
shall continue as though no such Proceeding had been instituted.
No right or remedy herein conferred upon or reserved to the
Indenture Trustee or to the Investor 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
-45-
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.
No delay or omission of the Indenture Trustee or any Holder of any
Investor 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 9 or by law to the Indenture Trustee or to the
Investor Noteholders may be exercised from time to time, and as often as may be
deemed expedient, by the Indenture Trustee or by the Investor Noteholders, as
the case may be.
The Holders of a Majority in Interest of each Series of Outstanding
Investor 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 Investor 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) if an Event of Default is with respect to less than all Series
of Outstanding Investor Notes, then the Indenture Trustee's rights and
remedies shall be limited to the rights and remedies pertaining only to
those Series of Investor Notes with respect to which such Event of Default
has occurred and the Indenture Trustee shall exercise such rights and
remedies at the direction of the Holders of a Majority in Interest of all
such Series of Investor Notes;
(c) subject to the express terms of Section 9.4, any direction to
the Indenture Trustee to sell or liquidate the Issuer Assets shall be by
the Holders of Investor Notes representing not less than 100% of the
Aggregate Invested Amount;
(d) if the conditions set forth in Section 9.5 have been satisfied
and the Indenture Trustee elects to retain the Issuer Assets pursuant to
such Section, then any direction to the Indenture Trustee by Holders of
Investor Notes representing less than 100% of the Aggregate Invested
Amount to sell or liquidate the Issuer Assets shall be of no force and
effect;
(e) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction; and
(f) such direction shall be in writing;
-46-
provided, further, that, subject to Section 10.1, 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 Investor Noteholders not
consenting to such action.
Prior to the declaration of the acceleration of the maturity of the
Investor Notes of any Series as provided in Section 9.2, the Holders of the
Investor Notes of not less than a Majority in Interest of such Series of
Outstanding Investor 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 Investor 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 Investor Note. In the case of any such waiver, the
Issuer, the Indenture Trustee and the Holders of the Investor Notes of such
Outstanding Series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred,
for every purpose of this Indenture; 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.
All parties to this Indenture agree, and each Holder of any Investor Note by
such Holder'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 Investor Noteholder or group of Investor Noteholders, in each
case holding in the aggregate more than 10% of the Invested Amount of any Series
of Investor Notes, or (c) any suit instituted by any Investor Noteholder for the
enforcement of the payment of principal of or interest on any Investor Note on
or after the respective due dates expressed in such Investor Note and in this
Indenture.
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
-47-
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.
The Indenture Trustee's right to seek and recover judgment on the
Investor 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 Investor 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 Issuer Assets or upon
any of the assets of the Issuer.
(a) If an Amortization Event or Event of Default has occurred and is
continuing, the Indenture Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(b) The Indenture Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Indenture Trustee which are specifically required
to be furnished pursuant to any provision of this Indenture or any of the other
Transaction Documents, shall examine them to determine whether they
substantially conform to the requirements of this Indenture or such other
Transaction Document, as the case may be; provided, however, that the Indenture
Trustee shall not be responsible for the content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Servicer, the Administrator or the Issuer hereunder.
(c) Subject to subsection 10.1(a), 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 misconduct; provided, however, that:
(i) the Indenture Trustee shall not be liable for an error of
judgment made in good faith by a Responsible Officer of the Indenture
Trustee, unless it shall be 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 9.12;
-48-
(ii) the Indenture Trustee shall not be charged with knowledge of
any Event of Default unless a Responsible Officer of the Indenture Trustee
obtains actual knowledge thereof or receives written notice thereof;
(iii) the Indenture Trustee shall not be charged with knowledge of
any failure by any Person to comply with its obligations under the
Transaction Documents unless a Responsible Officer of the Indenture
Trustee obtains actual knowledge of such failure or receives written
notice thereof;
(iv) prior to the occurrence of an Amortization Event or an Event of
Default, and after the curing of all such Amortization Events or Events of
Default which may have occurred, the duties and obligations of the
Indenture Trustee shall be determined solely by the express provisions of
this Indenture, the Indenture Trustee shall be obligated to perform only
such duties and obligations as are specifically set forth in this
Indenture and no implied covenants or obligations shall be read into this
Indenture against the Indenture Trustee;
(v) anything in this Indenture to the contrary notwithstanding, in
no event shall the Indenture Trustee be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Indenture Trustee has been advised
of the likelihood of such loss or damage and regardless of the form of
action; and
(vi) subject to the other provisions of this Indenture and without
limiting the generality of this Section 10.01, the Indenture Trustee shall
have no duty (A) to record, file, or deposit this Indenture, the
Transaction Documents or any agreement referred to herein or therein or
any financing statement or continuation statement evidencing a security
interest, or to maintain any such recording or filing or depositing or to
rerecord, refile, or redeposit any thereof, (B) to insure the Issuer
Assets and (C) to pay or discharge any tax, assessment, or other
governmental charge or any lien or encumbrance of any kind owing with
respect to assessed or levied against, any part of the Collateral other
than from funds available in the Collection Account.
(d) The Indenture Trustee shall not be required 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
there is reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably 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 any Person under any of the
Transaction Documents.
(e) Except for actions expressly authorized by this Indenture, the
Indenture Trustee shall take no action reasonably likely to impair the security
interests created hereunder in any of the Issuer Assets now existing or
hereafter created or to impair the value of any of the Issuer Assets now
existing or hereafter created.
-49-
(f) In the event that the Paying Agent or the Transfer Agent and
Registrar shall fail to perform any obligation, duty or agreement in the manner
or on the day required to be performed by the Paying Agent or the Transfer Agent
and Registrar, as the case may be, under this Indenture, the Indenture Trustee
shall be obligated promptly to perform such obligation, duty or agreement in the
manner so required.
Except as otherwise provided by Section 10.1:
(a) The Indenture Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting based upon any document
believed by it to be genuine and to have been signed by or presented by
the proper person.
(b) The Indenture Trustee may consult with counsel of its selection
and the written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection from liability in respect
of any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon.
(c) The Indenture Trustee may act through agents, custodians and
nominees and shall not be liable for any misconduct or negligence on the
part of, or for the supervision of, any such agent, custodian or nominee
so long as such agent, custodian or nominee is appointed with due care.
(d) The Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers conferred upon it by the Indenture; provided,
that the Indenture Trustee's conduct does not constitute wilful
misconduct, negligence or bad faith.
(e) 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 be under no obligation to institute, conduct or defend any
litigation hereunder or in relation hereto and 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 Investor Notes evidencing
not less than 25% of the Invested Amount of any Series of Investor 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 instituting, conducting or defending any litigation
hereunder or in relation hereto or 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
-50-
or by the Administrator at the direction of the Issuer or, if paid by the
Indenture Trustee, shall be reimbursed by the Issuer or by the
Administrator at the direction of the Issuer upon demand.
(f) The Indenture Trustee shall not be liable for any losses or
liquidation penalties in connection with Permitted Investments, unless
such losses or liquidation penalties were incurred through the Indenture
Trustee's own willful misconduct, negligence or bad faith.
(g) The Indenture Trustee shall not be liable for the acts or
omissions of any successor to the Indenture Trustee so long as such acts
or omissions were not the result of the negligence, bad faith or willful
misconduct of Chase.
(h) The right of the Indenture Trustee to perform any discretionary
act enumerated in this Indenture shall not be construed as a duty, and the
Indenture Trustee shall not be answerable for other than its negligence or
wilful misconduct in the performance of such act.
(i) The Indenture Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust created hereby or the
powers granted hereunder.
The Indenture Trustee assumes no responsibility for the correctness
of the recitals contained herein and in the Investor Notes (other than the
certificate of authentication on the Investor Notes). Except as set forth in
Section 10.11, the Indenture Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Investor Notes (other than the
certificate of authentication on the Investor Notes) or of any of the Issuer
Assets. The Indenture Trustee shall not be accountable for the use or
application by the Issuer of any of the Investor Notes or of the proceeds of
such Investor Notes, or for the use or application of any funds paid to the
Issuer in respect of the Issuer Assets.
The Indenture Trustee in its individual or any other capacity may
become the owner or pledgee of Investor Notes with the same rights as it would
have if it were not the Indenture Trustee.
If a Default or an Event of Default or a Potential Amortization
Event or an Amortization Event 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 thereof within 45 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 Investor
Note (including
-51-
payments pursuant to the mandatory redemption provisions of such Investor 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 Investor Noteholders.
The Issuer shall cause the Administrator pursuant to the
Administration 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 Administrator pursuant to the Administration
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
Administrator pursuant to the Administration Agreement to indemnify the
Indenture Trustee against any and all loss, liability or expense (including the
reasonable fees of counsel) 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 and the Administrator promptly of any claim for which it
may seek indemnity; provided, however, a failure by the Indenture Trustee to
promptly notify the Issuer and the Administrator of a claim for which it may
seek indemnity shall not relieve the Administrator from its obligation to
indemnify the Indenture Trustee.
The Administrator's payment obligations to the Indenture Trustee
pursuant to this Section 10.06 shall survive the resignation or termination of
the Indenture Trustee and the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
8.1(f) with respect to the Issuer, the expenses are intended to constitute
expenses of administration under the Bankruptcy Code or any other applicable
federal or state bankruptcy, insolvency or similar law.
The Indenture Trustee hereunder shall at all times be a corporation
organized and doing business under the laws of the United States or any state
thereof authorized under such laws to exercise corporate trust powers, having a
long-term unsecured debt rating of at least "Baa3" by Moody's and "BBB-" by
Standard & Poor's having, in the case of an entity that is subject to risk-based
capital adequacy requirements, risk-based capital of at least $50,000,000 or, in
the case of an entity that is not subject to risk-based capital adequacy
requirements, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority, and shall
satisfy the requirements for a trustee set forth in paragraph (a)(4)(i) of Rule
3a-7 under the Investment Company Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section 10.7, the risk-based capital or the combined capital and surplus of such
corporation, as the case may be, shall be deemed to be its risk-based capital or
combined capital and surplus as set forth in the most recent report of condition
so published.
-52-
If this Indenture is qualified under the TIA, the Indenture Trustee
shall at all times satisfy the requirements of TIA ss.310(a) and 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.
If at any time the Indenture Trustee ceases to be eligible in
accordance with the provisions of this Section 10.7, the Indenture Trustee shall
resign immediately in the manner and with the effect specified in Section 10.8.
(a) The Indenture Trustee may give notice of its intent to resign at
any time by so notifying the Issuer. The Holders of a Majority in Interest of
each Series of Outstanding Investor Notes may remove the Indenture Trustee by so
notifying the Indenture Trustee and may appoint a successor Indenture Trustee.
The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 10.7;
(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.
(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 Interest of each Series of Outstanding Investor
-53-
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 10.7, any
Investor 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 10.8(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 and the Administrator's obligations under
Section 10.6 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.
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
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 Investor 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
Investor Notes so authenticated; and in case at that time any of the Investor
Notes shall not have been authenticated, any successor Indenture Trustee may
authenticate such Investor 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 Investor Notes or in this Indenture with respect to
the certificate of authentication of the Indenture Trustee.
(a) Notwithstanding any other provisions of this Indenture or any
Indenture Supplement, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Collateral may 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-Indenture
Trustee or co-Indenture Trustees, or separate Indenture Trustee or separate
Indenture Trustees, of all or any part of the Collateral, and to vest in such
Person or Persons, in such capacity and for the benefit of the Noteholders, such
title to the Collateral, or any part thereof,
-54-
and, subject to the other provisions of this Section 10.10, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider necessary
or desirable. No co-Indenture Trustee or separate Indenture Trustee hereunder
shall be required to meet the terms of eligibility as a successor Indenture
Trustee under Section 10.7 and no notice to Investor Noteholders of the
appointment of any co-Indenture Trustee or separate Indenture Trustee shall be
required under Section 10.8. No co-Indenture Trustee shall be appointed without
the consent of the Issuer unless such appointment is required as a matter of
state law or to enable the Indenture Trustee to perform its functions hereunder.
(b) Every separate Indenture Trustee and co-Indenture Trustee shall, to
the extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) The Investor Notes of each Series shall be
authenticated and delivered solely by the Indenture Trustee or an
authenticating agent appointed by the Indenture Trustee;
(ii) 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 Indenture Trustee or co-Indenture Trustee jointly
(it being understood that such separate Indenture Trustee or
co-Indenture 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 Assets or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate Indenture
Trustee or co-Indenture Trustee, but solely at the direction of the
Indenture Trustee;
(iii) No Indenture Trustee hereunder shall be personally
liable by reason of any act or omission of any other Indenture
Trustee hereunder;
(iv) The Indenture Trustee may at any time accept the
resignation of or remove any separate Indenture Trustee or
co-Indenture Trustee; and
(v) The Indenture Trustee shall remain primarily liable
for the actions of any co-Indenture 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 Indenture
Trustees and co-Indenture Trustees, as effectively as if given to each of them.
Every instrument appointing any separate Indenture Trustee or co-Indenture
Trustee shall refer to this Indenture and the conditions of this Article 9. Each
separate Indenture Trustee and co-Indenture Trustee, upon its acceptance of the
trusts conferred, shall be vested with the estates or property specified in its
instrument of
-55-
appointment, either jointly with the Indenture Trustee or separately, as may be
provided therein, subject to all the provisions of this Indenture and any
Indenture Supplement, specifically including every provision of this Indenture
or any Indenture Supplement 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 and a copy thereof given to the
Issuer.
(d) Any separate Indenture Trustee or co-Indenture 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 to this Indenture or any Indenture Supplement on its behalf and in
its name. If any separate Indenture Trustee or co-Indenture 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 Indenture Trustee.
(e) In connection with the appointment of a co-Indenture Trustee, the
Indenture Trustee may, at any time, at the Indenture Trustee's sole cost and
expense, without notice to the Investor Noteholders, delegate its duties under
this Base Indenture and any Indenture Supplement to any Person who agrees to
conduct such duties in accordance with the terms hereof; provided, however, that
no such delegation shall relieve the Indenture Trustee of its obligations and
responsibilities hereunder with respect to any such delegated duties.
The Indenture Trustee represents and warrants to the Issuer and the
Noteholders that:
(i) The Indenture Trustee is a banking corporation
organized, existing and in good standing under the laws of the State
of New York;
(ii) The Indenture Trustee has full power, authority and
right to execute, deliver and perform this Indenture and any
Indenture Supplement issued concurrently with this Indenture and to
authenticate the Investor Notes, and has taken all necessary action
to authorize the execution, delivery and performance by it of this
Indenture and any Indenture Supplement issued concurrently with this
Indenture and to authenticate the Investor Notes;
(iii) This Indenture has been duly executed and
delivered by the Indenture Trustee; and
(iv) The Indenture Trustee meets the requirements of
eligibility as an Indenture Trustee hereunder set forth in Section
10.7.
-56-
If this Indenture is qualified under the TIA, the Indenture Trustee shall
comply with TIA ss.311(a), excluding any creditor relationship listed in TIA
ss.311(b) and an Indenture Trustee who has resigned or been removed shall be
subject to TIA ss.311(a) to the extent indicated therein.
(a) This Indenture shall cease to be of further effect (except that the
Issuer's obligations under Section 10.6 and the Indenture Trustee's and Paying
Agent's obligations under Section 11.3 shall survive) when all Outstanding
Investor Notes theretofore authenticated and issued have been delivered (other
than destroyed, lost or stolen Investor Notes which have been replaced or paid)
to the Indenture Trustee for cancellation and the Issuer has paid all sums
payable hereunder.
(b) In addition, except as may be provided to the contrary in any
Indenture Supplement, the Issuer may terminate all of its obligations under this
Indenture if:
(i) The Issuer irrevocably deposits in trust with the
Indenture Trustee or at the option of the Indenture Trustee, with an
Indenture Trustee reasonably satisfactory to the Indenture Trustee
and the Issuer under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Indenture Trustee, money or
U.S. Government Obligations in an amount sufficient, in the opinion
of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered
to the Indenture Trustee, to pay, when due, principal and interest
on the Investor Notes to maturity or redemption, as the case may be,
and to pay all other sums payable by it hereunder; provided,
however, that (1) the Indenture Trustee of the irrevocable trust
shall have been irrevocably instructed to pay such money or the
proceeds of such U.S. Government Obligations to the Indenture
Trustee and (2) the Indenture Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of said principal and interest
with respect to the Investor Notes;
(ii) The Issuer delivers to the Indenture Trustee an
Officer's Certificate stating that all conditions precedent to
satisfaction and discharge of this Indenture have been complied
with, and an Opinion of Counsel to the same effect; and
(iii) the Rating Agency Condition is satisfied with
respect to each Series of Outstanding Investor Notes.
Then, this Indenture shall cease to be of further effect (except as provided in
this Section 11.1), and the Indenture Trustee, on demand of the Issuer, shall
execute proper instruments acknowledging confirmation of and discharge under
this Indenture.
-57-
(c) After such irrevocable deposit made pursuant to Section 11.1(b) and
satisfaction of the other conditions set forth herein, the Indenture Trustee
upon request shall acknowledge in writing the discharge of the Issuer's
obligations under this Indenture except for those surviving obligations
specified above.
In order to have money available on a payment date to pay principal or
interest on the Investor Notes, the U.S. Government Obligations shall be payable
as to principal or interest at least one Business Day before such payment date
in such amounts as will provide the necessary money. U.S. Government Obligations
shall not be callable at the issuer's option.
The Indenture Trustee or a trustee satisfactory to the Indenture Trustee
and the Issuer shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 11.1. The Indenture Trustee shall apply
the deposited money and the money from U.S. Government Obligations through the
Paying Agent in accordance with this Indenture to the payment of principal and
interest on the Investor Notes.
The provisions of this Section 11.2 shall survive the expiration or
earlier termination of this Indenture.
The Indenture Trustee and the Paying Agent shall promptly pay to the
Issuer upon written request any excess money or, pursuant to Section 2.4 ,
return any Investor Notes held by them at any time.
The provisions of this Section 11.3 shall survive the expiration or
earlier termination of this Indenture.
Without the consent of any Investor Noteholder, the Issuer and the
Indenture Trustee, at any time and from time to time, may enter into one or more
Indenture Supplements hereto, in form satisfactory to the Indenture Trustee, for
any of the following purposes, provided that the Rating Agency Condition is met:
(a) to create a new Series of Investor Notes;
(b) to add to the covenants of the Issuer for the benefit of any
Investor Noteholders (and if such covenants are to be for the benefit of
less than all Series of
-58-
Investor Notes, stating that such covenants are expressly being included
solely for the benefit of such Series) or to surrender any right or power
herein conferred upon the Issuer (provided, however, that the Issuer will
not pursuant to this Section 12.1(b) surrender any right or power it has
under the Transaction Documents);
(c) to mortgage, pledge, convey, assign and transfer to the
Indenture Trustee any property or assets as security for the Investor
Notes and to specify the terms and conditions upon which such property or
assets are to be held and dealt with by the Indenture Trustee and to set
forth such other provisions in respect thereof as may be required by the
Indenture or as may, consistent with the provisions of the Indenture, be
deemed appropriate by the Issuer and the Indenture Trustee, or to correct
or amplify the description of any such property or assets at any time so
mortgaged, pledged, conveyed and transferred to the Indenture Trustee on
behalf of the Noteholders;
(d) to cure any ambiguity, defect, or inconsistency or to correct or
supplement any provision contained herein or in any Indenture Supplement
or in any Investor Notes issued hereunder;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Indenture Trustee with respect to the Investor
Notes of one or more Series and to add to or change any of the provisions
of the Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Indenture Trustee;
(f) to correct or Indenture Supplement any provision herein which
may be inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this
Indenture; or
(g) if this Indenture is required to be qualified under the TIA, 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;
provided, however, that, as evidenced by an Opinion of Counsel delivered to the
Indenture Trustee (at the Issuer's expense), such action shall not adversely
affect in any material respect the interests of any Investor Noteholder. Upon
the request of the Issuer, the Indenture Trustee shall join with the Issuer in
the execution of any Indenture Supplement authorized or permitted by the terms
of this Indenture and shall make any further appropriate agreements and
stipulations which may be therein contained, but the Indenture Trustee shall not
be obligated to enter into such Indenture Supplement which affects its own
rights, duties or immunities under this Indenture or otherwise.
-59-
Except as provided in Section 12.1, the provisions of this Indenture and
any Indenture Supplement (unless otherwise provided in such Indenture
Supplement) and each other Transaction Document to which the Issuer is a party
may from time to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to in writing by the Issuer,
the Indenture Trustee and the Holders of a Majority in Interest of each Series
of Outstanding Investor Notes; provided that, if such amendment, modification or
waiver of or to this Indenture, the Indenture Supplement with respect to a
Series of Investor Notes or any Transaction Document does not affect the
Noteholders of a particular Series of Investor Notes (as substantiated by an
Opinion of Counsel to such effect), then the consent of the Investor Noteholders
of such Series shall not be required to such amendment, modification or waiver;
provided further, that no consent of Investor Noteholders shall be required to
any amendment, modification or waiver of or to any Transaction Document if such
amendment, modification or waiver does not adversely affect in any material
respect the Noteholders of any Series of Investor Notes (as substantiated by an
Opinion of Counsel to such effect) and provided further that the Rating Agency
Condition is satisfied with respect to each affected Series of Investor Notes.
Notwithstanding the foregoing:
(i) any modification of this Section 11.2, any
requirement hereunder that any particular action be taken by
Investor Noteholders holding the relevant percentage in principal
amount of the Investor Notes or any change in the definition of the
terms "Adjusted Aggregate Unit Balance" or "Asset Deficiency",
"Invested Amount", "Invested Percentage" or any defined term used
for the purpose of any such definitions shall require the consent of
each affected Investor Noteholder; and
(ii) any amendment, waiver or other modification that
would (a) extend the due date for, or reduce the amount of any
scheduled repayment or prepayment of principal of or interest on any
Investor Note (or reduce the principal amount of or rate of interest
on any Investor Note) shall require the consent of each affected
Investor Noteholder; (b) approve the assignment or transfer by the
Issuer of any of its rights or obligations hereunder or under any
other Transaction Document to which it is a party except pursuant to
the express terms hereof or thereof shall require the consent of
each Investor Noteholder; (c) release any obligor under any
Transaction Document to which it is a party except pursuant to the
express terms of such Transaction Document shall require the consent
of each Investor Noteholder; provided, however, that the Liens on
Vehicles may be released as provided in Section 3.5; (d) affect
adversely the interests, rights or obligations of any Investor
Noteholder individually in comparison to any other Investor
Noteholder shall require the consent of such Investor Noteholder; or
(e) amend or otherwise modify any Amortization Event shall require
the consent of each affected Investor Noteholder.
-60-
Each amendment or other modification to this Indenture or the Investor
Notes shall be set forth in an Indenture Supplement. The initial effectiveness
of each Indenture Supplement shall be subject to the satisfaction of the Rating
Agency Condition. In addition to the manner provided in Sections 12.1 and 12.2,
each Indenture Supplement may be amended as provided in such Indenture
Supplement.
Until an amendment or waiver becomes effective, a consent to it by an
Investor Noteholder of an Investor Note is a continuing consent by the Investor
Noteholder and every subsequent Investor Noteholder of an Investor Note or
portion of an Investor Note that evidences the same debt as the consenting
Investor Noteholder's Investor Note, even if notation of the consent is not made
on any Investor Note. However, any such Investor Noteholder or subsequent
Investor Noteholder may revoke the consent as to his Investor Note or portion of
an Investor Note if the Indenture Trustee receives written notice of revocation
before the date the amendment or waiver becomes effective. An amendment or
waiver becomes effective in accordance with its terms and thereafter binds every
Investor Noteholder. The Issuer may fix a record date for determining which
Investor Noteholders must consent to such amendment or waiver.
The Indenture Trustee may place an appropriate notation about an amendment
or waiver on any Investor Note thereafter authenticated. The Issuer in exchange
for all Investor Notes may issue and the Indenture Trustee shall authenticate
new Investor Notes that reflect the amendment or waiver. Failure to make the
appropriate notation or issue a new Investor Note shall not affect the validity
and effect of-such amendment or waiver.
The Indenture Trustee shall sign any Indenture Supplement authorized
pursuant to this Article 12 if the Indenture Supplement does not adversely
affect the rights, duties, liabilities or immunities of the Indenture Trustee.
If it does, the Indenture Trustee may, but need not, sign it. In signing such
Indenture Supplement, the Indenture Trustee shall be entitled to receive, if
requested, an indemnity reasonably satisfactory to it and to receive and,
subject to Section 10.1, shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel as conclusive evidence that such Indenture
Supplement is authorized or permitted by this Indenture and that it will be
valid and binding upon the Issuer in accordance with its terms
If this Indenture is qualified under the TIA, every amendment of this
Indenture and every supplemental indenture executed pursuant to this Article 12
shall comply in all respects with the TIA.
-61-
(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 this Indenture is qualified under the TIA and the
TIA so requires, an Independent Certificate from a firm of certified public
accountants or other experts meeting the applicable requirements of this Section
13.1, 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) If this Indenture is qualified under the TIA and the TIA so
requires, prior to the deposit of any property or securities with the Indenture
Trustee that is to be 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 13.1(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 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
-62-
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 Aggregate Invested Amount, 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 Aggregate
Invested Amount.
(iii) If this Indenture is qualified under the TIA and the TIA so
requires, 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, 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 Aggregate Invested Amount, 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 $25,000 or less than one percent of the then Aggregate Invested
Amount.
(v) Notwithstanding any provision of this Section, the Issuer may
(A) collect, liquidate, sell or otherwise dispose of the Issuer Assets as
and to the extent permitted or required by the Transaction Documents and
(B) make cash payments out of the Issuer Accounts as and to the extent
permitted or required by the Transaction Documents.
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
-63-
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, the Seller or
the Issuer, stating that the information with respect to such factual matters is
in the possession of the Servicer, the Seller or the Issuer, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, 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, 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 10.
(a) Any request, demand, authoriza-tion, direc-tion, notice, consent,
waiver or other action pro-vided by this Indenture to be given or taken by the
Investor Note--holders may be embodied in and evidenced by one or more
instru-ments of substantially similar tenor signed by such Investor Noteholders
in person or by an agent duly ap-pointed in writing; and except as herein
otherwise ex-pressly provid-ed, such action shall become effective when such
instru-ment or instruments are delivered to the Indenture Trustee and, when
required, to the Issuer. 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 and the Issuer, if
made in the manner provided in this Section 13.3.
(b) The fact and date of the execu-tion by any Investor Note-holder of any
such instrument or writ-ing may be proved in any reasonable manner which the
Indenture Trustee deems sufficient.
(c) Any request, demand, authoriza-tion, direc-tion, notice, consent,
waiver or other act by an Investor Note--holder shall bind every Holder of every
Investor Note issued upon the registration of transfer there-of or in exchange
therefor or in lieu thereof, in respect of anything done, or omitted to be done,
by the Indenture Trustee or the Issuer in reliance thereon, regardless of
whether notation of such action is made upon such Investor Note-.
-64-
(d) The Indenture Trustee may require such addi-tional proof of any matter
referred to in this Sec-tion 13.3 as it shall deem necessary.
(a) Any notice or communication by the Issuer or the Indenture Trustee to
the other shall be in writing and delivered in person or mailed by first-class
mail (registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the other's address:
If to the Issuer:
Greyhound Funding LLC
c/o Global Securitization Services, LLC
00 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: President
Telecopier No.: (000) 000-0000
with a copy to the Administrator:
PHH Vehicle Management Services, LLC
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
If to the Indenture Trustee:
The Chase Manhattan Bank
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Capital Markets Fiduciary Services, VMS Asset Backed Notes
Phone: (000) 000-0000
Fax: (000) 000-0000
The Issuer or the Indenture Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications;
provided, however, the Issuer may not at any time designate more than a total of
three (3) addresses to which notices must be sent in order to be effective.
Any notice (i) given in person shall be deemed delivered on the date of
delivery of such notice, (ii) given by first class mail shall be deemed given
five (5) days after the date that such notice is mailed, (iii) delivered by
telex or telecopier shall be deemed given on the date of delivery
-65-
of such notice, and (iv) delivered by overnight air courier shall be deemed
delivered one Business Day after the date that such notice is delivered to such
overnight courier.
Notwithstanding any provisions of this Indenture to the contrary, the
Indenture Trustee shall have no liability based upon or arising from the failure
to receive any notice required by or relating to this Indenture or the Investor
Notes.
If the Issuer mails a notice or communication to Investor Noteholders, it
shall mail a copy to the Indenture Trustee at the same time.
Notices required to be given to the Rating Agencies by the Issuer or the
Indenture 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
and (ii) in the case of Standard & Poor's, at the following address: Standard &
Poor's Ratings Service, 00 Xxxxx Xxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000,
Attention: Asset Backed Surveillance Department.
(b) Where the Indenture provides for notice to Investor Noteholders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if sent in writing and mailed, first-class postage prepaid,
to each Investor Noteholder affected by such event, at its address as it appears
in the Note Register, not later than the latest date, and not earlier than the
earliest date, prescribed (if any) for the giving of such notice. In any case
where notice to Investor Noteholder is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Investor Noteholder shall affect the sufficiency of such notice with respect to
other Investor Noteholders, and any notice which is mailed in the manner herein
provided shall be conclusively 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 Investor Noteholders shall be filed with the Indenture Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In the case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made that is satisfactory to the Indenture
Trustee shall constitute a sufficient notification for every purpose hereunder.
If this Indenture is qualified under the TIA and 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.
If this Indenture is qualified under the TIA, the provisions of TIA xx.xx.
310 through 317 that impose duties on any person (including the provisions
automatically deemed included herein
-66-
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
The Indenture Trustee may make reasonable rules for action by or at a
meeting of Investor Noteholders.
The parties may sign any number of copies of this Indenture. One signed
copy is enough to prove this Indenture.
Except as set forth in an Indenture Supplement, nothing in this Indenture
or in the Investor Notes, expressed or implied, shall give to any Person, other
than the parties hereto and their successors hereunder and the Holders, any
benefit or any legal or equitable right, remedy or claim under the Indenture.
In any case where any Payment Date, redemption date or maturity date of
any Investor Note shall not be a Business Day, then (notwithstanding any other
provision of this Indenture) payment of interest or principal (and premium, if
any), as the case may be, need not be made on such date but may be made on the
next succeeding Business Day with the same force and effect as if made on the
Payment Date, redemption date, or maturity date; provided, however. that no
interest shall accrue for the period from and after such Payment Date,
redemption date, or maturity date, as the case may be.
THIS INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
If any one or more of the covenants, agreements, provisions or terms of
this Indenture shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Indenture and shall
in no way affect the validity of enforceability of the other provisions of this
Indenture or of the Investor Notes or rights of the Noteholders thereof.
-67-
This Indenture may be executed in two or more counterparts (and by
different parties on separate counterparts), each of which shall be an original,
but all of which together shall constitute one and the same instrument.
All agreements of the Issuer in this Indenture and the Investor Notes
shall bind its successor; provided, however, the Issuer may not assign its
obligations or rights under this Indenture or any Transaction Document. All
agreements of the Indenture Trustee in this Indenture shall bind its successor.
The Table of Contents, Cross-Reference Table, and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
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 Investor 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 (if this Indenture
is qualified thereunder).
The Indenture Trustee, by entering into this Indenture, and each Investor
Noteholder, by accepting an Investor Note, hereby covenant and agree that they
will not at any time (i) 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 Investor Notes, this Indenture or any of the other Transaction Documents
or (ii) institute against, or join any other Person in instituting against, the
Origination Trust, SPV, any other Special Purpose Entity, or any general partner
or single member of any Special Purpose Entity that is a partnership or limited
liability company, respectively, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any federal or
state bankruptcy or similar law.
-68-
The Indenture Trustee, by entering into this Indenture, and each Investor
Noteholder, by accepting an Investor Note, represents, warrants and covenants
that (a) each of the Lease SUBI and the Fleet Receivable SUBI is a separate
series of the Origination Trust as provided in Section 3806(b)(2) of Chapter 38
of Title 12 of the Delaware Code, 12 Del.C. ss. 3801 et seq., (b)(i) the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to the Lease SUBI, the Lease SUBI Portfolio or the Fleet
Receivable SUBI shall be enforceable against the Lease SUBI Portfolio or the
Fleet Receivable SUBI only, as applicable, and not against any other SUBI
Portfolio (used in this Section as defined in the Origination Trust Agreement)
or the UTI Portfolio and (ii) the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to any other SUBI
(used in this Section as defined in the Origination Trust Agreement), any other
SUBI Portfolio, the UTI or the UTI Portfolio shall be enforceable against such
other SUBI Portfolio or the UTI Portfolio only, as applicable, and not against
any other SUBI Assets, (c) except to the extent required by law, UTI Assets or
SUBI Assets with respect to any SUBI (other than the Lease SUBI and the Fleet
Receivable SUBI) shall not be subject to the claims, debts, liabilities,
expenses or obligations arising from or with respect to the Lease SUBI or Fleet
Receivable SUBI, respectively, in respect of such claim, (d)(i) no creditor or
holder of a claim relating to the Lease SUBI, the Fleet Receivable SUBI or the
Lease Receivable SUBI Portfolio shall be entitled to maintain any action against
or recover any assets allocated to the UTI or the UTI Portfolio or any other
SUBI or the assets allocated thereto, and (ii) no creditor or holder of a claim
relating to the UTI, the UTI Portfolio or any SUBI other than the Lease SUBI or
the Fleet Receivable SUBI or any SUBI Assets other than the Lease SUBI Portfolio
or the Fleet Receivables shall be entitled to maintain any action against or
recover any assets allocated to the Lease SUBI or the Fleet Receivable SUBI, and
(e) any purchaser, assignee or pledgee of an interest in the Lease SUBI, the
Lease SUBI Certificate, the Fleet Receivable SUBI, the Lease SUBI Certificate,
the Fleet Receivable SUBI Certificate, any other SUBI, any other SUBI
Certificate (used in this Section as defined in the Origination Trust
Agreement), the UTI or the UTI Certificate must, prior to or contemporaneously
with the grant of any such assignment, pledge or security interest, (i) give to
the Origination Trust a non-petition covenant substantially similar to that set
forth in Section 6.9 of the Origination Trust Agreement, and (ii) execute an
agreement for the benefit of each holder, assignee or pledgee from time to time
of the UTI or UTI Certificate and any other SUBI or SUBI Certificate to release
all claims to the assets of the Origination Trust allocated to the UTI and each
other SUBI Portfolio and in the event that such release is not given effect, to
fully subordinate all claims it may be deemed to have against the assets of the
Origination Trust allocated to the UTI Portfolio and each other SUBI Portfolio.
IN WITNESS WHEREOF, the Indenture Trustee and the Issuer have caused, this
Base Indenture to be duly executed by their respective duly authorized officers
as of the day and year first written above.
GREYHOUND FUNDING, LLC,
as Issuer
-69-
By:
Name:
Title:
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By:
Name:
Title:
