EXHIBIT 4(a)
[ISSUER],
Issuer
and
[___________________],
as Indenture Trustee.
____________________
INDENTURE
Dated as of [____________]
____________________
$_______ in aggregate principal amount of Notes, consisting of:
$________ of _____% Class A Notes
$________ of _____% Class B Notes
[ISSUER]
Reconciliation and Tie between this Indenture
dated as of ________, 2002 and the
TIA of 1939, as amended
TIA Section Indenture Section
----------- -----------------
310(a)(1) 6.11
(a)(2) 6.11
(a)(3) 6.10(b)
(a)(4) Not Applicable
(b) 6.11
(c) Not Applicable
311(a) 6.13
(b) 6.13
312(a) 7.1
(b) 7.2(b)
(c) 7.2(c)
313(a) 6.14
(b)(1) 6.14
(b)(2) 6.14
(c) 6.14; 7.3(a)(ii)
(d) 6.14
314(a) 7.3
(b) 3.6; 8.7
(c)(1) 8.6
(c)(2) 8.6
(c)(3) 8.6
(d) 8.6
(e) 11.1
(f) Not Applicable
315(a) 6.1
(b) 6.5
(c) 6.1
(d) 6.7
(e) 5.10
316(a) (last sentence) 2.12
(a)(1)(A) 5.8
(a)(1)(B) 5.9
(a)(2) Not Applicable
317(a)(1) 5.2
(a)(2) 5.2
(b) 6.16
318(a) 11.19
(c) 11.19
TABLE OF CONTENTS
PAGE
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions....................................................2
SECTION 1.2. Other Interpretive Matters....................................18
SECTION 1.3. Incorporation by Reference of TIA.............................18
ARTICLE II
The Notes
SECTION 2.1. Form..........................................................19
SECTION 2.2. Execution, Authentication and Delivery........................19
SECTION 2.3. Temporary Notes...............................................20
SECTION 2.4. Registration; Registration of Transfer and Exchange...........20
SECTION 2.5. Xxxxxxxxx, Destroyed, Lost or Stolen Notes....................21
SECTION 2.6. Persons Deemed Owner..........................................22
SECTION 2.7. Payment of Principal and Interest; Defaulted Interest.........22
SECTION 2.8. Cancellation..................................................24
SECTION 2.9. Book-Entry Notes..............................................24
SECTION 2.10. Notices to Clearing Agency....................................25
SECTION 2.11. Definitive Notes..............................................25
SECTION 2.12. Treasury Notes................................................26
SECTION 2.13. CUSIP Numbers.................................................26
SECTION 2.14. Perfection Representations and Warranties.....................26
SECTION 2.15. Notes to Constitute Indebtedness..............................26
ARTICLE III
Covenants
SECTION 3.1. Payment of Principal and Interest.............................26
SECTION 3.2. Maintenance of Office or Agency...............................27
SECTION 3.3. Paying Agent's Obligations....................................27
SECTION 3.4. Existence.....................................................27
SECTION 3.5. Protection of the Collateral; Further Assurances..............27
SECTION 3.6. Opinions as to the Collateral.................................28
SECTION 3.7. Performance of Obligations; Servicing of Receivables..........28
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(continued)
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SECTION 3.8. Taxes.........................................................30
SECTION 3.9. Annual Statement as to Compliance.............................30
SECTION 3.10. Negative Covenants............................................30
SECTION 3.11. Successor or Transferee.......................................32
SECTION 3.12. Notice of Events of Default...................................32
SECTION 3.13. Further Instruments and Acts..................................33
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1. Satisfaction and Discharge of Indenture.......................33
SECTION 4.2. Application of Trust Funds....................................34
ARTICLE V
Remedies
SECTION 5.1. Events of Default.............................................34
SECTION 5.2. Remedies......................................................36
SECTION 5.3. [Reserved]....................................................39
SECTION 5.4. Unconditional Rights of Noteholders To Receive
Principal and Interest........................................39
SECTION 5.5. Restoration of Rights and Remedies............................39
SECTION 5.6. Rights and Remedies Cumulative................................39
SECTION 5.7. Delay or Omission Not a Waiver................................39
SECTION 5.8. Control by Noteholders........................................40
SECTION 5.9. Waiver of Past Defaults.......................................41
SECTION 5.10. Undertaking for Costs.........................................41
SECTION 5.11. Waiver of Stay or Extension Laws..............................42
SECTION 5.12. Action on Notes...............................................42
SECTION 5.13. Performance and Enforcement of Certain Obligations............42
SECTION 5.14. Sale of Collateral............................................42
ARTICLE VI
The Indenture Trustee
SECTION 6.1. Duties of the Indenture Trustee...............................44
SECTION 6.2. Rights of Indenture Trustee...................................45
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 6.3. Individual Rights of the Indenture Trustee....................47
SECTION 6.4. Funds Held in Trust...........................................47
SECTION 6.5. Notice of Defaults............................................47
SECTION 6.6. Reports by Indenture Trustee to the Noteholders...............47
SECTION 6.7. Compensation and Indemnity....................................47
SECTION 6.8. Resignation and Removal; Appointment of Successor.............48
SECTION 6.9. Successor Indenture Trustee by Xxxxxx.........................49
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee.................49
SECTION 6.11. Eligibility; Disqualification.................................50
SECTION 6.12. Acceptance by Indenture Trustee...............................52
SECTION 6.13. Preferential Collection of Claims Against the Issuer..........52
SECTION 6.14. Reports by Trustee to Noteholders.............................52
SECTION 6.15. Representations and Warranties................................52
SECTION 6.16. The Paying Agent..............................................53
SECTION 6.17. Repayment of Amounts Held by Paying Agent.....................54
ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders......................................54
SECTION 7.2. Preservation of Information; Communications
to Noteholders................................................55
SECTION 7.3. Reports by Issuer.............................................55
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1. Collection of Amounts Due.....................................56
SECTION 8.2. Trust Accounts................................................56
SECTION 8.3. Priority of Payments..........................................57
SECTION 8.4. Reports.......................................................58
SECTION 8.5. General Provisions Regarding Accounts.........................59
SECTION 8.6. Release of Collateral.........................................60
SECTION 8.7. Opinion of Counsel............................................60
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE IX
Supplemental Indentures
SECTION 9.1. Supplemental Indentures Without Consent of Noteholders........60
SECTION 9.2. Supplemental Indentures With Consent of Noteholders...........61
SECTION 9.3. Execution of Supplemental Indentures..........................63
SECTION 9.4. Effect of Supplemental Indenture..............................63
SECTION 9.5. Reference in Notes to Supplemental Indentures.................63
SECTION 9.6. Conformity with Trust Indenture Act...........................63
ARTICLE X
Redemption of Notes
SECTION 10.1. Redemption....................................................63
SECTION 10.2. Form of Redemption Notice.....................................64
SECTION 10.3. Notes Payable on Redemption Date..............................64
ARTICLE XI
Miscellaneous
SECTION 11.1. Compliance Certificates and Opinions, etc.....................64
SECTION 11.2. Form of Documents Delivered to Indenture Trustee..............66
SECTION 11.3. Acts of Noteholders...........................................67
SECTION 11.4. Notices, etc., to the Indenture Trustee,
Issuer and Rating Agencies....................................68
SECTION 11.5. Notices to Noteholders; Xxxxxx................................68
SECTION 11.6. Alternate Payment and Notice Provisions.......................69
SECTION 11.7. Successors and Assigns........................................69
SECTION 11.8. Severability..................................................69
SECTION 11.9. Benefits of Indenture.........................................70
SECTION 11.10. Legal Holidays................................................70
SECTION 11.11. Governing Law.................................................70
SECTION 11.12. Counterparts..................................................71
SECTION 11.13. Recording of Indenture........................................71
SECTION 11.14. Trust Obligation..............................................71
SECTION 11.15. Communication by Noteholders with Other Noteholders...........72
SECTION 11.16. Inspection....................................................72
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(continued)
PAGE
SECTION 11.17. Agents of Issuer..............................................72
SECTION 11.18. Survival of Representations and Warranties....................72
SECTION 11.19. Conflict with Trust Indenture Act.............................73
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EXHIBITS
EXHIBIT A-1 Form of Class A Notes
EXHIBIT A-2 Form of Class B Notes
EXHIBIT B Form of Section 3.9 Officers' Certificate
EXHIBIT C Form of Noteholder's Statement Pursuant to Section 8.4
SCHEDULE 1 Perfection Representations and Warranties.
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INDENTURE, dated as of [_______________], between [ISSUER], a Delaware
limited liability company (the "Issuer"), and [_____________________________], a
[______________] corporation, as trustee and not in its individual capacity (the
"Indenture Trustee").
The Issuer has duly authorized the issuance of [$________] in aggregate
principal amount of its Notes, consisting of [$________] aggregate principal
amount of [____]% Class A Notes (the "Class A Notes"), and [____]% Class B Notes
(the "Class B Notes"; and together with the Class A Notes, the "Notes"), and to
provide therefor the Issuer has duly authorized the execution and delivery of
this Indenture. The Notes shall be entitled to payments of interest and
principal as set forth herein.
All things necessary to make the Notes, when executed by the Issuer and
authenticated and delivered hereunder, the valid obligations of the Issuer, and
to make this Indenture a valid agreement of the Issuer, in accordance with its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the holders thereof, it is mutually covenanted and agreed, for the benefit of
all Noteholders, as follows:
GRANTING CLAUSE
The Issuer, as security for the Issuer's obligations under the Notes
and this Indenture, hereby Grants to [____________] at the Closing Date, as
Indenture Trustee for the benefit of the Noteholders, a security interest in all
of the Issuer's right, title and interest in, to and under the following,
whether now existing or hereafter arising or acquired (collectively, the
"Collateral"):
(a) the Receivables, including the Receivable Files, and all
obligations of the Obligors thereunder, including all obligations of
such Obligor with respect thereto due or to become due on or after the
Cutoff Date;
(b) the Related Security and Collections with respect thereto;
(c) all property now or hereafter in the possession or custody
of, or in transit to, the Issuer, the Servicer, any Sub-Servicer or the
Seller relating to any of the foregoing;
(d) all Records with respect to any of the foregoing;
(e) the Sale Agreement;
(f) all funds, Financial Assets, Investment Property or other
property on deposit from time to time in or credited to the Trust
Accounts, including all investments and Proceeds thereof and all income
thereon;
(g) the Purchase and Sale Agreement;
(h) the Servicing Agreement;
(i) all present and future claims, demands, causes and choses
in action in respect of any or all of the property described in the
foregoing clauses (a) through (j) and all payments on or under in
respect of any or all of the foregoing, including all proceeds of the
conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, Accounts, Promissory 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 that at any time constitute all or part of or are included in
the Proceeds of any and all of the foregoing;
(j) all General Intangibles relating to or arising out of any
of the property described in the foregoing clauses (a) through (j);
(k) all Proceeds of the foregoing clauses (a) through (l); and
(l) all other personal property of the Issuer, of whatever
kind or nature and wherever located.
Such Grant is made in trust to secure (x) first, the payment of
principal of and interest on, and any other amounts owing in respect of, the
Class A Notes, equally and ratably without prejudice, priority or distinction,
and (y) second, the payment of principal of and interest on, and any other
amounts owing in respect of, the Class B Notes, equally and ratably without
prejudice, priority or distinction, and to secure compliance with this
Indenture.
[___________________], as Indenture Trustee on behalf of the
Noteholders, (1) acknowledges such Grant, and (2) accepts the trusts under this
Indenture in accordance with this Indenture and agrees to perform its duties
required in this Indenture to the best of its ability to the end that the
interests of the Noteholders may be adequately and effectively protected.
The Issuer hereby authorizes the Indenture Trustee to file a UCC
financing Statement with a collateral description covering all of the Issuer's
personal property, wherever located, whether now existing or arising in the
future.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions. Except as otherwise specified or as the
context may otherwise require, the following terms have the meanings set forth
below for all purposes of this Indenture.
"Act" is defined in Section 11.3 of this Indenture.
"Account" is defined in Section 9-102(a)(2) of the UCC.
"Administration Agreement" means the Administration Agreement, dated as
of [__________________], between the Administrator and the Issuer.
2
"Administration Fee" means the fee payable to the Administrator
pursuant to Section [-] of the Administration Agreement.
"Administrator" means General Electric Capital Corporation in its
capacity as administrator, a Delaware corporation, or any successor
Administrator under the Administration Agreement.
"Affiliate" means, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the stock having
ordinary voting power in the election of directors of such Person, (b) each
Person that controls, is controlled by, or is under common control with such
Person, or (c) each of such Person's officers, directors, joint venturers and
partners. For the purposes of this definition, "control" of a Person means the
possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Amount Financed" with respect to a Receivable means the amount
advanced under such Receivable toward the purchase price of the Equipment and
any related costs, including the Termination Value, and any insurance financed
thereby.
"Annual Percentage Rate" or "APR" of a Receivable means, the interest
rate or annual rate of finance charges stated in, or if not explicitly stated,
the implicit finance charges used by the finance company to determine periodic
payments with respect to the related Loan.
"Authorized Officer" means, with respect to any corporation, trust or
limited liability company, as appropriate, the Chairman or Vice-Chairman of the
Board, the President, any Vice President, the Secretary, the Treasurer, any
Assistant Secretary, any Assistant Treasurer, the [Managing Member] [Owner
Trustee], and each other officer, employee or member of such corporation, trust
or limited liability company, as appropriate, specifically or similar governing
body of such limited liability company or trust to sign agreements, instruments
or other documents on behalf of such corporation authorized in resolutions of
the board of directors of such corporation or similar governing body of such
limited liability company or trust, as appropriate.
"Benefit Plan" is defined in Section 2.4(a) of this Indenture.
"Book-Entry Notes" means a beneficial interest in the Notes of a
particular Class, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 2.9 of this Indenture.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which banks are required or permitted to be closed in the State of New York
or the State of Connecticut.
"Certificate" means a certificate evidencing an ownership interest of a
Certificateholder in the Issuer, substantially in the form of Exhibit [ ] to the
[Trust] [Limited Liability Company] Agreement.
3
"Certificated Security" has the meaning assigned to such term in
Section 8-102 of Article 8 of the UCC.
"Certificateholder" means a Person in whose name a Certificate is
registered.
"Certificateholders' Distributable Invested Amount" means with respect
to any Payment Date, zero until the Outstanding Principal Balance of the Class
B Notes has been reduced to zero and thereafter shall equal the Class B
Noteholders' Monthly Principal Payable Amount until the Certificate Invested
Amount of the Certificates has been reduced to zero and thereafter shall be
zero.
"Certificateholders' Distribution on Invested Amount" means, with
respect to any Payment Date (the "current Payment Date") the sum of (a)
interest accrued from and including the preceding Payment Date (or, in the case
of the first Payment Date, the Closing Date) to but excluding the current
Payment Date at the Distribution Rate on the Certificate Invested Amount on the
preceding Payment Date after giving effect to all changes therein on such
preceding Payment Date, plus (b) the Certificateholders' Distribution on
Invested Amount Shortfall for the current Payment Date.
"Certificateholders' Distributable Invested Amount Shortfall" means,
with respect to any Payment Date (the "current Payment Date"), the excess of
the Certificateholders' Distribution on Invested Amount for the preceding
Payment Date over the amount in respect of the Certificateholders' Distribution
on Invested Amount that was actually deposited in the Certificate Distribution
Account on such preceding Payment Date, plus interest on such excess, to the
extent permitted by law, at the Distribution Rate from such preceding Payment
Date to but excluding the current Payment Date.
"Certificate Invested Amount" equals, initially $[ ] and,
thereafter, equals such amount reduced by all amounts allocable to principal
previously distributed to Certificateholders'.
"Chattel Paper" is defined in Section 9-102(a)(11) of the UCC.
"Class" means any class of Notes.
"Class A Interest Rate" means [___]% per annum, computed on the basis
of [actual days elapsed and a 360-day year] [a 360-day year of twelve 30-day
months].
"Class A Noteholders' Monthly Principal Payable Amount" means, for any
payment date, the excess of (1) the Outstanding Principal Balance of the Class A
Notes minus (2) [ %] of the Pool Balance and on the Class A Note Maturity Date,
the Class A Noteholders' Monthly Principal Payable Amount will include the
amount necessary (after giving effect to the other amounts to be deposited in
the Note Distribution Account on that Payment Date and allocable to principal)
to reduce the outstanding principal amount of the related Class A Notes to zero;
except that in no event will the Class A Noteholders' Monthly Principal Payable
Amount exceed the outstanding amount of the Class A Notes.
"Class A Note Maturity Date" means [____] Payment Date.
"Class A Note" means any of the Issuer's [___]% Class A Notes.
"Class A Noteholder" means any holder of record of a Class A Note.
"Class B Interest Rate" means [___]% per annum, computed on the basis
of [a 360-day year of twelve 30-day months] [actual days elapsed and a 360-day
year].
"Class B Noteholders' Monthly Principal Payable Amount" means, for any
Payment Date, the excess of (1) the Outstanding Principal Balance of the Class B
Notes minus (2) % of the Pool Balance; except that (a) in no event will the
Class B Noteholders' Monthly Principal Payable Amount exceed the lesser of (1)
the sum of the outstanding principal amounts of the Class A Notes (after giving
effect to payments on the Class A Notes on that Payment Date) and the Class B
Notes over the Pool Balance and (2) the Outstanding Principal Amount of the
Class B Notes, and (b) on the Class B Note Maturity Date, the Class B
Noteholders' Monthly Principal Payable Amount will include the amount necessary
(after giving effect to the other amounts to be deposited in the Note
Distribution Account on that Payment Date and allocable to principal) to reduce
the Outstanding Principal Amount of the related Class B Notes to zero.
"Class B Note" means any of the Issuer's [___]% Class B Notes.
"Class B Note Maturity Date" means [____] Payment Date.
4
"Class B Noteholder" means any holder of record of a Class B Note.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act that has been
designated as the "Clearing Agency" for purposes of this Indenture.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means [_______________].
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and Treasury Regulations promulgated thereunder.
"Collateral" is defined in the Granting Clause of this Indenture.
"Collection Account" means the account designated as such, established
and owned by the Issuer and maintained in accordance with Section 8.2 of this
Indenture.
"Collection Period" means, with respect to any Payment Date, the
calendar month preceding the month in which the Payment Date occurs (or, if for
the first Payment Date, the period from and including the day after the Cutoff
Date to and including the last day of the calendar month preceding the calendar
month in which the first Payment Date occurs).
"Collections" means, with respect to any Payment Date, the aggregate
amount of collections on or with respect to the Receivables with respect to the
related Collection Period. Collections on or with respect to the Receivables
include all payments made by or on behalf of the Obligors (excluding any late
fees, prepayment charges, extension fees and other administrative fees or
similar charges allowed by applicable law with respect to the Receivables that
constitute part of the Servicing Fees), any Recoveries, any net swap receipts
and any swap termination payments received pursuant to the Swap Agreement,
proceeds from insurance policies covering the Equipment or related Obligor,
Liquidation Proceeds, the Purchase Amount of each Receivable that became a
Purchased Receivable in respect of the related Collection Period (to the extent
deposited into the Collection Account), Investment Earnings for such Payment
Date and payments made by a lessee pursuant to its obligation (if any) to pay
the Termination Value pursuant to the related Receivable; provided, however,
that the Collections shall not include all payments or proceeds (including
Liquidation Proceeds) of any Receivables the Purchase Amount of which has been
included in the Collections in a prior Collection Period.
"Commission" means the Securities and Exchange Commission.
"Control" with respect to any Federal Book-Entry Security, means that:
(i) the Indenture Trustee is a "participant" (as such term is
defined in the Federal Book-Entry Regulations) in the book-entry system
maintained by the Federal Reserve Bank that is acting as fiscal agent
for the issuer of such Federal Book-Entry Security, and such Federal
Reserve Bank has indicated by book-entry that Security
5
Entitlement to such Federal Book-Entry Security has been credited to
the Indenture Trustee's Securities Account maintained by such Federal
Reserve Bank in such book-entry system; or
(ii) (a) the Indenture Trustee (1) is registered on the
records of a Securities Intermediary as the person having a Securities
Entitlement in respect of such Federal Book-Entry Security against such
Securities Intermediary; or (2) has obtained the agreement, in writing,
of the Securities Intermediary for such Securities Entitlement that
such Securities Intermediary will comply with Entitlement Orders of the
Indenture Trustee without further consent of any other Person; (b) the
Securities Intermediary is a "participant" (as such term is defined in
the Federal Book-Entry Regulations) in the book-entry system maintained
by the Federal Reserve Bank that is acting as fiscal agent for the
issuer of such Federal Book-Entry Security; and (c) such Federal
Reserve Bank has indicated by book-entry that a Security Entitlement to
such Federal Book-Entry Security has been credited to the Securities
Intermediary's Securities Account maintained by such Federal Reserve
Bank in such book-entry system.
"Corporate Trust Office" means, with respect to the Indenture Trustee,
the principal office of the Indenture Trustee at which at any particular time
its corporate trust business shall be administered, which office at the date of
this Indenture is located at [_____________________], Attention:
[_____________________] (facsimile no.[(___) ___-____)]; or at such other
address as the Indenture Trustee may designate from time to time by notice to
the Noteholders and the Issuer, or the principal corporate trust office of any
successor Indenture Trustee (the address of which the successor Indenture
Trustee will notify the Noteholders and the Seller).
"Credit and Collection Policies" or "Credit and Collection Policy"
means, with respect to each type of Receivable, the Issuer's practices and
procedures for providing financing, including the policies and procedures for
determining the creditworthiness of Obligors and the extension of credit to
Obligors, and relating to the maintenance of such types of receivables and
collections on such types of receivables, as such policies and procedures may be
amended from time to time.
"Cutoff Date" means [__________________].
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Definitive Notes" is defined in Section 2.9 of this Indenture.
"Delivery" means, when used with respect to Trust Account Property:
(i) with respect to any such Trust Account Property that
constitutes a Certificated Security, transfer of possession of such
Certificated Security to the Indenture Trustee or its nominee or
custodian by physical delivery to the Indenture Trustee or its nominee
or custodian, endorsed to, or registered in the name of, the Indenture
Trustee or its nominee or custodian or endorsed in blank (and, in the
case of delivery to any nominee of or custodian for the Indenture
Trustee, such nominee or custodian shall have
6
acknowledged in writing that it is holding possession thereof on behalf
of and for the Indenture Trustee); and
(ii) with respect to any such Trust Account Property that
constitutes an Uncertificated Security, (including any investments in
money market mutual funds, but excluding any Federal Book-Entry
Security) satisfaction of the requirements for obtaining "control"
pursuant to Section 8-106(c)(2) of Article 8 of the UCC.
"Determination Date" means, with respect to any Transfer Date, the
second Business Day prior to such Transfer Date.
"Deposit Account" is defined in Section 9-102(a)(29) of the UCC.
"Distribution Rate" means [ ]% per annum, computed on the basis of a
[360-day year of twelve 30-day months.]
"Eligible Deposit Account" means: (a) a segregated deposit account
maintained with a depository institution or trust company whose short-term
unsecured debt obligations are rated at least A-1+ by S&P and P-1 by Moody's,
(b) a segregated account which is either (i) maintained in the corporate trust
department of the Indenture Trustee or (ii) maintained with a depository
institution or trust company whose long term unsecured debt obligations are
rated at least BBB- by S&P and Baa3 by Moody's, or (c) a segregated trust
account or similar account maintained with a federally or state chartered
depository institution whose long term unsecured debt obligations are rated at
least BBB- by S&P and Baa3 by Moody's subject to regulations regarding fiduciary
funds on deposit substantially similar to 12 C.F.R. Section 9.10(b) in effect on
the Closing Date.
"Entitlement Holder" has the meaning assigned thereto in Section
8-102(a) of Article 8 of the UCC.
"Entitlement Order" has the meaning assigned thereto in Section
8-102(a) of Article 8 of the UCC.
"Equipment" means any new or used trucks and trailers, aircraft,
restaurant equipment, maritime assets, construction equipment, machine tools,
furniture or other equipment together with all accessions thereto securing an
Obligor's indebtedness under the respective Receivable.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" is defined in Section 5.1 of this Indenture.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
Executive Vice President, any Vice President, the Secretary or the Treasurer of
such corporation; and with respect to any partnership, any general partner
xxxxxxx.
"FDIC" means the Federal Deposit Insurance Corporation or any successor
thereto.
"Federal Book-Entry Regulations" means (a) the Federal regulations
listed on Appendix A to Operating Circular No. 7 issued by the Federal Reserve
Banks and (b) the Federal regulations published at 25 C.F.R. Part 350.
7
"Federal Book-Entry Security" means a marketable security (a) issued in
electronic form by (i) the United States Government, (ii) the Federal Home Loan
Mortgage Corporation, the Federal National Mortgage Association or the
Government National Mortgage Association or (iii) any direct obligation of any
other agency or instrumentality of the United States Government that is fully
guaranteed as to timely payment or principal and interest by the United States
of America and (b) that the Federal Reserve Banks have determined is eligible to
be held in an account at a Federal Reserve Bank containing securities of such
type pursuant to the Federal Book-Entry Regulations.
"Financial Asset" has the meaning assigned thereto in Section 8-102 of
Article 8 of the UCC.
"General Intangibles" is defined in Section 9-102(a)(42) of the UCC.
"Grant" means to create and xxxxx x Xxxx pursuant to this Indenture,
and other forms of the verb "to Grant" shall have correlative meanings. A Grant
with respect to the Collateral or any other agreement or instrument shall
include a grant of a Lien upon all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the right, upon the
occurrence of a Default and declaration thereof by the party to whom such Xxxxx
is made, to claim for, collect, receive and give receipt for principal and
interest payments in respect of the Collateral and all other amounts payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Indenture" means this Indenture, dated [_____________], between the
Issuer and the Indenture Trustee, as the same may be amended and supplemented
from time to time.
"Indenture Trustee" means [ ], not in its individual capacity but
solely as Indenture Trustee under this Indenture, or any successor Indenture
Trustee under this Indenture.
"Independent" means, with respect to any specified Person, any such
Person who (i) is in fact independent of any Seller, the Servicer, the Issuer,
or any Affiliate of any thereof, (ii) does not have any direct financial
interest, or any material indirect financial interest in any Seller, the
Servicer, the Issuer, or any Affiliate of any thereof and (iii) is not connected
with any Seller, the Servicer, the Issuer, or any Affiliate of any thereof, as
an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions; provided, however, that a Person shall not
fail to be Independent of any Seller, the Servicer, the Issuer, or any Affiliate
of any thereof merely because such Person is the beneficial owner of 1% or less
of any class of securities issued by the Issuer, the Servicer, or any Affiliate
thereof, as the case may be.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1 of this
Indenture, made by an Independent appraiser or other expert appointed by an
Issuer Order and approved by the Indenture Trustee in the exercise of reasonable
8
care, and such opinion or certificate shall state that the signer has read the
definition of "Independent" in this Indenture and that the signer is Independent
within the meaning thereof.
"Initial Pool Balance" means the Pool Balance as of the Cutoff Date,
which is $[_______________].
"Insolvency Event" means, with respect to a specified Person: (a) the
entry by a court having jurisdiction in the premises of (i) a decree or order
for relief in respect of such Person in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization, or other
similar law or (ii) a decree or order adjudging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment, or composition of or in respect of such Person under
any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator, or other similar official of such
Person or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a period of
60 consecutive days; or (b) the commencement by such Person of a voluntary case
or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization, or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of such Person in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization, or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable federal
or state law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator, or similar official of such Person or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or such Person's failure to pay its debts generally as
they become due, or the taking of corporate action by such Person in furtherance
of any such action.
"Instruments" has the meaning assigned thereto in Section 9-102 of
Article 9 of the UCC.
"Interest Rate" means (a) as to the Class A Notes, the Class A Interest
Rate and (b) as to the Class B Notes, the Class B Interest Rate.
"Investment Earnings" means, with respect to any Payment Date, the
interest and other investment earnings (net of losses and investment expenses)
on amounts on deposit in the Trust Accounts to be included as part of
Collections pursuant to Section 8.5(a) of this Indenture.
"Investment Property" is defined in Section 9-102(a)(49) of the UCC.
"Issuer" means [Issuer], a Delaware [limited liability company]
[business trust], until a successor replaces it and, thereafter, means the
successor and, for purposes of any provision contained in this Indenture and
required by the TIA, each other obligor on the Notes.
"Issuer Order" and "Issuer Request" means a written order or request,
respectively, signed in the name of the Issuer by any one of its Authorized
Officers and delivered to the Indenture Trustee.
9
"Lien" means a security interest (as such term is defined in Section
1-201 of Article 1 of the UCC), lien, charge, pledge, equity or encumbrance of
any kind, other than tax liens, mechanics' liens and any liens that attach to
the related Receivable by operation of law as a result of any act or omission by
the related Obligor.
["Limited Liability Company Agreement" means the Limited Liability
Company Agreement, dated as of [___________], as the same may be amended or
supplemented from time to time.]
"Liquidated Receivable" means any Receivable liquidated through the
sale or other disposition of the related Equipment or that has, after using all
reasonable efforts to realize upon the Equipment, been charged off in accordance
with the Credit and Collection Policy without realizing upon the Equipment.
"Liquidation Proceeds" means, with respect to any Liquidated
Receivable, the amounts collected in respect thereof from whatever source
(including the proceeds of insurance policies with respect to the related
Equipment or Obligor), net of the sum of any amounts expended in connection with
such liquidation and any amounts required by law to be remitted to the Obligor
on such Liquidated Receivable or any creditor of such Obligor to the extent
required by applicable law or agreement.
"Loan" means any agreement (including any invoice) pursuant to, or
under which, an Obligor shall be obligated to make payments with respect to any
Receivable.
"Loan Value" means, with respect to any Loan on any day (including the
Cutoff Date), the sum of (a) the present value of the future Scheduled Payments
discounted monthly at an annual rate equal to the APR for such Loan, plus (b)
the amount of any past due payments. There shall be deemed to be no Scheduled
Payments due on a Liquidated Receivable. Upon any prepayment in full of a
Receivable, the Loan Value of that Receivable will be reduced to zero.
["Managing Member" means [________________], a [______________]
corporation, or any successor Managing Member under the Limited Liability
Company Agreement.]
"Maturity Date" means [_____________] Payment Date.
"Monthly Interest Amount Payable" means, with respect to any Payment
Date (the "current Payment Date") and any Class of Notes, an amount equal to the
sum of (a) the aggregate amount of interest accrued on that Class of Notes at
the applicable Interest Rate from and including the preceding Payment Date (or,
in the case of the initial Payment Date from and including the Closing Date) to
but excluding the current Payment Date plus (b) the Monthly Interest Shortfall
for that Class of Notes and the current Payment Date.
"Monthly Interest Shortfall" means, with respect to any Payment Date
(the "current Payment Date") and any Class of Notes, the excess of the Monthly
Interest Amount Payable for
10
the preceding Payment Date over the amount in respect of interest on that Class
of Notes that was actually paid to the Noteholder for that Class of Notes on
such preceding Payment Date, plus interest on such excess, to the extent
permitted by law, at a rate per annum equal to the Interest Rate on that Class
of Notes, from such preceding Payment Date to but excluding the current Payment
Date.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor
thereto.
"Note Balance" means the aggregate Outstanding Principal Balance of the
Notes from time to time.
"Note Depository Agreement" means the agreement among the Issuer, the
Indenture Trustee and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date.
"Note Distribution Account" means the account designated as such,
established and owned by the Issuer and maintained in accordance with Section
8.2(a) of this Indenture.
"Note Owner" means, with respect to a Book-Entry Note, the Person who
is the owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with the Clearing
Agency (directly as a Clearing Agency Participant or as an indirect participant,
in each case in accordance with the rules of the Clearing Agency).
"Note Pool Factor" means, as of the close of business on any Payment
Date with respect to any Class of Notes, the Outstanding Principal Balance of
that Class of Notes divided by the original Outstanding Principal Balance of
that Class of Notes (carried out to the seventh decimal place). The Note Pool
Factor for each Class will be 1.0000000 as of the Closing Date, and, thereafter,
will decline to reflect reductions in the Outstanding Principal Balance of the
Notes.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.4 of this Indenture.
"Noteholder" means the person in whose name a Class A or Class B Note
is registered on the Note Register.
"Notes" means the Class A Notes and the Class B Notes.
"Obligor" means, as to each Receivable, any Person who owes payments
under the Receivable.
"Officers' Certificate" means, as to any Person, a certificate signed
by an Authorized Officer of such Person.
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"Opinion of Counsel" means a written opinion of counsel (who may,
except as otherwise expressly provided in this Agreement, be an employee of or
counsel to the Issuer or an Affiliate of the Issuer), which counsel and opinion
shall be acceptable to the Indenture Trustee, or the Rating Agencies, as
applicable.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore canceled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which funds in
the necessary amount have been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Noteholders (provided,
however, that if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture); and
(iii) Notes in exchange for or in lieu of other Notes that
have been authenticated and delivered pursuant to this Indenture unless
proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a bona fide purchaser; provided, that in determining
whether the Noteholders of the requisite Outstanding Principal Balance
of the Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or under any Related Document,
Notes owned by the Issuer or any Affiliate thereof shall be disregarded
and deemed not to be Outstanding, except that, in determining whether
the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver,
only Notes that a Responsible Officer of the Indenture Trustee actually
knows to be so owned shall be so disregarded. Notes so owned that have
been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Indenture Trustee the
pledgee's right so to act with respect to such Notes and that the
pledgee is not the Issuer or any Affiliate thereof.
"Outstanding Principal Balance" means the aggregate principal amount of
all Notes, or Class of Notes, as applicable, Outstanding at the date of
determination.
["Owner Trustee" means [____], a [____] banking corporation, not in its
individual capacity but solely as owner trustee under the Trust Agreement, and
any successor Owner Trustee.]
"Paying Agent" means with respect to the Notes, initially the Indenture
Trustee or any other Person that meets the eligibility standards for the
Indenture Trustee specified in Section 6.11 of this Indenture and is authorized
by the Issuer to make the distributions from the Note Distribution Account,
including payment of principal of or interest on the Notes on behalf of the
Issuer.
"Payment Date" means, with respect to each Collection Period, the
[___________] day of the calendar month following the end of that Collection
Period, or, if such day is not a Business Day, the next Business Day, commencing
on [_____________].
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"Permitted Investments" means one or more of the following:
(a) obligations of, or guaranteed as to the full and timely
payment of principal and interest by, the United States or obligations
of any agency or instrumentality thereof, when such obligations are
backed by the full faith and credit of the United States;
(b) repurchase agreements on obligations specified in clause
(a); provided, that the short-term debt obligations of the party
agreeing to repurchase are rated at least A-1+ by S&P and P-1 by
Moody's;
(c) federal funds, certificates of deposit, time deposits and
bankers' acceptances (which shall each have an original maturity of not
more than 90 days or, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days) of any United
States depository institution or trust company incorporated under the
laws of the United States or any State thereof or of any United States
branch or agency of a foreign commercial bank; provided that the
short-term debt obligations of such depository institution or trust
company are rated at least A-1+ by S&P and P-1 by Xxxxx'x;
(d) commercial paper (having original maturities of not more
than 30 days) which on the date of acquisition are rated at least A-1+
by S&P and P-1 by Xxxxx'x;
(e) securities of money market funds rated at least A-1+ by
S&P and P-1 by Xxxxx'x; and
(f) any other investment permitted by each of the Rating
Agencies as set forth in writing delivered to the Indenture Trustee;
provided, that investments described in clauses (e) and (f) shall be
made only so long as making such investments will not require the
Issuer to register as an investment company under the Investment
Company Act of 1940, as amended.
"Person" means any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, trust, association, corporation (including
a business trust), limited liability company, institution, public benefit
corporation, joint stock company, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Pool Balance" means, at any time, the sum of the aggregate Loan Values
of the Receivables as of the beginning of a Collection Period, after giving
effect to all payments received by the Issuer, from Obligors and Purchase
Amounts to be remitted by the Seller or the Servicer, as applicable, with
respect to the preceding Collection Period and all Realized Losses on
Receivables liquidated during such preceding Collection Period.
"Precomputed Receivable" means any Receivable under which the portion
of a payment allocable to earned interest (which may be referred to in the
related Loan as an add-on finance charge) and the portion allocable to the
Amount Financed are determined according to the sum of periodic balances, the
sum of monthly payments or any equivalent method or are monthly actuarial
receivables.
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"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.5 of this Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
"Promissory Note" is defined in Section 9-102(a)(65) of the UCC.
"Purchase Amount" means, as of the close of business on the last day of
a Collection Period, an amount equal to the Loan Value of the applicable Loan,
as of the first day of the immediately following Collection Period (or, with
respect to any applicable Loan that is a Liquidated Receivable, as of the day
immediately prior to such Loan becoming a Liquidated Receivable less any
Liquidation Proceeds actually received by the Issuer) plus interest accrued and
unpaid thereon as of such last day at a rate per annum equal to the APR for such
Loan.
"Purchase and Sale Agreement" means the Purchase and Sale Agreement,
dated as of [_________________], between the Transferor and the Issuer, as the
same may be amended or supplemented from time to time.
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by the Transferor pursuant to
Section [___] of the Purchase and Sale Agreement.
"Purchaser" means CEF Equipment Holding, L.L.C., a Delaware limited
liability company, in its capacity as the purchaser, and its successors and
assigns.
"Rating Agency" means each of Moody's and S&P. If either of such
organizations or its successor is no longer in existence, the Issuer shall
designate a nationally recognized statistical rating organization or other
comparable Person as a substitute Rating Agency, notice of which designation
shall be given to the Indenture Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given prior notice thereof and that each of the
Rating Agencies shall have notified the Issuer and the Indenture Trustee in
writing that such action will not result in a reduction or withdrawal of the
then current rating of any Class of the Notes.
"Realized Losses" means the excess of the Receivable Balance of
Liquidated Receivables plus accrued but unpaid interest thereon over Liquidation
Proceeds.
"Receivable" means any Loan included in the schedule delivered by the
Issuer to the Indenture Trustee on the Closing Date (which schedule may be in
the form of microfiche).
"Receivable Balance" means, as of the close of business on the last day
of a Collection Period, the Amount Financed minus the sum of: (i) that portion
of all Scheduled Payments due on or prior to such day allocable to principal
using (x) in the case of a Precomputed Receivable,
14
the actuarial or constant yield method and (y) in the case of a Simple Interest
Receivable, the simple interest method, (ii) any refunded portion of insurance
premiums included in the Amount Financed, (iii) any payment of the Purchase
Amount with respect to the Receivable allocable to principal and (iv) any
prepayment in full or any partial prepayments applied to reduce the Principal
Balance of the Receivable.
"Receivable Files" means the documents specified in Section 2.1 of the
Sale Agreement.
"Record Date" means, with respect to a Payment Date or Redemption Date,
the close of business on the [_____________] day of the calendar month in which
such Payment Date or Redemption Date occurs, or, if Definitive Notes are issued,
the close of business on the last day of the calendar month preceding the month
of such Payment Date, whether or not such day is a Business Day, or if
Definitive Notes were not outstanding on such date, the date of issuance of the
Definitive Notes.
"Records" means all Loans and other documents, books, records and other
information (including computer programs, tapes, disks, data processing software
and related property and rights) prepared and maintained by the Issuer with
respect to the Receivables and the Obligors thereunder.
"Recoveries" means, with respect to any Liquidated Receivable, monies
collected in respect thereof, from whatever source (other than from the sale or
other disposition of the Equipment), after such Receivable became a Liquidated
Receivable.
"Redemption Date" means the Payment Date specified by the Issuer
pursuant to Section 10.1 of this Indenture, as applicable.
"Redemption Price" means the unpaid principal amount of the Notes
redeemed, plus accrued and unpaid interest thereon at the applicable interest
rate to but excluding the Redemption Date.
"Registered Holder" means the Person in whose name a Note is registered
on the Note Register on the applicable Record Date.
"Related Documents" means the Sale Agreement, the Purchase and Sale
Agreement, the Servicing Agreement, the Indenture, the [Limited Liability
Agreement] [Trust Agreement], Administration Agreement, the Note Depository
Agreement and all other agreements, instruments, and documents and including all
other pledges, powers of attorney, consents, assignments, contracts, notices,
and all other written matter whether heretofore, now or hereafter executed by or
on behalf of any Person, or any employee of any Person, and delivered in
connection with any of the foregoing. Any reference in the foregoing documents
to a Related Document shall include all Annexes, Exhibits and Schedules thereto,
and all amendments, restatements, supplements or other modifications thereto,
and shall refer to such Related Document as the same may be in effect at any and
all times such reference becomes operative.
"Related Security" means with respect to any Receivable: (a) any
interest (including security interests), if any, in the related Equipment; (b)
all guarantees, insurance or other agreements or arrangements of any kind from
time to time supporting or securing payment of
15
such Receivable whether pursuant to the Loan related to such Receivable or
otherwise (including rights (if any) to receive proceeds on insurance policies
covering the Obligors); and (c) all Records relating to such Receivable.
"Responsible Officer" means, with respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee, including
any Vice President, Assistant Vice President, Secretary or Assistant Secretary,
or any other officer of the Indenture Trustee customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"Sale Agreement" means the Sale Agreement, dated as of [__________],
between the Seller and Purchaser, as the same may be amended or supplemented
from time to time.
"Schedule of Receivables" means the listing of the Receivables attached
to each of the Sale Agreement and the Purchase and Sale Agreement.
"Scheduled Payment" on a Receivable means that portion of the payment
required to be made by the Obligor during any Collection Period sufficient to
amortize the Receivable Balance under (x) in the case of a Precomputed
Receivable, the actuarial method or (y) in the case of a Simple Interest
Receivable, the simple interest method, in each case, over the term of the
Receivable and to provide interest at the APR, provided that Termination Values
shall also constitute Scheduled Payments.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Securities Account" has the meaning assigned thereto in Section
8-501(a) of Article 8 of the UCC.
"Securities Act" means the provisions of the Securities Act of 1933, 15
U.S.C. Sections 77a et seq., and any regulations promulgated thereunder.
"Securities Entitlement" has the meaning assigned thereto in Section
8-102 of Article 8 of the UCC.
"Securities Exchange Act" means the provisions of the Securities
Exchange Act of 1934 15 U.S.C. Sections 78a et seq., as amended, and any
regulations promulgated thereunder.
"Securities Intermediary" is defined in Section 8-102 of Article 8 of
the UCC.
"Seller" means General Electric Capital Corporation, a Delaware
corporation in its capacity as the seller, its successors and assigns.
"Servicer" means Seller, as the Servicer under the Servicing Agreement,
as the case may be, or any other Person designated as a Successor Servicer under
such agreement.
16
"Servicer Default" means an event specified in Section 5.1 of the
Servicing Agreement.
"Servicing Agreement" means the Servicing Agreement, dated as of
[_______________], between the Issuer and the Servicer, as the same may be
amended or supplemented from time to time.
"Servicing Fee" is defined in Section 2.5 of the Servicing Agreement.
"Simple Interest Receivable" means any Receivable under which the
portion of a payment allocable to interest and the portion allocable to
principal is determined by allocating a fixed level payment between principal
and interest, such that such payment is allocated first to the accrued and
unpaid interest at the Annual Percentage Rate for such Receivable on the unpaid
Receivable Balance and the remainder of such payment is allocable to principal.
"State" means any one of the 50 states of the United States of America
or the District of Columbia.
"Sub-Servicer" means any Person with whom the Servicer enters into a
Sub-Servicing Agreement.
"Sub-Servicing Agreement" means any written contract entered into
between a Servicer and any Sub-Servicer pursuant to and in accordance with the
Servicing Agreement.
"Successor Servicer" is defined in Section 6.2 of the Servicing
Agreement.
"Swap Agreement" means the swap agreement, date as of [________]
between the Issuer and the Swap Counterparty, as the same may be amended or
supplemented from time to time.
"Swap Counterparty" means [___________], a [______] in its capacity as
the swap counterparty, its successors and assigns.
"Termination Value" means the "Termination Value" (if any) payable by a
lessee pursuant to the applicable Loan.
"TIA" or the "Trust Indenture Act" means the Trust Indenture Act of
1939, as in force on the date of this Indenture unless otherwise specifically
provided.
"Transfer Date" means the Business Day preceding each Payment Date.
"Transferor" means CEF Equipment Holding, L.L.C., a Delaware limited
liability company in its capacity as the transferor, and its successors and
assigns.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
17
"Trust Account Property" means the Trust Accounts, all amounts,
Financial Assets, Investment Property and other investments or other property
held from time to time in or credited to any Trust Account and all Proceeds of
the foregoing.
"Trust Accounts" has the meaning assigned thereto in Section 8.2(a) of
this Indenture.
["Trust Agreement" means the Trust Agreement dated as of [___], between
the Transferor and the Owner Trustee.]
"Trust Officer" means any officer within the Corporate Trust Office of
the Indenture Trustee, including any Vice President, Assistant Vice President,
Secretary, Assistant Secretary or any other officer of the Indenture Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code as in effect in the relevant jurisdiction, as amended from time
to time.
"Uncertificated Security" has the meaning assigned thereto in Section
8-102 of Article 8 of the UCC.
SECTION 1.2. Other Interpretive Matters. All terms defined directly or
by incorporation in this Indenture shall have the defined meanings when used in
any document delivered pursuant thereto unless otherwise defined therein. For
purposes of this Indenture, unless the context otherwise requires: (a)
accounting terms not otherwise defined herein and accounting terms partly
defined herein to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles; and unless
otherwise provided, references to any month, quarter or year refer to a fiscal
month, quarter or year as determined in accordance with the [GE Capital] fiscal
calendar; (b) unless defined in this Indenture or the context otherwise
requires, capitalized terms used in this Indenture which are defined in the UCC
shall have the meaning given such term in the UCC; (c) references to any amount
as on deposit or outstanding on any particular date means such amount at the
close of business on such day; (d) the words "hereof," "herein" and "hereunder"
and words of similar import refer to this Indenture as a whole and not to any
particular provision of this Indenture; (e) references to any Section, Schedule
or Exhibit are references to Sections, Schedules and Exhibits in or to this
Indenture, and references to any paragraph, subsection, clause or other
subdivision within any Section or definition refer to such paragraph,
subsection, clause or other subdivision of such Section or definition; (f) the
term "including" means "including without limitation"; (g) references to any law
or regulation refer to that law or regulation as amended from time to time and
include any successor law or regulation; (h) references to any agreement refer
to that agreement as from time to time amended, restated or supplemented or as
the terms of such agreement are waived or modified in accordance with its terms;
(i) references to any Person include that Person's successors and assigns; and
(j) headings are for purposes of reference only and shall not otherwise affect
the meaning or interpretation of any provision hereof.
18
SECTION 1.3. Incorporation by Reference of TIA. Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in
and made a part of this Indenture. The following terms, where used in the TIA,
shall have the following meanings for the purposes hereof:
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
ARTICLE II
THE NOTES
SECTION 2.1. Form. The Notes shall consist of [$__________] principal
amount of Class A Notes and [$_______] principal amount of Class B Notes and the
forms thereof and the Indenture Trustee's certificate of authentication, shall
be in substantially the forms set forth in Exhibits A-1 and A-2 respectively,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon, as may, consistently herewith, be determined by the officers executing
such Notes, as evidenced by their execution of the Notes. Any portion of the
text of any Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in Exhibits A-1 and A-2 are part of the terms of this
Indenture.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to [$_______] of Notes, except for
Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Sections 2.4, 2.5 or 9.5.
The Notes shall be issuable only in registered form and only in minimum
denominations of at least [$250,000]; provided that the foregoing shall not
restrict or prevent the transfer in accordance with Section 2.4 of any Note
having an Outstanding Principal Balance of other than an integral multiple of
[$1,000], or the issuance of a single Note of each Class, with a denomination
less than [$250,000].
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SECTION 2.2. Execution, Authentication and Delivery. (a) The Notes
shall be executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
(b) Notes bearing the manual or facsimile signature of individuals who
were at the time of signature Authorized Officers of the Issuer shall bind the
Issuer, notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Notes or did not
hold such offices at the date of such Notes.
(c) No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate of authentication shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
(d) The Notes may from time to time be executed by the Issuer and
delivered to the Indenture Trustee for authentication together with an Issuer
Request to the Indenture Trustee directing the authentication and delivery of
such Notes and thereupon the same shall be authenticated and delivered by the
Indenture Trustee in accordance with such Issuer Request.
SECTION 2.3. Temporary Notes. Pending the preparation of Definitive
Notes, the Issuer may execute, and upon receipt of an Issuer Order, the
Indenture Trustee shall authenticate and deliver, temporary Notes of the tenor
of the Definitive Notes in lieu of which they are issued and with such
variations not inconsistent with this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer will cause Definitive Notes
to be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of the Issuer to be
maintained as provided in Section 3.2, without charge to the Noteholder. Upon
surrender for cancellation of any one or more temporary Notes, the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as if they were Definitive
Notes.
SECTION 2.4. Registration; Registration of Transfer and Exchange. (a)
The Issuer shall cause to be kept a register (the "Note Register") in which,
subject to such reasonable regulations as it may prescribe, the Issuer shall
provide for the registration of Notes and the registration of transfers of
Notes. The Issuer hereby appoints the Indenture Trustee as the initial "Note
Registrar" for the purpose of registering Notes and transfers of Notes as herein
provided. Upon any resignation of any Note Registrar, the Issuer shall promptly
appoint a successor or, if it elects not to make such an appointment, assume the
duties of the Note Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer
as the Note Registrar, the Issuer will give the Indenture Trustee prompt written
notice of the appointment of
20
such Note Registrar and of the location, and any change in the location, of the
Note Register, and the Indenture Trustee shall have the right to inspect the
Note Register at all reasonable times, to obtain copies thereof and to rely upon
a certificate executed on behalf of the Note Registrar by an Executive Officer
thereof as to the names and addresses of the Noteholders and the principal
amounts and number of such Notes.
The Indenture Trustee shall not register the transfer of any Note
(other than the transfer of a Note to the nominee of the Clearing Agency) unless
the transferee has executed and delivered to the Indenture Trustee a
certification to the effect that either (i) the transferee is not (A) an
employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to
the provisions of Title I of ERISA or (b) a plan (as defined in Section
4975(e)(1) of the Code) that is subject to Section 4975 of the Code (each of the
foregoing, a "Benefit Plan"), and is not acting on behalf of or investing the
assets of a Benefit Plan, or (ii) the transferee's acquisition and continued
holding of the Note will be covered by a U.S. Department of Labor Prohibited
Transaction Class Exemption. Each transferee of a Book-Entry Note shall be
deemed to make one of the foregoing representations.
(b) Subject to Section 2.4(a), upon surrender for registration of
transfer of any Note at the office or agency of the Issuer to be maintained as
provided in Section 3.2, if the requirements of Section 8-401(1) of the UCC are
met, the Issuer shall execute, the Indenture Trustee shall authenticate and the
Noteholder shall obtain from the Indenture Trustee, in the name of the
designated transferee or transferees, one or more new Notes in any authorized
denominations of a like aggregate principal amount. At the option of the
Noteholder, Notes may be exchanged for other new Notes of the same Class in any
authorized denominations of a like aggregate principal amount, upon surrender of
the Notes to be exchanged at such office or agency. Whenever any Notes are so
surrendered for exchange, if the requirements of Section 8-401(1) of the UCC are
met, the Issuer shall execute, the Indenture Trustee shall authenticate and the
Noteholder shall obtain from the Indenture Trustee, the Notes that the
Noteholder making the exchange is entitled to receive. The Indenture Trustee
shall make a notation on any such new Note of the amount of principal, if any,
that has been paid on such Note.
(c) All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt and
entitled to the same benefits under this Indenture as the Notes surrendered upon
such registration of transfer or exchange.
(d) Every Note presented or surrendered for registration of transfer or
exchange shall (if so required by the Issuer or the Indenture Trustee) be duly
endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Indenture Trustee duly executed by, the
Noteholder thereof or such Noteholder's attorney duly authorized in writing,
with such signature guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act.
(e) No service charge shall be made to a Noteholder for any
registration of transfer or exchange of Notes, but the Issuer or the Indenture
Trustee may require payment of a sum
21
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.3 or 9.5.
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes. (a) If: (i)
any mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, and (ii) there is delivered to the Indenture Trustee such security
or indemnity as may be required by the Indenture Trustee and the Issuer to hold
the Indenture Trustee and the Issuer, respectively, harmless, then, in the
absence of notice to the Issuer, the Note Registrar or the Indenture Trustee
that such Note has been acquired by a bona fide purchaser, and provided that the
requirements of Section 8-405 of the UCC are met, the Issuer shall execute, and
upon its request the Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note of the same Class and principal amount and bearing a number not
contemporaneously outstanding; provided, however, that if any such destroyed,
lost or stolen Note, but not a mutilated Note, shall have become, or within
seven days shall be, due and payable, or shall have been called for redemption,
instead of issuing a replacement Note, the Issuer may pay such destroyed, lost
or stolen Note when so due or payable or upon the Redemption Date without
surrender thereof. If, after the delivery of such replacement Note (or payment
of a destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence), a bona fide purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Issuer
and the Indenture Trustee shall be entitled to recover such replacement Note (or
such payment) from the Person to whom it was delivered or any Person taking such
replacement Note from such Person to whom such replacement Note was delivered
(or payment made) or any assignee of such Person, except a bona fide purchaser,
and shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by the
Issuer or the Indenture Trustee in connection therewith.
(b) Upon the issuance of any replacement Note under this Section, the
Issuer or the Indenture Trustee may require the payment by such Noteholder of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
(d) The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6. Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the
22
Indenture Trustee may treat the Person in whose name any Note is registered (as
of the day of determination) as the owner of such Note for the purpose of
receiving payments of principal of and interest, if any, on such Note and for
all other purposes whatsoever, whether or not such Note be overdue, and neither
the Issuer, the Indenture Trustee nor any agent of the Issuer or the Indenture
Trustee shall be affected by notice to the contrary.
SECTION 2.7. Payment of Principal and Interest; Defaulted Interest. (a)
Any installment of interest or principal, if any, payable on any Note that is
punctually paid or duly provided for by the Issuer on the applicable Payment
Date shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date by check mailed first-class,
postage prepaid, to such Person's address as it appears on the Note Register on
such Record Date. However, unless Definitive Notes have been issued, with
respect to Notes registered on the Record Date in the name of the nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payment will be made
by wire transfer in immediately available funds to the account designated by
such nominee. Notwithstanding the above, the final installment of principal
payable with respect to such Note (and except for the Redemption Price for any
Note called for redemption pursuant to Section 10.1) shall be payable as
provided in clause (b)(ii). The funds represented by any such checks returned
undelivered shall be held in accordance with Section 6.16.
(b) (i) The principal of each Note shall be payable in installments on
each Payment Date in an amount equal to the Class A Noteholders' Monthly
Principal Payable Amount or Class B Noteholders' Monthly Principal Payable
Amount, as the case may be, for such Payment Date.
(ii) Notwithstanding the foregoing, the entire
Outstanding Principal Balance shall be due and payable on: (A)
the date on which an Event of Default shall have occurred and
be continuing if the Indenture Trustee or the Noteholders
representing not less than a majority of the Outstanding
Principal Balance of the Notes have declared the Notes to be
immediately due and payable in the manner provided in Section
5.2, and (B) if any Notes remain Outstanding, the Maturity
Date.
(iii) Except as otherwise provided in Section 5.2, no
part of the principal of any Note shall be paid prior to the
Payment Date on which such principal is due in accordance with
the preceding provisions of this Section, except that the
Issuer may redeem the Notes in their entirety in accordance
with Section 10.1.
(iv) The Indenture Trustee shall notify the Person in
whose name a Note is registered at the close of business on
the Record Date preceding the Payment Date on which the Issuer
expects that the final installment of principal of and
interest on such Note will be paid. Such notice shall be
mailed no later than five days prior to such final Payment
Date and shall specify that such final installment will be
payable only upon presentation and surrender of such Note and
shall specify the place where such Note may be presented and
surrendered for payment of such installment.
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(v) All reductions in the principal amount of a Note
effected by payments of installments of principal made on any
Payment Date shall be binding upon all holders of such Note
and of any Note issued upon the registration of transfer
thereof or in exchange therefore or in lieu thereof, whether
or not such payment is noted on such Note. All payments on the
Notes shall be made without any requirement of presentment but
each holder of any Note shall be deemed to agree, by its
acceptance of the same, to surrender such Note at the
Corporate Trust Office against payment of the final
installment of principal of such Note.
(c) (i) For each Payment Date, the interest due and payable with
respect to the Class A Notes and the Class B Notes will be the interest that has
accrued on the respective Notes since the last Payment Date or, in the case of
the first Payment Date, since the Closing Date, at the Class A Interest Rate and
the Class B Interest Rate, respectively, applied to the then Outstanding
Principal Balances of the Class A Notes and the Class B Notes, respectively, on
the preceding Payment Date subject to Section 3.1. With respect to the Class A
Notes and the Class B Notes, the interest will be calculated on the basis of [a
360-day year of twelve 30-day months] [the actual number of days in the related
interest accrual period and a 360-day year].
(ii) If the Issuer defaults in a payment of interest
on the Notes, the Issuer shall pay, in any lawful manner,
defaulted interest (plus interest on such defaulted interest
to the extent lawful) at the applicable interest rate from the
Payment Date for which such payment is in default. The Issuer
may pay such defaulted interest on a subsequent special
payment date declared by the Issuer to the Persons who are
Noteholders on a subsequent special record date, which special
record date shall be at least five Business Days prior to the
special payment date. At least 15 days before any such special
record date, the Issuer shall mail to each Noteholder a notice
that states the special record date, the special payment date
and the amount of defaulted interest to be paid.
(d) All payments made with respect to any Note shall be made in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts and shall be applied first
to the interest then due and payable on such Notes, then to the principal
thereof, and finally to premium, if any.
SECTION 2.8. Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly canceled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder that the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly canceled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes canceled as provided in this Section except as expressly permitted by
this Indenture. All canceled Notes may be held or disposed of by the Indenture
Trustee in accordance with its standard retention or disposal policy as in
effect at the time unless the Issuer shall direct by an Issuer Order that they
be returned to it; provided, that such Issuer Order is timely and the Notes have
not been previously disposed of by the Indenture Trustee.
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SECTION 2.9. Book-Entry Notes. Each of the Class A Notes and the Class
B Notes, upon original issuance, will be issued in the form of typewritten Notes
representing the Book-Entry Notes, to be delivered to The Depository Trust
Company (the initial Clearing Agency), or its custodian, by, or on behalf of,
the Issuer. Each of the Class A Notes [and the Class B Notes] shall initially be
registered on the Note Register in the name of Cede & Co., the nominee of The
Depository Trust Company as the initial Clearing Agency, and no Class A Note
Owner or Class B Note Owner will receive a Definitive Note representing such
Note Owner's interest in such Note, except as provided in Section 2.11. Unless
and until definitive, fully registered Notes (the "Definitive Notes")
representing the Class A Notes or the Class B Notes have been issued to the
applicable Note Owners:
(i) the Issuer, the Note Registrar and the Indenture
Trustee, and their officers, directors, employees and agents
may deal with the Clearing Agency for all purposes (including
the payment of principal of and interest on the Class A Notes
and the Class B Notes) as the authorized representative of the
respective Note Owners;
(ii) to the extent that this Section conflicts with
any other provisions of this Indenture, this Section shall
control;
(iii) the rights of the respective Note Owners shall
be exercised only through the Clearing Agency and the Clearing
Agency Participants and shall be limited to those established
by law and agreements between such respective Note Owners and
the Clearing Agency and/or the Clearing Agency Participants
pursuant to the Note Depository Agreement. Unless and until
Definitive Notes are issued pursuant to Section 2.11, the
Issuer intends that the Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive
and transmit payments of principal of and interest on the
related Class A Notes and Class B Notes, as the case may be,
to such Clearing Agency Participants; and
(iv) whenever this Indenture requires or permits
actions to be taken based upon instructions, directions, or
the consent of Noteholders evidencing a specified percentage
of the Outstanding Principal Balance of the Notes (or a Class
of Notes), the Clearing Agency shall be deemed to represent
such percentage only to the extent that it has received
instructions to such effect from Note Owners and/or Clearing
Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in the Notes
(or Class of Notes) and has delivered such instructions to the
Indenture Trustee.
SECTION 2.10. Notices to Clearing Agency. Whenever a notice or other
communication to the Class A Noteholders or Class B Noteholders is required
under this Indenture, unless and until Definitive Notes have been issued to the
related Note Owners, the Indenture Trustee shall give all such notices and
communications to the Clearing Agency.
SECTION 2.11. Definitive Notes. (a) If: (i) the Issuer advises the
Indenture Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its
25
responsibilities under the Note Depository Agreement with respect to the Notes,
and 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 (iii) after the occurrence
of an Event of Default, Note Owners representing beneficial interests
aggregating at least a majority of the Outstanding Principal Balance of the
Notes advise the Clearing Agency in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best interests
of the Note Owners, then the Clearing Agency has undertaken to notify all Note
Owners and the Indenture Trustee of the occurrence of any such event and of the
availability of Definitive Notes to Note Owners requesting the same. Upon
surrender to the Indenture Trustee of the typewritten Notes representing the
Book-Entry Notes by the Clearing Agency, accompanied by registration and
transfer instructions from the Clearing Agency for registration, the Issuer
shall execute, and the Indenture Trustee shall authenticate, the Definitive
Notes in accordance with the instructions of the Clearing Agency. None of the
Issuer, the Note Registrar or the Indenture Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Notes, all references herein to obligations imposed upon or to be performed by
the Clearing Agency shall be deemed to be imposed upon and performed by the
Issuer, to the extent applicable with respect to such Definitive Notes, and the
Issuer shall recognize the holders of the relevant Definitive Notes as
Noteholders hereunder.
(b) Definitive Notes will not be eligible for clearing or settlement
through DTC, Euroclear or Clearstream.
SECTION 2.12. Treasury Notes. In determining whether the Noteholders of
the required Outstanding Principal Balance of the Notes have concurred in any
direction, waiver or consent, Notes owned by the Issuer or an Affiliate of the
Issuer shall be considered as though not Outstanding, except that for the
purposes of determining whether the Indenture Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes which a Responsible
Officer actually knows are so owned shall be so disregarded.
SECTION 2.13. CUSIP Numbers. The Issuer in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Indenture Trustee
shall indicate the "CUSIP" numbers of the Notes in notices of redemption and
related materials as a convenience to Noteholders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of redemption and
related materials.
SECTION 2.14. Perfection Representations and Warranties. The parties
hereto agree that the representations, warranties and covenants set forth in
Schedule 1 shall be a part of this Indenture for all purposes.
SECTION 2.15. Notes to Constitute Indebtedness. The parties hereto
agree that it is their mutual intent that, for all applicable tax purposes, the
Notes will constitute indebtedness. Further, each party hereto and each
Noteholder (by accepting and holding a Note) hereby covenants to every other
party hereto and to every other Noteholder to treat the Notes as indebtedness
for all applicable tax purposes in all tax filings, reports and returns and
otherwise, and further covenants that neither it nor any of its Affiliates will
take, or participate in the taking
26
of or permit to be taken, any action that is inconsistent with the treatment of
the Notes as indebtedness for tax purposes. All successors and assignees of the
parties hereto shall be bound by the provisions hereof.
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Principal and Interest. The Issuer will duly
and punctually pay the principal of and interest, if any, on the Notes in
accordance with the terms of the Notes and this Indenture and shall not withdraw
funds from the Note Distribution Account except as set forth in Section 8.3(b).
SECTION 3.2. Maintenance of Office or Agency. (a) The Issuer will
maintain at the Corporate Trust Office an office or agency where Notes may be
surrendered for registration of transfer or exchange, and where notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer hereby initially appoints the Indenture Trustee to serve as
its agent for the foregoing purposes.
(b) The chief executive office of the Issuer at which the Issuer
maintains its records with respect to the Receivables, its interests in the
Equipment, and the transactions contemplated hereby, is currently located in
[________, ____]. The Issuer will not change the location of such offices
without giving the Indenture Trustee at least 30 days prior written notice
thereof.
SECTION 3.3. Paying Agent's Obligations. The Issuer will cause each
Paying Agent to comply with the obligations of the Paying Agent set forth in
Section 6.16.
SECTION 3.4. Existence. (a) The Issuer will keep in full effect its
existence, rights and franchises as a [business trust] [limited liability
company] under the laws of the jurisdiction of its organization.
(b) The Issuer shall at all times observe and comply in all material
respects with (i) all laws applicable to it, and (ii) all requisite and
appropriate organizational and other formalities in the management of its
business and affairs and the conduct of the transactions contemplated hereby.
SECTION 3.5. Protection of the Collateral; Further Assurances. The
Issuer will from time to time execute and deliver all such supplements and
amendments hereto and all such writings of further assurance and other writings,
and will take such other action necessary or advisable to:
(i) more effectively make a Grant over all or any
portion of the Collateral;
(ii) maintain or preserve the Lien (and the [same]
priority thereof) of this Indenture or carry out more
effectively the purposes hereof;
27
(iii) perfect, publish notice of or protect the
validity of any Grant made or to be made by this Indenture and
perfect the Lien contemplated hereby in favor of the Indenture
Trustee in all property included in the Collateral;
(iv) enforce or cause the Servicer to enforce any of
the Collateral; or
(v) preserve and defend against the claims of all
Persons and parties, (a) title to the Collateral (including
the right to receive all payments due or to become due with
respect to the Receivables) and the interests in the property
included in the Collateral and (b) the rights of the Indenture
Trustee and the Noteholders with respect to such Collateral
(including the right to receive all payments due or to become
due with respect to the Receivables) and interests with
respect to the property included in the Collateral.
The Issuer hereby designates the Indenture Trustee as its agent and
attorney-in-fact to file and/or execute any financing statement, continuation
statement, writing of further assurance or other writing required to be executed
and/or filed to accomplish the foregoing.
SECTION 3.6. Opinions as to the Collateral. (a) On the Closing Date,
the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording and filing of this Indenture, any indentures
supplemental hereto and any other requisite documents, and with respect to the
execution and filing of any financing statements and continuation statements, as
are necessary to perfect and make effective the Lien 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 make such Lien effective.
(b) On or before April 1 in each calendar year, 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
is necessary to maintain the Lien of this Indenture and reciting the details of
such action, or stating that in the opinion of such counsel no such action is
necessary to maintain such Lien. Such Opinion of Counsel shall also describe the
recording, filing, re-recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents, and the execution and
filing of any financing statements and continuation statements, that will, in
the opinion of such counsel, be required to maintain the Lien of this Indenture
until April 1 in the following calendar year.
SECTION 3.7. Performance of Obligations; Servicing of Receivables. (a)
The Issuer will not take any action and will use its best efforts not to permit
any action to be taken by others that would release any Person from any material
covenants or obligations under any instrument or agreement included in the
Collateral or that would result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of, any
such instrument or agreement, except as expressly provided in this Indenture,
the Servicing Agreement or such other instrument or agreement.
28
(b) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the other Related
Documents and in the instruments and agreements included in the Collateral,
including filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by this Indenture and the Servicing
Agreement in accordance with and within the time periods provided for herein and
therein.
(c) The Issuer hereby covenants and agrees that it will enforce the
obligations of the Servicer under the Servicing Agreement and if a Servicer
Default shall arise from the failure of the Servicer to perform any of its
duties or obligations under the Servicing Agreement with respect to the
Receivables, the Issuer shall take all reasonable steps available to it to
remedy such failure.
(d) The Issuer hereby covenants and agrees that: (i) it shall promptly
exercise its rights to terminate the Servicer pursuant to Section 5.1 of the
Servicing Agreement upon the occurrence of a Servicer Default set forth in
clause [___] of such section and (ii) prior to exercising its rights to
terminate the Servicer pursuant to Section 5.1 of the Servicing Agreement upon
the occurrence of a Servicer Default set forth in clause [___] of such section,
obtain the consent of the Noteholders representing a majority of the Outstanding
Principal Balance of the Notes. Within thirty (30) days after the giving of
notice of termination to the Servicer of the Servicer's rights and powers
pursuant to Section 6.2 of the Servicing Agreement, the Issuer shall appoint a
successor servicer (the "Successor Servicer"), such appointment to be reflected
by a written assumption in a form acceptable to the Indenture Trustee. In the
event that a Successor Servicer has not been appointed and accepted its
appointment at the time when the previous Servicer ceases to act as Servicer,
the Indenture Trustee without further action shall automatically be appointed
the Successor Servicer. The Indenture Trustee may resign as the Servicer by
giving written notice of such resignation to the Issuer and in such event will
be released from such duties and obligations, such release not to be effective
until the date a Successor Servicer enters into a servicing agreement with the
Issuer as provided below. Upon delivery of any such notice to the Issuer, the
Issuer shall obtain a new servicer as the Successor Servicer under the Servicing
Agreement. Any Successor Servicer other than the Indenture Trustee shall: (i) be
an established financial institution having a net worth of not less than
$[50,000,000] and whose regular business includes the servicing of receivables
and (ii) enter into a servicing agreement with the Issuer having substantially
the same provisions as the provisions of the Servicing Agreement applicable to
the Servicer. If the Indenture Trustee shall succeed to the previous Servicer's
duties as servicer of the Receivables as provided herein, it shall do so in its
individual capacity and not in its capacity as Indenture Trustee and,
accordingly, the provisions of Article VI shall be inapplicable to the Indenture
Trustee in its duties as the Successor Servicer and the servicing of the
Receivables. In case the Indenture Trustee shall become the Successor Servicer
under the Servicing Agreement, the Indenture Trustee shall be entitled to
appoint as Servicer any one of its Affiliates; provided, that it shall be fully
liable for the actions and omissions of such Affiliate in its capacity as
Successor Servicer.
(e) Upon any termination of the Servicer's rights and powers pursuant
to the Servicing Agreement, the Issuer shall promptly notify the Indenture
Trustee. As soon as a Successor Servicer is appointed, the Issuer shall notify
the Indenture Trustee of such appointment, specifying in such notice the name
and address of such Successor Servicer.
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(f) The Issuer agrees that it will not, without the prior written
consent of the Indenture Trustee or the Noteholders of at least a majority of
the Outstanding Principal Balance, amend, modify, waive, supplement, terminate
or surrender, or agree to any amendment, modification, supplement, termination,
waiver or surrender of, the terms of any Collateral (except to the extent
otherwise in accordance with the Credit and Collection Policies) or the Related
Documents, or waive timely performance or observance by the Transferor under the
Purchase and Sale Agreement or the Seller under the Sale Agreement; provided,
that, that no such amendment shall: (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, deposits required to be made to
the Trust Accounts and payments that are required to be made from the Trust
Accounts for the benefit of the Noteholders, or (ii) reduce the aforesaid
percentage of the Notes that are required to consent to any such amendment, in
either case without the consent of the Noteholders of all the Outstanding Notes.
If any such amendment, modification, supplement or waiver shall be so consented
to by the Indenture Trustee or such Noteholders, the Issuer agrees, promptly
following a request by the Indenture Trustee to do so, to execute and deliver,
in its own name and at its own expense, such agreements, instruments, consents
and other documents as the Indenture Trustee may deem necessary or appropriate
in the circumstances.
SECTION 3.8. Taxes. The Issuer shall pay all taxes when due and payable
or levied against its assets, properties or income, including any property that
is part of the Collateral.
SECTION 3.9. Annual Statement as to Compliance. The Issuer will deliver
to the Indenture Trustee, within 120 days after the end of each fiscal year of
the Issuer (commencing with the fiscal year [____]), an Officers' Certificate,
substantially in the form of Exhibit B, stating that:
(i) a review of the activities of the Issuer during
such year and of performance under this Indenture has been
made under such Authorized Officers' supervision; and
(ii) to the best of such Authorized Officers'
knowledge, based on such review, the Issuer has complied with
all conditions and covenants under this Indenture throughout
such year or, if there has been a default in the compliance of
any such condition or covenant, specifying each such default
known to such Authorized Officers and the nature and status
thereof.
SECTION 3.10. Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of any of the
properties or assets of the Issuer, including those included in the Collateral,
except as expressly permitted by this Indenture, Section 2.12 of the Servicing
Agreement, Section 6.2 of the Sale Agreement and Section 7.2 of the Purchase
and Sale Agreement;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly withheld
from such payments under the Code or applicable State law) or assert any claim
against any present or former Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Collateral;
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(c) engage in any business or activity other than in connection with,
or relating to the financing, purchasing, owning, selling and managing ownership
of, the Receivables and the interests in the property constituting the
Collateral, the issuance of the Notes, and the specific transactions
contemplated by the Related Documents and activities incidental thereto;
(d) issue, incur, assume, or allow to remain outstanding any
indebtedness, or guaranty any indebtedness or otherwise become liable, directly
or indirectly for any Indebtedness of any Person, other than the Notes, except
as contemplated by this Indenture, the registration statement filed with respect
to the Notes and the other Related Documents;
(e) seek dissolution or liquidation in whole or in part or
reorganization of its business or affairs;
(f) (A) permit the validity or effectiveness of this Indenture to be
impaired, or permit the Lien of this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released from
any covenants or obligations with respect to the Notes under this Indenture
except as may be expressly permitted hereby, (B) permit any Lien (other than the
Lien of this Indenture) to be created on or extend to or otherwise arise upon or
burden the Collateral or any part thereof or any interest therein or the
proceeds thereof or (C) permit the Lien of this Indenture not to constitute a
valid first priority (other than with respect to any tax lien, mechanics' lien
or other lien not considered a Lien) "security interest" (as such term is
defined in Section 1-201 of Article 1 of the UCC) in the Collateral;
(g) make any loan or advance to any Affiliate of the Issuer or to any
other Person;
(h) make any expenditure (by long-term or operating lease or otherwise)
for capital assets (either realty or personalty);
(i) remove the [Managing Member] [Owner Trustee] without cause unless
the Rating Agency Condition shall have been satisfied in connection with such
removal;
(j) directly or indirectly: (i) pay any dividend or make any
distribution (by reduction of capital or otherwise), whether in cash, property,
securities or a combination thereof, with respect to any ownership or equity
interest or security in or of the Issuer, (ii) redeem, purchase, retire or
otherwise acquire for value any such ownership or equity interest or security,
(iii) set aside or otherwise segregate any amounts for any such purpose or (iv)
make payments to or distributions from the Collection Account, in each case,
except in accordance with this Indenture and the Related Documents;
(k) convey or transfer any of its properties or assets, including those
included in the Collateral, to any Person, unless (i) the Person that acquires
such property or assets shall: (A) expressly agree by means of such supplemental
indenture that all right, title and interest so conveyed or transferred shall be
subject and subordinate to the rights of Noteholders and (B) expressly agree by
means of such supplemental indenture that such Person (or if a group of Persons,
then one specified Person) shall make all filings with the Commission (and any
other appropriate Person) required by the Securities Exchange Act in connection
with the Notes and (ii) the conditions in clause (l) below have been satisfied;
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(l) consolidate or merge with or into any other Person or convey or
transfer any of its properties or assets, including those included in the
Collateral, to any Person unless:
(i) such Person shall be a United States citizen or a
Person organized and existing under the laws of the United
States of America or any State,
(ii) such Person shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the principal of and
interest on all Notes and the performance or observance of
every agreement and covenant of this Indenture on the part of
the Issuer to be performed or observed, all as provided
herein,
(iii) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing;
(iv) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(v) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the
Indenture Trustee) to the effect that such transaction will
not have any material adverse tax consequence to the Issuer or
any Noteholder;
(vi) any action that is necessary to maintain the
Lien created by this Indenture and the same priority thereof
shall have been taken; and
(vii) the Issuer shall have delivered to the
Indenture Trustee an Officers' Certificate and an Opinion of
Counsel each stating that such consolidation or merger or such
conveyance or transfer, as the case may be, and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with (including any filing
required by the Securities Exchange Act).
SECTION 3.11. Successor or Transferee. (a) Upon any consolidation or
merger of the Issuer in accordance with Section 3.10(l), the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power of and have
every obligation of, the Issuer under this Indenture with the same effect as if
such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer pursuant to Section 3.10(k), the Issuer will be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of the Issuer with respect to the Notes immediately upon the delivery of written
notice to the Indenture Trustee stating that the Issuer is to be so released.
SECTION 3.12. Notice of Events of Default. (a) The Issuer shall give
the Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder, each
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default on the part of the Servicer of its obligations under the Servicing
Agreement (and, in the case of a Servicer Default, shall specify in such notice
the action, if any, the Issuer is taking with respect to such default) and each
default on the part of the Transferor of its obligations under the Purchase and
Sale Agreement.
(b) The Issuer shall deliver to the Indenture Trustee, within five days
after the Issuer obtains actual knowledge thereof, written notice in the form of
an Officers' Certificate of any event that, with the giving of notice or the
lapse of time or both, would become an Event of Default under clause (iii) of
the definition thereof, its status and what action the Issuer is taking or
proposes to take with respect thereto.
SECTION 3.13. Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture. (a) This
Indenture shall cease to be of further effect except as to: (i) rights of
registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Section 3.2, (v) the rights,
obligations and immunities of the Indenture Trustee hereunder (including the
rights of the Indenture Trustee under Section 6.7 and the obligations of the
Indenture Trustee under Section 4.2) and (vi) the rights of Noteholders as
beneficiaries hereof with respect to the property so deposited with the
Indenture Trustee payable to all or any of them, and the Indenture Trustee, on
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the
Notes, when:
(A) either:
(1) all Notes theretofore authenticated and delivered
(other than: (i) Notes that have been destroyed, lost or
stolen and that have been replaced or paid as provided in
Section 2.5 and (ii) Notes for whose payment funds have
theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 6.16) have
been delivered to the Indenture Trustee for cancellation; or
(2) all Notes not theretofore delivered to the
Indenture Trustee for cancellation:
(i) have become due and payable,
(ii) will become due and payable on the
Maturity Date within one year, or
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(iii) are to be called for redemption within
one year pursuant to Section 10;
and the Issuer, in the case of clause (2)(i), (ii) or (iii),
has irrevocably deposited or caused to be irrevocably
deposited with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the United States
of America (which will mature prior to the date such amounts
are payable), in trust for such purpose, in an amount
sufficient to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Indenture Trustee
for cancellation when due on the Maturity Date or Redemption
Date (if Notes shall have been called for redemption pursuant
to Section 10.1), as the case may be;
(B) the Issuer has paid or caused to be paid all
other sums payable hereunder by the Issuer; and
(C) the Issuer has delivered to the Indenture Trustee
an Officers' Certificate, an Opinion of Counsel and (if
required by the TIA or the Indenture Trustee) an Independent
Certificate from a firm of certified public accountants, each
meeting the applicable requirements of Section 11.1(a) and,
subject to Section 11.2, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
At such time, the Indenture Trustee shall deliver to the Issuer or,
upon an Issuer Order, its assignee, all cash, securities and other property held
by it as part of the Collateral other than funds deposited with the Indenture
Trustee pursuant to Section 4.1(a)(A)(2), for the payment and discharge of the
Notes.
(b) Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Issuer to the Indenture Trustee under Section 6.7, and if
funds shall have been deposited with the Indenture Trustee pursuant to Section
4.1(a)(A)(2), the obligations of the Indenture Trustee under Sections 4.2 and
6.7 (in its capacity as Paying Agent) shall survive.
(c) The Indenture Trustee shall provide prompt written notice to each
Rating Agency of any satisfaction and discharge of this Indenture pursuant to
this Article IV.
SECTION 4.2. Application of Trust Funds. All funds deposited with the
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Noteholders of the particular Notes for the payment or
redemption of which such funds have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest; but such
funds need not be segregated from other funds except to the extent required
herein or as required by law.
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ARTICLE V
REMEDIES
SECTION 5.1. Events of Default. "Event of Default", wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) default in the payment of any interest on any
Note when the same becomes due and payable, and such default
shall continue for a period of five days;
(ii) default in the payment of the principal of any
Note at the Maturity Date;
(iii) 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), or any representation or
warranty of the Issuer made in this Indenture or in any
certificate or other writing delivered pursuant hereto or in
connection herewith proving to have been incorrect in any
material respect as of the time when the same shall have been
made, and such default shall continue or not be cured, or the
circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have
been eliminated or otherwise cured, for a period of 30 days
(or for such longer period, not in excess of 90 days, as may
be reasonably necessary to remedy such default if 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 and such default can be remedied in 90
days or less) after there shall have been given, by registered
or certified mail, to the Issuer by the Indenture Trustee or
to the Issuer and the Indenture Trustee by the Noteholders of
at least 25% of the Outstanding Principal Balance of the
Notes, a written notice specifying such default or incorrect
representation or warranty and requiring it to be remedied and
stating that such notice is a notice of Default hereunder;
(iv) the entry by a court having jurisdiction in the
premises of (i) a decree or order for relief in respect of the
Issuer in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency,
reorganization, or other similar law or (ii) a decree or order
adjudging the Issuer a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment, or composition of or in respect of the Issuer
under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator, or other similar official of the Issuer or of
any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any
such decree or order for relief
35
or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(v) the commencement by the Issuer of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization, or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Issuer in an
involuntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization, or other similar
law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief
under any applicable federal or state law, or the consent by
it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator, or similar official of the
Issuer or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or
the Issuer's failure to pay its debts generally as they become
due, or the taking of corporate action by the Issuer in
furtherance of any such action.
SECTION 5.2. Remedies. (a) If an Event of Default should occur and be
continuing, the Indenture Trustee may, and, at the direction (which direction
shall be in writing) of the Noteholders, pursuant to Section 5.8 or, in the case
of clause (viii), at the direction (which direction shall be in writing) of not
less than 66-2/3% of the Outstanding Principal Balance of the Notes, the
Indenture Trustee shall, do one or more of the following:
(i) declare all the Notes to be immediately due and
payable, by a notice in writing to the Issuer, and upon any
such declaration the Outstanding Principal Balance, together
with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable;
(ii) in the case of an Event of Default described in
Section 5.1(i) or (ii), demand the Issuer to pay to the
Indenture Trustee, for the benefit of the Noteholders, the
whole amount then due and payable on the Notes for principal
and interest, with interest upon the overdue principal at the
applicable interest rate, and, to the extent payment at such
rate of interest shall be legally enforceable, upon overdue
installments of interest, at the applicable interest rate, and
in addition thereto such further amount as shall be sufficient
to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances
of the Indenture Trustee and its agents and counsel;
(iii) institute Proceedings in its own name and as
trustee of an express trust for the collection of all amounts
then payable on the Notes or under this Indenture with respect
thereto, whether by declaration or otherwise, enforce any
judgment obtained, and collect from the Issuer amounts
adjudged due;
(iv) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect
to the Collateral;
36
(v) exercise any remedies of a secured party under
the UCC as in effect in the State of New York and take any
other appropriate action to protect and enforce the rights and
remedies of the Indenture Trustee and the Noteholders;
(vi) subject to Section 5.14, sell the Collateral, 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;
(vii) make demand upon the Issuer, by written notice,
that the Issuer deliver to the Indenture Trustee all
Receivable Files (in which event the Issuer covenants to make
demand upon the Servicer to so deliver such Receivable Files);
and
(viii) exercise all rights, remedies, powers,
privileges and claims of the Issuer against the Servicer or
the Transferor under or in connection with the Servicing
Agreement and the Purchase and Sale Agreement, including the
right or power to terminate or to take any action to compel or
secure performance or observance by the Servicer or the
Transferor of each of their obligations to the Issuer
thereunder and to give any consent, request, notice,
direction, approval, extension or waiver under the Servicing
Agreement or the Purchase and Sale Agreement, and any right of
the Issuer to take such action shall be suspended;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Collateral following an Event of Default, other than an Event of
Default described in Section 5.1(i) or (ii), unless: (A) all the Noteholders
consent thereto, (B) the proceeds of such sale or liquidation distributable to
the Noteholders are sufficient to discharge in full all amounts then unpaid upon
such Notes for principal and interest or (C) the Indenture Trustee determines
that the Collateral will not continue to provide sufficient funds for the
payment of principal of and interest on the Notes as they would have become due
if the Notes had not been declared due and payable, and the Indenture Trustee
obtains the consent of Noteholders of 66-2/3% of the Outstanding Principal
Balance. In determining whether to sell or hold the Collateral, 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 Collateral
to discharge in full all amounts then due and unpaid upon the Notes for
principal and interest.
(b) At any time after a declaration of acceleration of maturity has
been made and before a judgment or decree for payment of the amount due has been
obtained by the Indenture Trustee as hereinafter in this Article V provided, the
Noteholders of Notes representing not less than a majority of the Outstanding
Principal Balance, by written notice to the Issuer and the Indenture Trustee,
may rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the
Indenture Trustee a sum sufficient to pay:
37
(A) all payments of principal of and interest on all
Notes and all other amounts that would then be due hereunder
or upon such Notes if the Event of Default giving rise to such
acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its
agents and counsel; and
(ii) all Events of Default, other than the nonpayment
of the principal of the Notes that has become due solely by
such acceleration, have been cured or waived as provided in
Section 5.9.
No such rescission shall affect any subsequent Event of Default or
impair any right consequent thereto.
(c) In case there shall be pending, relative to the Issuer or any
Person having or claiming an ownership interest in the Collateral, Proceedings
under Title 11 of the United States Code or any other applicable Federal or
State bankruptcy, insolvency or other similar law, or in case a receiver,
assignee, 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 Person, or in case of any other comparable
judicial Proceedings relative to the Issuer, or to the creditors or property of
the Issuer, the Indenture Trustee (irrespective of whether the principal of any
Notes shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Indenture Trustee shall have made any
demand pursuant to this Section) shall be entitled and empowered to, and, at the
direction (which direction shall be in writing) of the Noteholders pursuant to
Section 5.8 by intervention in such proceedings or otherwise:
(i) file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Indenture Trustee (including any claim
for reasonable compensation to the Indenture Trustee and each
predecessor Indenture Trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee, except as a result of negligence or bad
faith) and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law or regulations, vote
on behalf of the Noteholders in any election of a trustee, a standby
trustee or any Person performing similar functions in any such
Proceedings;
(iii) collect and receive any amounts or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of the
Indenture Trustee on their behalf; and
(iv) 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
38
Noteholders allowed in any judicial Proceedings relative to the Issuer,
its creditors and its property;
and any trustee, receiver, liquidator, assignee, custodian, sequestrator or
other similar official in any such Proceeding is hereby authorized by each of
such Noteholders to make payments to the Indenture Trustee, and, in the event
that the Indenture Trustee shall consent to the making of payments directly to
such Noteholders, to pay to the Indenture Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Indenture Trustee and each predecessor Indenture Trustee except as a
result of negligence or bad faith.
(d) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Noteholder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(e) All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Indenture Trustee shall be brought in its own name and 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 Noteholders.
(f) 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 Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
SECTION 5.3. [Reserved].
SECTION 5.4. Unconditional Rights of Noteholders To Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, each
Noteholder shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Note on or after the
respective due dates thereof expressed in such Note or in this Indenture (or, in
the case of redemption, on or after the Redemption Date) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Noteholder.
SECTION 5.5. Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding,
39
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
SECTION 5.6. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost, or stolen Notes in Section 2.5(d), no right or remedy herein conferred
upon or reserved to the Indenture Trustee or to the Noteholders is intended to
be exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.7. Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee or any Noteholder 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 or by law to the Indenture
Trustee or to the Noteholders may be exercised from time to time, and as often
as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as
the case may be.
SECTION 5.8. Control by Noteholders. (a) Except as otherwise expressly
provided in this Indenture, the Noteholders of not less than a majority of the
Outstanding Principal Balance of the Notes shall have the right to (i) direct
the time, method and place of conducting any Proceeding for any remedy available
to the Indenture Trustee with respect to the Notes, (ii) the right to accelerate
the Notes pursuant to Section 5.2 after an Event of Default or (iii) exercise
any trust or power conferred on the Indenture Trustee; provided, that such
direction shall not be in conflict with any rule of law or with this Indenture;
provided, further, that, subject to Section 6.1, the Indenture Trustee need not
take any action that it determines might involve it in liability on the part of
the Indenture Trustee for which the Indenture Trustee is not indemnified to its
satisfaction or might materially adversely affect the rights of any
Noteholder(s) not consenting to such action. The Indenture Trustee may take any
other action deemed proper by the Indenture Trustee that is not inconsistent
with such direction.
(b) No Noteholder shall have any right to institute any Proceeding,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(i) such Noteholder has previously given written
notice to the Indenture Trustee of a continuing Event of
Default;
(ii) the Noteholder(s) of not less than 66-2/3% of
the Outstanding Principal Balance of the Notes have made
written request to the Indenture Trustee to institute such
Proceeding in respect of such Event of Default in its own name
as Indenture Trustee hereunder;
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(iii) such Noteholder(s) have offered to the
Indenture Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in complying with such
request;
(iv) the Indenture Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has
failed to institute such Proceeding;
(v) so long as any of the Notes remain Outstanding,
no direction by other Noteholders inconsistent with such
written request has been given to the Indenture Trustee during
such 60-day period by the Noteholders of 66-2/3% of the
Outstanding Principal Balance of the Notes;
(vi) with respect to any bankruptcy reorganization,
arrangement, insolvency or liquidation proceedings, or similar
proceedings under any United States Federal or State
bankruptcy or similar law, the Noteholders representing not
less than 66-2/3% of the Outstanding Principal Balance of each
Class of Notes that remains Outstanding has consented thereto
in writing; provided that the foregoing shall not in anyway
limit the Noteholder's rights to pursue any other creditor
rights or remedies that the Noteholders may have for claims
against the Issuer;
it being understood and intended that no one or more Noteholder(s) 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
Noteholder or to obtain or to seek to obtain priority or preference over any
other Noteholder(s) or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the other
Noteholders. Nothing in this Section shall be construed as limiting the rights
of otherwise qualified Noteholders to petition a court for the removal of an
Indenture Trustee pursuant to Section 6.8 hereof.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Noteholders, each
representing less than a majority of the Outstanding Principal Balance of the
Notes, the Indenture Trustee in its sole discretion may determine what action,
if any, shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.9. Waiver of Past Defaults. Prior to the time a judgment or
decree for payment of amounts due has been obtained as described in Section 5.2,
the Noteholders of not less than a majority of the Outstanding Principal Balance
of the Notes may waive any past Default or Event of Default and its consequences
except a Default: (a) in payment of principal of or interest on any of the Notes
or (b) in respect of a covenant or provision hereof that cannot be modified or
amended without the consent of each Noteholder. In the case of any such waiver,
the Issuer, the Indenture Trustee and the Noteholders shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
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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 impair any right consequent thereto.
SECTION 5.10. Undertaking for Costs. All parties to this Indenture
agree (and each Noteholder by such Noteholder'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
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorney's fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to: (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder(s) holding in the
aggregate more than 10% of the Outstanding Principal Balance of the Notes or (c)
any suit instituted by any Noteholder for the enforcement of the payment of
principal of or interest on any Note on or after the respective due dates
expressed in such Note and in this Indenture (or, in the case of redemption, on
or after the Redemption Date).
SECTION 5.11. Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 5.12. Action on Notes. The Indenture Trustee's right to seek
and recover judgment on the Notes or under this Indenture shall not be affected
by the seeking, obtaining or application of any other relief under or with
respect to this Indenture. Neither the Lien of this Indenture nor any rights or
remedies of the Indenture Trustee or the Noteholders shall be impaired by the
recovery of any judgment by the Indenture Trustee against the Issuer or by the
levy of any execution under such judgment upon any portion of the Collateral or
upon any of the assets of the Issuer. Any funds or other property collected by
the Indenture Trustee shall be applied in accordance with Section 8.3(d).
SECTION 5.13. Performance and Enforcement of Certain Obligations.
Promptly following a request from the Indenture Trustee to do so and at the
Issuer's expense, the Issuer shall take all such lawful action as the Indenture
Trustee may request to compel or secure the performance and observance by the
Servicer of its obligations to the Issuer under or in connection with the
Servicing Agreement or by the Transferor of its obligations to the Issuer under
or in connection with the Purchase and Sale Agreement in accordance with the
terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the
Servicing Agreement (or under or in connection with the Purchase and Sale
Agreement) to the extent and in the manner directed by the Indenture
42
Trustee, including the transmission of notices of default on the part of the
Servicer or the Transferor thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Servicer or the Transferor of each of their obligations under the Servicing
Agreement or the Purchase and Sale Agreement.
SECTION 5.14. Sale of Collateral. (a) The power to effect any sale of
any portion of the Collateral described pursuant to Section 5.2 shall not be
exhausted by any one or more sales as to any portion of the Collateral remaining
unsold, but shall continue unimpaired until the entire Collateral shall have
been sold or all amounts due under this Indenture have been paid in full. The
Indenture Trustee may from time to time, upon directions in accordance with
Section 5.8, postpone any public sale by public announcement made at the time
and place of such sale. For any public sale of the Collateral, the Indenture
Trustee shall have provided each Noteholder with notice of such sale at least
two weeks in advance of such sale which notice shall specify the date, time and
location of such sale.
(b) To the extent permitted by applicable law, the Indenture Trustee
shall not in any private sale sell to a third party the Collateral, or any
portion thereof unless,
(i) the holders of not less than 66-2/3% of the then
Outstanding Principal Balance of the Notes consent to or
direct the Indenture Trustee in writing to make such sale; or
(ii) the proceeds of such sale would be not less than
the sum of all amounts due under this Indenture.
The foregoing provisions shall not preclude or limit the ability of the
Indenture Trustee to purchase all or any portion of the Collateral at a private
sale.
(c) In connection with a sale of all or any portion of the Collateral:
(i) any one or more Noteholders may bid for and
purchase the property offered for sale, and upon compliance
with the terms of sale may hold, retain, and possess and
dispose of such property, without further accountability, and
any Noteholder may, in paying the purchase price therefore,
deliver in lieu of cash any Outstanding Notes or claims for
interest thereon for credit in the amount that shall, upon
distribution of the net proceeds of such sale, be payable
thereon, and the Notes, in case the amounts so payable thereon
shall be less than the amount due thereon, shall be returned
to the Noteholders after being appropriately stamped to show
such partial payment;
(ii) the Indenture Trustee is hereby irrevocably
appointed the agent and attorney-in-fact of the Issuer to
transfer and convey any portion of the Collateral in
connection with a sale thereof, and to take all action
necessary to effect such sale;
(iii) the Indenture Trustee shall execute and deliver
an appropriate instrument of conveyance transferring, without
representation, warranty or recourse, any portion of the
Collateral in connection with a sale thereof; and
43
(iv) no purchaser or transferee at such a sale shall
be bound to ascertain the Indenture Trustee's authority,
inquire into the satisfaction of any conditions precedent or
see to the application of any funds.
(d) The method, manner, time, place and terms of any sale of all or any
portion of the Collateral shall be commercially reasonable.
(e) The provisions of this Section shall not be construed to restrict
the ability of the Indenture Trustee to exercise any rights and powers against
the Issuer or the Collateral that are vested in the Indenture Trustee by this
Indenture, including, without limitation, the power of the Indenture Trustee to
proceed against the collateral subject to the lien of this Indenture and to
institute judicial proceedings for the collection of any deficiency remaining
thereafter.
(f) The purchase price received by the Indenture Trustee in respect of
any sale made in accordance with this Section shall be deemed conclusive and
binding on the parties hereto and the Noteholders and the proceeds of such sale
shall be applied in accordance with Section 8.3.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1. Duties of the Indenture Trustee. (a) If an Event of
Default has occurred and is continuing, the Indenture Trustee shall exercise 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 person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default actually known
to a Responsible Officer:
(i) the Indenture Trustee undertakes to perform such
duties and only such duties as are specifically set forth in
this Indenture and no implied covenants or obligations shall
be read into this Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Indenture Trustee and conforming to the requirements of this
Indenture; provided, however, in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Indenture
Trustee, the Indenture Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) No provision of this Indenture shall be construed to relieve the
Indenture Trustee from liability for its own grossly negligent action, its own
grossly negligent failure to act, or its own willful misconduct, except that:
(i) this clause (c) does not limit the effect of
clause (b) of this Section;
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(ii) the Indenture Trustee shall not be liable for
any error of judgment made in good faith by a Responsible
Officer unless it is proved that the Indenture Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith
in accordance with a direction received by it pursuant to this
Indenture;
(iv) the Indenture Trustee shall not be charged with
knowledge of an Event of Default or Servicer Default unless a
Responsible Officer obtains actual knowledge of such event or
the Indenture Trustee receives written notice of such event
from the Issuer or Note Owners owning Notes aggregating not
less than 10% of the Outstanding Principal Balance of the
Notes; and
(v) the Indenture Trustee shall have no duty to
monitor the performance of the Issuer or its agents, nor shall
it have any liability in connection with malfeasance or
nonfeasance by the Issuer. The Indenture Trustee shall have no
liability in connection with compliance of the Issuer or its
agents with statutory or regulatory requirements related to
the Receivables. The Indenture Trustee shall not make or be
deemed to have made any representations or warranties with
respect to the Receivables or the validity or sufficiency of
any assignment of the Receivables to the Collateral or the
Indenture Trustee.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to clauses (a), (b), (c) and (g) of this Section
6.1.
(e) The Indenture Trustee shall not be liable for interest on any
amounts received by it except as the Indenture Trustee may agree in writing with
the Issuer.
(f) No provision of this Indenture shall require the Indenture Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds to believe that repayments
of such funds or adequate indemnity satisfactory to it against any loss,
liability or expense is not reasonably assured to it.
(g) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Indenture Trustee shall be subject to this Section
and the TIA.
(h) The Indenture Trustee:
(i) shall at all times be a "participant" (as such
term is defined in the Federal Book-Entry Regulations) in the
Federal Reserve System;
(ii) shall, to the extent that any of the Trust
Accounts is a Securities Account, comply with all of the
obligations of a Securities Intermediary under Article 8 of
the UCC with respect thereto; and
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(iii) agrees that each item of property including
cash received by it for deposit in or credit to a Trust
Account, and each investment made by it pursuant to Section
8.5 shall constitute and be treated by it as a Financial
Asset.
(i) No person other than the Indenture Trustee as
provided herein, shall have "control" (as such term is defined
in Section 8-106 of Article 8 of the UCC and Section 9-401 of
Article 9 of the UCC) of any of the Trust Accounts.
SECTION 6.2. Rights of Indenture Trustee. (a) Subject to the provisions
of Section 6.1:
(i) the Indenture Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order,
note, debenture, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been
signed or presented by the proper party or parties (and the
Indenture Trustee need not investigate any fact or matter
stated in the document);
(ii) any request or direction or action of the Issuer
mentioned herein shall be sufficiently evidenced by an Issuer
Order;
(iii) whenever in the administration of this
Indenture the Indenture Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Indenture Trustee (unless
other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, conclusively rely upon an
Officers' Certificate;
(iv) the Indenture Trustee may consult with counsel
as to legal matters and the advice or opinion of any such
counsel selected by the Indenture Trustee with respect to
legal matters relating to this Indenture and the Notes 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;
(v) the Indenture Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the
Noteholders pursuant to this Indenture, unless such
Noteholders shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with
such request or direction;
(vi) the Indenture Trustee shall not be bound to make
any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, note,
debenture, other evidence of indebtedness, or other paper or
document, but the Indenture Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Indenture Trustee shall
determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises
of the Issuer, personally or by agent or attorney;
46
(vii) the Indenture Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, attorneys, custodians
or nominees and the Indenture Trustee shall not be responsible
for any misconduct or negligence on the part of any agent,
attorney, custodian or nominee appointed with due care by it
hereunder;
(viii) 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;
provided, however, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith;
(ix) the Indenture Trustee shall not be required to
give any bond or surety in respect of the performance of its
powers and duties hereunder;
(x) the Indenture Trustee shall not be bound to
ascertain or inquire as to the performance or observance of
any covenants, conditions or agreements on the part of the
Issuer;
(xi) the permissive rights of the Indenture Trustee
to do things enumerated in this Indenture shall not be
construed as a duty and the Indenture Trustee shall not be
answerable for other than its gross negligence or willful
default; and
(xii) in the event that the Indenture Trustee is also
acting as Paying Agent or Note Registrar hereunder, the rights
and protections afforded to the Indenture Trustee pursuant to
this Article VI shall also be afforded to such Paying Agent or
Note Registrar.
(b) The recitals contained herein and in the Notes, except the
Indenture Trustee's certificates of authentication, shall be taken as the
statements of the Issuer, and the Indenture Trustee assumes no responsibility
for their correctness. The Indenture Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Notes, except to the extent
provided by the Indenture Trustee's certificate of authentication on the Notes.
The Indenture Trustee shall not be accountable for the use or application by the
Issuer of the proceeds of the Notes.
SECTION 6.3. Individual Rights of the Indenture Trustee. The Indenture
Trustee shall not, in its individual capacity, but may in a fiduciary capacity,
become the owner of Notes or otherwise extend credit to the Issuer. The
Indenture Trustee may otherwise deal with the Issuer or its Affiliates with the
same rights it would have if it were not the Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Indenture Trustee must comply with Sections 6.11 and 6.13.
SECTION 6.4. Funds Held in Trust. Funds and investments and other
property held by the Indenture Trustee shall be held in trust in one or more
Trust Accounts hereunder, but need not be segregated from other funds except to
the extent required by law.
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SECTION 6.5. Notice of Defaults. If a Default occurs and is continuing
and is known to a Responsible Officer, the Indenture Trustee shall mail to each
Noteholder notice of the Default within 90 days after it occurs. Except in the
case of a Default in payment of principal of or interest on any Note (including
payments pursuant to the mandatory redemption provisions of such Note), the
Indenture Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Noteholders.
SECTION 6.6. [RESERVED]
SECTION 6.7. Compensation and Indemnity. The Issuer shall, or shall
cause the Servicer to, pay to the Indenture Trustee from time to time reasonable
compensation for its services hereunder as the Issuer and the Indenture Trustee
may agree in writing (which compensation shall not be limited by any law on
compensation of a trustee of an express trust). The Issuer shall, or shall cause
the Servicer to, reimburse the Indenture Trustee upon its request, 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, or shall cause the Servicer to, indemnify the Indenture
Trustee and its officers, directors, employees and agents against any and all
loss, liability or expense (including attorneys' fees) incurred by them in
connection with the administration of the Issuer and the performance of its
duties hereunder. The Indenture Trustee shall notify the Issuer and the Servicer
promptly of any claim for which it may seek indemnity. Failure by the Indenture
Trustee to so notify the Issuer and the Servicer shall not relieve the Issuer of
its obligations hereunder. The Issuer shall, or shall cause the Servicer to,
defend the claim and the Indenture Trustee may have separate counsel and the
Issuer shall, or shall cause the Servicer to, pay the fees and expenses of such
counsel. Neither the Issuer nor the Servicer need reimburse any expense or
indemnify against any loss, liability or expense incurred by the Indenture
Trustee through the Indenture Trustee's own willful misconduct, negligence or
bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(iv) or (v), the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
Federal or State bankruptcy, insolvency or similar law.
SECTION 6.8. Resignation and Removal; Appointment of Successor. No
resignation or removal of the Indenture Trustee and no appointment of a
successor Indenture Trustee shall become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section. The
Indenture Trustee may resign at any time by so notifying the Issuer in writing.
The Noteholders of not less than 66-2/3% of the Outstanding Principal Balance of
the Notes may remove the Indenture Trustee by so notifying the Indenture Trustee
in writing and may appoint a successor Indenture Trustee. The Issuer shall
remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with
Section 6.11;
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(ii) the Indenture Trustee is adjudged a 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.
If the Indenture Trustee resigns or is removed by the Issuer or if a
vacancy exists in the office of 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.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee 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 Indenture Trustee to
the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Noteholders of not less than a majority of
the Outstanding Principal Balance of the Notes may petition any court of
competent jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's obligations under Section 6.7 shall continue for the
benefit of the retiring Indenture Trustee. The retiring Indenture Trustee shall
have no liability for any act or omission by any successor Trustee.
SECTION 6.9. Successor Indenture Trustee by Xxxxxx. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee. The Indenture
Trustee shall provide the Rating Agencies and the Issuer prior written notice of
any such transaction; provided, that such corporation or banking association
shall be otherwise qualified and eligible under Section 6.11.
In case at the time such successor(s) by merger, conversion or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor trustee hereunder or in the name of
the successor to the Indenture Trustee; and in all such cases such
49
certificates of authentication shall have the full force and effect to the same
extent given to the certificate of authentication of the Indenture Trustee
anywhere in the Notes or in this Indenture.
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Indenture, at any time, for the
purpose of meeting any legal requirement of any jurisdiction in which any part
of the 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
Person(s) to act as co-trustee(s), or separate trustee(s) for the benefit of the
Noteholders, and to vest in such Person(s), in such capacity all rights
hereunder with respect to the Collateral, or any part thereof, and, subject to
the other provisions of this Section, such powers, duties, obligations, rights
and trusts as the Indenture Trustee may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 6.11 and no notice to
Noteholders of the appointment of any co-trustee or separate trustee shall be
required under Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Indenture Trustee shall be
conferred or imposed upon and exercised or performed by the
Indenture Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular
act(s) are to be performed, the Indenture Trustee shall be
incompetent or unqualified to perform such act(s), in which
event such rights, powers, duties and obligations (including
the holding of rights with respect to the Collateral or any
portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable
by reason of any act or omission of any other trustee
hereunder; and
(iii) the Indenture Trustee may at any time accept
the resignation of or remove, in its sole discretion, any
separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
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(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The Indenture Trustee shall have no obligation to determine whether
a co-trustee or separate trustee is legally required in any jurisdiction in
which any part of the Collateral may be located.
SECTION 6.11. Eligibility; Disqualification. The Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a) and Section
26(a)(1) of the Investment Company Act of 1940, as amended. There shall at all
times be an Indenture Trustee hereunder which shall (a) be a corporation
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers; (b) have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition; (c) be subject to supervision or examination by federal or state
authority; and (d) at the time of appointment, shall have a long term senior,
unsecured debt rating of "Baa3" or better by Xxxxx'x (or, if not rated by
Xxxxx'x, a comparable rating by another statistical rating agency). The
Indenture Trustee shall comply with TIA Section 310(b), including the optional
provision permitted by the second sentence of TIA Section 310(b)(9); provided,
however, that there shall be excluded from the operation of TIA Section
310(b)(1) any indenture(s) under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Indenture Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
This Indenture shall always have a Trustee who satisfies the
requirements of Section 310(a)(1) of the TIA. The Trustee is subject to the
provisions of Section 310(b) of the TIA regarding disqualification of a trustee
upon acquiring any conflicting interest.
If a default occurs under this Indenture, and the Indenture Trustee is
deemed to have a conflicting interest as a result of acting as trustee for both
the Class A Notes and the Class B Notes, a successor Indenture Trustee shall be
appointed for one or both of such Classes, so that there will be separate
Indenture Trustees for the Class A Notes and the Class B Notes. No such event
shall alter the voting rights of the Class A Noteholders or Class B Noteholders
under this Indenture or any other Related Document. However, so long as any
amounts remain unpaid with respect to the Class A Notes, only the Indenture
Trustee for the Class A Noteholders will have the right to exercise remedies
under this Indenture (but subject to the express provisions of Section 5.2 and
to the right of the Class B Noteholders to receive their share of any proceeds
of
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enforcement. Upon repayment of the Class A Notes in full, all rights to exercise
remedies under this Indenture will transfer to the Indenture Trustee for the
Class B Notes.
In the case of the appointment hereunder of a successor Indenture
Trustee with respect to any Class of Notes, the Issuer, the retiring Indenture
Trustee and the successor Indenture Trustee with respect to such Class of Notes
shall execute and deliver an indenture supplemental hereto wherein the successor
Indenture Trustee shall accept such appointment and which (i) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, the successor Indenture Trustee all the rights, powers, trusts and
duties of the retiring Indenture Trustee with respect to the Notes of the Class
to which the appointment of such successor Indenture Trustee relates, (ii) if
the retiring Indenture Trustee is not retiring with respect to all Classes of
Notes, shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the retiring
Indenture Trustee with respect to the Notes of each Class as to which the
retiring Indenture Trustee is not retiring shall continue to be vested in the
retiring Indenture Trustee, and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Indenture Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that each
such Indenture Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other such
Indenture Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Indenture Trustee shall
become effective to the extent provided therein.
SECTION 6.12. Acceptance by Indenture Trustee. The Indenture Trustee
hereby acknowledges the grant of a Lien on the Collateral and the receipt of a
Lien on the assets constituting the Collateral granted by the Issuer hereunder
and declares that the Indenture Trustee, through a custodian, will hold such
Lien on the Collateral granted by the Issuer in trust, for the use and benefit
of all Noteholders subject to the terms and provisions hereof.
SECTION 6.13. Preferential Collection of Claims Against the Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.14. Reports by Indenture Trustee to Noteholders. To the
extent required by the TIA, within 60 days after each October 15, following the
date of this Indenture, the Indenture Trustee shall mail to the Noteholders a
brief report dated as of such reporting date that complies with TIA Section
313(a), if such a report is required pursuant to TIA Section 313(a). The
Indenture Trustee also shall comply with TIA Section 313(b). The Indenture
Trustee shall also transmit by mail all reports as required by TIA Section
313(c).
A copy of each such report required under TIA Section 313 shall, at the
time of such transmission to Noteholders be filed with the Commission and with
each stock exchange or other market system on which the Notes are listed. The
Issuer shall notify the Indenture Trustee in writing if the Notes become listed
on any stock exchange or market trading system.
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SECTION 6.15. Representations and Warranties. The Indenture Trustee
hereby represents that:
(a) the Indenture Trustee is duly organized and validly existing as a
[_______________] banking corporation in good standing under the laws of
[_________] with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is presently
conducted;
(b) the Indenture Trustee has the power and authority to execute and
deliver this Indenture and to carry out its terms; and the execution, delivery
and performance of this Indenture have been duly authorized by the Indenture
Trustee by all necessary corporate action;
(c) the consummation of the transactions contemplated by this Indenture
and the fulfillment of the terms hereof do not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under the articles of organization or bylaws
of the Indenture Trustee or any material agreement or other instrument to which
the Indenture Trustee is a party or by which it is bound; and
(d) to the best of the Indenture Trustee's knowledge, there are no
proceedings or investigations pending or threatened before any court, regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Indenture Trustee or its properties: (i) asserting the
invalidity of this Indenture, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Indenture or (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Indenture Trustee of its obligations under, or the validity
or enforceability of, this Indenture.
SECTION 6.16. The Paying Agent. The Issuer hereby appoints the
Indenture Trustee as the initial Paying Agent. All payments of amounts due and
payable with respect to any Notes that are to be made from amounts withdrawn
from the Note Distribution Account pursuant to Section 8.3(b) shall be made on
behalf of the Issuer by the Paying Agent.
The Paying Agent xxxxxx agrees that subject to the provisions of this
Section, it shall:
(i) hold any sums held by it for the payment of
amounts due with respect to the Notes in trust for the benefit
of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided
and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default
by the Issuer of which it has actual knowledge in the making
of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee any sums so held in
trust by such Paying Agent;
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(iv) immediately resign as a Paying Agent and
forthwith pay to the Indenture Trustee any sums held by it in
trust for the payment of Notes if at any time it ceases to
meet the standards required to be met by a Paying Agent; and
(v) comply with all requirements of the Code and any
applicable State law with respect to the withholding from any
payments made by it on any Notes of any applicable withholding
taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order, direct any Paying Agent to pay to the Indenture Trustee any sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Subject to applicable laws with respect to escheat of funds, any
amounts held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed for
two years after such amount has become due and payable shall be discharged from
such trust and be paid to the Issuer on Issuer Request; and the related
Noteholder 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 funds shall thereupon cease; provided, however, that the
Indenture Trustee or such Paying Agent, before being required to make any such
repayment, shall at the expense and direction of the Issuer cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such funds remain 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 funds then remaining will be repaid to the Issuer.
The Indenture Trustee shall also adopt and employ, at the expense of the Issuer,
any other reasonable means of notification of such repayment (including mailing
notice of such repayment to Noteholders whose Notes have been called but have
not been surrendered for redemption or whose right to or interest in amounts due
and payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Noteholder).
Each Paying Agent (other than the initial Paying Agent) shall be
appointed by Issuer Order with written notice thereof to the Indenture Trustee.
Any Paying Agent appointed by the Issuer shall be a Person who would be eligible
to be Indenture Trustee hereunder as provided in Section 6.11. The Issuer shall
not appoint any Paying Agent (other than the Indenture Trustee) which is not, at
the time of such appointment, a depository institution or trust company,
including the Indenture Trustee, that (a) is incorporated under the laws of the
United States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated "A-1+" by S&P or "Prime-1" by Xxxxx'x (or its equivalent).
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SECTION 6.17. Repayment of Amounts Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all funds then held by any Paying Agent other than the Indenture Trustee under
this Indenture with respect to such Notes shall, upon demand of the Issuer, be
paid to the Indenture Trustee to be held and applied according to Section 4.1,
and thereupon such Paying Agent shall be released from all further liability
with respect to such funds.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and Addresses of
Noteholders. The Issuer will furnish or cause to be furnished to the Indenture
Trustee: (a) not more than five days after the earlier of: (i) each Record Date
and (ii) three months after the last Record Date, a list, in such form as the
Indenture Trustee may reasonably require, of the names and addresses of the
Noteholders as of such Record Date, and (b) at such other times as the Indenture
Trustee may request in writing, within 30 days after receipt by the Issuer of
any such request, a list of similar form and content as of a date not more than
10 days prior to the time such list is furnished; provided, however, that so
long as the Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.
SECTION 7.2. Preservation of Information; Communications to
Noteholders. (a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Noteholders contained
in the most recent list furnished to the Indenture Trustee as provided in
Section 7.1 and the names and addresses of Noteholders received by the Indenture
Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy any
list furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished.
(b) Three or more Noteholders, or one or more Noteholder(s) evidencing
at least 25% of the Outstanding Principal Balance of the Notes, may communicate
pursuant to TIA Section 312(b) with other Noteholders with respect to their
rights under this Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA Section 312(c).
SECTION 7.3. Reports by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days
after the Issuer is required to file the same with the
Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) that the
Issuer may be required to file with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act or, if the
Issuer is not required to file with the Commission
information, documents or reports pursuant to either Section
13 or Section 15(d) of the Securities Exchange Act, then the
Issuer will file with the Indenture Trustee and with the
Commission, in accordance with rules and regulations
prescribed by the Commission, such of the supplementary and
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period information, documents and reports required pursuant to
securities exchange as may be prescribed; in such rules and
regulations;
(ii) file with the Commission, in accordance with the
rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Issuer with the conditions
and covenants of this Indenture (with a copy of any such
filings being delivered promptly to the Indenture Trustee);
and supply to the Indenture Trustee (and the Indenture Trustee
shall transmit by mail to all Noteholders described in TIA
Section 313(c)) such summaries of any information, documents
and reports required to be filed by the Issuer pursuant to
clauses (i) and (ii) as may be required by the rules and
regulations prescribed from time to time by the Commission.
Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of each year.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1. Collection of Amounts Due. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all sums and other property payable to
or receivable by the Indenture Trustee pursuant to Section 8.3 of this
Indenture. The Indenture Trustee shall apply all such amounts received by it as
provided in this Indenture.
SECTION 8.2. Trust Accounts. (a) On or prior to the Closing Date, the
Issuer covenants to have established and shall thereafter maintain the following
accounts (the "Trust Accounts"), which accounts shall be Eligible Deposit
Accounts:
(i) Collection Account; and
(ii) Note Distribution Account.
(b) (i) If, at any time, any of the Trust Accounts ceases to be an
Eligible Deposit Account, the Issuer shall within 10 Business Days (or such
longer period, not to exceed 30 calendar days, as to which each Rating Agency
may consent) establish a new Trust Account as an Eligible Deposit Account and
shall transfer any cash and/or any investments held in the no-longer Eligible
Deposit Account to such new Trust Account.
(ii) With respect to the Trust Account Property, the
Issuer and Indenture Trustee agree, as security for the
Issuer's obligations under this Indenture, that:
(A) any Trust Account Property that is held in
Deposit Accounts shall be held solely in an Eligible Deposit
Account, subject to Section 8.2(b)(i);
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(B) any Trust Account Property that constitutes a
Certificated Security, Chattel Paper, Instruments or other
investment evidenced in tangible form shall be delivered to
the Indenture Trustee in accordance with clause (i) of the
definition of "Delivery" and shall be held solely by the
Indenture Trustee or a Securities Intermediary acting solely
for the Indenture Trustee;
(C) any Trust Account Property that is a Security
Entitlement to a Federal Book-Entry Security shall be
maintained by the Indenture Trustee, pending maturity or
disposition, through continued book-entry registration of such
Trust Account Property by the crediting to a Securities
Account maintained for the Indenture Trustee with a Federal
Reserve Bank of a Security Entitlement to such Federal
Book-Entry Security in accordance with the definition of
"Control" contained in this Indenture; and
(D) any Trust Account Property that is an
Uncertificated Security shall be delivered to the Indenture
Trustee in accordance with clause (ii) of the definition of
"Delivery" and shall be maintained by the Indenture Trustee,
pending maturity or disposition, through satisfaction of the
requirements for obtaining "control" pursuant to Section
8-106(c)(2) of Article 8 of the UCC.
SECTION 8.3. Priority of Payments. (a) On each Determination Date, the
Issuer shall, or shall cause the Servicer to, calculate the Collections and
transfer amounts to the Note Distribution Account in accordance with the
provisions of Section 2.13 of the Servicing Agreement.
(b) On each Payment Date prior to an Event of Default, the Issuer shall
pay amounts due hereunder by transferring funds on deposit in the Note
Distribution Account in the following order of priority:
(i) to the Class A Noteholders, the Monthly Interest
Amount Payable with respect to the Class A Notes for that
Payment Date;
(ii) to the Class B Noteholders, the Monthly Interest
Amount Payable with respect to the Class B Notes for that
Payment Date;
(iii) to the Class A Noteholders, the Class A
Noteholders' Monthly Principal Payable Amount for that Payment
Date; and
(iv) to the Class B Noteholders, the Class B
Noteholders' Monthly Principal Payable Amount for that Payment
Date.
(c) After an Event of Default, any amounts collected by the Indenture
Trustee pursuant to Article V and any funds that may then be held or thereafter
received by the Indenture Trustee shall be applied in the following order, at
the date or dates fixed by the Indenture Trustee and, in case of the
distribution of the entire amount due on account of principal or interest, upon
presentation of the Notes and surrender thereof:
(i) to the Indenture Trustee for amounts due under
Section 6.7;
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(ii) to the Servicer, an amount equal to any accrued
but unpaid Servicing Fee owing to the Servicer under the
Servicing Agreement with respect to all preceding Collection
Periods;
(iii) to the Administrator, the Administration Fee
and all unpaid Administration Fees from prior Collection
Periods;
(iv) to the Swap Counterparty any amounts due to the
Swap Counterparty under the Swap Agreement, not including any
swap termination payments payable under clause (v) below;
(v) to the Swap Counterparty, any swap termination
payments owed by the Issuer to the Swap Counterparty and, to
the Class A Noteholders for amounts due and unpaid on the
Notes for interest, according to the amounts due and payable
on the Class A Notes for interest in each case, ratably and
without preference or priority of any kind;
(vi) to the Class B Noteholders for amounts due and
unpaid on the Class B Notes for interest, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Class B Notes for interest;
(vii) to Class A Noteholders for amounts due and
unpaid on the Class A Notes for principal, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Class A Notes for principal;
(viii) to Class B Noteholders for amounts due and
unpaid on the Class B Notes for principal, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Class B Notes for principal;
(ix) to the Certificateholders, the
Certificateholders' Distribution on Invested Amount; and
(x) to the Certificateholders, the
Certificateholders' Distributable Invested Amount.
(d) The Indenture Trustee may fix a special record date and special
payment date for any payment to Noteholders pursuant to this Section. At least
15 days before such special record date, the Issuer shall mail to each
Noteholder and the Indenture Trustee a notice that states the special record
date, the special payment date and the amount to be paid.
(e) All Class A Notes issued under this Indenture shall be in all
respects equally and ratably entitled 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.
Payments of principal and interest on the Class A Notes shall be made pro rata
among all Outstanding Class A Notes, without preference or priority of any kind.
(f) All Class B Notes issued under this Indenture shall be in all
respects equally and ratably entitled 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.
Payments of principal and interest on the Class B Notes shall be made pro rata
among all Outstanding Class B Notes, without preference or priority of any kind.
SECTION 8.4. Reports. On each Determination Date, the Issuer shall, or
shall cause the Servicer to, provide to the Indenture Trustee (with a copy to
the Rating Agencies), for the
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Indenture Trustee to forward to each Noteholder of record, a statement
substantially in the form of Exhibit C setting forth at least the following
information as to each Class of the Notes to the extent applicable:
(i) the Class A Noteholders' Monthly Principal
Payable Amount and the Class B Noteholders' Monthly Principal
Payable Amount;
(ii) the Monthly Interest Amount Payable for each
Class of Notes;
(iii) the Pool Balance as of the opening of business
on the first day of the Collection Period in which such
Determination Date occurs;
(iv) the aggregate Outstanding Principal Balance and
the Note Pool Factor for each Class of Notes after giving
effect to payments allocated to principal reported under
clause (i) above;
(v) the amount of the Servicing Fee paid to the
Servicer with respect to the preceding Collection Period;
(vi) the amount of the Administration Fee paid to the
Administrator in respect of the preceding Collection Period;
(vii) the aggregate Realized Losses, if any, for such
Collection Period; and
(viii) the aggregate Purchase Amounts for
Receivables, if any, that were repurchased or purchased in
such Collection Period.
Each amount set forth pursuant to clauses (i), (ii), (iii), (v) and (vi) shall
be expressed as a dollar amount per $1,000 of original principal balance of such
Note.
In addition, the Issuer shall, or shall cause, a copy of (i) the Servicer's
certificate referred to in Section 2.7, (ii) the Officer's Certificate referred
to in Section 2.8(a) or 2.8(b) and (iii) the report of certified public
accountants referred to in Section 2.9, in each case, of the Servicing Agreement
to be sent to the Rating Agencies and the Indenture Trustee. A copy of such
Servicer's certificate, such Officer's Certificate and such report may be
obtained by any Noteholder by a request in writing to the Issuer addressed to
the Corporate Trust Office.
SECTION 8.5. General Provisions Regarding Accounts. (a) Funds on
deposit in the Trust Accounts shall be invested or reinvested by the Issuer in
Permitted Investments selected by the Issuer. All Investment Earnings on funds
on deposit in the Trust Accounts shall be deemed to constitute a portion of the
Collections. Other than as permitted by the Rating Agencies, funds on deposit in
the Trust Accounts shall be invested in Permitted Investments that will mature
so that such funds will be available at the close of business on the Transfer
Date preceding the following Payment Date [; provided, however, that funds on
deposit in Trust Accounts may be invested in Permitted Investments of the entity
serving as Indenture Trustee that may mature so that such funds will be
available on the Payment Date]. Funds deposited in a Trust Account on
59
the Transfer Date that precedes a Payment Date upon the maturity of any
Permitted Investments are not required to be invested overnight.
(b) The Issuer shall ensure that, in connection with any investment of
any funds or any sale of any investment held in any of the Trust Accounts, the
Lien granted to the Indenture Trustee and perfected in such Trust Account will
continue to be perfected in such investment or the proceeds of such sale, in
either case without any further action by any Person, and, in connection with
any direction to the Indenture Trustee to make any such investment or sale, if
requested by the Indenture Trustee, the Issuer shall deliver or cause to be
delivered to the Indenture Trustee an Opinion of Counsel to such effect.
(c) The Indenture Trustee shall not in any way be held liable by reason
of any insufficiency in any of the Trust Accounts resulting from any loss on any
Permitted Investment included therein, except for losses attributable to the
Indenture Trustee's failure to make payments on such Permitted Investments
issued by the Indenture Trustee, in its commercial capacity as principal obligor
and not as trustee, in accordance with their terms. The Indenture Trustee shall
have no liability in respect of losses incurred as a result of the liquidation
of any Permitted Investment prior to its stated maturity.
(d) (i) If a Default or Event of Default shall have occurred and be
continuing with respect to the Notes but the Notes shall not have been declared
due and payable pursuant to Section 5.2, or, (ii) if the Notes shall have been
declared due and payable following an Event of Default, but amounts collected or
receivable from the Collateral are being applied in accordance with Section
8.3(d) as if there had not been such a declaration; then the Issuer shall, to
the fullest extent practicable, invest and reinvest funds in the Trust Accounts
in the Permitted Investments identified in clause (d) of the definition of
Permitted Investments.
SECTION 8.6. Release of Collateral. (a) Subject to the payment of its
fees and expenses pursuant to Section 6.7, the Indenture Trustee may, and when
required by this Indenture shall, execute instruments to release property from
the Lien of this Indenture, or convey the Indenture Trustee's interest in the
same, in a manner and under circumstances that are not inconsistent with this
Indenture. No party relying upon an instrument executed by the Indenture Trustee
as provided in this Article shall be bound to ascertain the Indenture Trustee's
authority, inquire into the satisfaction of any conditions precedent or see to
the application of any funds.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due to the Indenture Trustee pursuant to Section 6.7
have been paid, release any remaining portion of the Collateral that secured the
Notes from the Lien of this Indenture.
(c) The Indenture Trustee shall release property from the Lien of this
Indenture pursuant to this Section only upon receipt of an Issuer Request
requesting such release accompanied by an Officers' Certificate, an Opinion of
Counsel and (if required by the TIA) Independent Certificates in accordance with
TIA Sections 314(c) and 314(d)(1) meeting the applicable requirements of
Section 11.1.
SECTION 8.7. Opinion of Counsel. The Indenture Trustee shall receive at
least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.6(a),
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accompanied by copies of any instruments involved, and the Indenture Trustee
shall also require, as a condition to such action, an Opinion of Counsel stating
the legal effect of any such action, outlining the steps required to complete
the same, and concluding that all conditions precedent to the taking of such
action have been complied with and such action will not materially and adversely
impair the security for the Notes or the rights of the Noteholders in
contravention of this Indenture; provided, however, that such Opinion of Counsel
shall not be required to express an opinion as to the fair value of the
Collateral. Counsel rendering any such opinion may rely, without independent
investigation, on the accuracy and validity of any certificate or other
instrument delivered to the Indenture Trustee in connection with any such
action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Noteholders.
Without the consent of the Noteholders but with prior written notice to the
Rating Agencies, the Issuer and the Indenture Trustee, when authorized by an
Issuer Order, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the TIA as in force at
the date of the execution thereof), in form satisfactory to the Indenture
Trustee, for any of the following purposes:
(a) to correct or amplify the description of any property at any time
subject to the Lien of this Indenture, or better to assure, convey and confirm
unto the Indenture Trustee a Lien on any property subject or required to be
subjected to the Lien of this Indenture, or to subject to the Lien of this
Indenture additional property;
(b) to evidence the succession, in compliance with the applicable
provisions hereof, of another Person to the Issuer, and the assumption by any
such successor of the covenants of the Issuer herein and in the Notes;
(c) to add to the covenants of the Issuer, for the benefit of the
Noteholders, or to surrender any right or power herein conferred upon the
Issuer;
(d) to convey, transfer, assign, mortgage or pledge any property to or
with the Indenture Trustee;
(e) to replace [____________] with another form of credit enhancement;
provided, the Rating Agency Condition is satisfied;
(f) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with any other
provision herein or in any supplemental indenture or to make any other
provisions with respect to matters or questions arising under this Indenture or
in any supplemental indenture; provided, that such action shall not materially
adversely affect the interests of the Noteholders;
(g) to evidence and provide for the acceptance of the appointment
hereunder by a successor or additional trustee with respect to the Notes or any
class thereof and to add to or change any of the provisions of this Indenture as
shall be necessary to facilitate the
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administration of the trusts hereunder by more than one trustee, pursuant to the
requirements of Article VI; or
(h) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect the qualification of this Indenture
under the TIA or under any similar Federal statute hereafter enacted and to add
to this Indenture such other provisions as may be expressly required by the TIA.
The Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
SECTION 9.2. Supplemental Indentures With Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, may, with
prior written notice to the Rating Agencies and with the consent of the
Noteholders evidencing not less than a majority of the Outstanding Principal
Balance of the Notes, by Act of such Noteholders delivered to the Issuer and the
Indenture Trustee, enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Noteholders under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Noteholder of each
Outstanding Note affected thereby:
(a) change the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof, the interest rate
thereon or the Redemption Price with respect thereto, change the provisions of
this Indenture relating to the application of collections on, or the proceeds of
the sale of, the Collateral to the payment of principal of or interest on the
Notes, or change any place of payment where, or the coin or currency in which,
any Note or the interest thereon is payable, or impair the right to institute
suit for the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article V, to the
payment of any such amount due on or after the respective due dates thereof (or,
in the case of redemption, on or after the Redemption Date);
(b) reduce the percentage of the Outstanding Principal Balance, the
consent of the Noteholders of which is required for any such supplemental
indenture, or the consent of the Noteholders of which is required for any waiver
of compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture;
(c) modify or alter the provisions of the proviso to the definition of
"Outstanding";
(d) reduce the percentage of the Outstanding Principal Balance required
to direct the Indenture Trustee to direct the Issuer to sell or liquidate the
Collateral pursuant to Section 5.2;
(e) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional provisions of
this Indenture or the Related Documents cannot be modified or waived without the
consent of the Noteholder of each Outstanding Note affected thereby;
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(f) modify any of the provisions of this Indenture in such manner as to
affect the calculation of the amount of any payment of interest or principal due
on any Note on any Payment Date (including the calculation of any of the
individual components of such calculation) or to affect the rights of the
Noteholders to the benefit of any provisions for the mandatory redemption of the
Notes contained herein; or
(g) permit the creation of any Lien ranking prior to or on a parity
with the Lien of this Indenture with respect to any part of the Collateral or,
except as otherwise permitted or contemplated herein, terminate the Lien of this
Indenture on any property at any time subject hereto or deprive any Noteholder
of the security provided by the Lien of this Indenture.
It shall not be necessary for any Act of the Noteholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof. The
manner of obtaining such consents (and any other consents of Noteholders
provided for in this Indenture or in any other Related Document) and of
evidencing the authorization of the execution thereof by Noteholders shall be
subject to such reasonable requirements as the Indenture Trustee may provide.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section, the Indenture Trustee shall
mail to the Noteholders to which such amendment or supplemental indenture
relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.3. Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and,
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this Indenture of
the Indenture Trustee, the Issuer and the Noteholders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the
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Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
SECTION 9.6. Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the TIA as then in effect so
long as this Indenture shall then be qualified under the TIA.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1. Redemption. The Notes are subject to redemption in whole,
but not in part, on any Payment Date on which the aggregate Pool Balance
(calculated as of the end of the related Collection Period) first becomes less
than 10% of the Initial Pool Balance and for a purchase price equal to the
Redemption Price; provided, however, that the Issuer has available funds
sufficient to pay the Redemption Price following the exercise by the Transferor
of the clean up call set forth in Section 6.1 of the Purchase and Sale
Agreement. The Issuer shall furnish the Rating Agencies notice of such
redemption. If such Notes are to be redeemed pursuant to this Section, the
Issuer shall furnish notice of such election to the Indenture Trustee not later
than 25 days prior to the Redemption Date and the Issuer shall deposit in the
Note Distribution Account the Redemption Price of the Notes to be redeemed.
SECTION 10.2. Form of Redemption Notice. Notice of redemption under
Section 10.1 shall be given by the Issuer by first-class mail, postage prepaid,
mailed not less than five days prior to the applicable Redemption Date to each
Noteholder, as of the close of business on the Record Date preceding the
applicable Redemption Date, at such Noteholder's address appearing in the Note
Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such Notes are to be
surrendered for payment of the Redemption Price (which shall
be the office or agency of the Issuer to be maintained as
provided in Section 3.2); and
(iv) the CUSIP numbers of the Notes being redeemed.
Failure to give notice of redemption, or any defect therein, to any
Noteholder shall not impair or affect the validity of the redemption of any
other Note.
SECTION 10.3. Notes Payable on Redemption Date. The Notes or portions
thereof to be redeemed shall, following notice of redemption pursuant to this
Article, become due and payable on the Redemption Date at the Redemption Price
and (unless the Issuer shall default in
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the payment of the Redemption Price) no interest shall accrue on the Redemption
Price for any period after the date to which accrued interest is calculated for
purposes of calculating the Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Compliance Certificates and Opinions, etc. (a) Upon any
written application or request (or oral application with prompt written or
telecopied confirmation) by the Issuer to the Indenture Trustee to take any
action under this Indenture, other than any request that (i) the Indenture
Trustee authenticate the Notes specified in such request, or (ii) the Indenture
Trustee pay amounts due and payable to the Issuer hereunder to the Issuer's
assignee specified in such request, the Issuer shall furnish to the Indenture
Trustee: (1) an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with, (2) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with and (3)
(if required by the TIA) an Independent Certificate from a firm of certified
public accountants meeting the applicable requirements of this Section, except
that, in the case of any such application or request as to which the furnishing
of such documents is specifically required by 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:
(w) 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;
(x) 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;
(y) a statement that, in the opinion of each such signatory,
such signatory has made (or has caused to be made) such examination or
investigation as is necessary to enable such signatory to express an
informed opinion as to whether or not such covenant or condition has
been complied with; and
(z) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the Lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officers'
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such deposit) to the Issuer
of the Collateral or other property or securities to be so deposited.
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(ii) Whenever the Issuer is required to furnish to
the Indenture Trustee an Officers' Certificate described in
clause (i), the Issuer shall also deliver to the Indenture
Trustee an Independent Certificate as to the same matters if
the fair value to the Issuer of the Collateral or other
property or securities to be so deposited and of all other
such Collateral or other property or securities released from
the Lien of this Indenture since the commencement of the
then-current fiscal year of the Issuer, as set forth in the
certificates required by clause (i) and this clause (ii),
equals 10% or more of the Outstanding Principal Balance of the
Notes, but such certificate need not be furnished with respect
to any Collateral or other property or securities so deposited
if the fair value thereof to the Issuer as set forth in the
related Officers' Certificate is less than $[________] or less
than one percent of the then Outstanding Principal Balance of
the Notes.
(iii) Other than with respect to property as
contemplated by clause (v), whenever any Collateral or other
property or securities are to be released from the Lien of
this Indenture, the Issuer shall also furnish to the Indenture
Trustee an Officers' 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 Collateral or
other 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 Officers' Certificate described in
clause (iii), the Issuer shall also deliver to the Indenture
Trustee an Independent Certificate as to the same matters if
the fair value to the Issuer of the Collateral or other
property or securities and of all other such Collateral or
other property, other than property as contemplated by clause
(v), or securities released from the Lien of this Indenture
since the commencement of the then-current fiscal year of the
Issuer, as set forth in the certificates required by clause
(iii) and this clause (iv), equals 10% or more of the
Outstanding Principal Balance of the Notes, but such
certificate need not be furnished in the case of any release
of Collateral or other property or securities if the fair
value thereof to the Issuer as set forth in the related
Officers' Certificate is less than $[________] or less than
one percent of the then Outstanding Principal Balance of the
Notes.
(v) Notwithstanding Section 2.9 or any other
provision of this Section, the Issuer may, without compliance
with the requirements of the other provisions of this Section:
(A) collect, liquidate, sell or otherwise dispose of
Receivables and Equipment as and to the extent permitted or
required by the Related Documents and (B) make cash payments
out of the Trust Accounts as and to the extent permitted or
required by the Related Documents so long as the Issuer shall
deliver to the Indenture Trustee every six months, commencing
[____________], an Officers' Certificate of the Issuer stating
that all such dispositions of Collateral that occurred since
the execution of the previous such Officers' Certificate (or
for the first such Officers' Certificate, since the Closing
Date) were in the ordinary
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course of the Issuer's business and that the proceeds thereof
were applied in accordance with the Related Documents.
SECTION 11.2. Form of Documents Delivered to Indenture Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate, opinion or
representations with respect to the matters upon which his certificate or
opinion is based is/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 Seller, the Servicer, the Transferor, the Issuer or the Administrator,
[Owner Trustee] [Managing Member], stating that the information with respect to
such factual matters is in the possession of the Seller, the Servicer, the
Transferor, the Issuer or the Administrator, [Owner Trustee] [Managing Member],
as applicable, unless such Authorized Officer or counsel knows, or in the
exercise of reasonable care should know, that the certificate, opinion or
representations with respect to such matters is/are erroneous. Any Opinion of
Counsel may be based on the written opinion of other counsel, in which event
such Opinion of Counsel shall be accompanied by a copy of such other counsel's
opinion and shall include a statement to the effect that such counsel believes
that such counsel and the Indenture Trustee may reasonably rely upon the opinion
of such other counsel.
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.
Where any Person is required or permitted 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 as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
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SECTION 11.3. Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instrument(s) of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except as
herein otherwise expressly provided, such action shall become effective when
such instrument(s) are delivered to the Indenture Trustee, and, where it is
hereby expressly required, to the Issuer. Such instrument(s) (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Noteholders signing such instrument(s). Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.1) conclusive in
favor of the Indenture Trustee and the Issuer, if made in the manner provided in
this Section. At any time the Notes of any Class are maintained on Book-Entry
Notes, any reference in this Indenture to an Act of Noteholders or a Noteholder
or Noteholders representing a specified portion of the Outstanding Principal
Balance of the Notes or such Class of Notes shall be deemed to refer to an Act
of Note Owners or a Note Owner or Note Owners holding such specified portion of
the Outstanding Principal Balance of the Notes or Class, as the case may be.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Indenture Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or Act by the Noteholder shall bind every Noteholder issued upon the
registration of the related Note, in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Indenture
Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
(e) By accepting the Notes issued pursuant to this Indenture, each
Noteholder irrevocably appoints the Indenture Trustee hereunder as the special
attorney-in-fact for such Noteholder vested with full power on behalf of such
Noteholder to effect and enforce the rights of such Noteholder and the revisions
pursuant hereto for the benefit of such Noteholder; provided that nothing
contained in this Section shall be deemed to confer upon the Indenture Trustee
any duty or power to vote on behalf of the Noteholders with respect to any
matter on which the Noteholders have a right to vote pursuant to the terms of
this Indenture.
SECTION 11.4. Notices, etc., to the Indenture Trustee, Issuer and
Rating Agencies. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders, or other documents provided or permitted by this
Indenture, shall be in writing and, if such request,
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demand, authorization, direction, notice, consent, waiver or Act of Noteholders
is to be made upon, given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer, shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder, shall be
sufficient for every purpose hereunder if in writing and mailed, first-class,
postage prepaid, to the Issuer addressed to: [Issuer], in care of
[_______________________], [_________________________], Attention:
[_________________], and to [__________________], as Administrator,
[_____________________], Attention: [_______________], or at any other address
previously furnished in writing to the Indenture Trustee by the Issuer or the
Administrator. The Issuer shall promptly transmit any notice received by it from
the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Trustee shall be in writing, personally delivered or
mailed by certified mail, return receipt requested, to their respective
addresses set forth in Section 8.1 of the Servicing Agreement.
SECTION 11.5. Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event or the mailing of any report to
Noteholders, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class, postage prepaid or
certified mail return receipt requested, or sent by private courier or confirmed
telecopy to each Noteholder affected by such event or to whom such report is
required to be mailed, at its address as it appears on the Note Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice or the mailing of such report. In any case where
notice or report to Noteholders is given by mail, neither the failure to mail
such notice or report nor any defect in any notice or report so mailed to any
particular Noteholder shall affect the sufficiency of such notice or report with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to mail or send notice to
Noteholders, in accordance with Section 11.5, of any event or any report to
Noteholders when such notice or report is required to be delivered pursuant to
any provision of this Indenture, then such notification or delivery as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
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Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default or
Event of Default.
SECTION 11.6. Alternate Payment and Notice Provisions. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the Issuer
may enter into any agreement with any Noteholder providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such
Noteholder, that is different from the methods provided for in this Indenture or
the Notes for such payments or notices. The Issuer will furnish to the Indenture
Trustee a copy of each such agreement and the Indenture Trustee will cause
payments to be made and notices to be given in accordance with such agreements.
SECTION 11.7. Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind its successors, co-trustees and agents of the
Indenture Trustee, whether so expressed or not.
SECTION 11.8. Severability. Any provision of this Indenture or the
Notes that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or of the
Notes, as applicable, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 11.9. Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Noteholders, any other party secured
hereunder and any other Person with an ownership interest in any part of the
Collateral, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 11.10. Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next Business Day with the same force and effect as if
made on the date on which nominally due, and no interest shall accrue for the
period from and after any such nominal date.
SECTION 11.11. Governing Law. (a) THIS AGREEMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401(1) OF THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER
CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES
OF AMERICA. THIS INDENTURE IS SUBJECT TO THE TRUST INDENTURE ACT OF 1939, AS
AMENDED, AND SHALL BE GOVERNED THEREBY AND CONSTRUED IN ACCORDANCE THEREWITH.
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(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF
MANHATTAN IN NEW YORK CITY; PROVIDED, FURTHER, THAT NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR OPERATE TO PRECLUDE THE LENDER FROM BRINGING SUIT OR TAKING
OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE BORROWER
COLLATERAL OR ANY OTHER SECURITY FOR THE BORROWER SECURED OBLIGATIONS, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE LENDER. EACH PARTY
HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY
OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH
PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION
11.4 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH
PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES
MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF
ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
71
SECTION 11.12. Counterparts. This Indenture may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.13. Recording of Indenture. If this Indenture is subject to
recording in any public recording offices, such recording is to be effected by
the Issuer and, at its expense, accompanied by an Opinion of Counsel (which may
be counsel to the Indenture Trustee or any other counsel reasonably acceptable
to the Indenture Trustee) to the effect that such recording is necessary either
for the protection of the Noteholders or any other Person secured hereunder or
for the enforcement of any right or remedy granted to the Indenture Trustee
under this Indenture.
SECTION 11.14. Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer [the Owner Trustee]
[Managing Member] or the Indenture Trustee on the Notes or under this Indenture
or any certificate or other writing delivered in connection herewith or
therewith, against: (i) the Indenture Trustee or [the Owner Trustee] [Managing
Member] in their individual capacities, (ii) any owner of a beneficial interest
in the Issuer or (iii) any partner, owner, beneficiary, officer, director,
employee or agent of: (a) the Indenture Trustee or [the Owner Trustee] [Managing
Member] in their individual capacities, (b) any owner of a beneficial interest
in the Issuer, [the Owner Trustee] [Managing Member] or the Indenture Trustee or
(c) of any successor or assign of the Indenture Trustee or [the Owner Trustee]
[Managing Member] in their individual capacities, except as any such Person may
have expressly agreed (it being understood that the Indenture Trustee and [the
Owner Trustee] [Managing Member] have no such obligations in their individual
capacities) and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
SECTION 11.15. Communication by Noteholders with Other Noteholders.
Noteholders may communicate, pursuant to TIA Section 312(b), with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Issuer, the Indenture Trustee, the Note Registrar and all other parties shall
have the protection of TIA Section 312(c).
SECTION 11.16. Inspection. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested for the purpose of
reviewing or evaluating the financial condition or affairs of the Issuer or the
performance or compliance with the covenants and undertakings of the Issuer
under this Indenture, the Purchase and Sale Agreement or any of the other
documents referred to herein or therein. The Indenture Trustee shall and shall
cause its representatives to hold in confidence all such information; provided,
however, that the foregoing shall not be construed to prohibit: (i) disclosure
of any and all information that is or becomes publicly known, or information
obtained by the Indenture Trustee from sources other than the Issuer or its
agents, (ii) disclosure of any and all information: (A) if required to do so by
any applicable statute, law, rule or regulation, (B) to any government agency or
regulatory or self-
72
regulatory body having or claiming authority to regulate or oversee any aspects
of the Indenture Trustee's business or that of its Affiliates, (C) pursuant to
any subpoena, civil investigative demand or similar demand or request of any
court, regulatory authority, arbitrator or arbitration to which the Indenture
Trustee or an Affiliate or any officer, director, employee or shareholder
thereof is subject, (D) in any preliminary or final offering circular or
prospectus, registration statement or contract or other document pertaining to
the transactions contemplated by this Indenture and approved in advance by the
Issuer or (E) to any Affiliate, independent or internal auditor, agent, employee
or attorney of the Indenture Trustee having a need to know the same; provided,
that the Indenture Trustee advises such recipient of the confidential nature of
the information being disclosed and such recipient agrees to keep such
information confidential, (iii) any other disclosure authorized by the Issuer or
(iv) disclosure to the other parties to the transactions contemplated by the
Related Documents.
SECTION 11.17. Agents of Issuer. The Indenture Trustee hereby
acknowledges that it has been advised that any agent of the Issuer may act on
behalf of the Issuer hereunder for purposes of all consents, amendments, waivers
and other actions permitted or required to be taken, delivered or performed by
the Issuer, and the Indenture Trustee agrees that any such action taken by an
agent on behalf of the Issuer shall satisfy the Issuer's obligations hereunder.
SECTION 11.18. Survival of Representations and Warranties. The
representations, warranties and certifications of the Issuer made in this
Indenture or in any certificate or other writing delivered by the Issuer
pursuant hereto shall survive the authentication and delivery of the Notes
hereunder.
SECTION 11.19. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by the TIA, such required provision
shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
73
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers duly authorized as of the day and
year first above written.
[ISSUER],
By: [___________________],
its [Managing Member] [Owner Trustee]
By:_______________________________________
Name:
Title:
[___________________],
not in its individual capacity but solely
as Indenture Trustee
By:_______________________________________
Name:
Title:
S-1
EXHIBIT A-1
to Indenture
FORM OF CLASS A NOTES
REGISTERED $______________(1)
No. R-___ CUSIP NO. __________________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
[ISSUER] SERIES 200_-_
[___]% CLASS A NOTES
[Issuer], a [limited liability company] [business trust] duly organized
and existing under the laws of the State of Delaware (including any successor,
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of _________________________ DOLLARS
($___________), partially payable on each Payment Date in an amount equal to the
Class A Noteholders' Monthly Principal Payable Amount; provided, however, that
the entire unpaid principal amount of this Note shall be due and payable on the
earlier of the [___________] Payment Date and the Redemption Date, if any,
pursuant to Section 10.1 of the Indenture. The Issuer will pay interest on this
Note at the rate per annum shown above, on each Payment Date until the principal
of this Note is paid or made available for payment, on the principal amount of
this Note outstanding on the preceding Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to certain
limitations contained in Section 3.1 of the Indenture. Interest on this Note
will accrue for each Payment Date from the most recent Payment Date on which
interest has been paid to but excluding the then current Payment Date or, if no
interest has yet been paid, from the date hereof. Interest will be computed on
the basis of [a 360-day year and actual days elapsed]. Such principal of and
interest on this Note shall be paid in the manner specified in the Indenture.
___________________________ (1) Denominations of $[____] and in greater
whole-dollar denominations in excess thereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture referred to on the reverse hereof, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: [____________]
[ISSUER]
By: [___________________],
its [Managing Member] [Owner Trustee]
By:________________________________
Name:___________________________
Title:__________________________
A-1-2
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: [____________]
[__________________], not in its individual capacity but solely as
Indenture Trustee.
By:________________________________
Authorized Signatory
A-1-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its [____]% Class A Notes (herein called the "Class A Notes" or
the "Notes"), all issued under an Indenture dated as of [____________] (such
Indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and [___________________], not in its individual capacity but
solely as trustee (the "Indenture Trustee", which term includes any successor
Indenture Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are not otherwise defined herein and that are defined in this
Indenture shall have the meanings assigned to them in or pursuant to this
Indenture.
The Class A Notes and the Class B Notes are and will be equally and
ratably secured by the collateral pledged as security therefor as provided in
this Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class A Interest Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case
of a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against: (i)
the Indenture Trustee or the [Owner Trustee] [Managing Member] in their
individual capacities, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of:
(a) the Indenture Trustee or the [Owner Trustee] [Managing Member] in their
individual capacities, (b) any holder of a beneficial interest in the Issuer,
the [Owner Trustee] [Managing Member] or the Indenture Trustee or of (c) any
successor or assign of the Indenture Trustee or the [Owner Trustee] [Managing
Member] in their individual capacities, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
It is the intent of the Issuer, the Servicer, the Noteholders and the
Note Owners that, for purposes of Federal and State income tax and any other tax
measured in whole or in part by income, the Notes will qualify as indebtedness
of the Issuer. Each Noteholder or Note Owner, by acceptance of a Note, or, in
the case of a Note Owner, a beneficial interest in a Note, agrees to treat, and
to take no action inconsistent with the treatment of, the Notes for such tax
purposes as indebtedness of the Issuer.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
A-1-4
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Related Documents, neither [___________________], in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purposes of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Noteholder by the acceptance
hereof, and each Note Owner by the acceptance of a beneficial interest herein,
each agrees that, except as expressly provided in the Related Documents, in the
case of an Event of Default under the Indenture, the Noteholder and Note Owner
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
A-1-5
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _____________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
____________________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in STAMP or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
_________________________
*/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular without alteration, enlargement or any change whatsoever.
A-1-6
EXHIBIT A-2
to Indenture
FORM OF CLASS B NOTES
REGISTERED $______________(2)
No. R-___ CUSIP NO. __________________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
[ISSUER] SERIES 200_-_
[___]% CLASS B NOTES
[Issuer], a [limited liability company] [business trust] duly organized
and existing under the laws of the State of Delaware (including any successor,
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of _________________________ DOLLARS
($___________), partially payable on each Payment Date in an amount equal to the
Class B Noteholders' Monthly Principal Payable Amount for the Class B Notes;
provided, however, that the entire unpaid principal amount of this Note shall be
due and payable on the earlier of the [____________] Payment Date and the
Redemption Date, if any, pursuant to Section 10.1 of the Indenture. No payments
of principal of the Notes will be made until the principal of the Class A Notes
has been paid in full. The Issuer will pay interest on this Note at the rate per
annum shown above, on each Payment Date until the principal of this Note is paid
or made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note will accrue for each Payment
Date from the most recent Payment Date on which interest
__________________________ (2) Denominations of $[_____] and in greater
whole-dollar denominations in excess thereof.
A-2-1
has been paid to but excluding the then current Payment Date or, if no interest
has yet been paid, from the date hereof. Interest will be computed on the basis
of [a 360-day year of twelve 30-day months]. Such principal of and interest on
this Note shall be paid in the manner specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture referred to on the reverse hereof, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: [____________]
[ISSUER]
By:[___________________],
its [Managing Member] [Owner Trustee]
By:____________________________________
Name:_______________________________
Title:______________________________
A-2-2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: [_________]
[______________], not in its individual capacity
but solely as Indenture Trustee
By:_________________________________________
Authorized Signatory
A-2-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its [___]% Class B Notes (herein called the "B Notes" or the
"Notes"), all issued under an Indenture dated as of [____________] (such
Indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and [___________________], not in its individual capacity but
solely as trustee (the "Indenture Trustee", which term includes any successor
Indenture Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are not otherwise defined herein and that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
The Class A Notes and the Class B Notes are and will be equally and
ratably secured by the collateral pledged as security therefor as provided in
the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class B Interest Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case
of a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against: (i)
the Indenture Trustee or the [Owner Trustee] [Managing Member] in their
individual capacities, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of:
(a) the Indenture Trustee or the [Owner Trustee] [Managing Member] in their
individual capacities, (b) any holder of a beneficial interest in the Issuer,
the [Owner Trustee] [Managing Member] or the Indenture Trustee or of (c) any
successor or assign of the Indenture Trustee or the [Owner Trustee] [Managing
Member] in their individual capacities, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
It is the intent of the Issuer, the Servicer, the Noteholders and the
Note Owners that, for purposes of Federal and State income tax and any other tax
measured in whole or in part by income, the Notes will qualify as indebtedness
of the Issuer. Each Noteholder or Note Owner, by acceptance of a Note, or, in
the case of a Note Owner, a beneficial interest in a Note, agrees to treat, and
to take no action inconsistent with the treatment of, the Notes for such tax
purposes as indebtedness of the Issuer.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
A-2-4
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Related Documents, neither [___________________], in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purposes of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Noteholder, by the acceptance
hereof, and each Note Owner by the acceptance of a beneficial interest herein,
each agrees that, except as expressly provided in the Related Documents, in the
case of an Event of Default under the Indenture, the Noteholder and Note Owner
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
A-2-5
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: _____________ ____________________________ */
Signature Guaranteed:
_________________________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in STAMP or such other "signature guarantee program"
as may be determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
-------------------------
*/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular without alteration, enlargement or any change whatsoever.
A-2-6
EXHIBIT B
to Indenture
FORM OF SECTION 3.9 OFFICERS' CERTIFICATE
____________, _____
[_________________]
[______________________]
[______________________]
Attention: [___________________]
Pursuant to Section 3.9 of the Indenture, dated as of [__________] (the
"Indenture"), between [Issuer] (the "Issuer") and [___________________], as
Indenture Trustee, the undersigned hereby certify that:
(a) a review of the activities of the Issuer during the previous fiscal
year and of performance under the Indenture has been made under the supervision
of the undersigned; and
(b) to the best knowledge of the undersigned, based on such review, the
Issuer has complied with all conditions and covenants under the Indenture
throughout such year. [or, if there has been a default in the compliance of any
such condition or covenant, this certificate is to specify each such default
known to the undersigned and the nature and status thereof]
[ISSUER]
By: [______________________________________]
its [Managing Member] [Owner Trustee]
By: _________________________________________
Name:____________________________________
Title:___________________________________
B-1
EXHIBIT C
TO INDENTURE
Form of Noteholder's Statement Pursuant to Section 8.4
Payment Date:
(i) Amount of principal being paid on Notes:
Class A Notes: ($_______ per $1,000 original principal amount)
Class B Notes: ($_______ per $1,000 original principal amount)
(ii) Amount of interest being paid in Notes
Class A Notes: ($_______ per $1,000 original principal amount)
Class B Notes: ($_______ per $1,000 original principal amount)
(iii) Pool Balance at end of the preceding Collection Period:
(iv) After giving effect to distributions on this Payment Date:
(1) Outstanding amount of Class A Notes:
(2) Outstanding Amount of Class B Notes:
(3) Class A Note Pool Factor:
(4) Class B Note Pool Factor:
(v) Amount of Servicing Fee: ($_______ per $1,000 original principal
amount)
(vi) Amount of Servicer Advances: ($_______ per $1,000 original principal
amount)
(vii) Amount of Administration Fee: ($_______ per $1,000 original principal
amount)
(viii) Aggregate Amount of Realized Losses for the Collection Period:
(ix) Aggregate Purchase Amounts for the Collection Period:
(x) [______________________]
Attention: [________________________]
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SCHEDULE 1
TO INDENTURE
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in the
Indenture, to induce the Indenture Trustee to enter into the Indenture, the
Issuer hereby represents, warrants, and covenants to Indenture Trustee on behalf
of the Noteholders as to itself as follows, on the Closing Date:
General
1. The Indenture creates a valid and continuing security interest (as
defined in the applicable UCC) in the Collateral in favor of the Indenture
Trustee, which security interest is prior to all other Liens, and is enforceable
as such as against creditors of and purchasers from the Issuer.
2. The Receivables constitute "accounts," "general intangibles,"
"instruments," or "tangible chattel paper," within the meaning of the UCC as in
effect in the State of New York.
3. The Issuer has taken all steps necessary to perfect its security
interest against the Transferor in the property securing the Receivables that
constitute chattel paper.
Creation
4. The Issuer owns and has good and marketable title to the Receivables
free and clear of any Lien, claim or encumbrance of any Person, excepting only
liens for taxes, assessments or similar governmental charges or levies incurred
in the ordinary course of business that are not yet due and payable or as to
which any applicable grace period shall not have expired, or that are being
contested in good faith by proper proceedings and for which adequate reserves
have been established, but only so long as foreclosure with respect to such a
lien is not imminent and the use and value of the property to which the Lien
attaches is not impaired during the pendency of such proceeding.
Perfection
5. The Issuer has caused or will have caused, within ten days after the
effective date of the Indenture, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under
applicable law in order to perfect the sale of the Receivables from Transferor
to the Issuer, and the security interest in the Receivables granted to the
Indenture Trustee hereunder and all financing statements referred to in this
paragraph contain a statement that: "A purchase of or security interest in any
collateral described in this financing statement will violate the rights of the
Indenture Trustee.".
6. With respect to Receivables that constitute an instrument or
tangible chattel paper, either:
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(a) Such instruments or tangible chattel paper are in the
possession of a custodian and the Indenture Trustee has received a
written acknowledgment from the custodian that the custodian is holding
such instruments or tangible chattel paper solely on behalf and for the
benefit of the Indenture Trustee; or
(b) A custodian received possession of such instruments or
tangible chattel paper after the Indenture Trustee received a written
acknowledgment from such custodian that such custodian is acting solely
as agent of the Indenture Trustee.
7. "With respect to the Trust Accounts and all subaccounts that
constitute deposit accounts, either:
(a) The Issuer has delivered to the Indenture Trustee a fully
executed agreement pursuant to which the bank maintaining the deposit
accounts has agreed to comply with all instructions originated by the
Indenture Trustee directing disposition of the funds in the Trust
Accounts without further consent by the Issuer; or
(b) The Issuer has taken all steps necessary to cause the
Indenture Trustee to become the account holder of the Trust Accounts.
Priority
8. Other than the transfer of the Receivables to the Issuer under the
Purchase and Sale Agreement and the security interest granted to the Indenture
Trustee pursuant to the Indenture, neither the Issuer nor the Transferor has
pledged, assigned, sold, granted a security interest in, or otherwise conveyed
any of the Receivables or the Trust Accounts or any subaccount thereof. Neither
the Issuer nor the Transferor has authorized the filing of, or is aware of any
financing statements against the Issuer or the Transferor that include a
description of collateral covering the Receivables or the Trust Accounts or any
subaccount thereof other than any financing statement relating to the security
interest granted to the Indenture Trustee hereunder or that has been terminated.
9. Survival of Perfection Representations. Notwithstanding any other
provision of the Indenture or any other Related Document, the Perfection
Representations contained in this Schedule shall be continuing, and remain in
full force and effect until such time as all Notes under the Indenture have been
finally and fully paid and performed.
10. No Waiver. The parties to the Indenture: (i) shall not, without
obtaining a confirmation of the then-current rating of the Notes, waive any of
the Perfection Representations; (ii) shall provide the Ratings Agencies with
prompt written notice of any breach of the Perfection Representations, and shall
not, without obtaining a confirmation of the then-current rating of the Notes
(as determined after any adjustment or withdrawal of the ratings following
notice of such breach) waive a breach of any of the Perfection Representations.
11. Issuer to Maintain Perfection and Priority. The Issuer covenants
that, in order to evidence the interests of the Issuer and the Indenture Trustee
under this Agreement, the Issuer shall or shall cause the Servicer to, take such
action, or execute and deliver such instruments (other than effecting a Filing
(as defined below), unless such Filing is effected in accordance
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with this paragraph) as may be necessary or advisable (including, without
limitation, such actions as are requested by the Indenture Trustee) to maintain
and perfect, as a first priority interest, the Indenture Trustee's security
interest in the Collateral. The Issuer shall cause the Servicer to, from time to
time and within the time limits established by law, prepare and present to the
Indenture Trustee for the Indenture Trustee to authorize (based in reliance on
the Opinion of Counsel hereinafter provided for) the Servicer to file all
financing statements, amendments, continuations, initial financing statements in
lieu of a continuation statement, terminations, partial terminations, releases
or partial releases, or any other filings necessary or advisable to continue,
maintain and perfect the Indenture Trustee's security interest in the Collateral
as a first-priority interest (each a "Filing"). The Issuer shall cause the
Servicer to, present each such Filing to the Indenture Trustee together with (x)
an Opinion of Counsel to the effect that such Filing is (i) consistent with
grant of the security interest to the Indenture Trustee pursuant to the Granting
Clause of this Indenture, (ii) satisfies all requirements and conditions to such
Filing in this Indenture and (iii) satisfies the requirements for a Filing of
such type under the Uniform Commercial Code in the applicable jurisdiction (or
if the Uniform Commercial Code does not apply, the applicable statute governing
the perfection of security interests), and (y) a form of authorization for the
Indenture Trustee's signature. Upon receipt of such Opinion of Counsel and form
of authorization, the Indenture Trustee shall promptly authorize in writing the
Servicer to, and the Servicer shall, effect such Filing under the Uniform
Commercial Code without the signature of the Issuer or the Indenture Trustee
where allowed by applicable law. Notwithstanding anything else in this Indenture
to the contrary, the Servicer shall not have any authority to effect a Filing
without obtaining written authorization from the Indenture Trustee in accordance
with this Paragraph 11.
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