EXHIBIT 4.4
CLASS A TRUST INDENTURE
CLASS A TRUST INDENTURE dated as of December 12, 1996
among NEWCOURT RECEIVABLES ASSET TRUST, a Delaware business trust
(the "Issuer"), FLEET NATIONAL BANK, a national banking
association, as Indenture Trustee hereunder (in such capacity,
together with its successors, the "Indenture Trustee"), NEWCOURT
RECEIVABLES CORPORATION, a Delaware corporation, as beneficiary
(in such capacity, the "Seller") of the Issuer, and FLEET
NATIONAL BANK, a national banking association, not in its
individual capacity but as Collateral Agent (the "Collateral
Agent") under the Pooling Agreement (as defined herein).
WHEREAS, all capitalized terms used herein shall have
the respective meanings set forth or referred to in Section 1.1
hereof;
WHEREAS, the Seller and Chase Manhattan Bank Delaware
(formerly Chemical Bank Delaware), as Issuer Trustee (in such
capacity, together with its successors in such capacity, the
"Issuer Trustee") have entered into the Pooling Agreement
whereby, among other things, the Issuer has been established for
the use and benefit of the Seller, subject, however, to the Lien
of the Collateral Agent, and the Issuer Trustee is authorized and
directed to execute and deliver on behalf of the Issuer this
Indenture;
WHEREAS, the Issuer desires by this Indenture, among
other things, to provide for the issuance of the Class A Notes;
WHEREAS, the obligations of the Issuer hereunder and
under the Class A Notes are secured pursuant to the Pooling
Agreement;
WHEREAS, in order to comply with the provisions of the
Trust Indenture Act, it is necessary that the Seller be a party
to this Indenture;
WHEREAS, all things have been done to make the Class A
Notes, when executed by the Issuer and authenticated, issued and
delivered hereunder, the valid, binding and legal obligations of
the Issuer; and
WHEREAS, all things necessary to make this Indenture
the valid, binding and legal obligation of the Issuer, for the
uses and purposes herein set forth and in accordance with its
terms, have been done and performed and have happened;
IT IS HEREBY COVENANTED AND AGREED by and between the
parties hereto as follows:
ARTICLE I
DEFINITIONS; CERTIFICATES, OPINIONS AND FORMS;
ACTS OF NOTEHOLDERS
SECTION 1.1. Defined Terms. All capitalized terms
used herein but not defined herein shall have the respective
meanings set forth or referred to in the Pooling, Collateral
Agency and Servicing Agreement dated as of April 15, 1996 (as
amended, supplemented or modified prior to the date hereof, the
"Base Agreement"), as modified by the Supplement thereto dated as
of December 12, 1996 (the "Related Supplement"), in each case,
among Newcourt Receivables Corporation, as Seller, Newcourt
Credit Group Inc., as Servicer, the Collateral Agent, and the
Issuer Trustee (the Base Agreement as modified by the Related
Supplement and as further amended, supplemented or otherwise
modified from time to time in accordance with the terms hereof,
the "Pooling Agreement"). Unless otherwise specified, Section
and Article references herein are to Sections and Articles of
this Indenture. In addition, as used herein the following terms
shall have the following meanings:
"Act" shall have the meaning assigned to it in subsection
1.4(a).
"Applicable Representative" of a Series of Class A Notes,
shall mean the Applicable Indenture Trustee for such Series.
"Authorized Agent" shall have the meaning assigned to it in
Section 7.12(d).
"Bank" shall mean any national bank organized under the laws
of the United States or any banking institution organized under
the laws of any United States' State, Territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the State or Territorial banking
commission or similar official.
"Bond Rating" means, for any day and for any corporation and
any Rating Agency, the rating of such corporation's (or if such
corporation is a commercial bank which is not rated, its holding
company's) senior long-term unsecured debt by such Rating Agency
in effect at 9:00 A.M., New York City time, on such day. If any
Rating Agency shall have changed its system of classifications
after the date hereof, the Bond Rating shall be considered to be
at or above a specified level if it is at or above the new rating
which most closely corresponds to the specified level under the
old rating system.
"Book-Entry Notes" shall mean notes evidencing a beneficial
interest in the Class A Notes, ownership and transfers of which
shall be made through book entries by the Clearing Agency as
described in Section 2.13; provided, that after the occurrence of
a condition whereupon book-entry registration and transfer are no
longer permitted and Definitive Notes are to be issued to the
Noteholders, such Class A Notes shall no longer be "Book-Entry
Notes".
"Class A Notes" shall be a collective reference to the
Series 1996-3 notes issued by the Issuer and authenticated by the
Indenture Trustee hereunder.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended.
"Clearing Agency Participant" shall mean 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" shall mean the date of issuance of the Class
A Notes hereunder, as set forth in the Related Supplement related
to such Class A Notes.
"Collateral Agent Documents" shall have the meaning assigned
to it in Section 13.3(a).
"Corporate Trust Office" of the Indenture Trustee means the
principal office of such Person located at 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, or such other office at which
the Indenture Trustee's corporate trust business shall be
administered and which the Indenture Trustee shall have specified
by notice in writing to the Issuer, the Collateral Agent, the
Seller and the Noteholders.
"Definitive Notes" shall have the meaning assigned to it in
Section 2.13.
"Depository Agreement" shall mean the Depository Agreement
dated as of April 15, 1996 among the Issuer, the Collateral Agent
and the Indenture Trustee, and any substitute or replacement
agreement providing for the depository and administration of the
Class A Notes in the form of Book-Entry Notes, as amended,
supplemented or otherwise modified from time to time.
"Direction" shall have the meaning assigned to it in
subsection 1.4(c).
"Dollars" and "$" means lawful currency of the United States
of America.
"Indenture" means this Class A Trust Indenture dated as of
December 12, 1996, as amended, supplemented or otherwise modified
from time to time.
"Indenture Event of Default" shall have the meaning assigned
to it in Section 4.2(a).
"Indenture Percentage" shall mean, with respect to any
action to be taken by Noteholders hereunder, the percentage of
the Principal Amount of Class A Notes represented by Noteholders
desiring to take such action.
"Indenture Trustee Documents" shall have the meaning
assigned to it in Section 13.5(a).
"Issuer Documents" shall have the meaning assigned to it in
Section 13.2(a).
"Majority in Interest" shall mean Noteholders representing
not less than 50% of the Outstanding Principal Amount of Class A
Notes.
"Noteholder" or "holder" means, at any time, for purposes of
this Indenture, a Person in whose name a Class A Note is
registered in the Note Register. Reference to a holder of a
given Class of Note shall mean such Person in such capacity and
not in its capacity as the holder of any other Class of Note.
"Note Payment Account" shall have the meaning assigned to it
in Section 1.5(e).
"Note Register" shall have the meaning assigned to it in
subsection 2.6(a).
"Note Registrar" shall mean any paying agent appointed
pursuant to Section 7.12, and shall initially be the Indenture
Trustee.
"Notice of Default" shall mean a written notice from a
Holder of a Subordinated Note or an Applicable Representative on
behalf of the Holders of Class A Notes of any Series specifying
the percentage of the Principal Amount of Notes of such Holder or
Class desiring to declare an "Event of Default" under the Pooling
Agreement.
"Outstanding" with respect to the Class A Notes issued and
authenticated under this Indenture, means, as of the date of
determination, all such Class A Notes, except:
(i) Class A Notes theretofore cancelled by the Note
Registrar or delivered to the Indenture Trustee or the Note
Registrar for cancellation; and
(ii) Class A Notes in exchange for or in lieu of
which other Class A Notes have been authenticated and
delivered pursuant to this Indenture.
"Paying Agent" shall mean any paying agent appointed
pursuant to Section 7.12(c), and shall initially be the Indenture
Trustee.
"Principal Amount" shall mean the principal amount of the
Class A Notes plus the premium, if any, on the Class A Notes.
"Prospectus" shall mean the Prospectus, dated April 11,
1996, describing the Asset Backed Notes issued by Newcourt
Receivables Asset Trust and any Prospectus Supplement thereto.
"Qualifying Noteholder" shall have the meaning assigned to
it in subsection 2.4(c).
"Related Pool of Contracts" shall mean Additional Contracts
purchased with the proceeds from the issuance of a Series of
Class A Notes or purchased with the proceeds from the issuance of
a Series of Class A Notes that is being refinanced.
"Related Supplement" shall mean the Supplement to the Base
Agreement dated as of the date hereof.
"Restricting Event" shall have the meaning assigned to it in
the Pooling Agreement.
"Series 1996-3" shall mean the issuance of Series 1996-3
Notes.
"Territory" shall mean Puerto Rico, the Virgin Islands and
the insular possessions of the United States.
"TIA" shall have the meaning assigned to it in subsection
8.4(a).
"Transaction Documents" shall mean the collective reference
to this Agreement, the Pooling Agreement and the Depository
Agreement.
SECTION 1.2. Compliance Certificates and Opinions.
Upon any application or request by the Issuer to the Indenture
Trustee to take or refrain from taking any action under any
provision of this Indenture or in respect of the Class A Notes,
the Seller shall furnish to the Indenture Trustee an Officer's
Certificate stating that, in the opinion of the signer(s), all
conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with except
that, in the case of any such application or request as to which
the furnishing of such document is specifically required by any
provision of this Indenture, no additional certificate need be
furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture or in
respect of the Class A Notes shall include:
(i) a statement that each Person making such
certificate or opinion has read such covenant or condition
and the definitions in this Indenture relating thereto;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(iii) a statement that, in the opinion of each such
Person, such Person has made such examination or
investigation as is necessary to enable him or her or it to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion
of each such Person, such condition or covenant has been
complied with.
Any certificate, statement or opinion of an officer of
the Seller may be based, insofar as it relates to legal matters,
upon a certificate or opinion of or representations by counsel,
unless such officer knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters or
information which is in the possession of the Seller, upon the
certificate, statement or opinion of or representations by an
officer or officers of the Seller, unless such counsel knows that
the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of
the Seller or of counsel thereto may be based, insofar as it
relates to accounting matters, upon a certificate or opinion of
or representations by an accountant or firm of accountants
employed by the Seller, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which
his certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
SECTION 1.3. 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.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
SECTION 1.4. Acts of Noteholders. (a) Any direction,
consent, waiver or other action provided by this Indenture in
respect of the Class A Notes to be given or taken by Noteholders
may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person
or by an agent or proxy duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to
the Indenture Trustee and, where it is hereby expressly required
pursuant to this Indenture, to the Issuer, the Collateral Agent
or the Seller. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Noteholders signing such
instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in
favor of the Indenture Trustee, the Issuer, the Collateral Agent
and the Seller, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved (i) by the
certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instrument
acknowledged to him the execution thereof or (ii) by an affidavit
of a witness to such execution sworn to before any such notary or
such other officer, and where such execution is by an officer of
a corporation or association or a member of a partnership, on
behalf of such corporation, association or partnership, such
certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing
the same, may also be proved in any other reasonable manner which
the Indenture Trustee deems sufficient.
(c) In determining whether the Noteholders have given
any direction, consent or waiver (a "Direction") under this
Indenture, Class A Notes owned by Newcourt Credit Group Inc., the
Issuer or the Seller, or any Affiliate of Newcourt Credit Group
Inc., the Issuer or the Seller shall be disregarded and deemed
not to be outstanding for purposes of any such determination;
provided that, for the purposes of this Section 1.4(c), the
Issuer Trustee, acting in its individual capacity, shall not be
deemed an Affiliate of the Seller. In determining whether the
Indenture Trustee shall be protected in relying upon any such
Direction, only Class A Notes which the Indenture Trustee knows
to be so owned shall be so disregarded. Notwithstanding the
foregoing, (i) if any such Person owns 100% of the Class A Notes,
such Class A Notes shall not be so disregarded as aforesaid, and
(ii) if any amount of such Class A Notes so owned by any such
Person have been pledged in good faith, such Class A Notes shall
not be disregarded as aforesaid 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
Newcourt Credit Group Inc., the Issuer or the Seller or any
Affiliate of Newcourt Credit Group Inc., the Issuer or the
Seller.
(d) The Seller, on behalf of the Issuer, may at its
option by delivery of an Officers' Certificate to the Indenture
Trustee set a record date to determine the Noteholders entitled
to give any consent, request, demand, authorization, direction,
notice, waiver or other Act. Notwithstanding Section 316(c) of
the TIA, such record date shall be the record date specified in
such Officers' Certificate, which shall be a date not more than
30 days prior to the first solicitation of Noteholders in
connection therewith. If such a record date is fixed, such
consent, request, demand, authorization, direction, notice,
waiver or other Act may be given before or after such record
date, but only the Noteholders of record at the close of business
on such record date shall be deemed to be Noteholders for the
purposes of determining whether Noteholders of the requisite
proportion of Class A Notes have authorized or agreed or
consented to such consent, request, demand, authorization,
direction, notice, waiver or other Act, and for that purpose the
outstanding Class A Notes shall be computed as of such record
date; provided, however, that no such consent, request, demand,
authorization, direction, notice, waiver or other Act by the
Noteholders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this
Indenture not later than one year after the record date.
(e) Any direction, consent, waiver or other action by
the holder of any Class A Note shall bind the holder of every
Class A Note issued upon the transfer thereof or in exchange
therefor or in lieu thereof, whether or not notation of such
action is made upon such Class A Note.
(f) Except as otherwise provided in Section 1.4(c)
hereof, each Class A Note owned by or pledged to any Person shall
have an equal and proportionate benefit under the provisions of
this Indenture, without preference, priority or distinction as
among all of the Class A Notes.
SECTION 1.5. Written Notice of Distribution. (a) No
later than 3:00 P.M. (New York City time) on the Business Day
immediately preceding each Determination Date, the Indenture
Trustee shall, if previously requested to do so by the Servicer
or the Collateral Agent upon no less than two Business Days'
notice, deliver to the Servicer and the Collateral Agent a
written notice setting forth the amounts specified in clauses
"third" and "fourth" of Section 3.3 hereof.
(b) At such time as the Indenture Trustee shall have
received all amounts owing to it (and the Noteholders) pursuant
to Sections 3.2 or 3.4 hereof, as applicable, the Indenture
Trustee shall, if previously requested to do so by the Servicer
or the Collateral Agent upon no less than two Business Days'
notice, so inform the Servicer and the Collateral Agent.
(c) The Servicer and the Collateral Agent shall be
fully protected in relying on any of the information set forth in
a notification provided by the Indenture Trustee pursuant to
paragraphs (a) and (b) above and shall have no independent
obligation to verify, calculate or re-calculate any amount set
forth in any such notification.
(d) In the event the Collateral Agent shall not
receive any information set forth in paragraphs (a) or (b) above
which is required to enable the Collateral Agent to make a
distribution pursuant to Sections 3.2 or 3.4 hereof, the
Collateral Agent shall use commercially reasonable efforts to
obtain such information and, failing to receive any such
information, the Collateral Agent shall not make such
distribution(s).
(e) Prior to the First Distribution Date hereunder,
the Indenture Trustee shall notify the Collateral Agent in
writing of the account (the "Note Payment Account") into which
the Collateral Agent is to make payments under the Pooling
Agreement on account of the Class A Notes.
ARTICLE II
THE NOTES
SECTION 2.1. Form, Denomination and Dating. Subject
to Section 2.13, the Class A Notes and the Indenture Trustee's
form of certificate of authentication to appear on the Class A
Notes shall each be substantially in the form of (i) in the case
of Class A Notes, Exhibit A hereto and (ii) in the case of the
Indenture Trustee's certificate of authentication, Exhibit B
hereto. The Class A Notes shall contain such omissions,
variations and insertions as are permitted by this Indenture, and
may have such letters, numbers or other marks of identification
and such legends or endorsements printed, lithographed or
engraved thereon, as may be required to comply with law, the
rules of any securities market in which such Class A Notes may be
admitted to trading or agreements to which the Issuer is subject,
if any, or to conform to any usage in respect thereof, or as may,
consistently herewith, be prescribed by the Indenture Trustee or
by the Responsible Officer of the Issuer Trustee executing such
Class A Notes, such determination by such officer to be evidenced
by his signing the Class A Notes on behalf of the Issuer. The
terms of the Class A Notes set forth in Exhibit A, respectively,
are part of the terms of this Indenture.
The definitive Class A Notes shall be printed,
lithographed or engraved or produced by any combination of these
methods or may be produced in any other manner permitted by the
rules of any securities market in which the Class A Notes may be
admitted to trading, all as determined by the Responsible Officer
of the Issuer executing such Class A Notes, as evidenced by such
Officer's execution of such Notes.
Each Class A Note shall be issued in registered form
without coupons in denominations of $1,000 and any multiple of
$1,000 (except for one Class A Note which may be issued in a
minimum denomination of $1,000 and any multiple of $1 in excess
thereof). Each Class A Note shall be dated the date of its
authentication.
SECTION 2.2. Execution and Authentication. (a) The
Class A Notes shall be executed on behalf of the Issuer by one of
the Responsible Officers of the Issuer Trustee, as certified by
the Issuer Trustee. Any such signature may be a facsimile and
may be imprinted or otherwise reproduced. Class A Notes bearing
the signatures of individuals who were at any time the
Responsible Officers of the Issuer Trustee 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 Class A Notes or did not hold such offices at the respective
dates of such Class A Notes. No Class A Notes shall be issued
hereunder except those provided for in Section 2.1 hereof and any
Class A Notes issued in exchange or replacement therefor pursuant
to the terms of this Indenture. No Class A Note shall be secured
by or entitled to any benefit under this Indenture or the Pooling
Agreement or be valid or obligatory for any purpose, unless there
appears on such Class A Note a certificate of authentication in
the form provided for in Section 2.1 hereof executed by the
Indenture Trustee by the manual signature of one of its
Responsible Officers, and such certificate upon any Class A Note
shall be conclusive evidence, and the only evidence, that such
Class A Note has been duly authenticated and delivered hereunder.
(b) (i) On the Closing Date, the Indenture Trustee
shall authenticate and deliver Class A Notes for original issue
in an aggregate principal amount of $188,172,873 upon the written
order of the Seller signed by one of its Responsible Officers.
Such order shall specify the amount of the Class A Notes to be
authenticated and the date on which the original issue of the
Class A Notes is to be authenticated and shall further provide
instructions concerning registration, amounts for each Noteholder
and delivery.
(ii) The aggregate principal amount of Class A Notes
outstanding at any time may not exceed $188,172,873 except as
provided in Section 2.7 hereof. The Class A Notes outstanding at
any time shall be treated as a single Class of Class A Notes for
purposes of this Indenture.
(iv) The Indenture Trustee may appoint an
authenticating agent reasonably acceptable to the Seller to
authenticate the Class A Notes. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Class
A Notes whenever the Indenture Trustee may do so. Each reference
in this Indenture to authentication by the Indenture Trustee
includes authentication by such agent. An authenticating agent
has the same rights as any Note Registrar or agent for service of
notices and demands.
SECTION 2.3. Payments from Trust Assets Only. Except
as otherwise expressly provided in the next succeeding sentence
of this Section 2.3, all payments to be made by the Issuer or the
Collateral Agent under this Indenture or the Pooling Agreement,
as applicable, shall be made only from the income and the
proceeds from the Trust Assets and only to the extent that the
Issuer shall have sufficient income or proceeds from the Trust
Assets to enable the Issuer or the Collateral Agent, as
applicable, to make payments in accordance with the terms hereof.
Each Noteholder, by its acceptance of a Class A Note, and the
Indenture Trustee, agree that it will look solely to the income
and proceeds from the Trust Assets to the extent available for
distribution to it as provided in the Pooling Agreement and this
Indenture and that none of the Collateral Agent or the Indenture
Trustee is personally liable to it for any amounts payable or any
liability under this Indenture or such Class A Note, except as
expressly provided herein and in the Pooling Agreement.
SECTION 2.4. Method of Payment. (a) Principal and
interest and other amounts due hereunder or under the Class A
Notes or in respect hereof or thereof shall be payable in Dollars
in immediately available funds prior to 10:00 A.M., New York City
time, on the due date thereof. In furtherance thereof, the
Issuer has assigned to the Collateral Agent certain of its right,
title and interest in, to and under the Trust Assets. Upon
payment of any such amount by the Collateral Agent to the Note
Payment Account on the due date thereof, interest shall no longer
accrue on or in respect of any Class A Note on the amount so
paid, to the extent such amount is payable to the Noteholders in
reduction of the principal amount of the Class A Notes.
(b) As provided in Section 4.3 of the Pooling
Agreement, the Collateral Agent shall, subject to the terms and
conditions thereof, remit all such amounts so received by it to
the Note Payment Account, in Dollars and in immediately available
funds, payment to be made in Hartford, Connecticut or New York,
New York, as designated by the Indenture Trustee, prior to 2:00
P.M., New York City time, on the due date thereof. In the event
the Collateral Agent shall fail to make any such payment after
its receipt of funds at the time and place specified in the
Pooling Agreement, other than as a result of a failure of the
Servicer or the Indenture Trustee to provide any information
requested by the Collateral Agent pursuant to Section 1.5 in
connection with any such payment, the Collateral Agent, in its
individual capacity, shall be liable to the holders of the Class
A Notes to the extent provided in Section 12.1(d) of the Pooling
Agreement.
(c) The Indenture Trustee shall, subject to the terms
and conditions hereof, remit all such amounts so received by it
(i) to any Noteholder whose Class A Notes, at any time, exceed
$1,000,000 in aggregate principal amount and who has requested
the Indenture Trustee in writing not later than 15 days prior to
the due date thereof that such amounts be remitted to such
account or accounts at such financial institution or institutions
as such Noteholders shall designate (each a "Qualifying
Noteholder" and, collectively, the "Qualifying Noteholders"), in
immediately available funds for distribution to such Qualifying
Noteholders, such payment to be made in Dollars to the account
designated by each such Qualifying Noteholder at a Bank which is
member of the Federal Reserve System, prior to the close of
business in New York on the due date thereof and (ii) to any
Noteholders other than the Qualifying Noteholders, in Dollars on
the due date thereof at the close of business at the Corporate
Trust Office of the Indenture Trustee or at any office or agency
maintained for such purpose pursuant to Section 7.12 hereof;
provided, however, that the Indenture Trustee may, at its option,
pay such amounts by check mailed to any Noteholder's address as
it appears on the Note Register. In the event the Indenture
Trustee shall fail to make any such payment as provided in the
immediately foregoing sentence after its receipt of funds at the
place and prior to the time specified in Section 2.4(b) hereof,
or in the event the Indenture Trustee shall not receive any funds
as so provided as a result of the failure of the Indenture
Trustee to provide any information requested by the Collateral
Agent pursuant to Section 1.5 in connection with any such
payment, the Indenture Trustee, in its individual capacity and
not as trustee, agrees to compensate the Noteholders for loss of
use of funds.
(d) Prior to the due presentment for registration of
transfer of any Class A Note, the Issuer, the Issuer Trustee, the
Collateral Agent and the Indenture Trustee may deem and treat the
Person in whose name any Class A Note is registered on the Note
Register as the absolute owner of such Class A Note for the
purpose of receiving payment of all amounts payable with respect
to such Class A Note and for all other purposes whether or not
such Class A Note shall be overdue, and none of the Issuer, the
Issuer Trustee, the Indenture Trustee or the Collateral Agent
shall be affected by any notice to the contrary.
(e) If any sum payable under the Class A Notes or
under this Indenture falls due on a day which is not a Business
Day, then such sum shall be payable on the next succeeding
Business Day without additional interest as a result of such
extension.
SECTION 2.5. Termination of Interest in Trust Assets.
A Noteholder shall not, as such, have any further interest in, or
other right with respect to, the Trust Assets when and if the
principal amount of and interest on and other amounts due under
all Class A Notes held by such Noteholder and all other sums due
to such Noteholder hereunder and under the Pooling Agreement
shall have been paid in full.
SECTION 2.6. Registration, Transfer and Exchange of
Class A Notes. (a) The Indenture Trustee agrees with the Issuer
that the Indenture Trustee shall keep a register (herein
sometimes referred to as the "Note Register") in which provisions
shall be made for the registration of Class A Notes and the
registration of transfers of Class A Notes. The Note Register
shall be kept at the Corporate Trust Office of the Indenture
Trustee, and the Indenture Trustee is hereby appointed "Note
Registrar" for the purpose of registering Class A Notes and
transfers of Class A Notes as herein provided. Upon surrender
for registration of transfer of any Class A Note at the Corporate
Trust Office of the Indenture Trustee, the Issuer shall execute,
and the Indenture Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new
Class A Notes and of a like aggregate principal amount. At the
option of any Noteholder, its Class A Notes may be exchanged for
other Class A Notes of any authorized denominations and of a like
aggregate principal amount, upon surrender of the Class A Notes
to be exchanged at the Corporate Trust Office of the Indenture
Trustee. Whenever any Class A Note is so surrendered for
exchange, the Issuer shall execute, and the Indenture Trustee
shall authenticate and deliver, the Class A Notes which the
Noteholder making the exchange is entitled to receive.
(b) All Class A Notes issued upon any registration of
transfer or exchange of Class A Notes shall be the valid
obligations of the Issuer evidencing the same respective
obligations, and entitled to the same security, priority and
benefits under this Indenture, as the Class A Notes surrendered
upon such registration of transfer or exchange. Every Class A
Note presented or surrendered for registration of transfer or
exchange shall (if so required by the Indenture Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Indenture Trustee duly executed by
the Noteholder thereof or his attorney duly authorized in
writing, and the Indenture Trustee may require evidence
satisfactory to it as to the compliance of any such transfer with
the Securities Act. The Indenture Trustee shall make a notation
on each new Class A Note or Class A Notes of the amount of all
payments of principal previously made on the old Class A Note or
Class A Notes with respect to which such new Class A Note is
issued and the date to which interest accrued on such old Class A
Note or Class A Notes has been paid. The Indenture Trustee shall
not be required to register the transfer of or exchange any
surrendered Class A Notes as above provided during the five day
period preceding the due date of any payment on such Class A
Notes. The Indenture Trustee shall not be required to exchange
or register a transfer of any Class A Note for a period of 15
days immediately preceding the first mailing of a notice of
redemption of Class A Notes. The Indenture Trustee shall give
the Seller notice of any such transfer of a Class A Note under
this Section 2.6.
(c) The Issuer, the Collateral Agent and the Issuer
Trustee shall be entitled at any time and from time to time to
obtain from the Indenture Trustee, at the requesting party's
expense, the name and address of each Noteholder, as set forth in
the Note Register maintained by the Note Registrar as provided in
Section 2.6(a) hereof, and to communicate with one or more of
such Noteholders directly. Each and every Noteholder, by
receiving and holding a Class A Note, agrees with the Issuer and
the Indenture Trustee that none of the Issuer, the Collateral
Agent, the Seller or the Indenture Trustee shall be held
accountable by reason of the disclosure of any such information
as to the names and addresses of the Noteholders in accordance
with the provisions of the immediately preceding sentence,
regardless of the source from which such information was derived,
and that the Indenture Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under
the immediately preceding sentence.
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen
Notes. If any Class A Note shall become mutilated, destroyed,
lost or stolen, the Issuer shall, upon the written request of the
affected Noteholder, execute, and the Indenture Trustee shall
authenticate and deliver in replacement thereof (in the absence
of notice to the Issuer or the Indenture Trustee that such Class
A Note has been acquired by a bona fide purchaser), a new Class A
Note in the same principal amount, dated the date of such Class A
Note and designated as issued under this Indenture. If the Class
A Note being replaced has become mutilated, such Class A Note
shall be surrendered to the Indenture Trustee and a photocopy
thereof shall be furnished to the Collateral Agent by the
Indenture Trustee. If the Class A Note being replaced has been
destroyed, lost or stolen, the affected Noteholder shall furnish
to the Issuer and the Indenture Trustee such security or
indemnity as may be reasonably required by them to hold the
Issuer and the Indenture Trustee harmless and evidence
satisfactory to the Indenture Trustee of the destruction, loss or
theft of such Class A Note and of the ownership thereof.
Each substitute Class A Note issued pursuant to the
provisions of this Section 2.7 by virtue of the fact that any
Class A Note is apparently destroyed, lost or stolen shall
constitute an original additional contractual obligation of the
Issuer, whether or not the apparently destroyed, lost or stolen
Class A Note shall be enforceable at any time by anyone and shall
be entitled to all the security and benefits of (but shall be
subject to all the limitations of rights set forth in) this
Indenture and the Pooling Agreement equally and proportionately
with any and all other Class A Notes duly authenticated and
delivered hereunder. All Class A Notes shall be held and owned
upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, defaced, or apparently
destroyed, lost or stolen Class A Notes and shall preclude any
and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.8. Payment of Expenses on Transfer. Upon
the issuance of a new Class A Note or new Class A Notes pursuant
to Section 2.7 hereof, the Issuer or the Indenture Trustee may
require from the party requesting such new Class A Note or Notes
payment of a sum sufficient to reimburse the Issuer, the
Collateral Agent or the Indenture Trustee for, or to provide
funds for, the payment of any tax or other governmental charge in
connection therewith or any charges and expenses connected with
such tax or other governmental charge paid or payable by the
Issuer or the Indenture Trustee.
SECTION 2.9. Priority of Payments. (a) The
Collateral Agent and, by acceptance of its Notes, each Noteholder
hereby agrees that no payment or distribution shall be made on or
in respect of any Class A Note, including any payment or
distribution of cash, property or securities after the occurrence
of an Event of Default, except directly to the Collateral Agent
for application as expressly provided in Article IV of the
Pooling Agreement.
(b) By the acceptance of its Notes, each Noteholder
agrees that in the event that such Noteholder shall receive any
payment or distribution on or in respect of any Class A Note
which it is not entitled to receive under this Section 2.9 or
under Article IV of the Pooling Agreement, it will hold any
amount so received in trust for the Person entitled thereto and
will forthwith turn over such payment to the Collateral Agent in
the form received to be applied or held as provided in Article IV
of the Pooling Agreement.
SECTION 2.10. Cancellation of Notes. All Class A
Notes surrendered for registration of transfer or exchange, if
surrendered to the Issuer or the Indenture Trustee or any agent
of the Issuer or the Indenture Trustee, shall be delivered to the
Indenture Trustee for cancellation or, if surrendered to the
Indenture Trustee, shall be cancelled by it, and no Class A Notes
shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Indenture. The Indenture Trustee
shall destroy cancelled Class A Notes held by it and deliver a
certificate of destruction to the Issuer and the Collateral
Agent. If the Issuer shall acquire any of the Class A Notes,
such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Class A
Notes unless and until the same are delivered to the Indenture
Trustee for cancellation.
SECTION 2.11. Temporary Notes. Until definitive Class
A Notes are ready for delivery, the Issuer Trustee, on behalf of
the Issuer, may execute and, upon the request of a Responsible
Officer of the Seller, the Indenture Trustee shall authenticate
and deliver temporary Class A Notes. Temporary Class A Notes
shall be substantially in the form of definitive Class A Notes
but may have variations that the Seller considers appropriate for
temporary Class A Notes. Without unreasonable delay, the Issuer
Trustee, on behalf of the Issuer, shall execute and furnish
definitive Class A Notes and deliver them in exchange for
temporary Class A Notes. Until such exchange, temporary Class A
Notes shall be entitled to the same rights, benefits and
privileges as definitive Class A Notes.
SECTION 2.12. Interest on Defaulted Payments. Each
Note (and all amounts payable by the Issuer thereunder and
hereunder) shall bear interest at the Class A Interest Rate (as
defined in the Prospectus) plus 1.00% (calculated on the basis of
a 30-day month, 360-day year) payable from time to time as
provided in the Pooling Agreement on any outstanding principal of
the Note and, to the extent permitted by applicable law, on any
interest and other amounts due thereunder (and hereunder) but not
paid by the maturity date (whether by acceleration or otherwise).
The Issuer, or the Collateral Agent on the Issuer's
behalf as provided in the Pooling Agreement, may pay the
defaulted interest to the Persons who are Noteholders on a
subsequent special record date. The Seller shall fix or cause to
be fixed any such special record date and payment date to the
reasonable satisfaction of the Indenture Trustee and shall
promptly mail to each Noteholder a notice that states the special
record date, the payment date and the amount of defaulted
interest to be paid.
SECTION 2.13. Book-Entry Notes. The Class A Notes,
upon original issuance, shall be issued in the form of one or
more typewritten Class A Notes representing the Book-Entry Notes,
to be delivered to the Clearing Agency in accordance with the
Clearing Agency's rules by, or on behalf of, the Seller. The
Notes of each Series shall, unless otherwise provided in the
Related Supplement, initially be registered on the Note Register
in the name of the nominee of the Clearing Agency, and no
Noteholder will receive a definitive certificate representing
such Noteholder's interest in the Class A Notes, except as
provided in Section 2.15. Unless and until definitive, fully
registered Class A Notes (the "Definitive Notes") have been
issued to Noteholders:
(a) the provisions of this Section 2.13 shall be in
full force and effect with respect to the Class A Notes;
(b) the Seller, the Servicer, the Paying Agent, the
Note Registrar, the Collateral Agent and the Issuer may deal
with the related Clearing Agency and the related Clearing
Agency Participants for all purposes (including the making
of distributions on the Class A Notes) as the authorized
representatives of such Noteholders;
(c) to the extent that the provisions of this Section
2.13 conflict with any other provisions of this Indenture,
the provisions of this Section 2.13 shall control; and
(d) the rights of the Noteholders shall be exercised
only through the Clearing Agency and the applicable Clearing
Agency Participants and shall be limited to those
established by law and agreements between such Noteholders
and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Depository Agreement, unless
and until Definitive Notes are issued pursuant to Section
2.15, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive
and transmit distributions of principal and interest on the
Class A Notes to such Clearing Agency Participants.
SECTION 2.14. Notices to Clearing Agent. Whenever
notice or other communication to the Noteholders is required
under this Indenture, unless and until Definitive Notes shall
have been issued to the Noteholders, all such notices and
communications specified herein to be given to such Noteholders
shall be given to the Clearing Agency.
SECTION 2.15. Definitive Notes Initially Issued as
Book-Entry Notes. If (i)(A) the Seller advises the Indenture
Trustee in writing that the Clearing Agency is no longer willing
or able properly to discharge its responsibilities under the
related Depository Agreement, and (B) the Indenture Trustee or
the Seller is unable to locate a qualified successor, (ii) the
Seller, at its option, advises the Indenture Trustee in writing
that it elects to terminate the book-entry system through such
Clearing Agency or (iii) after the occurrence of an Event of
Default, a Majority in Interest of Noteholders advises the
Indenture Trustee and the related Clearing Agency through the
related Clearing Agency Participants in writing that the
continuation of a book-entry system through such Clearing Agency
is no longer in the best interests of the Noteholders, the
Indenture Trustee shall notify all Noteholders through such
Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Notes to Noteholders requesting the
same. Upon surrender to the Indenture Trustee of the Class A
Notes by the related Clearing Agency, accompanied by registration
instructions from the related Clearing Agency for registration,
the Indenture Trustee shall issue the Definitive Notes. None of
the Seller, the Issuer, the Collateral Agent 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 Indenture Trustee, to the
extent applicable with respect to such Definitive Notes and the
Indenture Trustee shall recognize the holders of the Definitive
Notes as Noteholders hereunder.
SECTION 2.16. Tax Treatment. The Seller and the
Indenture Trustee, by entering into this Indenture, and the
Noteholders, by acquiring any Class A Note or interest therein,
(i) express their intention that the Class A Notes qualify under
applicable tax law as indebtedness secured by the Trust Assets,
and (ii) unless otherwise required by appropriate taxing
authorities, agree to treat the Class A Notes as indebtedness
secured by the Trust Assets for the purpose of federal income
taxes, state and local income and franchise taxes, and any other
taxes imposed upon, measured by or based upon gross or net
income.
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST ASSETS
SECTION 3.1. Distribution Prior to Event of Default or
Restricting Event. Each payment received by the Indenture
Trustee pursuant to Section 4.3(d) of the Pooling Agreement shall
be promptly distributed in the following order of priority:
first, so much of such installment or payment as shall
be required to pay in full the aggregate amount of interest
then due on or in respect of the Class A Notes shall be
distributed to the Class A Noteholders ratably, without
priority of any one Class A Note over any other Class A
Note, in the proportion that the aggregate amount of all
accrued but unpaid interest to the date of distribution on
each Class A Note bears to the aggregate amount of all
accrued but unpaid interest to the date of distribution on
all Class A Notes; and
second, the balance, if any, of such installment or
payment remaining thereafter shall be distributed ratably to
the Class A Noteholders to pay in full the aggregate amount
of the Class A Principal Payment Amount then due pursuant
to, on or in respect of the Class A Notes, without priority
of any one Class A Note over any other Class A Note, in the
proportion that the aggregate unpaid Principal Amount of
each Class A Note bears to the aggregate unpaid Principal
Amount of all Class A Notes.
SECTION 3.2. Optional Purchase by Seller; Trust
Termination Payments . (a) Pursuant to Section 13.2(a) of the
Pooling Agreement, on any Distribution Date occurring on or after
the date on which the Principal Amount of the Class A Notes and
Class B Notes of all Series is 10% or less of the aggregate
principal amount of the Class A Notes and Class B Notes of all
Series as of their respective Closing Dates, the Seller at its
sole option, upon not less than 30 and not more than 60 days'
notice to the Issuer, the Collateral Agent, the Indenture Trustee
and the Noteholders, may purchase without penalty or premium all,
but not less than all, of the Class A Notes of all Series. Upon
receipt of the redemption price (as provided in such Section
13.2) of the Class A Notes, the Indenture Trustee shall
distribute the amount so received to the holders of the Class A
Notes on such Distribution Date. Following any redemption, the
Class A Noteholders will have no further rights with respect to
the Trust Assets.
(b) The Principal Amount of the Class A Notes shall be
due and payable no later than the Maturity Date with respect to
Series 1996-3. As provided in Section 13.2(b) of the Pooling
Agreement, if on the Determination Date in the third month
immediately preceding the month in which such Maturity Date
occurs (after giving effect to all transfers, withdrawals,
deposits and drawings to occur on the next Transfer Date and the
payment of principal on the Notes of Series 1996-3 to be made on
the related Distribution Date pursuant to Article IV of the
Pooling Agreement), the Principal Amount with respect to Series
1996-3 would be greater than zero, the Servicer shall sell,
dispose of, or otherwise liquidate, on the terms and for the
prices set forth in such Section 13.2(b), Contracts and related
Equipment. Amounts received by the Indenture Trustee on account
of any such sale, disposition or other liquidation shall be
distributed to the Holders of the Class A Notes in final payment
thereof.
(c) As provided in Section 13.1 of the Pooling
Agreement, the Trust shall terminate (to the extent provided
therein) on the Trust Termination Date. Amounts received by the
Indenture Trustee in connection with the Trust Termination Date
shall be distributed to the Holders of the Class A Notes in final
payment thereof.
(d) The amount deposited pursuant to subsections
3.2(a), 3.2(b) and 3.2(c) shall be paid to the Noteholders in the
manner provided in Section 2.4.
(e) Written notice of any termination, specifying the
Distribution Date upon which the Noteholders may surrender their
Notes for payment of the final distribution and cancellation
(unless otherwise specified in the Related Supplement), shall be
given (subject to at least four Business Days' prior notice from
the Servicer to the Indenture Trustee) by the Indenture Trustee
to Noteholders mailed not later than the fifth day of the month
of such final distribution specifying (i) the Distribution Date
(which shall be the Distribution Date in the month in which the
deposit is made pursuant to Sections 13.1 or 13.2 of the Pooling
Agreement) upon which final payment of the Notes will be made
upon presentation and surrender of Notes (unless otherwise
specified in the Related Supplement) at the office or offices
therein designated, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Notes at the office or
offices therein specified (unless otherwise specified in the
Related Supplement).
(f) All funds on deposit in the Note Payment Account,
in the case of a final payment, pursuant to Section 13.2 and, in
the case of a termination of the Trust, pursuant to Section 13.1
(and notwithstanding such termination), shall continue to be held
in trust for the benefit of the Noteholders and the Indenture
Trustee shall pay such funds to the appropriate Noteholders upon
surrender of their Notes (unless otherwise specified in the
Related Supplement). In the event that all of the Noteholders
shall not surrender their Notes for cancellation within six
months after the date specified in the above-mentioned written
notice, the Indenture Trustee shall give a second written notice
to the remaining Noteholders to surrender their Notes for
cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the
Notes shall not have been surrendered for cancellation, the
Indenture Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the remaining
Noteholders concerning surrender of their Notes, and the cost
thereof shall be paid out of the funds in the Note Payment
Account held for the benefit of such Noteholders. The Indenture
Trustee shall pay to the Seller upon request any monies held by
it for the payment of principal or interest which remains
unclaimed for two years. After payment to the Seller,
Noteholders entitled to the money must look to the Seller for
payment as general creditors unless an applicable abandoned
property law designates another Person.
SECTION 3.3. Distribution Following an Event of
Default or a Restricting Event. Except as otherwise provided in
Section 3.4 hereof, each payment received by the Indenture
Trustee pursuant to Section 4.3(e) of the Pooling Agreement shall
be promptly distributed by the Indenture Trustee in the following
order of priority:
first, so much of such payment as shall be required to
reimburse the Indenture Trustee for any tax, expense, charge
or other loss incurred by the Indenture Trustee (to the
extent not previously reimbursed) (including, without
limitation, the expense of sale, taking or other proceeding,
attorneys' fees and expenses, court costs, and any other
expenditures incurred or expenditures or advances made by
the Indenture Trustee in the protection, exercise or
enforcement of any right, power or remedy or any damages
sustained by the Indenture Trustee, liquidated or otherwise,
upon the Event of Default giving rise to such expenditures
or advances) shall be applied by the Indenture Trustee in
reimbursement of such expenses;
second, so much of such payment remaining as shall be
required to reimburse the Noteholders in full for payments
made by such Noteholders pursuant to Section 5.3 hereof (to
the extent not previously reimbursed) shall be distributed
to the Noteholders, and, if the aggregate amount remaining
shall be insufficient to reimburse all such payments in
full, it shall be distributed ratably, without priority of
any Noteholder over any other Noteholder, in the proportion
that the aggregate amount of the unreimbursed payments made
by each such Noteholder pursuant to Section 5.3 hereof bears
to the aggregate amount of the unreimbursed payments made by
all Noteholders pursuant to Section 5.3 hereof;
third, so much of such payment remaining as shall be
required to pay in full the aggregate amount of all accrued
but unpaid interest to the date of distribution on the Class
A Notes shall be distributed to the Noteholders, and, if the
aggregate amount remaining shall be insufficient to pay all
such amounts in full, it shall be distributed ratably,
without priority of any one Class A Note over any other
Class A Note, in the proportion that the aggregate amount of
all accrued but unpaid interest to the date of distribution
on each Class A Note bears to the aggregate amount of all
accrued but unpaid interest to the date of distribution on
all Class A Notes; and
fourth, the balance, if any, of such payment remaining
thereafter shall be distributed to the Noteholders in order
to pay in full the outstanding aggregate amount of principal
of the Class A Notes, and if the aggregate amount remaining
shall be insufficient to pay all such amounts in full, it
shall be distributed ratably, without priority of any one
Class A Note over any other Class A Note, in the proportion
that the aggregate unpaid principal amount of each Class A
Note bears to the aggregate unpaid principal amount of all
Class A Notes.
SECTION 3.4. Certain Payments. The Indenture Trustee
will distribute, promptly upon receipt, any indemnity payment or
payment of damages received by it from the Collateral Agent in
respect of the Indenture Trustee in its individual capacity or
any Noteholder directly to the Person entitled thereto.
SECTION 3.5. Other Payments. Any payments received by
the Indenture Trustee for which no provision as to the
application thereof is made in this Indenture shall be
distributed by the Indenture Trustee (i) to the extent received
or realized at any time prior to the payment in full of all
obligations to the Noteholders hereunder or under the Pooling
Agreement, in the order of priority specified in Section 3.3
hereof, and (ii) to the extent received or realized at any time
after payment in full of all such obligations to the Noteholders,
in the following order of priority: first, in the manner
provided in the clause "first" of Section 3.3 hereof and second,
to the Collateral Agent for application pursuant to Section 4.3
of the Pooling Agreement.
SECTION 3.6. Unclaimed Moneys. Any moneys deposited
with or paid to the Indenture Trustee for the payment of the
principal of or interest on any Class A Note and not applied but
remaining unclaimed for two years after the date upon which such
principal or interest shall have become due and payable, shall,
unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be paid, upon
written request therefor by the Seller, to the Seller, and the
holder of such Class A Note, as a general unsecured creditor,
shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law,
thereafter look only to the Seller for any payment which such
Noteholder may be entitled to collect, and all liability of the
Indenture Trustee with respect to such moneys shall thereupon
cease.
ARTICLE IV
COVENANTS; EVENTS OF DEFAULT AND RESTRICTING
EVENTS; REMEDIES OF INDENTURE TRUSTEE
SECTION 4.1. Covenants of the Issuer. (a) Other than
the Lien granted by the Issuer to the Collateral Agent pursuant
to Section 2.3(a) of the Base Agreement and Section 3(c) of the
Related Supplement, the Issuer hereby covenants and agrees that
it will not directly or indirectly create, incur, assume or
suffer to exist any Lien attributable to it with respect to any
of the properties or assets of the Trust Assets and it shall, at
its own cost and expense, promptly take such action as may be
necessary to discharge duly any such Lien. The Issuer will cause
restitution to be made to the Trust Assets in the amount of any
diminution of the value thereof as the result of any Lien thereon
attributable to it, except for the Liens in favor of the
Collateral Agent described above.
(b) Each of the Issuer Trustee and the Collateral
Agent hereby covenants and agrees in favor of the Indenture
Trustee and each Class A Noteholder to perform and comply with
each and every covenant and agreement made by such Person in the
Pooling Agreement as if such covenants and agreements were fully
set forth herein.
(c) Each of the Seller and the Issuer hereby covenants
and agrees in favor of the Indenture Trustee and each Class A
Noteholder to perform and comply, and the Issuer covenants and
agrees to cause the Issuer Trustee to perform and comply, with
each and every covenant and agreement made by such Person in the
Pooling Agreement as if such covenants and agreements were fully
set forth herein.
SECTION 4.2. Events of Default and Restricting Events.
Events of Default. If any one of the following events shall
occur:
(i) failure on the part of the Seller, the Issuer or
the Collateral Agent to observe or perform any other
covenants or agreements of such Person set forth in this
Indenture or the Related Supplement, which failure has a
material adverse effect on the Class A Noteholders and which
continues unremedied for a period of 60 days after written
notice; or
(ii) any representation or warranty made by the Seller
or the Issuer in this Indenture or the Related Supplement
shall prove to have been incorrect in any material respect
when made or when delivered, which continues to be incorrect
in any material respect for a period of 60 days after
written notice and as a result of which the interests of the
Class A Noteholders are materially and adversely affected
and continue to be materially and adversely affected for
such period;
then, and in any such event, after the applicable grace period
set forth in such subparagraphs, a Majority in Interest, by
written notice to the Issuer, the Indenture Trustee and the
Collateral Agent, may declare that an event of default (an
"Indenture Event of Default") under this Indenture has occurred
as of the date of such notice.
SECTION 4.3. Notice to Rating Agencies, etc. Promptly
following its receipt of notice of any Event of Default or
Restricting Event, the Indenture Trustee shall send a copy
thereof to the Seller, the Issuer, the Collateral Agent and each
Rating Agency.
SECTION 4.4. Remedies. (a) If an Event of Default
referred to in subparagraphs (d) or (e) of Section 9.1 of the
Pooling Agreement shall have occurred, then and in every such
case the unpaid principal of all Class A Notes, together with
interest accrued but unpaid thereon, and all other amounts due to
the Noteholders hereunder, shall immediately and without further
act become due and payable, without presentment, demand, protest
or notice, all of which are hereby waived.
(b) If any other Event of Default shall have occurred
and be continuing, then and in every such case, the Indenture
Trustee shall deliver a Notice of Default to the Collateral Agent
specifying the Indenture Percentage of Class A Notes hereunder
desiring to declare an "Event of Default" under the Pooling
Agreement.
SECTION 4.5. Remedies Cumulative. Each and every
right, power and remedy given to the Indenture Trustee
specifically or otherwise in this Indenture or the Pooling
Agreement shall be cumulative and shall be in addition to every
other right, power and remedy herein or therein specifically
given or now or hereafter existing at law, in equity or by
statute, and each and every right, power and remedy whether
specifically herein or therein given or otherwise existing may,
subject always to the terms and conditions hereof and thereof, be
exercised from time to time and as often and in such order as may
be deemed expedient by the Indenture Trustee and the exercise or
the beginning of the exercise of any power or remedy shall not be
construed to be a waiver of the right to exercise at the same
time or thereafter any other right, power or remedy. No delay or
omission by the Indenture Trustee in the exercise of any right,
remedy or power or in the pursuit of any remedy shall impair any
such right, power or remedy or be construed to be a waiver of any
default on the part of the Issuer or to be an acquiescence
therein.
SECTION 4.6. Discontinuance of Proceedings. In case
the Indenture Trustee shall have instituted any proceeding to
enforce any right, power or remedy under this Indenture or the
Pooling Agreement by foreclosure, entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any
reason or shall have been determined adversely to the Indenture
Trustee, then and in every such case the Indenture Trustee, the
Collateral Agent and the Issuer shall, subject to any
determination in such proceedings, be restored to their former
positions and rights hereunder and thereunder with respect to the
Trust Assets, and all rights, remedies and powers of the
Indenture Trustee shall continue as if no such proceedings had
been instituted.
SECTION 4.7. Judicial Proceedings Instituted by
Indenture Trustee; Indenture Trustee May Bring Suit. If there
shall be an Event of Default, then the Indenture Trustee, in its
own name and as trustee of an express trust, shall be entitled
and empowered to institute any suits, actions or proceedings at
law, in equity or otherwise, for the collection of the sums due
and unpaid on any Class A Note or under this Indenture, and may
file any proofs of claim and other papers or documents necessary
or advisable to that end and may vote on behalf of the
Noteholders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any custodian in any
such judicial proceeding is hereby authorized by each Noteholder
to make payments to the Collateral Agent. The Indenture Trustee
may prosecute any such claim or proceeding to judgment or final
decree with respect to the whole amount of any such sums so due
and unpaid.
The Indenture Trustee shall be entitled to xxx and
recover judgment as aforesaid either before, after or during the
pendency of any proceeding for the enforcement of the Lien of the
Pooling Agreement, and the right of the Indenture Trustee to
recover such judgment shall not be affected by any entry or sale
under the Pooling Agreement or by the exercise of any right,
power or remedy for the enforcement of the provisions of the
Pooling Agreement, or of the foreclosure of the Lien of the
Pooling Agreement; in case of a sale of any of the Trust Assets
and the application of the proceeds of sale to the payment of the
Class A Notes and other amounts due under this Indenture, the
Indenture Trustee, in its own name and as trustee of an express
trust, shall be entitled to enforce payment of, and to receive,
all amounts then remaining due and unpaid upon the Class A Notes
or under this Indenture, for the benefit of the holders of the
Class A Notes, and shall be entitled to recover judgment for any
portion of the same remaining unpaid, with interest as aforesaid.
No recovery of any such judgment upon any property of the Issuer
or the Seller shall affect or impair the Lien of the Pooling
Agreement or any rights, powers or remedies of the Indenture
Trustee or the Collateral Agent hereunder or thereunder, or any
rights, powers or remedies of the Noteholders.
SECTION 4.8. Control by Noteholders. (a) A Majority
in Interest of the Noteholders hereunder shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Indenture Trustee, or exercising
any trust or power conferred on the Indenture Trustee, hereunder
or under the Pooling Agreement; provided, however, that
(i) such direction shall not be in conflict with any
rule of law, this Indenture or the Pooling Agreement and
would not involve the Indenture Trustee in personal
liability or expense,
(ii) the Indenture Trustee shall not determine that
the action so directed would be unjustly prejudicial to the
Noteholders not taking part in such direction, and
(iii) the Indenture Trustee may take any other action
deemed proper by the Indenture Trustee which is not
inconsistent with such direction.
(b) The Controlling Party of the Note Owners of all
Series, or the Applicable Representatives on their behalf, shall
have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Collateral Agent,
or exercising any trust or power conferred on the Collateral
Agent under the Pooling Agreement; provided, however, that
(a) such direction shall not be in conflict with any
rule of law, any Indenture or Note Purchase Agreement or the
Pooling Agreement and would not involve the Collateral Agent
in personal liability or expense,
(b) the Collateral Agent shall not determine that the
action so directed would be unjustly prejudicial to the
Noteholders not taking part in such direction, and
(c) the Collateral Agent may take any other action
deemed proper by the Indenture Trustee which is not
inconsistent with such direction.
SECTION 4.9. Right of Noteholders to Receive Payments
not to Be Impaired. Anything in this Indenture to the contrary
notwithstanding, the right of any Noteholder to receive
distributions of payments required pursuant to Section 3.1 or 3.3
hereof on the applicable Class A Notes when due, or to institute
suit for the enforcement of any such payment on or after the
applicable Distribution Date, shall not be impaired or affected
without the consent of such Noteholder.
SECTION 4.10. Limitation on Suits. No Noteholder may
pursue any remedy with respect to this Indenture, the Pooling
Agreement or the Class A Notes unless:
(1) the Noteholder gives to the Indenture Trustee
written notice stating that an Event of Default is
continuing;
(2) a Majority in Interest of Class A Noteholders make
a written request to the Indenture Trustee to pursue the
remedy;
(3) the Noteholder or Noteholders offer to the
Indenture Trustee reasonable security or indemnity against
any loss, liability or expense;
(4) the Indenture Trustee does not comply with the
request within 60 days after receipt of the request and the
offer of security or indemnity; and
(5) the Majority in Interest of the Noteholders do not
give the Indenture Trustee a written direction inconsistent
with the request during such 60-day period.
A Noteholder may not use this Indenture or the Pooling
Agreement to prejudice the rights of another Noteholder or to
obtain a preference or priority over another Noteholder.
SECTION 4.11. Undertaking for Costs. The parties
hereto agree that, in any suit for the enforcement of any right
or remedy under this Indenture or the Pooling Agreement or in any
suit against the Indenture Trustee for any action taken or
omitted by it as Indenture Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses
made by the party litigant. The provisions of this Section do
not apply to a suit by the Indenture Trustee, a suit by a
Noteholder pursuant to Section 4.10 hereof or a suit by
Noteholders holding more than 10% of the aggregate unpaid
principal amount of the Class A Notes Outstanding.
SECTION 4.12. 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
appraisement, valuation, stay, extension or redemption law
wherever enacted, now or at any time hereafter in force, in order
to prevent or hinder the enforcement of this Indenture or the
Pooling Agreement or the execution of any power granted herein or
therein to the Indenture Trustee, or the absolute sale of the
Trust Assets, or any part thereof, or the possession thereof by
any purchaser at any sale under this Article IV or under the
Pooling Agreement; and the Issuer for itself and all who may
claim under it, so far as it or any of them now or hereafter
lawfully may, hereby waives the benefit of all such laws. The
Issuer for itself and all who may claim under it waives, to the
extent that it lawfully may, all right to have the property in
the Trust Assets marshalled upon any foreclosure thereof, and
agrees that any court having jurisdiction to foreclose the
Pooling Agreement may order the sale of the Trust Assets as an
entirety.
If any law referred to in this Section 4.12 and now in
force, of which the Issuer or its successors might take advantage
despite this Section 4.12, shall hereafter be repealed or cease
to be in force, such law shall not thereafter be deemed to
constitute any part of the contract herein contained or to
preclude the application of this Section 4.12.
ARTICLE V
DUTIES OF THE INDENTURE TRUSTEE
SECTION 5.1. Certain Notices. (a) In the event the
Indenture Trustee shall have knowledge of an Event of Default, as
promptly as practicable after, and in any event within 90 days
after, the occurrence of any such Event of Default, the Indenture
Trustee shall transmit by mail to the Collateral Agent, the
Seller, the Issuer and the Noteholders, in accordance with
Section 313(c) of the TIA, notice of such Event of Default
hereunder known to the Indenture Trustee, unless such Event of
Default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal
of or interest on any Class A Note, the Indenture Trustee shall
be protected in withholding such notice to any Person if and so
long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the
Indenture Trustee in good faith determine that the withholding of
such notice is in the interests of the Noteholders. Subject to
the terms of Sections 4.2, 4.4, 4.7 and 5.3 hereof, the Indenture
Trustee shall take such action, or refrain from taking such
action, with respect to any such Event of Default (including
without limitation with respect to the exercise of any rights or
remedies hereunder or under the Pooling Agreement) as the
Indenture Trustee shall be instructed in writing by a Majority in
Interest of the Noteholders. Subject to the provisions of
Section 5.3 hereof, if the Indenture Trustee shall not have
received instructions as above provided within 20 days after
notice of such Event of Default to the Noteholders, the Indenture
Trustee may, subject to instructions thereafter received pursuant
to the preceding provisions of this Section 5.1, take such
action, or refrain from taking such action, but shall be under no
duty to take or refrain from taking any action, with respect to
any such Event of Default as it shall determine advisable in the
best interests of the Noteholders and shall use the same degree
of care and skill in connection therewith as a prudent man would
use under the circumstances in the conduct of his own affairs.
For all purposes of this Indenture, in the absence of actual
knowledge on the part of an officer in its Corporate Trust
Administration, the Indenture Trustee, shall not be deemed to
have knowledge of any Event of Default unless notified in writing
by the Collateral Agent, the Issuer Trustee or one or more
Noteholders.
(b) The Indenture Trustee will furnish to any
Noteholder who provides a written request to the Indenture
Trustee asking to receive the same (which written request shall
include the address of such Noteholder to which the same shall be
furnished), promptly upon receipt thereof, duplicates or copies
of all reports, notices, requests, demands, certificates,
financial statements and other instruments furnished to the
Indenture Trustee under the Pooling Agreement or received from
the Collateral Agent pursuant hereto to the extent the same shall
not have been otherwise directly distributed to the Noteholders
pursuant to the express provision of the Pooling Agreement.
SECTION 5.2. Action Upon Instructions. Subject to the
terms of Sections 4.4, 4.7, 4.8, 5.1, 5.3 and 11.1 hereof, upon
the written instructions at any time and from time to time of a
Majority in Interest of the Noteholders, the Indenture Trustee
shall take such of the following actions as may be specified in
such instructions: (i) exercise such election or option, or make
such decision or determination or give such notice, consent,
waiver or approval or exercise such right, remedy or power or
take such other action hereunder or in respect of any part or all
of the Trust Assets as shall be specified in such instructions;
(ii) take such action with respect to, or to preserve or protect,
the Trust Assets (including the discharge of Liens) as shall be
specified in such instructions and as are consistent with this
Indenture and the Pooling Agreement; and (iii) take such other
action in respect of the subject matter of this Indenture as is
consistent with the terms hereof and the Pooling Agreement.
SECTION 5.3. Indemnification. The Indenture Trustee
shall not be required to take any action or refrain from taking
any action under Sections 5.1 (other than the first sentence
thereof) or 5.2 or Article IV hereof or under the Pooling
Agreement unless the Indenture Trustee shall have been
indemnified by the Noteholders against any liability, cost or
expense (including counsel fees) which may be incurred in
connection therewith. The Indenture Trustee shall not be under
any obligation to take any action under this Indenture or the
Pooling Agreement and nothing contained in this Indenture or the
Pooling Agreement shall require the Indenture Trustee to expend
or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it. The Indenture Trustee shall not be
required to take any action under Section 5.1 (other than the
first sentence thereof) or 5.2 or Article IV hereof or under the
Pooling Agreement, nor shall any other provision of this
Indenture be deemed to impose a duty on the Indenture Trustee to
take any action, if the Indenture Trustee shall have been advised
by counsel that such action is contrary to the terms hereof or of
the Pooling Agreement or is otherwise contrary to law.
SECTION 5.4. No Duties Except as Specified in
Indenture or Instructions. Subject to the provisions of Section
315 of the TIA, the Indenture Trustee shall not have any duty or
obligation to take or refrain from taking any action under, or in
connection with, this Indenture or the Pooling Agreement or any
part of the Trust Assets, except as expressly provided by the
terms of this Indenture or the Pooling Agreement or as expressly
provided in written instructions from the Noteholders as provided
in this Indenture; and no implied duties or obligations shall be
read into this Indenture or the Pooling Agreement against the
Indenture Trustee. The Indenture Trustee agrees that it will, in
its individual capacity and at its own cost and expense (but
without any right of indemnity in respect of any such cost or
expense under Section 9.1 hereof) promptly take such action as
may be necessary to duly discharge all Liens on any part of the
Trust Assets which result from claims against it in its
individual capacity not related to any other transaction
contemplated by or pursuant to any document included in the Trust
Assets.
SECTION 5.5. Directions to Collateral Agent. The
Indenture Trustee may, and upon the request of a Majority in
Interest of the Noteholders shall, give such directions or
notices to the Collateral Agent as are permitted to be given by
the Indenture Trustee under the Pooling Agreement; provided,
however, that without the consent of each Noteholder, the
Indenture Trustee will not take any action which, pursuant to
Section 11.1(a) hereof, expressly requires the consent of each
Noteholder. Any such direction or notice shall specify the
percentage of Principal Amount of Notes voting in favor of the
taking of action or the giving of direction specified in any such
direction or notice.
ARTICLE VI
REDEMPTION OF CLASS A NOTES
SECTION 6.1. No Redemption Prior to Maturity. Except
as provided in this Article VI, the Class A Notes may not be
redeemed prior to the Maturity Date.
SECTION 6.2. Expected Amortization Schedule. The
Class A Notes then outstanding shall without the requirement of
any further action on the part of the Issuer be redeemed on each
Distribution Date in an amount equal to the lesser of (i) the
Aggregate Principal Amount thereof and (ii) the applicable Class
A Principal Payment Amount for such Distribution Date for such
Class A Notes. Assuming Scheduled Payments are made on the
Related Pool of Contracts when due and a prepayment rate equal to
the product of 7% and the ADCB of the Related Pool of Contracts
calculated on a monthly basis, it is expected (but not required)
that the Noteholders hereunder will receive on each Distribution
Date, as a reduction of the principal amount of their Class A
Notes, the amount set forth opposite such Distribution Date on
the schedule below:
Expected
Repayment
Distribution Date Class A Balance Amount
Closing Date $188,172,873
December 20, 1996 182,930,850 $ 5,242,023
January 20, 1997 177,945,713 4,985,137
February 20, 1997 172,518,088 5,427,624
March 20, 1997 167,616,860 4,901,229
April 20, 1997 162,796,927 4,819,933
May 20, 1997 157,950,631 4,846,296
June 20, 1997 152,421,185 5,529,446
July 20, 1997 146,952,431 5,468,754
August 20, 1997 141,679,984 5,272,447
September 20, 1997 136,625,843 5,054,141
October 20, 1997 132,092,772 4,533,071
November 20, 1997 127,461,563 4,631,210
December 20, 1997 123,092,858 4,368,704
January 20, 1998 $118,868,104 $4,224,754
February 20, 1998 114,151,277 4,716,827
March 20, 1998 109,979,810 4,171,467
April 20, 1998 105,896,838 4,082,971
May 20, 1998 101,782,140 4,114,698
June 20, 1998 97,038,997 4,743,143
July 20, 1998 92,307,014 4,731,983
August 20, 1998 87,775,031 4,531,983
September 20, 1998 83,344,541 4,430,491
October 20, 1998 79,467,349 3,877,192
November 20, 1998 75,484,972 3,982,377
December 20, 1998 71,787,408 3,697,564
January 20, 1999 68,231,616 3,555,792
February 20, 1999 64,299,454 3,932,162
March 20, 1999 60,813,157 3,486,297
April 20, 1999 57,478,990 3,334,167
May 20, 1999 54,217,587 3,261,402
June 20, 1999 50,652,459 3,565,128
July 20, 1999 47,344,654 3,307,805
August 20, 1999 43,822,960 3,521,694
September 20, 1999 40,281,307 3,541,652
October 20, 1999 37,553,507 2,727,800
November 20, 1999 34,924,245 2,629,262
December 20, 1999 32,264,980 2,659,266
January 20, 2000 29,767,206 2,497,773
February 20, 2000 27,460,386 2,306,821
March 20, 2000 25,077,699 2,382,687
April 20, 2000 22,885,204 2,192,495
May 20, 2000 20,753,509 2,131,695
June 20, 2000 18,320,936 2,432,573
July 20, 2000 16,087,819 2,233,118
August 20, 2000 12,852,057 3,235,762
September 20, 2000 9,928,658 2,923,399
October 20, 2000 7,760,382 2,258,275
November 20, 2000 5,592,806 2,077,577
December 20, 2000 3,702,682 1,890,123
January 20, 2001 1,840,222 1,862,460
132,722 1,707,501
February 20, 2001
March 20, 2001 0 132,722
(b) Each redemption of the Class A Notes made pursuant
to Section 6.2(a) hereof shall be applied to each Class A Note
pro rata in accordance with the then outstanding principal amount
thereof.
SECTION 6.3. Notice of Redemption to Noteholders. In
order to effect any redemption set forth in Section 3.2 hereof,
the Indenture Trustee shall give not less than 15 and not more
than 45 days' prior notice, by first class mail of redemption to
each Noteholder.
All notices of redemption shall state:
(a) that such redemption shall occur pursuant to
Section 3.2;
(b) the applicable date of payment of such redemption;
(c) the place or places where such Class A Notes are
to be surrendered for payment; and
(d) the redemption price and the amount of accrued
interest to be paid.
SECTION 6.4. Receipt of Funds. (a) On any date fixed
for redemption under Section 3.2 and 6.3 hereof, immediately
available funds in Dollars shall be deposited in the Collection
Account by the Seller or by the Servicer on behalf of the Seller
at the place and by the time and otherwise in the manner provided
in Section 2.4 hereof and Section 13.2 of the Pooling Agreement,
in an amount equal to the principal amount of Class A Notes to be
redeemed together with accrued and unpaid interest thereon to the
date fixed for such redemption. From and after the date of such
deposit, interest shall no longer accrue on the principal amount
of the Class A Notes to be redeemed. As provided in Section 2.4
hereof, upon receipt of such funds, the Collateral Agent shall
transfer such funds to the Note Payment Account by the time and
in the manner specified in Sections 4.3(d) and 13.2 of the
Pooling Agreement. Upon receipt of such funds, the Indenture
Trustee will promptly notify the Collateral Agent of the amount
thereof to be applied to the redemption of the principal amount
of the Class A Notes.
ARTICLE VII
THE COLLATERAL AGENT AND THE INDENTURE TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties. Each of
the Collateral Agent and the Indenture Trustee accepts the duties
hereby created and applicable to it and agrees to perform the
same but only upon the terms of this Indenture and agrees to
receive and disburse all monies received by it constituting part
of the Trust Assets in accordance with the terms hereof and of
the Pooling Agreement. The Collateral Agent and the Indenture
Trustee, in their individual capacities, shall not be answerable
or accountable under any circumstances, except (a) for their own
willful misconduct or gross negligence, (b) their failure to use
ordinary care in receiving, handling or disbursing funds, (c) in
the case of the Indenture Trustee, as provided in Section 2.3
hereof or the last sentence of Section 5.4 hereof, and (d) for
liabilities that may result, in the case of the Indenture
Trustee, from the inaccuracy of any representation or warranty of
the Indenture Trustee made in its individual capacity herein or
in the Pooling Agreement. Neither the Collateral Agent nor the
Indenture Trustee shall be liable for any error of judgment made
in good faith by a Responsible Officer of the Collateral Agent or
the Indenture Trustee, as the case may be, unless it is proved
that the Collateral Agent or the Indenture Trustee, as the case
may be, was negligent in ascertaining the pertinent facts. None
of the Seller, the Collateral Agent or the Indenture Trustee
shall be liable for any action or inaction of any other. The
Indenture Trustee shall not be liable for any lawful action taken
at the direction of a Majority in Interest of the holders of the
Class A Notes and otherwise in accordance herewith.
SECTION 7.2. Absence of Duties. In the case of the
Indenture Trustee, except in accordance with written instructions
furnished pursuant to Section 5.1 or 5.2 hereof, and except as
provided in, and without limiting the generality of, Sections 5.3
and 5.4 hereof and, in the case of the Collateral Agent, except
as provided in Section 4.1(b) hereof, none of the Indenture
Trustee or the Collateral Agent shall have any duty (a) to see to
any recording or filing of, or necessary to perfect an interest
in, the Trust Assets or any other document, or to see to the
maintenance of any such recording or filing, (b) to see to any
insurance, whether or not the Servicer or the Seller shall be in
default with respect thereto, (c) to see to the payment or
discharge of any Lien of any kind against any part of the Trust
Assets or (d) to confirm, verify or inquire into the failure to
receive any financial statements required to be delivered under
the Pooling Agreement. Except as expressly otherwise provided
herein and, with respect to the Seller in the Pooling Agreement,
the Noteholders and the Seller shall not have any duty or
responsibility hereunder, including, without limitation, any of
the duties mentioned in clauses (a) through (d) above.
SECTION 7.3. No Representations or Warranties as to
Documents. None of the Collateral Agent or the Indenture Trustee
in its individual capacity makes or shall be deemed to have made
any representation or warranty as to the validity, legality or
enforceability of this Indenture, the Pooling Agreement or the
Class A Notes or as to the correctness of any statement contained
in any thereof, except for the representations and warranties of
the Collateral Agent or the Indenture Trustee, made in their
respective individual capacities, under any document to which
such party is a party. The Noteholders and the Seller make no
representation or warranty hereunder whatsoever.
SECTION 7.4. No Segregation of Monies; No Interest.
Any monies paid to or retained by the Indenture Trustee pursuant
to any provision hereof and not then required to be distributed
to any Noteholder as provided in Article III hereof need not be
segregated in any manner except to the extent required by law,
and may be deposited under such general conditions as may be
prescribed by law, and the Indenture Trustee shall not (except as
otherwise provided in Section 2.4 hereof) be liable for any
interest thereon; provided, however, that any payments received
or applied hereunder by the Indenture Trustee shall be accounted
for by the Indenture Trustee so that any portion thereof paid or
applied pursuant hereto shall be identifiable as pertaining to
the transaction contemplated hereby and as to the source thereof.
SECTION 7.5. Reliance; Agents; Advice of Counsel.
None of the Issuer Trustee, the Collateral Agent or the Indenture
Trustee shall incur liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or
paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Issuer Trustee, the
Collateral Agent and the Indenture Trustee may accept a copy of a
resolution of the Board of Directors of any party to the Pooling
Agreement, certified by the Secretary or an Assistant Secretary
thereof as duly adopted and in full force and effect, as
conclusive evidence that such resolution has been duly adopted
and that the same is in full force and effect. As to the
aggregate unpaid principal amount of Class A Notes Outstanding as
of any date, the Issuer Trustee and the Collateral Agent may for
all purposes hereof rely on a certificate signed by any
Responsible Officer of the Indenture Trustee. As to any fact or
matter relating to the Issuer the manner of ascertainment of
which is not specifically described herein, the Indenture Trustee
may for all purposes hereof rely on a certificate, signed by a
duly authorized officer of the Issuer Trustee or the Collateral
Agent, as to such fact or matter, and such certificate shall
constitute full protection to the Indenture Trustee for any
action taken or omitted to be taken by it in good faith in
reliance thereon. The Indenture Trustee shall assume, and shall
be fully protected in assuming, that the Issuer is authorized to
enter into this Indenture and the Issuer Trustee is authorized to
enter into the Pooling Agreement and to take all action to be
taken by it pursuant to the provisions hereof and thereof, and
shall not inquire into the authorization of the Issuer with
respect thereto. In the administration of the trusts hereunder,
the Indenture Trustee may execute any of the trusts or powers
hereof and perform its powers and duties hereunder directly or
through agents or attorneys and may, at the expense of the Trust
Assets, consult with counsel, accountants and other skilled
persons to be selected and retained by it, and the Indenture
Trustee shall not be liable for anything done, suffered or
omitted in good faith by them in accordance with the written
advice or written opinion of any such counsel, accountants or
other skilled persons.
SECTION 7.6. Capacity in Which Acting. The Indenture
Trustee acts hereunder solely as trustee herein and not in its
individual capacity, except as otherwise expressly provided in
the Transaction Documents.
SECTION 7.7. Compensation. The Indenture Trustee
shall be entitled to reasonable compensation, including expenses
and disbursements, for all services rendered hereunder and shall
have a claim on the Trust Assets for the payment of such
compensation, to the extent that such compensation shall not be
paid by the Servicer or others. The Indenture Trustee agrees
that it shall have no right against the Issuer, the Collateral
Agent or the Noteholders for any fee as compensation for its
services as trustee under this Indenture.
SECTION 7.8. May Become Noteholder. Each of the
institutions acting as Collateral Agent or Indenture Trustee or
any agent of the Collateral Agent or the Indenture Trustee
hereunder may, in its individual or any other capacity, become
the owner or pledgee of Class A Notes with the same rights it
would have if it were not the institution acting as Collateral
Agent, Indenture Trustee or such agent, as the case may be.
SECTION 7.9. Further Assurances. At any time and from
time to time, upon the request of the Indenture Trustee, the
Issuer shall promptly and duly execute and deliver any and all
such further instruments and documents as may be specified in
such request and as are necessary to perfect, preserve or protect
the security interests and assignments created or intended to be
created by the Pooling Agreement.
SECTION 7.10. Corporate Trustee Required; Eligibility.
There shall at all times be an Indenture Trustee hereunder which
shall be eligible to act as a trustee under Section 310(a) of the
TIA and shall be a corporation organized and doing business under
the laws of the United States, any State thereof or the District
of Columbia having a combined capital and surplus of at least
$100,000,000, (or having a combined capital and surplus in excess
of $3,000,000 and the obligations of which, whether now in
existence or hereafter incurred, are fully and unconditionally
guaranteed by a corporation organized and doing business under
the laws of the United States, any State thereof or the District
of Columbia and having a combined capital and surplus of at least
$100,000,000), if there is such an institution willing, able and
legally qualified to perform the duties of the Indenture Trustee
hereunder upon reasonable or customary terms. Such corporate
trustee shall be authorized under the laws of the United States
of America or any State thereof or the District of Columbia to
exercise corporate trust powers and shall be subject to
supervision of examination by Federal, State or District of
Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section 7.10, 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. Subsequent to the
qualification of this Indenture under the TIA, the Indenture
Trustee shall comply with Section 310(b) of the TIA; provided,
however, that there shall be excluded from the operation of
Section 310(b)(1) of the TIA, each other Indenture and any other
indenture or indentures under which other securities or
certificates of interest or participation in other securities of
the Issuer are outstanding if the requirements for such exclusion
set forth in Section 310(b)(1) of the TIA are met.
In case at any time the Indenture Trustee shall cease
to be eligible in accordance with the provisions of this Section
7.10, the Indenture Trustee shall resign immediately in the
manner and with the effect specified in Section 10.2 hereof.
SECTION 7.11. Preferential Collection of Claims
Against the Indenture Trustee. Subsequent to the qualification
of this Indenture under the TIA, the Indenture Trustee shall
comply with Section 311(a) of the TIA, excluding any creditor
relationship listed in Section 311(b) of the TIA, and, if the
Indenture Trustee shall resign or be removed as Indenture
Trustee, it shall be subject to Section 311(a) of the TIA to the
extent provided therein.
SECTION 7.12. Maintenance of Agencies; Note Registrar;
Paying Agents; Authorized Agents. (a) With respect to the Class
A Notes, there shall at all times be maintained in the Borough of
Manhattan, The City of New York, an office or agency where such
Class A Notes may be presented or surrendered for registration of
transfer or for exchange, and for payment thereof and where
notices and demands to or upon the Indenture Trustee in respect
of such Class A Notes may be served. Such office or agency shall
be initially at Fleet Bank, 00 Xxxx Xxxxxx, 0xx Xxxxx, Window 2,
Xxx Xxxx, XX 00000. Written notice of the location of each such
other office or agency and of any change of location thereof
shall be given by the Indenture Trustee to the Collateral Agent,
the Issuer, the Issuer Trustee, the Seller and the Noteholders.
In the event that no such office or agency shall be maintained or
no such notice of location or of change of location shall be
given, presentations and demands may be made and notices may be
served at the Corporate Trust Office.
(b) There shall at all times be a Note Registrar
hereunder. As provided in Section 2.6 hereof, the Indenture
Trustee shall initially be the Note Registrar hereunder. The
Indenture Trustee may appoint one or more other institutions to
act as note registrar hereunder, and the term "Note Registrar"
shall include any such note registrars. The Note Registrar shall
furnish to the Indenture Trustee, at stated intervals of not more
than six months, and at such other times as the Indenture Trustee
may request in writing, a copy of the Note Register maintained by
the Note Registrar.
(c) The Indenture Trustee may appoint one or more
paying agents hereunder, and the term "Paying Agent" shall
include any such paying agents.
(d) Each Note Registrar, each Paying Agent and each
agent for the Indenture Trustee, unless otherwise specifically
provided herein, shall be an "Authorized Agent". Each Authorized
Agent hereunder shall be a bank or trust company, shall be a
corporation organized and doing business under the laws of the
United States or any State thereof or the District of Columbia
having a combined capital and surplus of at least $100,000,000,
(or having a combined capital and surplus in excess of $3,000,000
and the obligations of which, whether now in existence or
hereafter incurred, are fully and unconditionally guaranteed by a
corporation organized and doing business under the laws of the
United States, any State thereof or the District of Columbia and
having a combined capital and surplus of at least $100,000,000)
and having a Bond Rating of at least BBB (or its equivalent), and
shall be authorized under such laws to exercise corporate trust
powers, subject to supervision or examination by Federal, State
or District of Columbia authority. Any corporation into which
any Authorized Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any
merger, consolidation or conversion to which any Authorized Agent
shall be a party, or any corporation succeeding to the corporate
trust business of any Authorized Agent, shall be the successor of
such Authorized Agent hereunder, if such successor corporation is
otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the parties
hereto or such Authorized Agent or such successor corporation.
(e) Any Authorized Agent may at any time resign by
giving written notice of resignation to the Indenture Trustee,
the Issuer, the Collateral Agent and the Seller. The Issuer or
the Indenture Trustee may at any time terminate the agency of any
Authorized Agent by giving written notice of termination to such
Authorized Agent. Upon the resignation or termination of an
Authorized Agent or in case at any time any such Authorized Agent
shall cease to be eligible under this Section 7.12 (when, in
either case, no other Authorized Agent performing the functions
of such Authorized Agent shall have been appointed), the
Indenture Trustee shall, or shall promptly appoint one or more
qualified successor Authorized Agents to, perform the functions
of the Authorized Agent which has resigned or whose agency has
been terminated or who shall have ceased to be eligible under
this Section. The Indenture Trustee shall give written notice of
any such appointment made by it to the Seller and the Issuer; and
the Indenture Trustee shall mail notice of such appointment to
all Noteholders as their names and addresses appear on the Note
Register.
(f) The Issuer agrees to pay, or cause to be paid,
from time to time to each Authorized Agent reasonable
compensation for its services and to reimburse it for its
reasonable expenses.
SECTION 7.13. Money for Note Payments to Be Held in
Trust. All moneys deposited with the Indenture Trustee or any
Paying Agent for the purpose of any payment on Class A Notes
shall be deposited and held in trust for the benefit of the
Noteholders entitled to such payment, subject to the provisions
of this Section 7.13. Moneys so deposited and held in trust
shall constitute a separate trust fund for the benefit of the
Noteholders with respect to which such money was deposited. Any
Paying Agent shall provide notice to the Indenture Trustee of any
Event of Default in accordance with the provisions of Section
317(a)(2) of the TIA.
The Indenture Trustee may at any time, for the purpose
of obtaining the satisfaction and discharge of this Indenture or
for any other purpose, direct any Paying Agent to pay to the
Indenture Trustee all sums held in trust by such Paying Agent,
such sums to be held by the Indenture Trustee upon the same terms
as those upon which such 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 money.
ARTICLE VIII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 8.1. Noteholder Lists. The Indenture Trustee
shall preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses
of the Noteholders. If the Indenture Trustee is not the sole
Note Registrar, the Issuer shall cause to be furnished to the
Indenture Trustee within 15 days after each Record Date and
within 15 days before each Payment Date, and 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, in such
form as the Indenture Trustee may reasonably require, of all
information in the possession or control of the Issuer as to the
names and addresses of the Noteholders as of a date not more than
15 days prior to the time such list is furnished; provided,
however, that this obligation shall be deemed satisfied in full
upon the furnishing to the Indenture Trustee of a copy of the
Note Register. The Indenture Trustee may destroy any list
furnished to it as provided in this Section 8.1 upon receipt of a
new list so furnished.
SECTION 8.2. Reports by Indenture Trustee. (a)
Subsequent to the qualification of this Indenture under the TIA,
the Indenture Trustee shall transmit to Noteholders such reports
concerning the Indenture Trustee and its actions under this
Indenture and the release of the Trust Assets from the Lien of
the Pooling Agreement as may be required pursuant to the TIA at
the times, in the manner and to the Persons provided pursuant
thereto. Reports required pursuant to Section 313(a) of the TIA
with respect to any 12-month period shall cover the 12-month
period ending May 15 and shall be transmitted by mail by the next
succeeding July 15. Subsequent to the qualification of this
Indenture under the TIA, a copy of each such report at the time
of its mailing to the Noteholders shall be filed with the SEC and
each stock exchange (if any) on which the Class A Notes are
listed.
(b) Promptly upon receipt thereof, the Indenture
Trustee shall transmit to all Noteholders the reports and other
information which are provided to the Indenture Trustee by the
Issuer pursuant to Section 8.3 hereof.
SECTION 8.3. Reports by the Issuer. (a) The
Servicer, on behalf of the Issuer, shall:
(i) file with the Indenture Trustee, within 15 days
after the Issuer is required to file the same with the
Securities and Exchange 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
Securities and Exchange Commission may from time to time by
rules and regulations prescribe) which the Issuer may be
required to file with the Securities and Exchange Commission
pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the
Securities and Exchange Commission in accordance with rules
and regulations prescribed from time to time by the
Securities and Exchange Commission such additional
information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants
of this Indenture as may be required from time to time by
such rules and regulations; and
(iii) supply to the Indenture Trustee (and the
Indenture Trustee shall transmit by mail to all Noteholders
described in Section 313(c) of the TIA) such summaries of
any information, documents and reports required to be filed
by the Issuer pursuant to clauses (i) and (ii) of this
Section 8.3(a) as may be required by rules and regulations
prescribed from time to time by the Securities and Exchange
Commission.
(b) Unless the Seller otherwise determines, the fiscal
year of the Issuer shall end on December 31 of such year.
SECTION 8.4. Reports by Indenture Trustee. (a) If
required by Section 313(a) of the Trust Indenture Act of 1939
(the "TIA"), within sixty days after each October 1, beginning
with October 1, 1996, the Indenture Trustee shall mail to each
Noteholder as required by Section 313(c) of the TIA a brief
report dated as of such date that complies with Section 313(a) of
the TIA. The Indenture Trustee also shall comply with Section
313(b) of the TIA. A copy of any report delivered pursuant to
this Section 8.4(a) shall, at the time of its mailing to
Noteholders, be filed by the Indenture Trustee with the
Securities and Exchange Commission and each stock exchange, if
any, on which the Securities are listed. The Seller shall
notify the Indenture Trustee if and when the Securities are
listed on any stock exchange.
(b) On each Distribution Date, the Indenture Trustee
shall include with each payment to each Noteholder a copy of the
Monthly Report for the related period delivered to the Indenture
Trustee pursuant to Section 3.10 of the Pooling Agreement.
ARTICLE IX
INDEMNIFICATION
SECTION 9.1. Indemnification. The Indenture Trustee
acknowledges and accepts the conditions and limitations with
respect to the Servicer's obligation to indemnify, defend and
hold the Indenture Trustee harmless as set forth in Sections 8.3
and 8.4 of the Pooling Agreement.
ARTICLE X
SUCCESSOR INDENTURE TRUSTEES; SEPARATE ISSUER TRUSTEES
SECTION 10.1. Notice of Successor Indenture Trustee.
In the case of any appointment of a successor to the Indenture
Trustee pursuant to the Pooling Agreement or any merger,
conversion, consolidation or sale of all or substantially all of
the corporate trust business of the Indenture Trustee pursuant to
the Pooling Agreement, the successor Indenture Trustee shall give
prompt written notice thereof to the Collateral Agent and each
Noteholder.
SECTION 10.2. Replacement of Indenture Trustee. The
Indenture Trustee may resign at any time by giving at least 30
days' prior written notice to the Collateral Agent, the Seller,
the Issuer and each Noteholder, such resignation to be effective
upon the acceptance of the trusteeship by a successor Indenture
Trustee. A Majority in Interest of the Noteholders may remove
the Indenture Trustee by so notifying the Indenture Trustee and
the Seller may appoint a successor Indenture Trustee. The Seller
shall remove the Indenture Trustee if:
(1) the Indenture Trustee fails to comply with
Section 7.10 hereof;
(2) the Indenture Trustee is adjudged bankrupt or
insolvent;
(3) a receiver or other public officer takes charge of
the Indenture Trustee or its property;
(4) the Indenture Trustee otherwise becomes incapable
of acting; or
(5) the Indenture Trustee shall fail to comply with
Section 310 of the TIA after written request therefor by the
Collateral Agent.
If the Indenture Trustee resigns or is removed 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 Seller shall promptly
appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee,
the Collateral Agent 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 the Collateral Agent, the Issuer and
the Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as Indenture Trustee to the
successor Indenture Trustee, subject to the Lien provided for in
the Pooling Agreement.
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 Collateral Agent or
a Majority in Interest of the Noteholders may petition any court
of competent jurisdiction for the appointment of a successor
Indenture Trustee.
If the Indenture Trustee fails to comply with Section
7.10 hereof (to the extent applicable), any Noteholder who has
been a bona fide holder of a Class A Note for at least six months
may, on behalf of himself and all others similarly situated,
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 10.2, the Servicer's obligations
under Section 9.1 hereof shall continue for the benefit of the
retiring Indenture Trustee.
SECTION 10.3. Appointment of Separate Indenture
Trustees. (a) At any time or times, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of
the Trust Assets may at the time be located or in which any
action of the Indenture Trustee may be required to be performed
or taken or if the Indenture Trustee shall be advised by counsel
satisfactory to it that it is so necessary or prudent in the
interests of the Noteholders, or in the event the Indenture
Trustee shall have been requested to do so by a Majority in
Interest of the Noteholders, the Indenture Trustee, by an
instrument in writing signed by it, and without the concurrence
of the Issuer, may appoint one or more individuals or
corporations to act as separate trustee or separate trustees or
co-trustee, acting jointly with the Indenture Trustee, or to act
as separate trustee or trustees of all or any part of the Trust
Assets with such powers as may be provided in an agreement
supplemental hereto.
(b) The Indenture Trustee and, at the request of the
Indenture Trustee, the Issuer shall execute, acknowledge and
deliver all such instruments as may be required by the legal
requirements of any jurisdiction or by any such separate trustee
or separate trustees or co-trustee for the purpose of more fully
confirming such title, rights or duties to such separate trustee
or separate trustees or co-trustee and the Issuer hereby makes,
constitutes and appoints the Indenture Trustee its agent and
attorney-in-fact for it and in its name, place and stead to
execute, acknowledge and deliver the same in the event that the
Issuer shall not itself execute and deliver the same within 20
days after receipt by it of such request so to do. Upon the
acceptance in writing of such appointment by any such separate
trustee or separate trustees or co-trustee, it, he, she or they
shall be vested with such rights and duties, as shall be
specified in the instrument of appointment, jointly with the
Indenture Trustee (except insofar as local law makes it necessary
for any such separate trustee or separate trustees or co-trustee
to act alone) subject to all the terms of this Indenture. Any
separate trustee or separate trustees or co-trustee may, at any
time by an instrument in writing, constitute the Indenture
Trustee its, his or her attorney-in-fact and agent with full
power and authority to do all acts and things and to exercise all
discretion on its, his or her behalf and in its, his or her name.
In case any such separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, all assets, property,
rights, powers, trusts, obligations and duties of such separate
trustee or co-trustee shall, so far as permitted by law, vest in
and be exercised by the Indenture Trustee, without the
appointment of a successor to such separate trustee or co-trustee
unless and until a successor is appointed.
(c) All provisions of this Indenture which are for the
benefit of the Indenture Trustee shall extend to and apply to
each separate trustee or co-trustee appointed pursuant to the
foregoing provisions of this Section 10.3, including without
limitation Article VII hereof.
(d) Every separate trustee and co-trustee hereunder
shall, to the extent permitted by law, be appointed and act, and
the Indenture Trustee shall act, subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations
conferred upon the Indenture Trustee in respect of the
receipt, custody, investment and payment of monies shall be
exercised solely by the Indenture Trustee;
(ii) all other 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 separate
trustees or co-trustee jointly except to the extent that
under any law of any jurisdiction in which any particular
act or acts are to be performed the Indenture Trustee shall
be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations
shall be exercised and performed by such separate trustee or
separate trustees or co-trustee;
(iii) no power hereby given to, or with respect to
which it is hereby provided may be exercised by, any such
separate trustee or separate trustees or co-trustee shall be
exercised hereunder by such Person except jointly with, or
with the consent of, the Indenture Trustee; and
(iv) no trustee hereunder shall be personally liable
by reason of any act or omission of any other trustee
hereunder.
If at any time the Indenture Trustee shall deem it no longer
necessary or prudent in order to conform to any such law, or take
any such action or shall be advised by such counsel that it is no
longer legally required or necessary or prudent in the interest
of the Noteholders or in the event the Indenture Trustee shall
have been requested to do so by a Majority in Interest of the
Noteholders, the Indenture Trustee shall execute and deliver an
indenture supplemental hereto and all other instruments and
agreements necessary or proper to remove any separate trustee or
separate trustees or co-trustee.
(e) Any request, approval or consent in writing by the
Indenture Trustee to any separate trustee or separate trustees or
co-trustee shall be sufficient warrant to such separate trustee
or separate trustees or co-trustee, as the case may be, to take
such action as may be so requested, approved or consented to.
(f) Notwithstanding any other provision of this
Section 10.3, the powers of any separate trustee or separate
trustees or co-trustee appointed pursuant to this Section 10.3
shall not in any case exceed those of the Indenture Trustee
hereunder.
SECTION 10.4. Notice of Successor Collateral Agent.
In the case of any appointment of a successor to the Collateral
Agent pursuant to the Pooling Agreement or any merger,
conversion, consolidation or sale of all or substantially all of
the corporate trust business of the Collateral Agent pursuant to
the Pooling Agreement, the Indenture Trustee shall give prompt
written notice thereof to each Noteholder.
ARTICLE XI
SUPPLEMENTS AND AMENDMENTS TO
THIS INDENTURE AND OTHER DOCUMENTS
SECTION 11.1. Amendments; Waivers, etc. of Operative
Documents; Direction to Collateral Agent. (a) At any time and
from time to time, (i) the Seller, the Issuer, the Collateral
Agent and the Indenture Trustee, with the written consent of a
Majority in Interest of the Class A Notes, may execute a
supplement to this Indenture for the purpose of adding provisions
to, or changing or eliminating provisions of, this Indenture
(including any appendix or schedule hereto) and (ii) the
Indenture Trustee, with the written consent of a Majority in
Interest of the Class A Noteholders, may consent to or execute a
written amendment of or supplement to, or waiver or consent
under, the Pooling Agreement or any Supplement; provided,
however, that, without the consent of each Holder of a Class A
Note, no such amendment, supplement, waiver or consent shall
(A) reduce the amount or extend the time of payment
of any amount owing or payable under any Class A Note or
(except as provided in this Indenture) increase or reduce
the interest payable on any Class A Note (except that only
the consent of the affected Noteholder shall be required for
any decrease in an amount of or the rate of interest payable
on such Class A Note or any extension for the time of
payment of any amount payable under such Class A Note), or
alter or modify the provisions of the Pooling Agreement with
respect to the order of priorities in which distributions
thereunder shall be made or with respect to the amount or
time of payment of any such distribution;
(B) reduce, modify or amend any indemnities in favor
of any Noteholder or in favor of or to be paid by the Seller
or the Servicer, or alter the definition of "Indemnitees" to
exclude any Noteholder (except as consented to by each
Person adversely affected thereby);
(C) make any Class A Note payable in money other
than U.S. dollars;
(D) modify the provisions of this Indenture relating
to amendments, waivers and supplements of this Indenture or
the Pooling Agreement or any other document; or
(E) modify the definition of "Majority in Interest"
contained herein or the percentage of Noteholders required
to effect any modification of this Indenture.
This Section 11.1 shall not apply to any indenture or indentures
supplemental hereto to the extent permitted by, and complying
with the terms of Sections 10.3 or 11.4 hereof. Notwithstanding
the foregoing, without the consent of each Noteholder, no such
amendment, supplement, waiver or modification of the terms of any
agreement or document shall expressly permit the creation of any
Lien on the Trust Assets or any part thereof, except as herein
expressly permitted, or deprive any Noteholder of the benefit of
the Lien of the Pooling Agreement on the Trust Assets, except as
provided in Sections 5.1 and 5.2 hereof or Sections 5.1 and 5.2
of the Pooling Agreement or in connection with the exercise of
remedies under Article IV of the Pooling Agreement.
It shall not be necessary for the consent of the
Noteholders under this Section 11.1 to approve the particular
form of any proposed supplement or amendment to this Indenture or
the Pooling Agreement, but it shall be sufficient if such consent
shall approve the substance thereof.
(b) Notwithstanding the foregoing, if no Event of
Default shall have occurred and be continuing, the Indenture
Trustee may consent to any modification or amendment of, addition
to or deletion from the Pooling Agreement if, as reflected in an
Officers' Certificate (and, to the extent required herein, an
Opinion of Counsel) such modification, amendment, addition or
deletion shall not materially adversely affect the interests of
the holders of the Notes and does not require the consent of each
Noteholder pursuant to Section 11.1(a).
SECTION 11.2. Trustees and Collateral Agent Protected.
If, in the opinion of the institution acting as Issuer Trustee or
as Collateral Agent under the Pooling Agreement or the
institution acting as the Indenture Trustee hereunder, any
document required to be executed pursuant to the terms of Section
11.1 hereof adversely affects any right, duty, immunity or
indemnity with respect to it under this Indenture or the Pooling
Agreement, such Person may in its discretion decline to execute
such document.
SECTION 11.3. No Request Necessary for Supplement.
Subject to Section 6.2 of the Pooling Agreement and
notwithstanding anything contained in Section 11.1 hereof,
any Supplement executed and delivered pursuant to Section 6.2 of
the Pooling Agreement and any amendments regarding the addition
to or removal of Contracts from the Issuer as provided in
Sections 2.5 or 6.2 of the Pooling Agreement, executed in
accordance with the provisions thereof, shall not be considered
amendments to the Pooling Agreement for the purpose of Section
11.1.
SECTION 11.4. No Request Necessary for Indenture
Supplement, Etc. The Issuer (when directed in writing by the
Seller), the Collateral Agent and the Indenture Trustee may enter
into an indenture or indentures supplemental hereto and
agreements supplemental to the Pooling Agreement for one or more
of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge
any property or assets to the Indenture Trustee or to the
Collateral Agent as security for the obligations of the
Issuer;
(b) to evidence the succession of another corporation
to the Issuer, or successive successions, and the assumption
by the successor corporation of the covenants, agreements
and obligations of the Issuer Trustee or the Issuer herein,
in the Pooling Agreement and the Class A Notes;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as (in the
case of the Issuer) consented to by the Seller and as they
and the Indenture Trustee shall consider to be for the
protection of the Noteholders, and to make the occurrence,
or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions
an Event of Default permitting the enforcement of all or any
of the several remedies provided herein or in the Pooling
Agreement; provided, however, that in respect of any such
additional covenant, restriction, condition or provision
such supplemental indenture or agreement may provide for a
particular period of grace after default (which period may
be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon
such an Event of Default or may limit the remedies available
to the Indenture Trustee or the Collateral Agent upon such
an Event of Default or may limit the right of the
Noteholders to waive such an Event of Default;
(d) to surrender any rights or power conferred herein
or in the Pooling Agreement upon the Issuer Trustee, the
Seller, the Collateral Agent or the Issuer; provided,
however, that no such surrender shall be given effect unless
the Issuer Trustee has obtained the written consent thereto
of the Seller;
(e) to cure any ambiguity or to correct or supplement
any provision contained herein or in the Pooling Agreement
or in any supplemental indenture or agreement which may be
defective or inconsistent with any other provision contained
herein or in the Pooling Agreement or in any supplemental
indenture or agreement; provided, however, that such cure,
correction or supplement shall not be materially adverse to
the rights or interests of the Noteholders;
(f) to provide for the issuance under this Indenture
of Class A Notes in coupon form and to provide for
exchangeability of such Class A Notes with Class A Notes
issued hereunder in fully registered form, and to make all
appropriate changes for such purpose;
(g) to correct or amplify the description of any
property at any time subject to the Lien of the Pooling
Agreement or better to assure, convey and confirm unto the
Collateral Agent any property subject or required to be
subject to the Lien of the Pooling Agreement or to subject
Additional Contracts and Equipment to the Lien of the
Pooling Agreement in accordance with the provisions thereof;
provided, however, that supplements to the Pooling Agreement
entered into for the purpose of subjecting Additional
Contracts and Equipment to the Lien of the Pooling Agreement
need only be executed by the Issuer Trustee, the Issuer and
the Collateral Agent;
(h) to modify, eliminate or add to the provisions of
this Indenture or the Pooling Agreement to the extent
required by the SEC to obtain or to continue the
qualification of this Indenture or the Pooling Agreement
(including any supplemental agreement) under the TIA, or
under any similar Federal statute enacted after the date
hereof, and to add to this Indenture or the Pooling
Agreement such other provisions as may be expressly
permitted by the TIA, excluding, however, the provisions
referred to in Section 316(a)(2) of the TIA as in effect on
the date hereof or any corresponding provision in any
similar Federal statute enacted after the date hereof;
provided, however, that no such modification, elimination or
addition required by the SEC to obtain such qualification
shall materially adversely affect the rights or interests of
the Noteholders hereunder or under the Class A Notes.
The Indenture Trustee is hereby authorized to join in
the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be
contained therein and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property thereunder or
under the Pooling Agreement, but the Indenture Trustee shall not
be obligated to enter into any such supplemental indenture which
adversely affects the Indenture Trustee's own rights, duties or
immunities under this Indenture or otherwise, whether in its
trust or individual capacity.
Any supplemental indenture or supplemental agreement
under this Section 11.4 may be executed without the consent of
the Noteholders or the Issuer (except, with respect to Sections
11.4(c) and 11.4(d) hereof) notwithstanding any of the provisions
of Section 11.1 hereof.
Promptly after the execution by the Indenture Trustee,
and, if applicable, the Issuer of any supplemental indenture or
supplemental agreement pursuant to the provisions of this Section
11.4, the Indenture Trustee shall provide notice to the
Noteholders at their addresses as they shall appear on the Note
Register of the Note Registrar, 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 11.5. Conformity with the TIA. Every
supplemental agreement executed pursuant to this Article shall
conform to the requirements of the TIA as then in effect.
SECTION 11.6. Payment for Consent. None of the
Issuer, the Issuer Trustee, the Seller and any of their
respective Affiliates shall, directly or indirectly, pay or cause
to be paid any consideration, whether by way of interest, fee or
otherwise, to any Noteholder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of
this Indenture, the Pooling Agreement or the Class A Notes unless
such consideration is offered to be paid to all Noteholders that
so consent, waive or agree to amend in the time frame set forth
in solicitation documents relating to such consent, waiver or
agreement.
SECTION 11.7. 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 and the respective
rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Indenture Trustee, the Issuer and the
Noteholders shall therefore 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 11.8. Notation on Notes in Respect of
Supplemental Indentures. Class A Notes authenticated and
delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article may bear a notation in
form approved by the Indenture Trustee as to any matter provided
for by such supplemental indenture. If the Seller or the
Indenture Trustee shall so determine, new Class A Notes so
modified as to conform, in the opinion of the Seller and the
Indenture Trustee, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by
the Seller, authenticated by the Indenture Trustee and delivered
in exchange for the Outstanding Class A Notes.
SECTION 11.9. Notice to Rating Agencies. No less than
three Business Days (or such shorter period as the Rating
Agencies may permit) prior to its execution of each amendment,
consent, modification, supplement or waiver contemplated by
Article XI hereof, the Seller shall send a copy thereof to each
Rating Agency.
ARTICLE XII
POOLING AGREEMENT
SECTION 12.1. Pooling Agreement. (a) In order to
secure the due and punctual payment of the obligations of the
Issuer, the Issuer Trustee, among others, has entered into the
Pooling Agreement to create the Liens created therein and for
related matters. The Indenture Trustee and each Class A
Noteholder hereby appoints the Collateral Agent as its agent and
the Collateral Agent hereby accepts such appointment. The
Indenture Trustee, the Issuer and the Collateral Agent hereby
agree that the Collateral Agent holds the Trust Assets in trust
for the benefit of the Noteholders, the Indenture Trustee and the
other Secured Parties pursuant to the terms of the Pooling
Agreement.
(b) Each Noteholder, by accepting a Class A Note,
agrees to all of the terms and provisions of the Pooling
Agreement as the same may be amended from time to time pursuant
to the provisions thereof and of this Indenture.
(c) As more fully set forth in the Pooling Agreement,
the Holders of Class A Notes, and the Indenture Trustee on behalf
of such Holders, have rights in and to the Trust Assets which are
as provided therein prior to the rights of the holders of the
Class B Notes and the Class C Notes.
(d) As amongst the Class A Noteholders of all Series,
the Trust Assets as now or hereafter constituted shall be held
for the equal and ratable benefit of such Noteholders without
preference, priority or distinction of any thereof over any other
by reason of difference in time of issuance, sale or otherwise,
as security for the Class A Notes.
SECTION 12.2. Recording, Deposit of Collateral, etc.
(a) The Seller will take or cause to be taken all action
required or desirable to maintain, preserve and protect the Lien
on and in the Trust Assets granted by the Pooling Agreement
including, but not limited to, causing all financing statements,
mortgages, other instruments of further assurance, including
continuation statements covering security interests in personal
property to be promptly recorded, registered and filed, and at
all times to be kept recorded, registered and filed, and will
execute and file such financing statements and cause to be issued
and filed such continuation statements, all in such manner and in
such places as may be required by law fully to preserve and
protect the rights of the Noteholders, the Indenture Trustee, the
Collateral Agent and the other Secured Parties under this
Indenture and the Pooling Agreement to all property comprising
the Trust Assets.
(b) The Servicer, on behalf of the Issuer, will from
time to time promptly pay and discharge all mortgage and
financing and continuation statement recording and/or filing
fees, charges and taxes relating to this Indenture and the
Pooling Agreement, any amendments thereto and any other
instruments of further assurance.
SECTION 12.3. TIA Requirements. (a) The Servicer, on
behalf of the Issuer, will furnish to the Indenture Trustee
reports in compliance with Section 314(b) of the TIA.
(b) The release of any of the Trust Assets from the
terms hereof and of the Pooling Agreement or the release of, in
whole or in part, the Liens created by the Pooling Agreement will
not be deemed to impair the Liens securing the Class A Notes in
contravention of the provisions hereof or the Pooling Agreement
if and to the extent the Trust Assets or Liens are released
pursuant to the terms of the Pooling Agreement and pursuant to
the terms hereof. The Indenture Trustee and each of the
Noteholders acknowledge that a release of the Trust Assets or
Liens strictly in accordance with the terms of the Pooling
Agreement and the terms hereof will not be deemed for any purpose
to be an impairment of the Liens securing the Class A Notes in
contravention of the terms of this Indenture or the Pooling
Agreement. To the extent applicable, without limitation, the
Servicer, on behalf of the Issuer, shall cause Section 314(d) of
the TIA relating to the release of property or securities from
the Liens of each hereof and of the Pooling Agreement to be
complied with. Any certificate or opinion required by Section
314(d) of the TIA may be made by an officer or employee of the
Servicer on behalf of the Issuer who is duly authorized to make
such certificate or opinion, except in cases which Section 314(d)
of the TIA requires that such certificate or opinion be made by
an independent person. The Issuer shall furnish to the Servicer
any power of attorney necessary to accomplish the foregoing.
SECTION 12.4. Release Upon Termination of the
Indenture. (a) In the event that this Indenture shall be
satisfied and discharged in accordance with Section 14.1 hereof,
the Indenture Trustee shall deliver to the Collateral Agent a
notice stating that the Indenture Trustee, on behalf of the
Noteholders, disclaims and gives up any and all rights it has in
or to the Trust Assets and any rights it has under the Pooling
Agreement and, upon and after the receipt by the Collateral Agent
of such notice, the Collateral Agent shall not be deemed to hold
the Trust Assets on behalf of the Indenture Trustee for the
benefit of the Noteholders.
(b) Any release of the Trust Assets made strictly in
compliance with the provisions of this Section 12.4 shall not be
deemed to impair the Liens securing the Class A Notes in
contravention of the provisions of this Indenture.
SECTION 12.5. Collateral Agent's Duties. The
Collateral Agent, acting in its capacity as such, shall have only
such duties with respect to the Trust Assets as are set forth in
the Pooling Agreement.
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES
SECTION 13.1. Representations of the Seller. The
Seller represents and warrants as follows:
(a) Corporate Power. The Seller has full corporate
power, authority and legal right to execute, deliver and
perform its obligations under this Indenture and to direct
the Issuer Trustee to execute and deliver the Notes.
(b) Due Qualification. The Seller is duly qualified
to do business and is in good standing as a foreign
corporation (or is exempt from such requirements), and has
obtained or will obtain all necessary licenses and
approvals, in each jurisdiction in which failure to so
qualify or to obtain such licenses and approvals would have
a material adverse effect on its ability to perform its
obligations hereunder.
(c) Due Authorization. The execution and delivery of
this Indenture and the consummation of the transactions
provided for herein and therein have been duly authorized by
the Seller by all necessary corporate action on the part of
the Seller.
(d) No Conflict. The execution and delivery of this
Indenture, the performance of the transactions contemplated
hereby and the fulfillment of the terms hereof will not
conflict with, result in any breach of any of the material
terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, any
indenture, contract, agreement, mortgage, deed of trust, or
other instrument to which the Seller is a party or by which
it or any of its property is bound.
(e) No Violation. The execution and delivery of this
Indenture, the performance of the transactions contemplated
hereby and the fulfillment of the terms hereof will not
conflict with or violate, in any material respect, any
Requirements of Law applicable to the Seller.
(f) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the
Seller, threatened against the Seller, before any court,
regulatory body, administrative agency, or other tribunal or
governmental instrumentality (i) asserting the invalidity of
this Indenture or the Notes, (ii) seeking to prevent the
issuance of the Notes or the consummation of any of the
transactions contemplated by this Indenture or the Notes or
(iii) seeking any determination or ruling that, in the
reasonable judgment of the Seller, could reasonably be
expected to be adversely determined, and if adversely
determined, would materially and adversely affect the
performance by the Seller of its obligations under this
Indenture.
(g) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Person or of any Governmental Authority required in
connection with the execution and delivery of this Indenture
and the Notes, the performance of the transactions
contemplated by this Indenture, and the fulfillment of or
terms hereof, have been obtained.
(h) Bulk Sales. The execution, delivery and
performance of this Indenture do not require compliance with
any "bulk sales" law by Seller.
(i) Solvency. The transactions under this Indenture
do not and will not render the Seller insolvent.
(j) Validity, Etc. This Indenture constitutes a
legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms,
except as such enforceability may be limited by Insolvency
Laws and except as such enforceability may be limited by
general principles of equity (whether considered in a suit
at law or in equity) or by an implied covenant of good faith
and fair dealing.
SECTION 13.2. Representations of the Issuer. The
Issuer represents and warrants as follows:
(a) Corporate Power. It has full power, authority and
legal right to execute, deliver and perform its obligations
as Issuer under this Indenture, the Notes and the Related
Supplement (the foregoing documents, the "Issuer
Documents").
(b) Due Authorization. The execution and delivery of
the Issuer Documents and the consummation of the
transactions provided for therein have been duly authorized
by all necessary action on its part.
(c) No Conflict. The execution and delivery of the
Issuer Documents, the performance of the transactions
contemplated thereby and the fulfillment of the terms
thereof will not conflict with, result in any breach of any
of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a default under,
any indenture, contract, agreement, mortgage, deed of trust,
or other instrument to which the Issuer is a party or by
which it or any of its property is bound.
(d) No Violation. The execution and delivery of the
Issuer Documents, the performance of the transactions
contemplated thereby and the fulfillment of the terms
thereof will not conflict with or violate, in any material
respect, any Requirements of Law applicable to the Issuer.
(e) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Person or of any Governmental Authority required in
connection with the execution and delivery of the Issuer
Documents, the performance of the transactions contemplated
thereby and the fulfillment of the terms thereof have been
obtained.
(f) Location. The Issuer has its chief executive
office and chief place of business (as such terms are used
in Article 9 of the UCC) in Wilmington, Delaware. The
Issuer agrees that it will not change the location of such
office to a location outside of Wilmington, Delaware,
without at least 30 days prior written notice to the Seller,
the Servicer, the Collateral Agent, each of the Indenture
Trustees and the Rating Agencies.
SECTION 13.3. Representations of the Collateral Agent.
The Collateral Agent, in its individual capacity, represents and
warrants as follows:
(a) Corporate Power. It has full corporate power,
authority and legal right to execute, deliver and perform
its obligations as Collateral Agent under this Indenture and
the Related Supplement (the foregoing documents, the
"Collateral Agent Documents").
(b) Due Authorization. The execution and delivery of
the Collateral Agent Documents and the consummation of the
transactions provided for therein have been duly authorized
by all necessary corporate action on its part, either in its
individual capacity or as Collateral Agent, as the case may
be.
(c) No Conflict. The execution and delivery of the
Collateral Agent Documents, the performance of the
transactions contemplated thereby and the fulfillment of the
terms thereof, in each case in its capacity as Collateral
Agent, will not conflict with, result in any breach of any
of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a default under,
any indenture, contract, agreement, mortgage, deed of trust,
or other instrument to which the Collateral Agent is a party
or by which it or any of its property is bound.
(d) No Violation. The execution and delivery of the
Collateral Agent Documents, the performance of the
transactions contemplated thereby and the fulfillment of the
terms thereof, in each case in its capacity as Collateral
Agent, will not conflict with or violate, in any material
respect, any Requirements of Law applicable to the
Collateral Agent.
(e) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Person or of any Governmental Authority required in
connection with the execution and delivery of the Collateral
Agent Documents, the performance of the transactions
contemplated thereby and the fulfillment of the terms
thereof, in each case in its capacity as Collateral Agent,
have been obtained.
SECTION 13.4. Additional Representation of the
Collateral Agent. The Collateral Agent represents and warrants
in its capacity as Collateral Agent as follows:
(a) Validity, Etc. Each Collateral Agent Document
constitutes a legal, valid and binding obligation of the
Collateral Agent, enforceable against the Collateral Agent
in accordance with its terms, except as such enforceability
may be limited by Insolvency Laws and except as such
enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity) or
by an implied covenant of good faith and fair dealing.
SECTION 13.5. Representations of the Indenture
Trustee. The Indenture Trustee in its individual capacity and as
Indenture Trustee represents and warrants as follows:
(a) Organization and Corporate Power. It is a duly
organized and validly existing national banking association
in good standing under the laws of each jurisdiction where
its business so requires. It has full corporate power,
authority and legal right to execute, deliver and perform
its obligations as Indenture Trustee under this Indenture
and the Related Supplement (the foregoing documents, the
"Indenture Trustee Documents") and to authenticate the Class
A Notes.
(b) Due Authorization. The execution and delivery of
the Indenture Trustee Documents, the consummation of the
transactions provided for therein and the authentication of
the Class A Notes have been duly authorized by all necessary
corporate action on its part, either in its individual
capacity or as Indenture Trustee, as the case may be.
(c) No Conflict. The execution and delivery of the
Indenture Trustee Documents, the performance of the
transactions contemplated thereby and the fulfillment of the
terms thereof (including the authentication of the Class A
Notes), will not conflict with, result in any breach of any
of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a default under,
any indenture, contract, agreement, mortgage, deed of trust,
or other instrument to which the Indenture Trustee is a
party or by which it or any of its property is bound.
(d) No Violation. The execution and delivery of the
Indenture Trustee Documents, the performance of the
transactions contemplated thereby and the fulfillment of the
terms thereof (including the authentication of the Class A
Notes), will not conflict with or violate, in any material
respect, any Requirements of Law applicable to the Indenture
Trustee.
(e) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Person or of any Governmental Authority required in
connection with the execution and delivery of the Indenture
Trustee Documents, the performance of the transactions
contemplated thereby and the fulfillment of the terms
thereof (including the authentication of the Class A Notes),
have been obtained.
(f) Validity, Etc. Each Indenture Trustee Document
constitutes a legal, valid and binding obligation of the
Indenture Trustee, enforceable against the Indenture Trustee
in accordance with its terms, except as such enforceability
may be limited by Insolvency Laws and except as such
enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity) or
by an implied covenant of good faith and fair dealing.
ARTICLE XIV
SATISFACTION AND DISCHARGE
SECTION 14.1. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of Class
A Notes herein expressly provided for) and the Indenture Trustee,
on demand of and at the expense of the Seller (at the direction
of the Seller), shall execute and deliver to the Issuer and the
Collateral Agent proper instruments acknowledging satisfaction
and discharge of this Indenture and termination of the interests
of the Indenture Trustee and the Noteholders in the Trust Assets
pursuant to the Pooling Agreement, when
(a) either (i) all Class A Notes theretofore
authenticated and delivered (other than (A) Class A Notes
which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.7 hereof and
(B) Class A Notes for whose payment money has theretofore
been deposited in trust or segregated and held in trust by
the Collateral Agent and thereafter repaid to the Collateral
Agent or discharged from such trust, as provided in Section
7.13 hereof) have been delivered to the Indenture Trustee
for cancellation; or (ii) all such Class A Notes not
theretofore delivered to the Indenture Trustee for
cancellation have become due and payable and the Collateral
Agent has irrevocably deposited or caused to be deposited
with the Indenture Trustee or other trustee reasonably
satisfactory to the Indenture Trustee as trust funds in the
trust for the purpose an amount of money sufficient to pay
and discharge the entire indebtedness on such Class A Notes
not theretofore delivered to the Indenture Trustee for
cancellation, for principal and interest to the date of such
deposit;
(b) the Collateral Agent has paid or caused to be paid
all other sums payable hereunder by the Collateral Agent;
and
(c) the Collateral Agent has delivered to the
Indenture Trustee or such other trustee (i) irrevocable
instructions to apply the deposited money toward payment of
the Class A Notes on the Maturity Date and (ii) an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Servicer to the Indenture Trustee under
Section 7.7 hereof and, if money shall have been deposited with
the Indenture Trustee or such other trustee pursuant to subclause
(ii) of Subsection (a) of this Section 14.1, the obligations of
the Indenture Trustee or such other trustee under Section 14.2
hereof and the last paragraph of Section 7.13 hereof shall
survive.
SECTION 14.2. Application of Trust Money. Subject to
the provisions of the last paragraph of Section 7.13 hereof, all
money deposited with the Indenture Trustee or other trustee
reasonably satisfactory to the Indenture Trustee pursuant to
Section 14.1 hereof shall be held in trust and applied by it, in
accordance with the provisions of the Class A Notes and this
Indenture, to the payment, either directly to the Indenture
Trustee or through any Paying Agent designated by the Collateral
Agent (including the Collateral Agent acting as its own Paying
Agent), to the Persons entitled thereto, of the principal and
interest for whose payment such money has been so deposited.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1. Indenture for Benefit of Certain
Persons. Nothing in this Indenture, whether express or implied,
shall be construed to give to any Person other than the Issuer
Trustee, the Seller, the Indenture Trustee, the Issuer and the
Noteholders any legal or equitable right, remedy or claim under
or in respect of this Indenture.
SECTION 15.2. [RESERVED]
SECTION 15.3. Notices. Unless otherwise expressly
specified or permitted by the terms hereof, all notices,
requests, demands, authorizations, directions, consents, waivers
or documents provided or permitted by this Indenture to be made,
given, furnished or filed shall be in writing, mailed by
certified mail, postage prepaid, or by confirmed telex, or by
confirmed telecopy and (a) if to the Indenture Trustee, addressed
to its office at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, (b) if to the Issuer or the Issuer Trustee,
addressed to it at its office at c/o Chase Manhattan Bank
Delaware, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trustee Administration Department,
telecopy: (000) 000-0000, (c) if to the Seller, addressed to it
at its office at Xxx Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxx,
Xxxxxxxxxx 00000 Attention: X. Xxxxxxxx Martitsch, with a copy
to the Servicer, telecopy: 000-000-0000, or (d) if to any
Noteholder, addressed to such party at such address as such party
shall have furnished by notice to the Issuer and the Indenture
Trustee. Whenever any notice in writing is required to be given
by the Issuer, the Issuer Trustee, the Indenture Trustee or any
Noteholder to any of the other of them, such notice shall be
deemed given and such requirement satisfied when such notice is
received, if such notice is received, if such notice is mailed by
certified mail, postage prepaid, or is sent by confirmed telex,
or by confirmed telecopy addressed as provided above. Any party
hereto may change the address to which notices to such Person
will be sent by giving notice of such change to the other parties
to this Indenture.
SECTION 15.4. Severability. Any provision of this
Indenture which 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, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 15.5. No Oral Modifications or Continuing
Waivers. No terms or provisions of this Indenture or the Class A
Notes may be changed, waived, discharged or terminated orally,
but only by an instrument in writing signed by the party or other
Person against whom enforcement of the change, waiver, discharge
or termination is sought and any other party or other Person
whose consent is required pursuant to this Indenture; and any
waiver of the terms hereof or of any Note shall be effective only
in the specific instance and for the specific purpose given.
SECTION 15.6. Successors and Assigns. All covenants
and agreements contained herein shall be binding upon, and inure
to the benefit of, each of the parties hereto and the successors
and assigns of each, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action
by any Noteholder shall bind the successors and assigns of such
Noteholder.
SECTION 15.7. Headings. The headings of the various
Articles and Sections herein and in the table of contents hereto
are for the convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 15.8. Governing Law; Counterpart Form. This
Indenture and all Class A Notes issued hereunder shall in all
respects be governed by, and construed in accordance with, the
internal laws of the State of New York without regard to the
provisions thereof regarding conflicts of law, including all
matters of construction, validity and performance. This
Indenture may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall
be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 15.9. Non-Petition. The Indenture Trustee
hereby agrees that it will not institute against, or join any
other Person in instituting against, the Issuer or the Seller any
bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceeding under any Federal or
State bankruptcy or similar law, for one year and a day after the
Notes of each Series are paid in full.
SECTION 15.10. Communication by Noteholders with Other
Noteholders. Noteholders may communicate with other Noteholders
with respect to their rights under this Indenture or the Class A
Notes pursuant to Section 312(b) of the TIA. Every Noteholder,
by receiving and holding the same, agrees with the Issuer and the
Indenture Trustee that none of the Issuer Trustee, the Issuer,
the Seller and the Indenture Trustee and any agent of the Issuer
Trustee, the Issuer, the Seller or the Indenture Trustee shall be
deemed to be in violation of any existing law, or of any law
hereafter enacted which does not specifically refer to Section
312 of the TIA, by reason of the disclosure of any such
information as to the names and addresses of the Noteholders in
accordance with Section 312 of the TIA, regardless of the source
from which such information was derived, and that the Indenture
Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the
TIA.
SECTION 15.11. The TIA Controls. Subsequent to the
qualification of this Indenture under the TIA, this Indenture
will be subject to the provisions of the TIA and shall, to the
extent applicable, be governed by such provisions.
SECTION 15.12. Normal Commercial Relations. Anything
contained in this Indenture to the contrary notwithstanding, the
Seller, the Indenture Trustee, and any Noteholder, or any bank or
other affiliate of any such party, may conduct any banking or
other financial transactions, and have banking or other
commercial relationships, with the Issuer fully to the same
extent as if this Indenture were not in effect, including without
limitation the making of loans or other extensions of credit to
the Issuer for any purpose whatsoever, whether related to any of
the transactions contemplated hereby or otherwise.
Section 15.13. Not Acting in Individual Capacity.
Except as provided in Article XI of the Pooling Agreement, Chase
Manhattan Bank Delaware acts solely as Issuer Trustee hereunder
and not in its individual capacity and all Persons having any
claim against the Issuer Trustee by reason of the transactions
contemplated by this Indenture or otherwise shall look only to
the Trust Assets for payment or satisfaction thereof. For all
purposes of this Indenture, in the performance of its duties or
obligations hereunder or in the performance of any duties or
obligations of the Issuer hereunder, the Issuer Trustee shall be
subject to, and entitled to the benefits of, the terms and
provisions of Article XI of the Pooling Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective officers
thereunto duly authorized, as of the day and year first above
written, and acknowledge that this Indenture has been made and
delivered in the City of New York, and this Indenture having
become effective only upon such execution and delivery.
NEWCOURT RECEIVABLES ASSET TRUST
By: Chase Manhattan Bank Delaware,
as Issuer Trustee
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Trust Officer
NEWCOURT RECEIVABLES CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------
Name Xxxxxxx Xxxxxxxxx
Title: Executive Vice President, Financial
By: /s/ X. Xxxxxxxx Martitsch
--------------------------------
Name: X. Xxxxxxxx Martitsch
Title: Assistant Secretary
FLEET NATIONAL BANK,
as Collateral Agent
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK,
as Indenture Trustee
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
NEWCOURT CREDIT GROUP INC.,
as Servicer, solely to
acknowledge its obligations
pursuant to Sections 3.2, 6.4,
8.3, 9.1, 12.2 and 12.3 hereof
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President and
Treasurer
By: /s/ Geoff Ichii
--------------------------------
Name: Geoff Ichii
Title: Vice President & Director
Capital Markets
EXHIBIT A
to
CLASS A TRUST INDENTURE
FORM OF SERIES 1996-3 CLASS A NOTE
REGISTERED $__________
No. ____
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ____________
UNLESS THIS SERIES 1996-3 CLASS A NOTE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO THE INDENTURE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
SERIES 1996-3 CLASS A 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 SERIES 1996-3 CLASS A NOTE IS
PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS SERIES 1996-3 CLASS A NOTE
AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
NEWCOURT RECEIVABLES ASSET TRUST
SERIES 1996-3 CLASS A ___% ASSET BACKED NOTE
Newcourt Receivables Asset Trust, a business trust
organized and existing under the laws of the State of Delaware
(herein referred to as the "Issuer"), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the
principal sum of $__________, payable on each Distribution Date
in the amounts and to the extent described in the Pooling
Agreement and the Indenture; provided, however, that the entire
unpaid principal amount of this Series 1996-3 Class A Note shall
be due and payable on the earlier of the Maturity Date of _______
__, 2004 and the date fixed for redemption, if any, pursuant to
Section 3.2 of the Indenture. The Issuer will pay interest on
this Series 1996-3 Class A Note on each Distribution Date in the
amounts and to the extent described in the Pooling Agreement and
the Indenture. The Issuer will pay interest on overdue principal
at the rate of ___% of per annum; it will pay interest on overdue
installments of interest (without regard to any applicable grace
periods) at the rate of ___% per annum to the extent lawful.
"Distribution Date" means the twentieth day of each calendar
month or, if such twentieth day is not a Business Day, the next
succeeding Business Day, commencing December 20, 1996.
The principal of and interest on this Series 1996-3
Class A 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 Series 1996-3 Class A Note shall be
applied first to interest due and payable on this Series 1996-3
Class A Note as provided above and then to the unpaid principal
of this Series 1996-3 Class A Note.
Reference is made to the further provisions of this
Series 1996-3 Class A Note set forth on the reverse hereof, which
shall have the same effect as though fully set forth on the face
of this Series 1996-3 Class A Note.
Unless the certificate of authentication hereon has
been executed by the Indenture Trustee whose name appears below
by manual signature, this Series 1996-3 Class A Note shall not be
entitled to any benefit under the Indenture or the Pooling
Agreement referred to on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer Trustee, acting on the
Issuer's behalf, has caused this instrument to be signed,
manually or in facsimile, by its authorized officer.
Dated: December 12, 1996 NEWCOURT RECEIVABLES ASSET TRUST
By: Chase Manhattan Bank Delaware,
not in its individual capacity but
solely as Issuer Trustee
By: ________________________
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Series 1996-3 Class A Notes
designated above and referred to in the within-mentioned
Indenture.
Dated: December 12, 1996 FLEET NATIONAL BANK, not
in its individual
capacity but solely as
Indenture Trustee,
By: __________________________
Authorized Signatory
REVERSE OF NOTE
This Series 1996-3 Class A Note is one of a duly
authorized issue of Notes of the Issuer, designated as its Series
1996-3 Class A ___% Asset Backed Notes (the "Series 1996-3 Class
A Notes"), issued under the Class A Indenture dated as of
December 12, 1996 (such indenture, as supplemented or amended,
the "Indenture"), among the Issuer, Newcourt Receivables
Corporation, as Seller (the "Seller"), Fleet National Bank, as
Collateral Agent (the "Collateral Agent") and Fleet National
Bank, as Indenture Trustee (the "Indenture Trustee"), to which
Indenture, all indentures supplemental thereto and the Pooling
Agreement (as hereinafter defined) reference is hereby made for a
statement of the respective rights and obligations thereunder of
the Issuer, the Seller, the Collateral Agent, the Indenture
Trustee and the Holders of the Series 1996-3 Class A Notes. The
Series 1996-3 Class A Notes are governed by and subject to all
terms of the Indenture and the Pooling Agreement (which
respective terms are incorporated herein and made a part hereof).
All terms used in this Series 1996-3 Class A Note that are not
otherwise defined herein shall have the meanings assigned to them
in or pursuant to the Indenture or the Pooling Agreement, as the
case may be, as so supplemented or amended.
Two additional Classes of Notes of the Issuer, the
Series 1996-3 Class B ___% Asset Backed Notes (the "Series 1996-3
Class B Notes") and the Series 1996-3 Class C ___% Asset Backed
Notes (the "Series 1996-3 Class C Notes" and together with the
Series 1996-3 Class A Notes and the Series 1996-3 Class B Notes,
the "Series 1996-3 Notes") are being issued pursuant to
respective Note Purchase Agreements, each dated December 12,
1996, among the Seller, Newcourt Credit Group Inc., as Servicer
(the "Servicer"), the Trust and the purchasers named therein.
The Series 1996-3 Class B Notes and the Series 1996-3 Class C
Notes are subordinated in right of payment to the Series 1996-3
Class A Notes.
The Series 1996-3 Class A Notes are and will be equally
and ratably secured by the Trust Assets pledged as security
therefor as provided in the Pooling, Collateral Agency and
Servicing Agreement, dated as of April 15, 1996, among the
Seller, the Servicer, the Collateral Agent and the Issuer Trustee
(as supplemented or amended, the "Pooling Agreement").
Notwithstanding anything to the contrary herein, the
entire unpaid principal amount of this Series 1996-3 Class A Note
shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and, if required by the
Pooling Agreement or the Indenture, the Collateral Agent or the
Required Percentage of Holders of the Series 1996-3 Class A Notes
shall have declared the Series 1996-3 Class A Notes to be
immediately due and payable in the manner provided in Section 9.1
of the Pooling Agreement and Section 4.4 of the Indenture. All
principal payments on the Series 1996-3 Class A Notes shall be
made pro rata to the Series 1996-3 Class A Noteholders entitled
thereto.
Payments of interest on this Series 1996-3 Class A Note
on each Distribution Date, together with the installment of
principal, if any, to the extent not in full payment of this
Series 1996-3 Class A Note, shall be made in accordance with
Section 2.4 of the Indenture to the Series 1996-3 Class A
Noteholder. Any reduction in the principal amount of this Series
1996-3 Class A Note effected by any payments made on any
Distribution Date shall be binding upon all future Holders of
this Series 1996-3 Class A Note and of any Series 1996-3 Class A
Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not noted hereon.
If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid
principal amount of this Series 1996-3 Class A Note on a
Distribution Date, then the Indenture Trustee will notify the
Series 1996-3 Class A Noteholder by notice mailed not later than
the fifth day of the month (subject to at least four Business
Days' prior notice from the Servicer to the Indenture Trustee) of
such final distribution and the amount then due and payable shall
be payable only upon presentation and surrender of this Series
1996-3 Class A Note at the office or offices designated in such
notice.
The Holder of this Series 1996-3 Class A Note, by its
acceptance of this Series 1996-3 Class A Note, agrees that it
will look solely to the income and proceeds from the Trust Assets
to the extent available for distribution to it as provided in the
Pooling Agreement and the Indenture and that none of the
Collateral Agent or the Indenture Trustee is or shall be
personally liable to it for any amounts payable or any liability
under the Indenture or this Series 1996-3 Class A Note, except as
expressly provided in the Indenture and in the Pooling Agreement.
The Seller and the Servicer, by entering into the
Pooling Agreement, and each Noteholder and each Note Owner, by
acquiring any Series 1996-3 Class A Note or beneficial interest
therein, (i) express their intention that the Series 1996-3 Class
A Notes will constitute indebtedness of the Seller for federal
income and state and local tax purposes and (ii) agree to treat
and to take no action inconsistent with the treatment of the
Series 1996-3 Class A Notes (or any beneficial interest therein)
as indebtedness for purposes of federal, state, local and foreign
income or franchise taxes and any other tax imposed on or
measured by income.
The Holder of this Series 1996-3 Class A Note, by
acceptance of this Series 1996-3 Class A Note, covenants and
agrees that it will not, until one year and one day after the
final payment on all Notes, institute against, or join any other
Person in instituting against, the Seller or the Issuer any
bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the
laws of the United States or any state of the United States.
Prior to the due presentment for registration of
transfer of this Series 1996-3 Class A Note, the Issuer, the
Issuer Trustee, the Collateral Agent and the Indenture Trustee
may deem and treat the Person in whose name this Series 1996-3
Class A Note is registered as the absolute owner thereof for the
purposes of receiving payment of all amounts payable with respect
to this Series 1996-3 Class A Note and for all other purposes,
whether or not this Series 1996-3 Class A Note be overdue, and
none of the Issuer, the Issuer Trustee, the Indenture Trustee or
the Collateral Agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as
therein provided, (i) the Seller, the Issuer, the Collateral
Agent and the Indenture Trustee, with the written consent of a
Majority in Interest of the Series 1996-3 Class A Notes, to
execute a supplement to the Indenture for the purpose of adding
provisions to, or changing or eliminating provisions of, the
Indenture (including any appendix or schedule thereto) and (ii)
the Indenture Trustee, with the written consent of a Majority in
Interest of the Series 1996-3 Class A Noteholders, may consent to
or execute a written amendment of or supplement to, or waiver or
consent under, the Pooling Agreement or any Supplement. Any such
consent or waiver by the Holder of this Series 1996-3 Class A
Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Series 1996-3 Class A Note and of any
Series 1996-3 Class A Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this
Series 1996-3 Class A Note.
The Pooling Agreement (including any Supplement) may be
amended from time to time by the Servicer, the Seller, the Issuer
Trustee and the Collateral Agent, without the consent of any of
the Series 1996-3 Class A Noteholders, (i) to cure any ambiguity,
to revise any exhibits or Schedules, to correct or supplement any
provisions therein or thereon or (ii) to add any other provisions
with respect to matters or questions raised under the Pooling
Agreement which shall not be inconsistent with the provisions of
the Pooling Agreement; provided, however, that such action shall
not adversely affect in any material respect the interests of any
of the Noteholders.
The term "Issuer Trustee" as used in this Series 1996-3
Class A Note includes any successor to the Issuer Trustee under
the Indenture.
The Series 1996-3 Class A Notes are issuable only in
registered form without coupons in denominations as provided in
the Indenture, subject to certain limitations therein set forth.
No reference herein to the Indenture or the Pooling
Agreement and no provision of this Series 1996-3 Class A Note or
of the Indenture or the Pooling Agreement shall alter or impair
the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of and interest on this
Series 1996-3 Class A Note at the time, place, and rate, and in
the coin or currency herein prescribed.
None of the Issuer Trustee, the Collateral Agent or the
Indenture Trustee in its individual capacity makes or shall be
deemed to have made any representation or warranty as to the
validity, legality or enforceability of the Indenture, the
Pooling Agreement or the Series 1996-3 Class A Notes or as to the
correctness of any statement contained in any thereof, except for
the representations and warranties of the Issuer Trustee, the
Collateral Agent or the Indenture Trustee, made in their
respective individual capacities, under any document to which
such party is a party.
This Series 1996-3 Class A Note and the Pooling
Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York and the State of
Delaware, respectively, 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.
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 Series 1996-3 Class A Note and all rights thereunder,
and hereby irrevocably constitutes and appoints attorney, to
transfer said Series 1996-3 Class A Note on the books kept for
registration thereof, with full power of constitution in the
premises.
Dated: ___________________ ___________________________________
NOTE: The signature to this
assignment must correspond with the
name of the registered owner as it
appears on the face of the within
Series 1996-3 Class A Note in every
particular, without alteration,
enlargement or any change
whatsoever.
EXHIBIT B
to
CLASS A TRUST INDENTURE
FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Series 1996-3 Class A Notes
designated above and referred to in the within-mentioned
Indenture.
Dated: _______ __, _____ FLEET NATIONAL BANK, not in
its individual capacity but
solely as Indenture Trustee,
By: _________________________
Authorized Signatory
CLASS A TRUST INDENTURE
Dated as of
December 12, 1996
AMONG
NEWCOURT RECEIVABLES ASSET TRUST,
Issuer,
NEWCOURT RECEIVABLES CORPORATION,
Seller
FLEET NATIONAL BANK,
Collateral Agent
AND
FLEET NATIONAL BANK,
Indenture Trustee
Reconciliation and tie between Class A Trust Indenture dated as
of December 12, 1996 and the Trust Indenture Act of 1939, as
amended. This reconciliation does not constitute part of the
Class A Trust Indenture
Trust Indenture Act Class A Trust Indenture
of 1939 Section
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) 10.3
(a)(4) Not Applicable
(a)(5) 7.10
(b) 7.10; 10.2
(c) Not Applicable
311(a) 7.11
(b) 7.11
(c) Not Applicable
312(a) 8.1
(b) 15.10
(c) 15.10
313(a) 8.2
(b) 8.2
(c) 8.2
(d) 8.2
314(a) 8.3
(b) 8.3; 12.3
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) 12.3
(e) 1.2
315(a) 5.4; 7.5
(b) 5.1
(c) 5.1
(d) 5.1; 7.1
(e) 4.11
316(a)(1)(A) 4.8
(a)(1)(B)
(a)(2) Not Applicable
(b) 4.9
(c) 1.4
317(a) 4.7
(b) 7.13
318(a) 15.11
This Cross Reference Sheet is not part of the Class A Trust
Indenture.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; CERTIFICATES, OPINIONS AND FORMS;
ACTS OF NOTEHOLDERS
SECTION 1.1. Defined Terms . . . . . . . . . . . . . . 2
SECTION 1.2. Compliance Certificates and Opinions . . . 5
SECTION 1.3. Form of Documents Delivered to Indenture
Trustee . . . . . . . . . . . . . . . . . 6
SECTION 1.4. Acts of Noteholders . . . . . . . . . . . 6
SECTION 1.5. Written Notice of Distribution . . . . . . 7
ARTICLE II
THE NOTES
SECTION 2.1. Form, Denomination and Dating . . . . . . 8
SECTION 2.2. Execution and Authentication . . . . . . . 9
SECTION 2.3. Payments from Trust Assets Only . . . . . 9
SECTION 2.4. Method of Payment . . . . . . . . . . . . 10
SECTION 2.5. Termination of Interest in Trust Assets . 11
SECTION 2.6. Registration, Transfer and Exchange of
Class A Notes . . . . . . . . . . . . . . 11
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen
Notes . . . . . . . . . . . . . . . . . . 12
SECTION 2.8. Payment of Expenses on Transfer . . . . . 13
SECTION 2.9. Priority of Payments . . . . . . . . . . . 13
SECTION 2.10. Cancellation of Notes . . . . . . . . . . 13
SECTION 2.11. Temporary Notes . . . . . . . . . . . . . 13
SECTION 2.12. Interest on Defaulted Payments . . . . . 13
SECTION 2.13. Book-Entry Notes . . . . . . . . . . . . 14
SECTION 2.14. Notices to Clearing Agent . . . . . . . . 14
SECTION 2.15. Definitive Notes Initially Issued as
Book-Entry Notes . . . . . . . . . . . . 14
SECTION 2.16. Tax Treatment . . . . . . . . . . . . . . 15
ARTICLE III
RECEIPT, DISTRIBUTION AND APPLICATION OF
INCOME FROM THE TRUST ASSETS
SECTION 3.1. Distribution Prior to Event of Default or
Restricting Event . . . . . . . . . . . . 15
SECTION 3.2. Optional Purchase by Seller; Trust
Termination Payments . . . . . . . . . . 16
SECTION 3.3. Distribution Following an Event of
Default or a Restricting Event . . . . . 17
SECTION 3.4. Certain Payments . . . . . . . . . . . . . 18
SECTION 3.5. Other Payments . . . . . . . . . . . . . . 18
SECTION 3.6. Unclaimed Moneys . . . . . . . . . . . . . 18
ARTICLE IV
COVENANTS; EVENTS OF DEFAULT AND RESTRICTING
EVENTS; REMEDIES OF INDENTURE TRUSTEE
SECTION 4.1. Covenants of the Issuer . . . . . . . . . 19
SECTION 4.2. Events of Default and Restricting Events . 19
SECTION 4.3. Notice to Rating Agencies, etc. . . . . . 20
SECTION 4.4. Remedies . . . . . . . . . . . . . . . . . 20
SECTION 4.5. Remedies Cumulative . . . . . . . . . . . 20
SECTION 4.6. Discontinuance of Proceedings . . . . . . 20
SECTION 4.7. Judicial Proceedings Instituted by
Indenture Trustee; Indenture Trustee May
Bring Suit . . . . . . . . . . . . . . . 20
SECTION 4.8. Control by Noteholders . . . . . . . . . . 21
SECTION 4.9. Right of Noteholders to Receive Payments
not to Be Impaired . . . . . . . . . . . 22
SECTION 4.10. Limitation on Suits . . . . . . . . . . . 22
SECTION 4.11. Undertaking for Costs . . . . . . . . . . 22
SECTION 4.12. Waiver of Stay or Extension Laws . . . . 22
ARTICLE V
DUTIES OF THE INDENTURE TRUSTEE
SECTION 5.1. Certain Notices . . . . . . . . . . . . . 23
SECTION 5.2. Action Upon Instructions . . . . . . . . . 24
SECTION 5.3. Indemnification . . . . . . . . . . . . . 24
SECTION 5.4. No Duties Except as Specified in
Indenture or Instructions . . . . . . . . 24
SECTION 5.5. Directions to Collateral Agent . . . . . . 25
ARTICLE VI
REDEMPTION OF CLASS A NOTES
SECTION 6.1. No Redemption Prior to Maturity . . . . . 25
SECTION 6.2. Expected Amortization Schedule . . . . . . 25
SECTION 6.3. Notice of Redemption to Noteholders . . . 26
SECTION 6.4. Receipt of Funds . . . . . . . . . . . . . 27
ARTICLE VII
THE COLLATERAL AGENT AND THE INDENTURE TRUSTEE
SECTION 7.1. Acceptance of Trusts and Duties . . . . . 27
SECTION 7.2. Absence of Duties . . . . . . . . . . . . 28
SECTION 7.3. No Representations or Warranties as to
Documents . . . . . . . . . . . . . . . . 28
SECTION 7.4. No Segregation of Monies; No Interest . . 28
SECTION 7.5. Reliance; Agents; Advice of Counsel . . . 28
SECTION 7.6. Capacity in Which Acting . . . . . . . . . 29
SECTION 7.7. Compensation . . . . . . . . . . . . . . . 29
SECTION 7.8. May Become Noteholder . . . . . . . . . . 29
SECTION 7.9. Further Assurances . . . . . . . . . . . . 29
SECTION 7.10. Corporate Trustee Required; Eligibility . 29
SECTION 7.11. Preferential Collection of Claims
Against the Indenture Trustee . . . . . . 30
SECTION 7.12. Maintenance of Agencies; Note Registrar;
Paying Agents; Authorized Agents . . . . 30
SECTION 7.13. Money for Note Payments to Be Held in
Trust . . . . . . . . . . . . . . . . . . 31
ARTICLE VIII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 8.1. Noteholder Lists . . . . . . . . . . . . . 32
SECTION 8.2. Reports by Indenture Trustee . . . . . . . 32
SECTION 8.3. Reports by the Issuer . . . . . . . . . . 32
SECTION 8.4. Reports by Indenture Trustee . . . . . . . 33
ARTICLE IX
INDEMNIFICATION
SECTION 9.1. Indemnification . . . . . . . . . . . . . 33
ARTICLE X
SUCCESSOR INDENTURE TRUSTEES; SEPARATE ISSUER TRUSTEES
SECTION 10.1. Notice of Successor Indenture Trustee . . 34
SECTION 10.2. Replacement of Indenture Trustee . . . . 34
SECTION 10.3. Appointment of Separate Indenture
Trustees . . . . . . . . . . . . . . . . 35
SECTION 10.4. Notice of Successor Collateral Agent . . 36
ARTICLE XI
SUPPLEMENTS AND AMENDMENTS TO
THIS INDENTURE AND OTHER DOCUMENTS
SECTION 11.1. Amendments; Waivers, etc. of Operative
Documents; Direction to Collateral
Agent . . . . . . . . . . . . . . . . . . 37
SECTION 11.2. Trustees and Collateral Agent Protected . 38
SECTION 11.3. No Request Necessary for Supplement . . . 38
SECTION 11.4. No Request Necessary for Indenture
Supplement, Etc. . . . . . . . . . . . . 38
SECTION 11.5. Conformity with the TIA . . . . . . . . . 40
SECTION 11.6. Payment for Consent . . . . . . . . . . . 40
SECTION 11.7. Effect of Supplemental Indenture . . . . 40
SECTION 11.8. Notation on Notes in Respect of
Supplemental Indentures . . . . . . . . . 40
SECTION 11.9. Notice to Rating Agencies . . . . . . . . 40
ARTICLE XII
POOLING AGREEMENT
SECTION 12.1. Pooling Agreement . . . . . . . . . . . . 41
SECTION 12.2. Recording, Deposit of Collateral, etc. . 41
SECTION 12.3. TIA Requirements . . . . . . . . . . . . 42
SECTION 12.4. Release Upon Termination of the
Indenture . . . . . . . . . . . . . . . . 42
SECTION 12.5. Collateral Agent's Duties . . . . . . . . 42
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES
SECTION 13.1. Representations of the Seller . . . . . . 42
SECTION 13.2. Representations of the Issuer . . . . . . 44
SECTION 13.3. Representations of the Collateral Agent . 44
SECTION 13.4. Additional Representation of the
Collateral Agent . . . . . . . . . . . . 45
SECTION 13.5. Representations of the Indenture
Trustee . . . . . . . . . . . . . . . . . 45
ARTICLE XIV
SATISFACTION AND DISCHARGE
SECTION 14.2. Application of Trust Money . . . . . . . 47
ARTICLE XV
MISCELLANEOUS
SECTION 15.1. Indenture for Benefit of Certain
Persons . . . . . . . . . . . . . . . . . 47
SECTION 15.2. [RESERVED] . . . . . . . . . . . . . . . 47
SECTION 15.3. Notices . . . . . . . . . . . . . . . . . 47
SECTION 15.4. Severability . . . . . . . . . . . . . . 48
SECTION 15.5. No Oral Modifications or Continuing
Waivers . . . . . . . . . . . . . . . . . 48
SECTION 15.6. Successors and Assigns . . . . . . . . . 48
SECTION 15.7. Headings . . . . . . . . . . . . . . . . 48
SECTION 15.8. Governing Law; Counterpart Form . . . . . 48
SECTION 15.9. Non-Petition . . . . . . . . . . . . . . 49
SECTION 15.10. Communication by Noteholders with Other
Noteholders . . . . . . . . . . . . . . . 49
SECTION 15.11. The TIA Controls . . . . . . . . . . . . 49
SECTION 15.12. Normal Commercial Relations . . . . . . 49
Section 15.13. Not Acting in Individual Capacity . . . 49
EXHIBITS
EXHIBIT A Form of Series 1996-3 Class A Note
EXHIBIT B Form of Certificate of Authentication
