EXHIBIT 4.1
SUPERIOR WHOLESALE INVENTORY FINANCING TRUST [ ]
Asset-Backed Term Notes
Asset-Backed Revolving Notes
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INDENTURE
Dated as of ________, ____
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[ ],
a [ ] Banking Corporation,
Indenture Trustee
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CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
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310 (a)(1) ................................. 6.11
(a)(2) ................................. 6.11
(a)(3) ................................. 6.10
(a)(4) ................................. 6.14
(b) ................................. 6.11
(c) ................................. N.A.
311 (a) ................................. 6.12
(b) ................................. 6.12
(c) ................................. N.A.
312 (a) ................................. 7.1, 7.2
(b) ................................. 7.2
(c) ................................. 7.2
313 (a) ................................. 7.4(a), 7.4(b)
(b)(1) ................................. 7.4(a)
(b)(2) ................................. 7.4(a)
(c) ................................. 7.4(a)
(d) ................................. 7.4(a)
314 (a) ................................. 7.3(a), 3.9
(b) ................................. 3.6
(c)(1) ................................. 2.1, 2.9, 4.1, 11.1(a)
(c)(2) ................................. 2.1, 2.9, 4.1, 11.1(a)
(c)(3) ................................. 2.9, 4.1, 11.1(a)
(d) ................................. 2.9, 11.1(b)
(e) ................................. 11.1(a)
(f) ................................. 11.1(a)
315 (a) ................................. 6.1(b)
(b) ................................. 6.5
(c) ................................. 6.1(a)
(d) ................................. 6.2, 6.1(c)
(e) ................................. 5.13
316 (a) last
sentence ................................. 1.1
(a)(1)(A) ................................. 5.11
(a)(1)(B) ................................. 5.12
(a)(2) ................................. Omitted
316 (b), (c) ................................. 5.7
317 (a)(1) ................................. 5.3(b)
(a)(2) ................................. 5.3(d)
(b) ................................. 3.3
318 (a) ................................. 11.7
N.A. means Not Applicable.
Note:This cross reference table shall not, for any purpose, be deemed to be
part of this Indenture.
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1 DEFINITIONS..................................................... 2
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1.2 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT............... 2
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ARTICLE II
THE NOTES
2.1 ISSUANCE OF NOTES; EXECUTION, AUTHENTICATION AND DELIVERY....... 2
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2.2 FORM OF NOTES AND INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION 5
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2.3 TEMPORARY NOTES................................................. 5
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2.4 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE OF NOTES.... 6
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2.5 MUTILATED, DESTROYED, LOST OR STOLEN NOTES...................... 7
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2.6 PERSONS DEEMED NOTEHOLDERS...................................... 8
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2.7 PAYMENT OF PRINCIPAL AND INTEREST............................... 8
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2.8 CANCELLATION OF NOTES........................................... 9
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2.9 RELEASE OF COLLATERAL........................................... 10
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2.10 BOOK-ENTRY NOTES................................................ 10
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2.11 NOTICES TO CLEARING AGENCY...................................... 11
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2.12 DEFINITIVE TERM NOTES........................................... 11
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2.13 SELLER AS NOTEHOLDER............................................ 11
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2.14 TAX TREATMENT................................................... 11
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2.15 SPECIAL TERMS APPLICABLE TO SUBSEQUENT TRANSFERS OF CERTAIN NOTES 11
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ARTICLE III
COVENANTS
3.1 PAYMENT OF PRINCIPAL AND INTEREST............................... 12
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3.2 MAINTENANCE OF AGENCY OFFICE.................................... 13
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3.3 MONEY FOR PAYMENTS TO BE HELD IN TRUST.......................... 13
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3.4 EXISTENCE....................................................... 15
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3.5 PROTECTION OF TRUST ESTATE; ACKNOWLEDGMENT OF PLEDGE............ 15
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3.6 OPINIONS AS TO TRUST ESTATE..................................... 15
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3.7 PERFORMANCE OF OBLIGATIONS; SERVICING OF RECEIVABLES............ 16
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3.8 NEGATIVE COVENANTS.............................................. 17
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3.9 ANNUAL STATEMENT AS TO COMPLIANCE............................... 17
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3.10 CONSOLIDATION, MERGER, ETC., OF ISSUER; DISPOSITION OF TRUST ASSETS 18
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3.11 SUCCESSOR OR TRANSFEREE......................................... 20
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3.12 NO OTHER BUSINESS............................................... 20
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3.13 NO BORROWING.................................................... 20
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3.14 GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES............... 20
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3.15 SERVICER'S OBLIGATIONS.......................................... 20
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3.16 CAPITAL EXPENDITURES............................................ 20
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3.17 REMOVAL OF ADMINISTRATOR........................................ 21
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3.18 RESTRICTED PAYMENTS............................................. 21
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3.19 NOTICE OF EVENTS OF DEFAULT..................................... 21
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3.20 FURTHER INSTRUMENTS AND ACTS.................................... 21
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3.21 TRUSTEE'S ASSIGNMENT OF INTERESTS IN CERTAIN RECEIVABLES........ 21
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3.22 REPRESENTATIONS AND WARRANTIES BY THE ISSUER TO THE INDENTURE TRUSTEE 22
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ARTICLE IV
SATISFACTION AND DISCHARGE
4.1 SATISFACTION AND DISCHARGE OF INDENTURE......................... 22
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4.2 APPLICATION OF TRUST MONEY...................................... 23
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4.3 REPAYMENT OF MONIES HELD BY PAYING AGENT........................ 23
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4.4 DURATION OF POSITION OF INDENTURE TRUSTEE....................... 24
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ARTICLE V
DEFAULT AND REMEDIES
5.1 EVENTS OF DEFAULT............................................... 24
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5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.............. 25
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5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY INDENTURE
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TRUSTEE......................................................... 26
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5.4 REMEDIES; PRIORITIES............................................ 28
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5.5 OPTIONAL PRESERVATION OF THE TRUST ESTATE....................... 29
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5.6 LIMITATION OF SUITS............................................. 29
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5.7 UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL AND INTEREST 30
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5.8 RESTORATION OF RIGHTS AND REMEDIES.............................. 30
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5.9 RIGHTS AND REMEDIES CUMULATIVE.................................. 30
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5.10 DELAY OR OMISSION NOT A WAIVER.................................. 30
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5.11 CONTROL BY NOTEHOLDERS.......................................... 31
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5.12 WAIVER OF PAST DEFAULTS......................................... 31
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5.13 UNDERTAKING FOR COSTS........................................... 32
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5.14 WAIVER OF STAY OR EXTENSION LAWS................................ 32
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5.15 ACTION ON NOTES................................................. 32
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5.16 PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS.............. 33
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ARTICLE VI
THE INDENTURE TRUSTEE
6.1 DUTIES OF INDENTURE TRUSTEE..................................... 34
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6.2 RIGHTS OF INDENTURE TRUSTEE..................................... 35
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6.3 INDENTURE TRUSTEE MAY OWN NOTES................................. 35
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6.4 INDENTURE TRUSTEE'S DISCLAIMER.................................. 36
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6.5 NOTICE OF DEFAULTS.............................................. 36
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6.6 REPORTS BY INDENTURE TRUSTEE TO HOLDERS......................... 36
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6.7 COMPENSATION; INDEMNITY......................................... 36
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6.8 REPLACEMENT OF INDENTURE TRUSTEE................................ 37
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6.9 MERGER OR CONSOLIDATION OF INDENTURE TRUSTEE.................... 38
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6.10 APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE INDENTURE TRUSTEE 38
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6.11 ELIGIBILITY; DISQUALIFICATION................................... 39
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6.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER................ 39
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6.13 REPRESENTATIONS AND WARRANTIES OF INDENTURE TRUSTEE............. 40
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6.14 INDENTURE TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES 40
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6.15 SUIT FOR ENFORCEMENT............................................ 40
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6.16 RIGHTS OF NOTEHOLDERS TO DIRECT INDENTURE TRUSTEE............... 41
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ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
7.1 ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF
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NOTEHOLDERS..................................................... 41
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7.2 PRESERVATION OF INFORMATION, COMMUNICATIONS TO NOTEHOLDERS...... 41
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7.3 REPORTS BY ISSUER............................................... 42
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7.4 REPORTS BY INDENTURE TRUSTEE.................................... 42
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ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
8.1 COLLECTION OF MONEY............................................. 43
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8.2 DESIGNATED ACCOUNTS; PAYMENTS................................... 43
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8.3 GENERAL PROVISIONS REGARDING DESIGNATED ACCOUNTS................ 45
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8.4 RELEASE OF TRUST ESTATE......................................... 45
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8.5 OPINION OF COUNSEL.............................................. 46
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ARTICLE IX
SUPPLEMENTAL INDENTURES
9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.......... 46
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9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS............. 47
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9.3 EXECUTION OF SUPPLEMENTAL INDENTURES............................ 49
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9.4 EFFECT OF SUPPLEMENTAL INDENTURE................................ 49
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9.5 CONFORMITY WITH TRUST INDENTURE ACT............................. 49
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9.6 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES................... 50
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ARTICLE X
REDEMPTION OF TERM NOTES
10.1 REDEMPTION..................................................... 50
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10.2 FORM OF REDEMPTION NOTICE...................................... 50
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10.3 TERM NOTES PAYABLE ON REDEMPTION DATE.......................... 51
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ARTICLE XI
MISCELLANEOUS
11.1 COMPLIANCE CERTIFICATES AND OPINIONS, ETC...................... 51
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11.2 FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE............... 53
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11.3 ACTS OF NOTEHOLDERS............................................ 54
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11.4 NOTICES, ETC., TO INDENTURE TRUSTEE, ISSUER AND RATING AGENCIES 54
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11.5 NOTICES TO NOTEHOLDERS; WAIVER................................. 55
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11.6 ALTERNATE PAYMENT AND NOTICE PROVISIONS........................ 55
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11.7 CONFLICT WITH TRUST INDENTURE ACT.............................. 55
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11.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS....................... 56
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11.9 SUCCESSORS AND ASSIGNS......................................... 56
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11.10 SEPARABILITY................................................... 56
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11.11 BENEFITS OF INDENTURE.......................................... 56
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11.12 LEGAL HOLIDAYS................................................. 56
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11.13 GOVERNING LAW.................................................. 56
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11.14 COUNTERPARTS................................................... 57
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11.15 RECORDING OF INDENTURE......................................... 57
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11.16 NO RECOURSE.................................................... 57
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11.17 NO PETITION.................................................... 58
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11.18 INSPECTION..................................................... 58
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EXHIBIT A Form of Transfer Certificate
EXHIBIT B Form of Undertaking Letter
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INDENTURE, dated as of ________, ____, between SUPERIOR WHOLESALE
INVENTORY FINANCING TRUST [ ], a Delaware business trust (the "ISSUER" or the
"TRUST"), and [ ], a [ ] banking corporation, as trustee and not in its
individual capacity (the "INDENTURE TRUSTEE").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Notes and (only to the
extent expressly provided herein) the Certificates:
GRANTING CLAUSE
The Issuer hereby grants to the Indenture Trustee, as trustee for
the benefit of the Noteholders and (only to the extent expressly provided
herein) the Certificateholders, all of the Issuer's right, title and interest
in, to and under (a) all Eligible Receivables, all Collateral Security with
respect thereto, all monies due or to become due thereon and all amounts
received with respect thereto and all proceeds thereof (including "proceeds" as
defined in Section 9-306 of the UCC and Recoveries), (b) the Trust Sale and
Servicing Agreement (including the rights of Wholesale Auto Receivables
Corporation (the "SELLER") under the Pooling and Servicing Agreement assigned
to the Issuer pursuant to the Trust Sale and Servicing Agreement), (c) each
Basis Swap and any other Specified Support Arrangement, including the right to
receive payments thereunder and (d) any proceeds of any of the foregoing
(collectively with the items described in clauses (a), (b) and (c), the
"COLLATERAL").
The foregoing grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, equally and ratably without prejudice, priority or distinction (except
as otherwise provided in any Officer's Issuance Certificate or supplement
hereto), to secure (only to the extent expressly provided herein) distributions
of Certificate Balance with respect to and interest on the Certificates, and to
secure compliance with the provisions of this Indenture, all as provided in
this Indenture. This Indenture constitutes a security agreement under the UCC.
The foregoing grant includes all rights, powers and options (but
none of the obligations, if any) of the Issuer under any agreement or
instrument included in the Collateral, including the immediate and continuing
right to claim for, collect, receive and give receipt for principal and
interest payments in respect of the Receivables included in the Collateral and
all other monies payable under the Collateral, to give and receive notices and
other communications, to make waivers or other agreements, to exercise all
rights and options, to bring Proceedings in the name of the Issuer or otherwise
and generally to do and receive anything that the Issuer is or may be entitled
to do or receive under or with respect to the Collateral.
The Indenture Trustee, as trustee on behalf of the Noteholders and
(only to the extent expressly provided herein) the Certificateholders,
acknowledges such grant and accepts the trusts under this Indenture in
accordance with the provisions of this Indenture.
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS. Certain capitalized terms used in this
Indenture shall have the respective meanings assigned them in PART I of
APPENDIX A to the Trust Sale and Servicing Agreement dated as of ________, ____
(the "TRUST SALE AND SERVICING AGREEMENT") among the Issuer, the Seller and
General Motors Acceptance Corporation ("GMAC"). All references herein to "this
Indenture" are to this Indenture as it may be amended, supplemented or modified
from time to time, and all references herein to Articles, Sections, subsections
and exhibits are to Articles, Sections, subsections and exhibits of this
Indenture unless otherwise specified. All terms defined in this Indenture shall
have the defined meanings when used in any certificate, notice, Note or other
document made or delivered pursuant hereto unless otherwise defined therein.
The rules of construction set forth in PART II of such APPENDIX A shall be
applicable to this Agreement.
SECTION 1.2 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture trustee" means the Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by a Commission
rule have the respective meanings assigned to them by such definitions.
ARTICLE II
THE NOTES
SECTION 2.1 ISSUANCE OF NOTES; EXECUTION, AUTHENTICATION AND DELIVERY.
(a) Term Notes and Revolving Notes may be issued by the Issuer upon
execution of this Indenture and from time to time thereafter, in each case, in
accordance with the terms and conditions authorized by or pursuant to an
Officer's Issuance Certificate. The Term Notes may be issued in one or more
series. The Revolving Notes may be issued in one or more series. The aggregate
principal amount of the Revolving Notes and the Term Notes of all series that
may be authenticated and delivered and outstanding under this Indenture is not
limited.
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(b) The Notes shall be executed on behalf of the Issuer by any of
its Authorized Officers. The signature of any such Authorized Officer on the
Notes may be manual or facsimile. Notes bearing the manual or facsimile
signature of individuals who were at any time Authorized Officers of the Issuer
shall bind the Issuer, notwithstanding that such individuals or any of them
have ceased to hold such office prior to the authentication and delivery of
such Notes or did not hold such office at the date of such Notes.
(c) Prior to or concurrently with the delivery of any Note to the
Indenture Trustee for authentication, the Seller shall execute and deliver to
the Indenture Trustee, or cause to be executed and delivered to the Indenture
Trustee, an Officer's Issuance Certificate and an Opinion of Counsel.
(i) The Officer's Issuance Certificate shall set forth, in
addition to all other requirements of such certificate:
(A) the designation of the particular series (which
shall distinguish such series from all other series);
(B) the aggregate principal amount of the series which
may be authenticated and delivered under this Indenture (except for
Notes authenticated and delivered upon registration and transfer of,
or in exchange for, or in lieu of, other Notes of such series
pursuant to this Indenture);
(C) the amount of or method for determining principal
payments and the timing of such payments, including the Targeted
Final Payment Date, if any, and the Stated Final Payment Date;
(D) the rate or rates at which the Notes of such series
shall bear interest, if any, or the initial interest rate and the
method for determining subsequent interest rates, the date or dates
from which such interest shall accrue, the date or dates on which
such interest shall be payable and the record date or dates for the
interest payable;
(E) the obligations or rights, if any, of the Issuer to
redeem or purchase Term Notes of such series or other redemption
provisions and the price or prices at which and the terms and
conditions upon which Term Notes of such series shall be redeemed or
purchased;
(F) if other than the principal amount thereof, the
portion of the principal amount of Notes of such series which shall
be payable upon acceleration of the maturity thereof;
(G) without limiting the generality of the foregoing,
and to the extent applicable, the extent to which payments on the
Notes are senior, subordinate or PARI PASSU in right of payment of
principal and interest to other Notes;
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(H) without limiting the generality of the foregoing, if
the Notes of such series are Revolving Notes, the Revolver Interest
Rate and the Specified Maximum Revolver Balance;
(I) whether such Notes will be issued as Book-Entry
Notes and whether and the extent to which SECTION 2.15 shall apply;
and
(J) any other terms or provisions of such series which
shall not be inconsistent with the provisions of this Indenture.
The terms of each series of Notes as provided for in an Officer's Issuance
Certificate are part of the terms of this Indenture.
(ii) The Opinion of Counsel shall provide, in addition to all
other requirements of such opinion:
(A) that the form and terms of such Notes have been
established by or pursuant to an Officer's Issuance Certificate in
conformity with the terms of this Indenture;
(B) that Notes in such form, when completed by
appropriate insertions and executed and delivered by the Issuer to
the Indenture Trustee for authentication in accordance with this
Indenture, authenticated and delivered by the Indenture Trustee in
accordance with this Indenture and sold in the manner specified in
such Opinion of Counsel, will be valid and legally binding
obligations of the Issuer;
(C) No approval, authorization, consent or order of any
court or governmental agency or body which has not already been
obtained or given is required in connection with the valid and
proper authorization, issuance and sale of the Notes pursuant to
this Indenture subject to certain exceptions, including but not
limited to, state securities and Blue Sky laws and routine renewals
of existing licenses and payments; and
(D) for such other matters as the Indenture Trustee may
reasonably request.
(d) Upon execution and delivery of an Officer's Issuance Certificate
and Opinion of Counsel to the Indenture Trustee, the Indenture Trustee shall
thereupon authenticate and deliver the related Notes to or upon the written
order of the Issuer, signed by any Authorized Officer.
SECTION 2.2 FORM OF NOTES AND INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
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(a) The Notes shall be in the forms provided from time to time by or
pursuant to an Officer's Issuance Certificate in accordance with the terms of
this Indenture and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements
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printed, lithographed or engraved thereon as the Issuer may deem appropriate
and as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the Notes
may be listed or to conform to usage. Any portion of the text of any Note may
be set forth on the reverse thereof, with an appropriate reference thereto on
the face of the Note. The Definitive Term Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders), all as determined by the Authorized Officer
executing such Notes, as evidenced by such officer's execution of such Notes.
(b) The Indenture Trustee's certificate of authentication shall be
substantially in the following form:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
[ ], not in its individual
capacity but solely as Indenture Trustee
By:
Name:
Title:
Dated: ________________________
(c) Each Note shall be dated the date of its authentication. Unless
otherwise provided in the related Officer's Issuance Certificate, (i) each Term
Note shall be issuable as a registered Note in the minimum denomination of
$1,000 and in integral multiples thereof, (ii) each Revolving Note shall be
issuable as a registered Note in the minimum denomination of $100,000 and in
any amount in excess thereof and (iii) Revolving Notes shall be issued as
Definitive Notes and SECTIONS 2.10, 2.11 AND 2.12 of this Indenture shall not
apply to the Revolving Notes.
SECTION 2.3 TEMPORARY NOTES.
(a) Pending the preparation of Definitive Term Notes, if any, to be
issued in exchange for Book-Entry Notes the Issuer may execute, and upon
receipt of an Issuer Order the Indenture Trustee shall authenticate and
deliver, such Temporary Notes which are printed, lithographed, typewritten,
mimeographed or otherwise produced, of the tenor of the Definitive Term Notes
in lieu of which they are issued and with such variations as are consistent
with the terms of this Indenture as the officers executing such Notes may
determine, as evidenced by their execution of such Notes.
(b) If Temporary Notes are issued, the Issuer shall cause Definitive
Term Notes to be prepared without unreasonable delay. After the preparation of
Definitive Term Notes, the
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Temporary Notes shall be exchangeable for Definitive Term Notes upon surrender
of the Temporary Notes at the Agency Office of the Issuer to be maintained as
provided in SECTION 3.2, without charge to the Noteholder. Upon surrender for
cancellation of any one or more Temporary Notes, the Issuer shall execute and
the Indenture Trustee shall authenticate and deliver in exchange therefor a
like principal amount of Definitive Term Notes of authorized denominations.
Until so delivered in exchange, the Temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as Definitive Term Notes.
SECTION 2.4 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE OF NOTES.
(a) The Issuer shall cause to be kept the Note Register, comprising
separate registers for each series of Notes, in which, subject to such
reasonable regulations as the Issuer may prescribe, the Issuer shall provide
for the registration of the Notes and the registration of transfers and
exchanges of the Notes. The Indenture Trustee shall initially be the Note
Registrar for the purpose of registering the Notes and transfers of the Notes
as herein provided. Upon any resignation of any Note Registrar, the Issuer
shall promptly appoint a successor Note Registrar or, if it elects not to make
such an appointment, assume the duties of the Note Registrar.
(b) If a Person other than the Indenture Trustee is appointed by the
Issuer as Note Registrar, the Issuer shall give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location,
and any change in the location, of the Note Register. The Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and
to obtain copies thereof. The Indenture Trustee shall have the right to rely
upon a certificate executed on behalf of the Note Registrar by an Executive
Officer thereof as to the names and addresses of the Noteholders and the
principal amounts and number of such Notes.
(c) Upon surrender for registration of transfer of any Note at the
Corporate Trust Office of the Indenture Trustee or the Agency Office of the
Issuer (and following the delivery, in the former case, of such Notes to the
Issuer by the Indenture Trustee), the Issuer shall execute, the Indenture
Trustee shall authenticate and the Noteholder shall obtain from the Indenture
Trustee, in the name of the designated transferee or transferees, one or more
new Notes of the same series in any authorized denominations of a like
aggregate principal amount.
(d) At the option of the Noteholder, Notes may be exchanged for
other Notes of the same series in any authorized denominations, of a like
aggregate principal amount, upon surrender of such Notes to be exchanged at the
Corporate Trust Office of the Indenture Trustee or the Agency Office of the
Issuer (and following the delivery, in the former case, of such Notes to the
Issuer by the Indenture Trustee), the Issuer shall execute, and the Indenture
Trustee shall authenticate and the Noteholder shall obtain from the Indenture
Trustee, such Notes which the Noteholder making the exchange is entitled to
receive.
(e) All Notes issued upon any registration of transfer or exchange
of other Notes shall be the valid obligations of the Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
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(f) Every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee and the
Note Registrar, duly executed by the Holder thereof or such Xxxxxx's attorney
duly authorized in writing, with such signature guaranteed by a commercial bank
or trust company located, or having a correspondent located, in the City of New
York or the city in which the Corporate Trust Office of the Indenture Trustee
is located, or by a member firm of a national securities exchange, and such
other documents as the Indenture Trustee may require.
(g) No service charge shall be made to a Holder for any registration
of transfer or exchange of Notes, but the Issuer or Indenture Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to SECTIONS 2.3 OR 9.6 not
involving any transfer.
(h) The preceding provisions of this SECTION 2.4 notwithstanding,
the Issuer shall not be required to transfer or make exchanges, and the Note
Registrar need not register transfers or exchanges, (i) of Notes that have been
selected for redemption pursuant to ARTICLE X, if applicable; (ii) of Notes
that are due for repayment within 15 days of submission to the Corporate Trust
Office or the Agency Office; or (iii) if SECTION 2.15 has not been complied
with in connection with such transfer.
SECTION 2.5 MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
(a) If (i) any mutilated Note is surrendered to the Indenture
Trustee, or the Indenture Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered to the
Indenture Trustee such security or indemnity as may be required by it to hold
the Issuer and the Indenture Trustee harmless, then, in the absence of notice
to the Issuer, the Note Registrar or the Indenture Trustee that such Note has
been acquired by a bona fide purchaser, the Issuer shall execute and upon the
Issuer's request the Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note,
a replacement Note of a like series and aggregate principal amount; PROVIDED,
HOWEVER, that if any such destroyed, lost or stolen Note, but not a mutilated
Note, shall have become or within seven days shall be due and payable, or shall
have been called for redemption, instead of issuing a replacement Note, the
Issuer may make payment to the Holder of such destroyed, lost or stolen Note
when so due or payable or upon the Redemption Date, if applicable, without
surrender thereof.
(b) If, after the delivery of a replacement Note or payment in
respect of a destroyed, lost or stolen Note pursuant to subsection (a), a bona
fide purchaser of the original Note in lieu of which such replacement Note was
issued presents for payment such original Note, the Issuer and the Indenture
Trustee shall be entitled to recover such replacement Note (or such payment)
from (i) any Person to whom it was delivered, (ii) the Person taking such
replacement Note from the Person to whom such replacement Note was delivered or
(iii) any assignee of such Person, except a bona fide purchaser, and the Issuer
and the Indenture Trustee shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Issuer or the Indenture Trustee in connection therewith.
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(c) In connection with the issuance of any replacement Note under
this SECTION 2.5, the Issuer may require the payment by the Holder of such Note
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other reasonable expenses (including all
fees and expenses of the Indenture Trustee) connected therewith.
(d) Any duplicate Note issued pursuant to this SECTION 2.5 in
replacement for any mutilated, destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be found at any time or be
enforced by any Person, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.
(e) The provisions of this SECTION 2.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 PERSONS DEEMED NOTEHOLDERS. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the Noteholder for
the purpose of receiving payments of principal of and interest on such Note and
for all other purposes whatsoever, whether or not such Note be overdue, and
neither the Issuer, the Indenture Trustee nor any agent of the Issuer or the
Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.7 PAYMENT OF PRINCIPAL AND INTEREST.
(a) Interest on each series of Notes shall accrue and be payable as
provided in SECTION 8.2 and the applicable Officer's Issuance Certificate.
Unless otherwise provided in the applicable Officer's Issuance Certificate, any
instalment of interest payable on any Note shall be punctually paid or duly
provided for by a deposit by or at the direction of the Issuer into the Note
Distribution Account or Revolver Distribution Account, as applicable, on the
applicable Payment Date and shall be paid to the Person in whose name such Note
(or one or more Predecessor Notes) is registered on the applicable Record Date,
by check mailed first-class, postage prepaid to such Person's address as it
appears on the Note Register on such Record Date; PROVIDED, HOWEVER, that, with
respect to Revolving Notes and with respect to Book-Entry Notes registered on
the applicable Record Date in the name of the Note Depository for which
Definitive Term Notes have not been issued pursuant to SECTION 2.12, payment
shall be made by wire transfer in immediately available funds to the account
designated by such Holder.
(b) The principal of each series of Notes shall be payable as
provided in the applicable Officer's Issuance Certificate. All principal
payments on each series of Notes shall be made pro rata to the Noteholders of
such series entitled thereto unless, with respect to any series of Revolving
Notes, otherwise provided in the related Officer's Issuance Certificate or
otherwise agreed among the Seller and the holders of such Revolving Notes.
Unless otherwise provided in the applicable Officer's Issuance Certificate, any
instalment of principal payable on any Note shall be punctually paid or duly
provided for by a deposit by or at the direction of the Issuer into the Note
Distribution Account in the case of the Term Notes or the Revolver Distribution
Account in the case
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of the Revolving Notes on the applicable Payment Date and shall be paid to the
Person in whose name such Note (or one or more Predecessor Notes) is registered
on the applicable Record Date, by check mailed first-class, postage prepaid to
such Person's address as it appears on the Note Register on such Record Date;
PROVIDED, HOWEVER, that, with respect to Revolving Notes and with respect to
Book-Entry Notes registered on the Record Date in the name of the Note
Depository for which Definitive Term Notes have not been issued pursuant to
SECTION 2.12, payment shall be made by wire transfer in immediately available
funds to the account designated by such Holder, except for the final instalment
of principal on any such Note and the Redemption Price for any Term Notes, if
so called, which, in each case, shall be payable as provided herein. The funds
represented by any such checks in respect of interest or principal returned
undelivered shall be held in accordance with SECTION 3.3.
(c) With respect to any Payment Date on which the final instalment
of principal and interest on a series of Notes is to be paid, the Indenture
Trustee shall notify each Noteholder of such series of Notes as of the Record
Date for such Payment Date of the fact that the final instalment of principal
of and interest on such Note is to be paid on such Payment Date. With respect
to Book- Entry Notes for which Definitive Term Notes have not been issued, such
notice shall be sent on the Business Day prior to such Payment Date by
facsimile, and with respect to Definitive Term Notes and Revolving Notes, such
notice shall be sent not later than three Business Days after such Record Date
in accordance with SECTION 11.5(A), and, in each case, shall specify that such
final instalment shall be payable only upon presentation and surrender of such
Note and shall specify the place where such Note may be presented and
surrendered for payment of such instalment. Notices in connection with
redemptions of Term Notes shall be mailed to Noteholders as provided in SECTION
10.2.
SECTION 2.8 CANCELLATION OF NOTES. All Notes surrendered for
payment, redemption, exchange or registration of transfer shall, if surrendered
to any Person other than the Indenture Trustee, be delivered to the Indenture
Trustee and shall be promptly canceled by the Indenture Trustee. The Issuer may
at any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever (other than for deposit in the Reserve Fund),
and all Notes so delivered shall be promptly canceled by the Indenture Trustee.
No Notes shall be authenticated in lieu of or in exchange for any Notes
canceled as provided in this SECTION 2.8, except as expressly permitted by this
Indenture. All canceled Notes may be held or disposed of by the Indenture
Trustee in accordance with its standard retention or disposal policy as in
effect at the time unless the Issuer shall direct by an Issuer Order that they
be returned to it; PROVIDED, HOWEVER, that such Issuer Order is timely and the
Notes have not been previously disposed of by the Indenture Trustee. The
Indenture Trustee shall certify to the Issuer that surrendered Notes have been
duly cancelled and retained or destroyed, as the case may be.
SECTION 2.9 RELEASE OF COLLATERAL. The Indenture Trustee shall
release property from the lien of this Indenture, other than as permitted by
SECTIONS 3.21, 8.2, 8.4 AND 11.1, only upon receipt of an Issuer Request
accompanied by an Officers' Certificate, an Opinion of Counsel and (to the
extent required by the TIA) Independent Certificates in accordance with TIA
xx.xx. 314(c) and 314(d)(1).
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SECTION 2.10 BOOK-ENTRY NOTES. Unless otherwise provided in the
applicable Officer's Issuance Certificate, each series of Term Notes, upon
original issuance, shall be issued in the form of a typewritten Note or Notes
representing the Book-Entry Notes, to be delivered to The Depository Trust
Company, the initial Clearing Agency by or on behalf of the Issuer and such
Note or Notes shall be registered on the Note Register in the name of the Note
Depository (initially, Cede & Co.). No Note Owner shall receive a Definitive
Term Note representing such Note Owner's interest in such Note, except as
provided in SECTION 2.12. Unless and until Definitive Term Notes with respect
to such Notes have been issued to such Note Owners pursuant to SECTION 2.12,
with respect to such Notes:
(a) the provisions of this SECTION 2.10 shall be in full force and
effect;
(b) the Note Registrar and the Indenture Trustee shall be entitled
to deal with the Clearing Agency for all purposes of this Indenture (including
the payment of principal of and interest on such Notes and the giving of
instructions or directions hereunder) as the sole Holder of such Notes and
shall have no obligation to such Note Owners;
(c) to the extent that the provisions of this SECTION 2.10 conflict
with any other provisions of this Indenture, the provisions of this SECTION
2.10 shall control;
(d) the rights of the Note Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law and
agreements between such Note Owners and the Clearing Agency and/or the Clearing
Agency Participants, and unless and until Definitive Term Notes are issued
pursuant to SECTION 2.12, the initial Clearing Agency shall make book-entry
transfers between the Clearing Agency Participants and receive and transmit
payments of principal of and interest on such Notes to such Clearing Agency
Participants, pursuant to the Note Depository Agreement; and
(e) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Holders of Notes evidencing a
specified percentage of the Outstanding Amount of the Notes, the Clearing
Agency shall be deemed to represent such percentage only to the extent that it
has (i) received written instructions to such effect from Note Owners and/or
Clearing Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in the Notes and (ii) has
delivered such instructions to the Indenture Trustee.
SECTION 2.11 NOTICES TO CLEARING AGENCY. With respect to any Term
Notes issued as Book-Entry Notes, whenever a notice or other communication to
the Noteholders is required under this Indenture, unless and until Definitive
Term Notes representing such Term Notes shall have been issued to the related
Note Owners pursuant to SECTION 2.12, the Indenture Trustee shall give all such
notices and communications specified herein to be given to the related
Noteholders to the Clearing Agency and shall have no other obligation to such
Note Owners.
SECTION 2.12 DEFINITIVE TERM NOTES. If for any Term Notes issued as
Book-Entry Notes (i) the Administrator advises the Indenture Trustee in writing
that the Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to such Notes and the Issuer is unable to locate
a qualified successor; (ii) the Administrator, at its option, advises the
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Indenture Trustee in writing that it elects to terminate the book-entry system
through the Clearing Agency; or (iii) after the occurrence of an Event of
Default or a Servicing Default, Note Owners representing beneficial interests
aggregating at least a majority of the Outstanding Amount of such Notes advise
the Clearing Agency in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interests of such Note
Owners, then the Clearing Agency shall notify all Note Owners and the Indenture
Trustee of the occurrence of any such event and of the availability of
Definitive Term Notes to such Note Owners requesting the same. Upon surrender
to the Indenture Trustee of the typewritten Note or Notes representing such
Book-Entry Notes by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee shall
authenticate the related Definitive Term Notes in accordance with the
instructions of the Clearing Agency. None of the Issuer, the Note Registrar or
the Indenture Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on, such instructions. Upon the issuance of such Definitive Term Notes, the
Indenture Trustee shall recognize the Holders of such Definitive Term Notes as
Noteholders.
SECTION 2.13 SELLER AS NOTEHOLDER. The Seller in its individual or
any other capacity may become the owner or pledgee of Notes of any series and
may otherwise deal with the Issuer or its affiliates with the same rights it
would have if it were not the Seller.
SECTION 2.14 TAX TREATMENT. The Issuer and the Indenture Trustee, by
entering into this Indenture, and the Noteholders and the Note Owners, by
acquiring any Note or interest therein, (i) express their intention that the
Notes qualify under applicable tax law as indebtedness secured by the
Collateral and (ii) unless otherwise required by appropriate taxing
authorities, agree to treat the Notes as indebtedness secured by the Collateral
for the purpose of federal income, state and local income and franchise taxes,
Michigan single business tax, and any other taxes imposed upon, measured by or
based upon gross or net income.
SECTION 2.15 SPECIAL TERMS APPLICABLE TO SUBSEQUENT TRANSFERS OF CERTAIN NOTES.
(a) The Revolving Notes have not and will not, and certain series of
Term Notes may not, be registered under the Securities Act, or the securities
laws of any other jurisdiction. Consequently, such Notes (the "UNREGISTERED
NOTES") are not transferable other than pursuant to an exemption from the
registration requirements of the Securities Act and satisfaction of certain
other provisions specified herein or in the related Officer's Issuance
Certificate. An interest in the Revolving Notes is being sold in a private
placement on the date hereof. Unless otherwise provided in the related
Officer's Issuance Certificate, no sale, pledge or other transfer of any
Unregistered Note (or interest therein) after the date thereof may be made by
any Person unless either (i) such sale, pledge or other transfer is made to a
"qualified institutional buyer" (as defined under Rule 144A under the
Securities Act) or to an institutional investor that is an "accredited
investor" (as described in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) and, if so requested by the Seller or the Indenture Trustee, such proposed
transferee executes and delivers a certificate, substantially in the form
attached hereto as EXHIBIT A or otherwise in form and substance satisfactory to
the Indenture Trustee and the Seller, or (ii) such sale, pledge or other
transfer is otherwise made in a transaction exempt from the registration
requirements of the Securities Act, in which case (A) the Indenture Trustee
shall require that both the prospective transferor and the prospective
transferee certify to the Indenture Trustee and the Seller in writing the facts
surrounding such transfer, which certification
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shall be in form and substance satisfactory to the Indenture Trustee and the
Seller, and (B) the Indenture Trustee shall require a written opinion of
counsel (which shall not be at the expense of the Seller, the Servicer or the
Indenture Trustee) satisfactory to the Seller and the Indenture Trustee to the
effect that such transfer will not violate the Securities Act. Unless otherwise
provided in the related Officer's Issuance Certificate, no sale, pledge or
other transfer of any Revolving Note that is an Unregistered Note (or interest
therein) may be made by any Person unless the Seller shall have consented in
writing to such transfer. Neither the Seller nor the Indenture Trustee shall be
obligated to register any Unregistered Notes under the Securities Act, qualify
any Unregistered Notes under the securities laws of any state or provide
registration rights to any purchaser or holder thereof.
(b) Unless otherwise provided in the related Officer's Issuance
Certificate, the Unregistered Notes may not be acquired by or for the account
of a Benefit Plan and, by accepting and holding an Unregistered Note, the
Holder thereof shall be deemed to have represented and warranted that it is not
a Benefit Plan and, if requested to do so by the Seller or the Indenture
Trustee, the Holder of an Unregistered Note shall execute and deliver to the
Indenture Trustee an Undertaking Letter in the form set forth in EXHIBIT B.
(c) Unless otherwise provided in the related Officer's Issuance
Certificate, Unregistered Notes shall be issued in the form of Definitive
Notes, shall be in fully registered form and SECTIONS 2.10, 2.11 AND 2.12 of
this Indenture shall not apply thereto.
(d) Each Unregistered Note shall bear legends to the effect set
forth in subsections (a) and (b) (if subsection (b) is applicable) above.
ARTICLE III
COVENANTS
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer shall duly
and punctually pay the principal of and interest on the Notes in accordance
with the terms of the Notes and this Indenture. On each date on which any
payments are to be made, the Issuer shall cause amounts on deposit in the Note
Distribution Account and Revolver Distribution Account to be paid to the Term
Noteholders and Revolving Noteholders, respectively, in accordance with the
terms of the Notes and this Indenture, less amounts properly withheld under the
Code by any Person from a payment to any Noteholder of interest and/or
principal. Any amounts so withheld shall be considered as having been paid by
the Issuer to such Noteholder for all purposes of this Indenture.
SECTION 3.2 MAINTENANCE OF AGENCY OFFICE. As long as any of the
Notes remains outstanding, the Issuer shall maintain in the Borough of
Manhattan, the City of New York, an office (the "AGENCY OFFICE"), being an
office or agency where Notes may be surrendered to the Issuer for registration
of transfer or exchange, and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer hereby
initially appoints the Indenture Trustee to serve as its agent for the
foregoing purposes. The Issuer shall give prompt written notice to the
Indenture Trustee of the location, and of any change in the location, of any
such office or agency. If at any time the Issuer shall fail to maintain any
such office or agency or shall fail to furnish the Indenture Trustee with the
address thereof, such surrenders, notices and demands may
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be made or served at the Corporate Trust Office of the Indenture Trustee, and
the Issuer hereby appoints the Indenture Trustee as its agent to receive all
such surrenders, notices and demands.
SECTION 3.3 MONEY FOR PAYMENTS TO BE HELD IN TRUST.
(a) As provided in SECTION 8.2, all payments of amounts due and
payable with respect to any Notes that are to be made from amounts withdrawn
from the Note Distribution Account or Revolver Distribution Account pursuant to
SECTION 8.2(C) shall be made on behalf of the Issuer by the Indenture Trustee
or by another Paying Agent, and no amounts so withdrawn from the Note
Distribution Account or Revolver Distribution Account for payments of Term
Notes or Revolving Notes, respectively, shall be paid over to the Issuer except
as provided in this SECTION 3.3.
(b) On or before each date on which payments are to be made or the
Redemption Date (if applicable), the Issuer shall deposit or cause to be
deposited in the Note Distribution Account and Revolver Distribution Account
(including pursuant to SECTION 4.5 of the Trust Sale and Servicing Agreement)
aggregate sums sufficient to pay the amounts then becoming due with respect to
the Term Notes and Revolving Notes, respectively, such sums to be held in trust
for the benefit of the Persons entitled thereto.
(c) The Issuer shall cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an instrument
in which such Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the
provisions of this SECTION 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and pay such sums to such Persons as herein
provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer (or any other obligor upon the Notes) of which it has actual
knowledge in the making of any payment required to be made with respect to
the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the payment of
Notes if at any time it ceases to meet the standards required to be met by
a Paying Agent in effect at the time of determination; and
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
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(d) The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Indenture
Trustee upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
(e) Subject to applicable laws with respect to escheat of funds, any
money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed for
one year after such amount has become due and payable shall be discharged from
such trust and be paid by the Indenture Trustee to the Issuer; and the Holder
of such Note shall thereafter, as an unsecured general creditor, look only to
the Issuer for payment thereof (but only to the extent of the amounts so paid
to the Issuer), and all liability of the Indenture Trustee or such Paying Agent
with respect to such trust money shall thereupon cease; PROVIDED, HOWEVER, that
the Indenture Trustee or such Paying Agent, before being required to make any
such payment, may at the expense of the Issuer cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining shall be paid to the Issuer. The Indenture
Trustee may also adopt and employ, at the expense of the Issuer, any other
reasonable means of notification of such repayment (including, but not limited
to, mailing notice of such repayment to Holders whose Notes have been called
but have not been surrendered for redemption or whose right to or interest in
monies due and payable but not claimed is determinable from the records of the
Indenture Trustee or of any Paying Agent, at the last address of record for
each such Holder).
SECTION 3.4 EXISTENCE. The Issuer shall keep in full effect its
existence, rights and franchises as a business trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States of
America, in which case the Issuer shall keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
SECTION 3.5 PROTECTION OF TRUST ESTATE; ACKNOWLEDGMENT OF PLEDGE.
The Issuer shall from time to time execute and deliver all such
supplements and amendments hereto and all such financing statements, amendments
thereto, continuation statements, assignments, certificates, instruments of
further assurance and other instruments, and shall take such other action
necessary or advisable to:
(a) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the purposes
hereof, including by making the necessary filings of financing statements or
amendments thereto within sixty days after the
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occurrence of any of the following: (A) any change in the Issuer's name, (B)
any change in the location of the Issuer's principal place of business, (C) any
merger or consolidation or other change in the Issuer's identity or
organizational structure and by promptly notifying the Indenture Trustee of any
such filings and (D) any other change or occurrence that would make any
financing statement or amendment seriously misleading within the meaning of
Section 9-402(7) of the UCC;
(b) perfect, publish notice of or protect the validity of any
grant of a security interest made or to be made by this Indenture;
(c) enforce the rights of the Indenture Trustee and the Noteholders
in any of the Collateral; or
(d) preserve and defend title to the Trust Estate and the rights of
the Indenture Trustee and the Noteholders in such Trust Estate against the
claims of all Persons and parties,
and the Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required pursuant to this SECTION 3.5.
SECTION 3.6 OPINIONS AS TO TRUST ESTATE.
(a) On the Initial Closing Date, the Issuer shall furnish to the
Indenture Trustee an Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the recording and
filing of this Indenture, any indentures supplemental hereto and any other
requisite documents, and with respect to the execution and filing of any
financing statements and continuation statements as are necessary to perfect
and make effective the lien and security interest of this Indenture and
reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such lien and security interest
effective.
(b) On or before ______ 15 in each calendar year, beginning ______
15, 20__, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, re-recording and refiling of
this Indenture, any indentures supplemental hereto and any other requisite
documents and with respect to the execution and filing of any financing
statements and continuation statements as is necessary to maintain the lien and
security interest created by this Indenture and reciting the details of such
action or stating that in the opinion of such counsel no such action is
necessary to maintain the lien and security interest created by this Indenture.
Such Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any
other requisite documents and the execution and filing of any financing
statements and continuation statements that will, in the opinion of such
counsel, be required to maintain the lien and security interest of this
Indenture until ______ 15 in the following calendar year.
SECTION 3.7 PERFORMANCE OF OBLIGATIONS; SERVICING OF RECEIVABLES.
(a) The Issuer shall not take any action and shall use its
reasonable efforts not to permit any action to be taken by others that would
release any Person from any of such Person's material covenants or obligations
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under any instrument or agreement included in the Trust Estate or that would
result in the amendment, hypothecation, subordination, termination or discharge
of, or impair the validity or effectiveness of, any such instrument or
agreement, except as otherwise expressly provided in this Indenture, the Trust
Sale and Servicing Agreement, the Pooling and Servicing Agreement, the
Administration Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee herein or in the Basic
Documents or an Officers' Certificate of the Issuer shall be deemed to be
action taken by the Issuer. Initially, the Issuer has contracted with the
Servicer and the Administrator to assist the Issuer in performing its duties
under this Indenture.
(c) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents and
in the instruments and agreements included in the Trust Estate, including but
not limited to filing or causing to be filed all Uniform Commercial Code
financing statements and continuation statements required to be filed under the
terms of this Indenture, the Trust Sale and Servicing Agreement and the Pooling
and Servicing Agreement in accordance with and within the time periods provided
for herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of a
Servicing Default under the Trust Sale and Servicing Agreement, the Issuer
shall promptly notify the Indenture Trustee and the Rating Agencies thereof,
and shall specify in such notice the response or action, if any, the Issuer has
taken or is taking with respect of such default. If a Servicing Default shall
arise from the failure of the Servicer to perform any of its duties or
obligations under the Trust Sale and Servicing Agreement or the Pooling and
Servicing Agreement with respect to the Receivables in the Accounts in the Pool
of Accounts, the Issuer and the Indenture Trustee shall take all reasonable
steps available to them pursuant to the Trust Sale and Servicing Agreement and
the Pooling and Servicing Agreement to remedy such failure.
SECTION 3.8 NEGATIVE COVENANTS. So long as any Notes are
Outstanding, the Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of any of the
properties or assets of the Issuer, except the Issuer may: (i) collect,
liquidate, sell or otherwise dispose of the Trust's interest in Receivables
(including Warranty Receivables, Administrative Receivables and Defaulted
Receivables), (ii) make cash payments out of the Designated Accounts and the
Certificate Distribution Account and (iii) take other actions, in each case as
contemplated by the Basic Documents;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of the Notes (other than amounts properly withheld
from such payments under the Code or applicable state law) or assert any claim
against any present or former Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Trust Estate;
(c) voluntarily commence any insolvency, readjustment of debt,
marshaling of assets and liabilities or other proceeding, or apply for an order
by a court or agency or supervisory authority for the winding-up or
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liquidation of its affairs or any other event specified in SECTION 5.1(F); or
(d) either (i) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to
be released from any covenants or obligations with respect to the Notes under
this Indenture except as may be expressly permitted hereby, (ii) permit any
lien, charge, excise, claim, security interest, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or extend to or
otherwise arise upon or burden the Trust Estate or any part thereof or any
interest therein or the proceeds thereof (other than tax liens, mechanics'
liens and other liens that arise by operation of law or as otherwise
contemplated by the Basic Documents) or (iii) permit the lien of this Indenture
not to constitute a valid first priority security interest in the Trust Estate
(other than with respect to any such tax, mechanics' or other lien).
SECTION 3.9 ANNUAL STATEMENT AS TO COMPLIANCE. The Issuer shall
deliver to the Indenture Trustee, on or before ______ 15 of each year,
beginning ______ 15, 20__, an Officer's Certificate signed by an Authorized
Officer, dated as of ______ 30 of such year, stating that:
(a) a review of the activities of the Issuer during such fiscal year
and of performance under this Indenture has been made under such Authorized
Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based on
such review, the Issuer has fulfilled in all material respects all of its
obligations under this Indenture throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such Authorized Officer and the nature and status thereof. A copy of
such certificate may be obtained by any Noteholder by a request in writing to
the Issuer addressed to the Corporate Trust Office of the Indenture Trustee.
SECTION 3.10 CONSOLIDATION, MERGER, ETC., OF ISSUER; DISPOSITION OF TRUST
ASSETS.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America, or any State and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the Indenture
Trustee, the due and timely payment of the principal of and interest on
all Notes and the performance or observance of every agreement and
covenant of this Indenture on the part of the Issuer to be performed or
observed, all as provided herein;
(ii) immediately after giving effect to such merger or
consolidation, no Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction and such Person for each then outstanding
series of Notes;
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(iv) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(v) the Issuer shall have delivered to the Indenture Trustee
an Officers' Certificate and an Opinion of Counsel addressed to the
Issuer, each stating:
(A) that such consolidation or merger and such
supplemental indenture comply with this SECTION 3.10;
(B) that such consolidation or merger and such
supplemental indenture shall have no material adverse tax
consequence to the Issuer or any Noteholder or Certificateholder;
and
(C) that all conditions precedent herein provided for in
this SECTION 3.10 have been complied with, which shall include any
filing required by the Exchange Act.
(b) Except as otherwise expressly permitted by this Indenture or the
other Basic Documents, the Issuer shall not sell, convey, exchange, transfer or
otherwise dispose of any material portion of the properties and assets included
in the Trust Estate to any Person, unless:
(i) the Person that acquires such properties or assets of the
Issuer (A) shall be a United States citizen or a Person organized and
existing under the laws of the United States of America or any State and
(B) by an indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture Trustee:
(1) expressly assumes the due and punctual payment
of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of
this Indenture (and so long as any Specified Support
Arrangement is in effect, such Specified Support Arrangements
and all related documents) on the part of the Issuer to be
performed or observed, all as provided herein;
(2) expressly agrees that all right, title and
interest so sold, conveyed, exchanged, transferred or
otherwise disposed of shall be subject and subordinate to the
rights of Noteholders;
(3) unless otherwise provided in such supplemental
indenture, expressly agrees to indemnify, defend and hold
harmless the Issuer against and from any loss, liability or
expense arising under or related to this Indenture and the
Notes; and
(4) expressly agrees that such Person (or if a
group of Persons, then one specified Person) shall make all
filings with the Commission (and any other appropriate Person)
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required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction and such Person for each then outstanding
series of Notes;
(iv) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(v) the Issuer shall have delivered to the Indenture Trustee
an Officers' Certificate and an Opinion of Counsel addressed to the
Issuer, each stating that:
(A) such sale, conveyance, exchange, transfer or
disposition and such supplemental indenture comply with this SECTION
3.10;
(B) such sale, conveyance, exchange, transfer or
disposition and such supplemental indenture have no material adverse
tax consequence to the Issuer or to any Noteholders or
Certificateholders; and
(C) that all conditions precedent herein provided for in
this SECTION 3.10 have been complied with, which shall include any
filing required by the Exchange Act.
SECTION 3.11 SUCCESSOR OR TRANSFEREE.
(a) Upon any consolidation or merger of the Issuer in accordance
with SECTION 3.10(A), the Person formed by or surviving such consolidation or
merger (if other than the Issuer) shall succeed to, and be substituted for, and
may exercise every right and power of, the Issuer under this Indenture with the
same effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties
of the Issuer pursuant to SECTION 3.10(B), the Issuer shall be released from
every covenant and agreement of this Indenture to be observed or performed on
the part of the Issuer with respect to the Notes immediately upon the delivery
of written notice to the Indenture Trustee from the Person acquiring such
assets and properties stating that the Issuer is to be so released.
SECTION 3.12 NO OTHER BUSINESS. The Issuer shall not engage in any
business or activity other than acquiring, holding and managing the Collateral
and the proceeds therefrom in the manner contemplated by the Basic Documents,
issuing the Notes and the Certificates, making payments on the Notes and the
Certificates and such other activities that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto, as set forth
in SECTION 2.3 of the Trust Agreement, including entering into and making
payments under any Specified Support Arrangements.
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SECTION 3.13 NO BORROWING. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness for money borrowed other than indebtedness for money borrowed in
respect of the Notes or in accordance with the Basic Documents.
SECTION 3.14 GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES.
Except as contemplated by this Indenture or the other Basic Documents, the
Issuer shall not make any loan or advance or credit to, or guarantee (directly
or indirectly or by an instrument having the effect of assuring another's
payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or own,
purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.15 SERVICER'S OBLIGATIONS. The Issuer shall use its best
efforts to cause the Servicer to comply with its obligations under SECTION 3.05
of the Pooling and Servicing Agreement and SECTIONS 4.1, 4.2 AND 4.8 of the
Trust Sale and Servicing Agreement.
SECTION 3.16 CAPITAL EXPENDITURES. The Issuer shall not make any
expenditure (whether by long-term or operating lease or otherwise) for capital
assets (either real, personal or intangible property) other than the purchase
of the Receivables and other property and rights from the Seller on the Initial
Closing Date and from time to time thereafter pursuant to the Trust Sale and
Servicing Agreement.
SECTION 3.17 REMOVAL OF ADMINISTRATOR. So long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause unless
the Rating Agency Condition for each series of Notes then outstanding shall
have been satisfied in connection with such removal.
SECTION 3.18 RESTRICTED PAYMENTS. Except for payments of principal
or interest on or redemption of the Notes, so long as any Notes are
Outstanding, the Issuer shall not, directly or indirectly:
(a) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise, in each case with respect to any ownership or equity
interest or similar security in or of the Issuer or to the Servicer;
(b) redeem, purchase, retire or otherwise acquire for value any
such ownership or equity interest or similar security; or
(c) set aside or otherwise segregate any amounts for any such
purpose;
PROVIDED, HOWEVER, that the Issuer may make, or cause to be made, distributions
to the Servicer, the Seller, the Indenture Trustee, the Owner Trustee and the
Certificateholders as permitted by, and to the extent funds are available for
such purpose under, the Trust Sale and Servicing Agreement, the Trust Agreement
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or the other Basic Documents. The Issuer shall not, directly or indirectly,
make payments to or distributions from the Collection Account or any other
Designated Account except in accordance with the Basic Documents.
SECTION 3.19 NOTICE OF EVENTS OF DEFAULT. The Issuer agrees to give
the Indenture Trustee and the Rating Agencies written notice of each Event of
Default hereunder, each Servicing Default, any Insolvency Event with respect to
the Seller, each default on the part of the Seller or the Servicer of its
respective obligations under the Trust Sale and Servicing Agreement and each
default on the part of GMAC or the Servicer of its respective obligations under
the Pooling and Servicing Agreement, in each case promptly after the discovery
thereof by the Issuer.
SECTION 3.20 FURTHER INSTRUMENTS AND ACTS. Upon request of the
Indenture Trustee, the Issuer shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Indenture.
SECTION 3.21 TRUSTEE'S ASSIGNMENT OF INTERESTS IN CERTAIN
RECEIVABLES. The Indenture Trustee shall assign, without recourse,
representation or warranty, to the Servicer, GMAC or the Seller, as the case
may be, all of the Indenture Trustee's right, title and interest in and to any
Receivable assigned by the Issuer to the Servicer, GMAC or the Seller, as
applicable, pursuant to the Pooling and Servicing Agreement or the Trust Sale
and Servicing Agreement (including, without limitation, SECTION 9.3 thereof)
(in each case, to the extent so assigned and upon the receipt of any related
payment, if applicable), such assignment being an assignment outright and not
for security; and the Servicer, GMAC or the Seller, as applicable, shall
thereupon own the interest purchased in such Receivable, free of any further
obligation to the Indenture Trustee, the Noteholders or the Certificateholders
with respect thereto. If in any enforcement suit or legal proceeding it is held
that the Servicer may not enforce a Receivable on the ground that it is not a
real party in interest or a holder entitled to enforce such Receivable, the
Indenture Trustee shall, at the Servicer's expense, take such steps as the
Servicer deems necessary to enforce the Receivable, including bringing suit in
the Indenture Trustee's name or the names of the Noteholders or the
Certificateholders.
SECTION 3.22 REPRESENTATIONS AND WARRANTIES BY THE ISSUER TO THE
INDENTURE TRUSTEE. The Issuer hereby represents and warrants to the Indenture
Trustee as follows:
(a) GOOD TITLE. No interest in any Receivable conveyed to the Issuer
has been sold, transferred, assigned or pledged by the Issuer to any Person
other than the Indenture Trustee; immediately prior to the conveyance of such
Receivables pursuant to this Indenture, the Issuer had good and marketable
title thereto, free of any Lien; and, upon execution and delivery of this
Indenture by the Issuer, the Indenture Trustee shall have all of the right,
title and interest of the Issuer in, to and under such Receivables, free of any
Lien; and
(b) ALL FILINGS MADE. All filings (including, without limitation,
Uniform Commercial Code filings) necessary in any jurisdiction to give the
Indenture Trustee, upon the acquisition by the Issuer of any Eligible
Receivable, a first priority perfected security interest in such Eligible
Receivable have been made.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall cease to be of further effect with respect to the Notes except as to: (i)
rights of registration of transfer and exchange; (ii) substitution of
mutilated, destroyed, lost or stolen Notes; (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon; (iv) SECTIONS 3.3,
3.4, 3.5, 3.8, 3.10, 3.12, 3.13, 3.19 and 3.21; (v) the rights, obligations and
immunities of the Indenture Trustee hereunder (including the rights of the
Indenture Trustee under SECTION 6.7 and the obligations of the Indenture
Trustee under SECTIONS 4.2 AND 4.4); and (vi) the rights of Noteholders as
beneficiaries hereof with respect to the property so deposited with the
Indenture Trustee payable to all or any of them, and the Indenture Trustee, on
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the
Notes, if:
(a) either:
(i) all Notes theretofore authenticated and delivered (other
than (A) Notes that have been destroyed, lost or stolen and that have been
replaced or paid as provided in SECTION 2.5 and (B) Notes for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in SECTION 3.3) have been
delivered to the Indenture Trustee for cancellation; or
(ii) all Notes not theretofore delivered to the Indenture
Trustee for cancellation:
(A) have become due and payable,
(B) will be due and payable on their respective Stated
Final Payment Dates within one year, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Indenture Trustee for the
giving of notice of redemption by the Indenture Trustee in the name,
and at the expense, of the Issuer,
and the Issuer, in the case of (A), (B) or (C) of SUBSECTION 4.1(A)(II) above,
has irrevocably deposited or caused to be irrevocably deposited with the
Indenture Trustee cash or direct obligations of or obligations guaranteed by
the United States of America (which will mature prior to the date such amounts
are payable), in trust for such purpose, in an amount sufficient to pay and
discharge the entire unpaid principal and accrued interest on such Notes not
theretofore delivered to the Indenture Trustee for cancellation when due;
(b) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
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(c) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate of the Issuer, an Opinion of Counsel and (if required by the TIA or
the Indenture Trustee) an Independent Certificate from a firm of certified
public accountants, each meeting the applicable requirements of SECTION 11.1(A)
and each stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been complied with.
SECTION 4.2 APPLICATION OF TRUST MONEY. All monies deposited with
the Indenture Trustee pursuant to SECTION 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture and the applicable provisions of the Trust Sale and Servicing
Agreement, including without limitation SECTION 4.5 thereof, to the payment,
either directly or through any Paying Agent, as the Indenture Trustee may
determine, to the Holders of the particular Notes for the payment or redemption
of which such monies have been deposited with the Indenture Trustee, of all
sums due and to become due thereon for principal and interest; but such monies
need not be segregated from other funds except to the extent required herein or
in the Trust Sale and Servicing Agreement or by applicable law.
SECTION 4.3 REPAYMENT OF MONIES HELD BY PAYING AGENT. In connection
with the satisfaction and discharge of this Indenture with respect to each
series of Notes, all monies then held by any Paying Agent other than the
Indenture Trustee under the provisions of this Indenture with respect to all
such Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee
to be held and applied according to Section 3.3 and thereupon such Paying Agent
shall be released from all further liability with respect to such monies.
SECTION 4.4 DURATION OF POSITION OF INDENTURE TRUSTEE.
Notwithstanding the earlier payment in full of all principal and interest due
to all Noteholders under the terms of the Notes of each series and the
cancellation of such Notes pursuant to SECTION 3.1, the Indenture Trustee shall
continue to act in the capacity as Indenture Trustee hereunder and, for the
benefit of the Certificateholders, shall comply with its obligations under
SECTIONS 6.1(A), 8.2 AND 8.3 of the Trust Sale and Servicing Agreement, as
appropriate, until such time as all distributions in respect of Certificate
Balance and interest due to the Certificateholders have been paid in full.
ARTICLE V
DEFAULT AND REMEDIES
SECTION 5.1 EVENTS OF DEFAULT. For the purposes of this Indenture,
"EVENT OF DEFAULT" wherever used herein, means any one of the following events:
(a) failure to pay any interest on any Note as and when the same
becomes due and payable, and such default shall continue unremedied for a
period of five (5) days; or
(b) except as set forth in SECTION 5.1(C), failure to pay any
instalment of the principal of any Note as and when the same becomes due and
payable, and such default continues unremedied for a period of thirty (30) days
after there shall have been given, by registered or certified mail, written
notice thereof to the Servicer by the Indenture Trustee or to the Servicer and
the Indenture Trustee by the Holders of not less than 25% of the Outstanding
Amount of the Notes, a written notice specifying such default and demanding
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that it be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(c) failure to pay in full the Outstanding Amount attributable to
any series of Notes on or prior to the Stated Final Payment Date for such
series; or
(d) default in the observance or performance in any material respect
of any covenant or agreement of the Issuer made in this Indenture (other than a
covenant or agreement, a default in the observance or performance of which is
specifically dealt with elsewhere in this SECTION 5.1) which failure materially
and adversely affects the rights of the Noteholders, and such default shall
continue or not be cured for a period of 30 days after there shall have been
given, by registered or certified mail, to the Issuer and the Seller (or the
Servicer, as applicable) by the Indenture Trustee or to the Issuer and the
Seller (or the Servicer, as applicable) and the Indenture Trustee by the
Holders of at least 25% of the Outstanding Amount of the Notes, a written
notice specifying such default and requiring it to be remedied and stating that
such notice is a "NOTICE OF DEFAULT" hereunder; or
(e) the filing of an order for relief by a court having jurisdiction
in the premises in respect of the Issuer or any substantial part of the Trust
Estate in an involuntary case under the Bankruptcy Code, and such order shall
have continued undischarged or unstayed for a period of 90 days; or the filing
of a decree or order by a court having jurisdiction in the premises approving
as properly filed a petition seeking reorganization, arrangement, adjustment or
composition of the Issuer under any other Insolvency Law, and such decree or
order shall have continued undischarged or unstayed for a period of 90 days; or
the filing of a decree or order of a court having jurisdiction in the premises
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of the Issuer or for any substantial part of the Trust
Estate, or ordering the winding-up or liquidation of the Issuer's affairs, and
such decree or order shall have continued undischarged and unstayed for a
period of 90 consecutive days; or
(f) the commencement by the Issuer of a voluntary case under the
Bankruptcy Code; or the filing of a petition or answer or consent by the Issuer
seeking reorganization, arrangement, adjustment or composition under any other
Insolvency Law, or consent to the filing of any such petition, answer or
consent; or the consent by the Issuer to the appointment or taking possession
by a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the Trust Estate,
or the making by the Issuer of an assignment for the benefit of creditors, or
the admission in writing of its inability to pay its debts generally as such
debts become due; or
(g) any other event designated as such in an Officer's Issuance
Certificate.
The Issuer shall deliver to the Indenture Trustee within five Business Days
after learning of the occurrence thereof, written notice in the form of an
Officer's Certificate of any event which with the giving of notice and the
lapse of time would become an Event of Default under SECTION 5.1(D), its status
and what action the Issuer is taking or proposes to take with respect thereto.
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SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
(a) If an Event of Default should occur and be continuing, then and
in every such case, unless the principal amount of the Notes shall have already
become due and payable, either the Indenture Trustee or the Holders of Notes
representing not less than a majority of the Outstanding Amount of the Notes
may declare all the Notes to be immediately due and payable, by a notice in
writing to the Issuer (and to the Indenture Trustee if given by the
Noteholders) setting forth the Event or Events of Default, and upon any such
declaration the unpaid principal amount of such Notes, together with accrued
and unpaid interest thereon through the date of acceleration, shall become
immediately due and payable.
(b) At any time after such declaration of acceleration of maturity
has been made and before a judgment or decree for payment of the money due has
been obtained by the Indenture Trustee as hereinafter provided in this ARTICLE
V, the Holders of Notes representing a majority of the Outstanding Amount of
the Notes, by written notice to the Issuer and the Indenture Trustee, may
rescind and annul such declaration and its consequences; PROVIDED, HOWEVER,
that no such rescission and annulment shall extend to or affect any subsequent
Event of Default or impair any right consequent thereto; and PROVIDED, FURTHER,
that if the Indenture Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission and annulment or for any other reason, or shall have
been determined adversely to the Indenture Trustee, then and in every such
case, the Indenture Trustee, the Issuer and the Noteholders, as the case may
be, shall be restored to their respective former positions and rights
hereunder, and all rights, remedies and powers of the Indenture Trustee, the
Issuer and the Noteholders, as the case may be, shall continue as though no
such proceedings had been commenced.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE.
(a) The Issuer covenants that if there shall occur an Event of
Default under SECTIONS 5.1(A), (B) OR (C) that has not been waived pursuant to
SECTION 5.12, then the Issuer shall, upon demand of the Indenture Trustee, pay
to the Indenture Trustee, for the ratable benefit of the parties to receive
such amounts pursuant to the terms of this Indenture, the entire amount then
due and payable on the Notes for principal and interest, with interest upon the
overdue principal for each series of Notes, at the rate borne by such Notes and
in addition thereto such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee and its agents
and counsel, with all such amounts applied as described in clause SECOND of
SECTION 5.4(B).
(b) If the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and
collect in the manner provided by law out of the property of the Issuer or
other obligor upon such Notes, wherever situated, the monies adjudged or
decreed to be payable.
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(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in SECTION 5.4, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders, by
such appropriate Proceedings as the Indenture Trustee shall deem most effective
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy or legal or
equitable right vested in the Indenture Trustee by this Indenture or by
applicable law.
(d) If there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest
in the Trust Estate, Proceedings under any Insolvency Law, or if a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator
or similar official shall have been appointed for or taken possession of the
Issuer or its property or such other obligor or Person, or in case of any other
comparable judicial Proceedings relative to the Issuer or other obligor upon
the Notes, or to the creditors or property of the Issuer or such other obligor,
the Indenture Trustee, irrespective of whether the principal of any Notes shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Indenture Trustee shall have made any demand
pursuant to the provisions of this SECTION 5.3, shall be entitled and
empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each predecessor
trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances
made, by the Indenture Trustee and each predecessor trustee, except as a
result of negligence or bad faith) and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of Notes in any election of a trustee, a
standby trustee or Person performing similar functions in any such
Proceedings;
(iii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of the
Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of
the Indenture Trustee or the Holders of Notes allowed in any judicial
proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, if the Indenture Trustee shall consent
to the making of payments directly to such Noteholders, to pay to the Indenture
Trustee such amounts as shall be sufficient to cover reasonable compensation to
the Indenture Trustee, each predecessor trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and
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all advances made, by the Indenture Trustee and each predecessor trustee except
as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such Proceedings
instituted by the Indenture Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment, subject to the payment of
the expenses, disbursements and compensation of the Indenture Trustee, each
predecessor trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Noteholders.
(g) In any Proceedings brought by the Indenture Trustee (and also
any Proceedings involving the interpretation of any provision of this Indenture
to which the Indenture Trustee shall be a party), the Indenture Trustee shall
be held to represent all the Noteholders, and it shall not be necessary to make
any Noteholder a party to any such Proceedings.
SECTION 5.4 REMEDIES; PRIORITIES.
(a) If an Event of Default shall have occurred and be continuing and
the Notes have been accelerated under SECTION 5.2(A), the Indenture Trustee
may (but shall not be required to) do one or more of the following (subject to
SECTION 5.5):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the Notes
or under this Indenture with respect thereto, whether by declaration of
acceleration or otherwise, enforce any judgment obtained, and collect from
the Issuer and any other obligor upon such Notes monies adjudged due;
(ii) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the rights
and remedies of the Indenture Trustee and the Noteholders; and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law or elect to have the Issuer
maintain possession of the Trust Estate, including the Receivables
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included therein, and continue to apply Collections on such Receivables as
if there had been no declaration of acceleration;
PROVIDED, HOWEVER, that the Indenture Trustee may not sell or otherwise
liquidate the Trust Estate following an Event of Default and acceleration of
the Notes, unless (A) the Holders of all of the aggregate Outstanding Amount of
the Notes consent thereto, (B) the proceeds of such sale or liquidation
distributable to the Securityholders are sufficient to discharge in full the
principal of and the accrued interest on the Notes and the Certificate Balance
of and accrued interest on the Certificates, in each case as of the date of
such sale or liquidation or (C) (i) there has been an Event of Default under
SECTION 5.1(A), (B) OR (C) or otherwise arising from a failure to make a
required payment of principal on any Notes, (ii) the Indenture Trustee
determines that the Trust Estate will not continue to provide sufficient funds
for the payment of principal of and interest on the Notes as and when they
would have become due if the Notes had not been declared due and payable and
(iii) the Indenture Trustee obtains the consent of Holders of a majority of the
aggregate Outstanding Amount of the Notes. In determining such sufficiency or
insufficiency with respect to clauses (B) and (C), the Indenture Trustee may,
but need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant
to this ARTICLE V, it shall pay out the money or property in the following
order:
FIRST: to the Indenture Trustee for amounts due under SECTION
6.7; and
SECOND: to the Collection Account for distribution pursuant to
SECTION 4.5 of the Trust Sale and Servicing Agreement, with such amounts
being deemed to be Available Trust Principal and Available Trust Interest
in the same proportion as the outstanding principal balance of the Notes
bears to the accrued and unpaid interest on the Notes (and, if any series
of Notes has Specified Support Arrangements, the amount unpaid under such
Specified Support Arrangement).
SECTION 5.5 OPTIONAL PRESERVATION OF THE TRUST ESTATE. If the Notes
have been declared to be due and payable under SECTION 5.2 following an Event
of Default and such declaration and its consequences have not been rescinded
and annulled, the Indenture Trustee may, but need not, elect to take and
maintain possession of the Trust Estate. It is the desire of the parties hereto
and the Noteholders that there be at all times sufficient funds for the payment
of principal of and interest on the Notes, and the Indenture Trustee shall take
such desire into account when determining whether or not to take and maintain
possession of the Trust Estate. In determining whether to take and maintain
possession of the Trust Estate, the Indenture Trustee may, but need not, obtain
and rely upon an opinion of an Independent investment banking or accounting
firm of national reputation as to the feasibility of such proposed action and
as to the sufficiency of the Trust Estate for such purpose.
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SECTION 5.6 LIMITATION OF SUITS. No Holder of any Note shall have
any right to institute any Proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding Amount of
the Notes have made written request to the Indenture Trustee to institute such
Proceeding in respect of such Event of Default in its own name as Indenture
Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in complying with such request;
(d) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceedings; and
(e) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 60-day period by the Holders of a
majority of the Outstanding Amount of the Notes;
it being understood and intended that no one or more Holders of Notes shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Notes or to obtain or to seek to obtain priority or preference
over any other Holders of Notes or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common
benefit of all holders of Notes. For the protection and enforcement of the
provisions of this SECTION 5.6, each and every Noteholder shall be entitled to
such relief as can be given either at law or in equity.
If the Indenture Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Holders of Notes, each
representing less than a majority of the Outstanding Amount of the Notes, the
Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST. Notwithstanding any other provisions in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional,
to receive payment of the principal of and interest on such Note on or after
the respective due dates thereof expressed in such Note or in this Indenture
(or, in the case of redemption, if applicable, on or after the Redemption Date)
and to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Holder.
SECTION 5.8 RESTORATION OF RIGHTS AND REMEDIES. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
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Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and to their respective former positions
hereunder, and thereafter all rights and remedies of the Indenture Trustee and
the Noteholders shall continue as though no such Proceeding had been
instituted.
SECTION 5.9 RIGHTS AND REMEDIES CUMULATIVE. No right or remedy
herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.10 DELAY OR OMISSION NOT A WAIVER. No delay or omission of
the Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this ARTICLE V or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
SECTION 5.11 CONTROL BY NOTEHOLDERS. The Holders of a majority of
the Outstanding Amount of the Notes shall, subject to provision being made for
indemnification against costs, expenses and liabilities in a form satisfactory
to the Indenture Trustee, have the right to direct the time, method and place
of conducting any Proceeding for any remedy available to the Indenture Trustee
with respect to the Notes or exercising any trust or power conferred on the
Indenture Trustee; PROVIDED, HOWEVER, that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(b) subject to the express terms of SECTION 5.4, any direction to
the Indenture Trustee to sell or liquidate the Trust Estate shall be by the
Holders of Notes representing not less than 100% of the Outstanding Amount of
the Notes;
(c) if the conditions set forth in SECTION 5.5 have been satisfied
and the Indenture Trustee elects to retain the Trust Estate pursuant to SECTION
5.5, then any direction to the Indenture Trustee by Holders of Notes
representing less than 100% of the Outstanding Amount of the Notes to sell or
liquidate the Trust Estate shall be of no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction;
PROVIDED, HOWEVER, that, subject to SECTION 6.1, the Indenture Trustee need not
take any action that it determines might cause it to incur any liability (y)
with respect to which the Indenture Trustee shall have reasonable grounds to
believe that adequate indemnity against such liability is not assured to it and
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(z) which might materially adversely affect the rights of any
Noteholders not consenting to such action.
SECTION 5.12 WAIVER OF PAST DEFAULTS.
(a) Prior to the declaration of the acceleration of the maturity of
the Notes as provided in SECTION 5.2, the Holders of not less than a majority
of the Outstanding Amount of the Notes may waive any past Default or Event of
Default and its consequences except a Default (i) in the payment of principal
of or interest on any of the Notes or (ii) in respect of a covenant or
provision hereof that cannot be modified or amended without the consent of the
Holder of each such Note. In the case of any such waiver, the Issuer, the
Indenture Trustee and the Noteholders shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other Default or impair any right consequent thereto.
(b) Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
SECTION 5.13 UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Note by such Xxxxxx's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
Proceeding for the enforcement of any right or remedy under this Indenture, or
in any Proceeding against the Indenture Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such
Proceeding of an undertaking to pay the costs of such Proceeding, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such Proceeding,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this SECTION 5.13 shall not apply
to:
(a) any Proceeding instituted by the Indenture Trustee;
(b) any Proceeding instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes; or
(c) any Proceeding instituted by any Noteholder for the enforcement
of the payment of principal of or interest on any Note on or after the
respective due dates expressed in such Note and in this Indenture (or, in the
case of redemption, on or after the Redemption Date).
SECTION 5.14 WAIVER OF STAY OR EXTENSION LAWS. The Issuer covenants
(to the extent that it may lawfully do so) that it shall not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture. The Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it shall not hinder, delay or impede the execution of any power herein granted
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to the Indenture Trustee, but shall suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 5.15 ACTION ON NOTES. The Indenture Trustee's right to seek
and recover judgment on the Notes or under this Indenture shall not be affected
by the seeking, obtaining or application of any other relief under or with
respect to this Indenture. Neither the lien of this Indenture nor any rights or
remedies of the Indenture Trustee or the Noteholders shall be impaired by the
recovery of any judgment by the Indenture Trustee against the Issuer or by the
levy of any execution under such judgment upon any portion of the Trust Estate
or upon any of the assets of the Issuer. Any money or property collected by the
Indenture Trustee shall be applied in accordance with SECTION 5.4(B) hereof.
SECTION 5.16 PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS.
(a) Promptly following a request from the Indenture Trustee to do so
and at the Administrator's expense, the Issuer agrees to take all such lawful
action as the Indenture Trustee may request to compel or secure the performance
and observance by the Seller and the Servicer of their respective obligations
to the Issuer under or in connection with the Trust Sale and Servicing
Agreement and the Pooling and Servicing Agreement or by GMAC of its obligations
under or in connection with the Pooling and Servicing Agreement in accordance
with the terms thereof, and to exercise any and all rights, remedies, powers
and privileges lawfully available to the Issuer under or in connection with the
Trust Sale and Servicing Agreement to the extent and in the manner directed by
the Indenture Trustee, including the transmission of notices of default on the
part of the Seller or the Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Seller or the Servicer of each of their obligations under the Trust Sale and
Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the Notes shall, exercise all
rights, remedies, powers, privileges and claims of the Issuer against the
Seller or the Servicer under or in connection with the Trust Sale and Servicing
Agreement, including the right or power to take any action to compel or secure
performance or observance by the Seller or the Servicer of each of their
obligations to the Issuer thereunder and to give any consent, request, notice,
direction, approval, extension or waiver under the Trust Sale and Servicing
Agreement, and any right of the Issuer to take such action shall be suspended.
(c) Promptly following a request from the Indenture Trustee to do so
and at the Administrator's expense, the Issuer agrees to take all such lawful
action as the Indenture Trustee may request to compel or secure the performance
and observance by GMAC and the Servicer of each of their obligations to the
Seller under or in connection with the Pooling and Servicing Agreement in
accordance with the terms thereof, and to exercise any and all rights,
remedies, powers and privileges lawfully available to the Issuer under or in
connection with the Pooling and Servicing Agreement to the extent and in the
manner directed by the Indenture Trustee, including the transmission of notices
of default on the part of the Seller thereunder and the institution of legal or
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administrative actions or proceedings to compel or secure performance by GMAC
and the Servicer of each of their obligations under the Pooling and Servicing
Agreement.
(d) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the Notes shall, exercise all
rights, remedies, powers, privileges and claims of the Seller against GMAC and
the Servicer under or in connection with the Pooling and Servicing Agreement,
including the right or power to take any action to compel or secure performance
or observance by GMAC and the Servicer of each of their obligations to the
Seller thereunder and to give any consent, request, notice, direction,
approval, extension or waiver under the Pooling and Servicing Agreement, and
any right of the Seller to take such action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 DUTIES OF INDENTURE TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs, including without limitation, continuing to hold the
Trust Estate and receive collections on the Receivables included therein and
provided in the Trust Sale and Servicing Agreement.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture and
the Trust Sale and Servicing Agreement and no implied covenants or
obligations shall be read into this Indenture or the Trust Sale and
Servicing Agreement against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; PROVIDED, HOWEVER, that the Indenture
Trustee shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of any mathematical calculations or
other facts stated therein).
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(i) this SECTION 6.1(C) does not limit the effect of SECTION
6.1(B);
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(ii) the Indenture Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to SECTION 5.11.
(d) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing with
the Issuer.
(e) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms
of this Indenture or the Trust Sale and Servicing Agreement.
(f) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayments of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(g) Every provision of this Indenture relating to the Indenture
Trustee shall be subject to the provisions of this SECTION 6.1 and to the
provisions of the TIA.
SECTION 6.2 RIGHTS OF INDENTURE TRUSTEE.
(a) The Indenture Trustee may conclusively rely on any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Indenture Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Indenture Trustee acts or refrains from acting, it
may require an Officer's Certificate from the Issuer or an Opinion of Counsel
that such action or omission is required or permitted hereunder. The Indenture
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; PROVIDED, HOWEVER, that the Indenture Trustee's
conduct does not constitute wilful misconduct, negligence or bad faith.
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(e) The Indenture Trustee may consult with counsel, and the advice
or opinion of counsel with respect to legal matters relating to this Indenture
and the Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
SECTION 6.3 INDENTURE TRUSTEE MAY OWN NOTES. The Indenture Trustee
in its individual or any other capacity may become the owner or pledgee of
Notes and may otherwise deal with the Issuer, the Servicer or any of their
respective Affiliates with the same rights it would have if it were not
Indenture Trustee; PROVIDED, HOWEVER, that the Indenture Trustee shall comply
with SECTIONS 6.10 AND 6.11. Any Paying Agent, Note Registrar, co-registrar or
co-paying agent may do the same with like rights.
SECTION 6.4 INDENTURE TRUSTEE'S DISCLAIMER. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the
Issuer's use of the proceeds from the Notes, and it shall not be responsible
for any statement of the Issuer in the Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
SECTION 6.5 NOTICE OF DEFAULTS. If a Default occurs and is
continuing and if it is known to a Responsible Officer of the Indenture
Trustee, the Indenture Trustee shall mail to each Noteholder notice of the
Default within 90 days after it occurs. Except in the case of a Default in
payment of principal of or interest on any Note, the Indenture Trustee may
withhold the notice if and so long as a committee of its Responsible Officers
in good faith determines that withholding the notice is in the interests of
Noteholders.
SECTION 6.6 REPORTS BY INDENTURE TRUSTEE TO HOLDERS. The Indenture
Trustee shall deliver to each Noteholder the information and documents set
forth in ARTICLE VII, and, in addition, all such information with respect to
the Notes as may be required by the terms of the Trust Sale and Servicing
Agreement to be provided to Holders by the Indenture Trustee to enable such
Holder to prepare its federal and state income tax returns.
SECTION 6.7 COMPENSATION; INDEMNITY.
(a) The Issuer shall cause the Servicer pursuant to SECTION 3.03 of
the Pooling and Servicing Agreement to pay to the Indenture Trustee from time
to time such compensation for its services as shall be agreed upon in writing.
The Indenture Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall cause the
Servicer pursuant to SECTION 3.03 of the Pooling and Servicing Agreement to
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture
Trustee's agents, counsel, accountants and experts. The Issuer shall cause the
Servicer pursuant to the Trust Sale and Servicing Agreement to indemnify the
Indenture Trustee in accordance with SECTION 7.1 of the Trust Sale and
Servicing Agreement.
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(b) The Issuer's obligation to cause the Servicer to honor the
Issuer's obligations to the Indenture Trustee specified in SECTION 6.7(A) shall
survive the discharge of this Indenture. When the Indenture Trustee incurs
expenses after the occurrence of a Default specified in SECTION 5.1(E) OR (F)
with respect to the Issuer, if the Survivor has failed to honor such obligation
the expenses are intended to constitute expenses of administration under any
Insolvency Law.
SECTION 6.8 REPLACEMENT OF INDENTURE TRUSTEE.
(a) The Indenture Trustee may at any time give notice of its intent
to resign by so notifying the Issuer; PROVIDED, HOWEVER, that no such
resignation shall become effective and the Owner Trustee shall not resign prior
to the time set forth in SECTION 6.8(C). The Holders of a majority in
Outstanding Amount of the Notes may remove the Indenture Trustee by so
notifying the Indenture Trustee and may appoint a successor Indenture Trustee.
Such resignation or removal shall become effective in accordance with SECTION
6.8(C). The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with SECTION 6.11;
(ii) the Indenture Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
(b) If the Indenture Trustee gives notice of its intent to resign or
is removed or if a vacancy exists in the office of Indenture Trustee for any
reason (the Indenture Trustee in such event being referred to herein as the
retiring Indenture Trustee), the Issuer shall promptly appoint and designate a
successor Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written acceptance
of its appointment and designation to the retiring Indenture Trustee and to the
Issuer. Thereupon the resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the Indenture Trustee under this Indenture. The
successor Indenture Trustee shall mail a notice of its succession to
Noteholders. The retiring Indenture Trustee shall promptly transfer all
property held by it as Indenture Trustee to the successor Indenture Trustee.
(d) If a successor Indenture Trustee does not take office within 60
days after the retiring Indenture Trustee gives notice of its intent to resign
or is removed, the retiring Indenture Trustee, the Issuer or the Holders of a
majority of the Outstanding Amount of the Notes may petition any court of
competent jurisdiction for the appointment and designation of a successor
Indenture Trustee.
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(e) If the Indenture Trustee fails to comply with SECTION 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
(f) Notwithstanding the replacement of the Indenture Trustee
pursuant to this SECTION 6.8, the Issuer's obligations under SECTION 6.7 and
the Servicer's corresponding obligations under the Trust Sale and Servicing
Agreement shall continue for the benefit of the retiring Indenture Trustee.
SECTION 6.9 MERGER OR CONSOLIDATION OF INDENTURE TRUSTEE.
(a) Any corporation into which the Indenture Trustee may be merged
or with which it may be consolidated, or any corporation resulting from any
merger or consolidation to which the Indenture Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Indenture Trustee, shall be the successor of the Indenture
Trustee under this Indenture; PROVIDED, HOWEVER, that such corporation shall be
eligible under the provisions of SECTION 6.11, without the execution or filing
of any instrument or any further act on the part of any of the parties to this
Indenture, anything in this Indenture to the contrary notwithstanding.
(b) If at the time such successor or successors by merger or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture, any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such
Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any successor to the Indenture Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Indenture Trustee. In all such cases such
certificate of authentication shall have the same full force as is provided
anywhere in the Notes or herein with respect to the certificate of
authentication of the Indenture Trustee.
SECTION 6.10 APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE
INDENTURE TRUSTEE.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Issuer or any Dealer may at the time be located, the
Indenture Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons approved by the Indenture Trustee to
act as a co-trustee or co-trustees, jointly with the Indenture Trustee, or
separate trustee or separate trustees, of all or any part of the Issuer, and to
vest in such Person or Persons, in such capacity and for the benefit of the
Noteholders and (only to the extent expressly provided herein) the
Certificateholders, such title to the Issuer, or any part hereof, and, subject
to the other provisions of this SECTION 6.10, such powers, duties, obligations,
rights and trusts as the Indenture Trustee may consider necessary or desirable.
No co-trustee or separate trustee hereunder shall be required to meet the terms
of eligibility as a successor trustee under SECTION 6.11 and no notice to
Noteholders of the appointment of any co-trustee or separate trustee shall be
required under SECTION 6.8.
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(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Indenture
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed
the Indenture Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Issuer or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Indenture and the conditions of this ARTICLE VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the liability
of, or affording protection to, the Indenture Trustee. Every such instrument
shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time appoint the
Indenture Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Indenture on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Indenture Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
SECTION 6.11 ELIGIBILITY; DISQUALIFICATION. The Indenture Trustee
shall at all times satisfy the requirements of TIA ss. 310(a) and SECTION 26(A)
of the Investment Company Act. The Indenture Trustee shall have a combined
capital and surplus, and an aggregate capital, surplus and undivided profits,
of at least $50,000,000 as set forth in its most recent published annual report
of condition and (unless waived by Xxxxx'x) it shall have a long term unsecured
debt rating of Baa3 or better by Xxxxx'x. The Indenture Trustee shall comply
with TIA ss. 310(b); PROVIDED, HOWEVER, that there shall be excluded from the
operation of TIA ss. 310(b)(1) any indenture or indentures under which other
securities of the Issuer are outstanding if the requirements for such exclusion
set forth in TIA ss. 310(b)(1) are met.
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SECTION 6.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. The
Indenture Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
SECTION 6.13 REPRESENTATIONS AND WARRANTIES OF INDENTURE TRUSTEE.
The Indenture Trustee represents and warrants as of the Closing Date that:
(a) the Indenture Trustee is a New York banking corporation and the
eligibility requirements set forth in SECTION 6.11 are satisfied with respect
to the Indenture Trustee;
(b) the Indenture Trustee has full power, authority and legal right
to execute, deliver and perform this Indenture, and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Indenture;
(c) the execution, delivery and performance by the Indenture Trustee
of this Indenture (i) shall not violate any provision of any law or regulation
governing the banking and trust powers of the Indenture Trustee or any order,
writ, judgment or decree of any court, arbitrator, or Governmental Authority
applicable to the Indenture Trustee or any of its assets, (ii) shall not
violate any provision of the corporate charter or by-laws of the Indenture
Trustee or (iii) shall not violate any provision of, or constitute, with or
without notice or lapse of time, a default under, or result in the creation or
imposition of any lien on any properties included in the Trust Estate pursuant
to the provisions of any mortgage, indenture, contract, agreement or other
undertaking to which it is a party, which violation, default or lien could
reasonably be expected to have a materially adverse effect on the Indenture
Trustee's performance or ability to perform its duties under this Indenture or
on the transactions contemplated in this Indenture;
(d) the execution, delivery and performance by the Indenture Trustee
of this Indenture shall not require the authorization, consent or approval of,
the giving of notice to, the filing or registration with, or the taking of any
other action in respect of, any Governmental Authority or agency regulating the
banking and corporate trust activities of the Indenture Trustee; and
(e) this Indenture has been duly executed and delivered by the
Indenture Trustee and constitutes the legal, valid and binding agreement of the
Indenture Trustee, enforceable in accordance with its terms.
SECTION 6.14 INDENTURE TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF NOTES. All rights of action and claims under this Indenture or the Notes may
be prosecuted and enforced by the Indenture Trustee without the possession of
any of the Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Indenture Trustee shall be brought in
its own name as Indenture Trustee. Any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee, its agents and counsel, be
for the ratable benefit of the Noteholders and (only to the extent expressly
provided herein) the Certificateholders in respect of which such judgment has
been obtained.
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SECTION 6.15 SUIT FOR ENFORCEMENT. If an Event of Default shall
occur and be continuing, the Indenture Trustee, in its discretion may, subject
to the provisions of SECTION 6.1, proceed to protect and enforce its rights and
the rights of the Noteholders under this Indenture by a Proceeding whether for
the specific performance of any covenant or agreement contained in this
Indenture or in aid of the execution of any power granted in this Indenture or
for the enforcement of any other legal, equitable or other remedy as the
Indenture Trustee, being advised by counsel, shall deem necessary to protect
and enforce any of the rights of the Indenture Trustee or the Noteholders.
SECTION 6.16 RIGHTS OF NOTEHOLDERS TO DIRECT INDENTURE TRUSTEE.
Holders of Notes evidencing not less than a majority of the Outstanding Amount
of the Notes shall have the right to direct in writing 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;
PROVIDED, HOWEVER, that subject to SECTION 6.1, the Indenture Trustee shall
have the right to decline to follow any such direction if the Indenture
Trustee, being advised by counsel, determines that the action so directed may
not lawfully be taken, or if the Indenture Trustee in good faith shall, by a
Responsible Officer, determine that the proceedings so directed would be
illegal or subject it to personal liability or be unduly prejudicial to the
rights of Noteholders not parties to such direction; and PROVIDED, FURTHER,
that nothing in this Indenture shall impair the right of the Indenture Trustee
to take any action deemed proper by the Indenture Trustee and which is not
inconsistent with such direction by the Noteholders.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES
OF NOTEHOLDERS. The Issuer shall furnish or cause to be furnished by the
Servicer to the Indenture Trustee (a) not more than five days before each date
on which payments are to be made, a list, in such form as the Indenture Trustee
may reasonably require, of the names and addresses of the Holders of Notes as
of the close of business on the related Record Date, and (b) at such other
times as the Indenture Trustee may request in writing, within 14 days after
receipt by the Issuer of any such request, a list of similar form and content
as of a date not more than 10 days prior to the time such list is furnished;
PROVIDED, HOWEVER, that so long as the Indenture Trustee is the Note Registrar,
no such list shall be required to be furnished.
SECTION 7.2 PRESERVATION OF INFORMATION, COMMUNICATIONS TO
NOTEHOLDERS.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as
provided in SECTION 7.1 and the names and addresses of Holders of Notes
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
SECTION 7.1 upon receipt of a new list so furnished.
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(b) Noteholders may communicate pursuant to TIA ss. 312(b) with
other Noteholders with respect to their rights under this Indenture or under
the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall
have the protection of TIA ss. 312(c).
SECTION 7.3 REPORTS BY ISSUER.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the
Issuer is required to file the same with the Commission or any applicable
state agencies, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act or any applicable
state agencies pursuant to comparable regulation;
(ii) file with the Indenture Trustee and the Commission or any
applicable state agencies in accordance with rules and regulations
prescribed from time to time by the Commission or any applicable state
agencies such additional information, documents and reports with respect
to compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA ss.
313(c)) such summaries of any information, documents and reports required
to be filed by the Issuer pursuant to clauses (i) and (ii) of this SECTION
7.3(A) as may be required by rules and regulations prescribed from time to
time by the Commission or any applicable state agencies.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of such year.
SECTION 7.4 REPORTS BY INDENTURE TRUSTEE.
(a) If required by TIA ss. 313(a), within 60 days after each ______
1, beginning with ______ 1, 20__, the Indenture Trustee shall mail to each
Noteholder as required by TIA ss. 313(c) a brief report dated as of such date
that complies with TIA ss. 313(a). The Indenture Trustee also shall comply with
TIA ss. 313(b). A copy of any report delivered pursuant to this SECTION 7.4(A)
shall, at the time of its mailing to Noteholders, be filed by the Indenture
Trustee with the Commission and each stock exchange, if any, on which the Notes
are listed. The Issuer shall notify the Indenture Trustee if and when the Notes
are listed on any stock exchange.
(b) On each Payment Date, the Indenture Trustee shall include with
each payment to each Noteholder a copy of the statement for the Collection
Period or Periods applicable to such Payment Date as required pursuant to
SECTION 4.8 of the Trust Sale and Servicing Agreement.
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ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 COLLECTION OF MONEY. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture. The
Indenture Trustee shall apply all such money received by it as provided in this
Indenture, the Pooling and Servicing Agreement and the Trust Sale and Servicing
Agreement. Except as otherwise expressly provided in this Indenture, if any
default occurs in the making of any payment or performance under any agreement
or instrument that is part of the Trust Estate, the Indenture Trustee may take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate Proceedings. Any such
action shall be without prejudice to any right to claim an Event of Default
under this Indenture and any right to proceed thereafter as provided in ARTICLE
V.
SECTION 8.2 DESIGNATED ACCOUNTS; PAYMENTS.
(a) On or prior to the Closing Date, the Issuer shall cause the
Servicer to establish and maintain, in the name of the Indenture Trustee, for
the benefit of the Noteholders and the Certificateholders, the Designated
Accounts as provided in ARTICLES IV AND VI of the Trust Sale and Servicing
Agreement (or with respect to any Designated Account for any series of Notes
issued after the Closing Date, on or prior to the closing date with respect to
such series of Notes).
(b) On each date during the Revolving Period that amounts are
transferred from the Collection Account to the Revolver Distribution Account
for payment of principal on Revolving Notes as provided in SECTION 4.5(D)(I) of
the Trust Sale and Servicing Agreement, the Indenture Trustee shall distribute
such funds as principal to the Holders of each series of Revolving Notes,
unless otherwise provided in any related Officer's Issuance Certificate, pro
rata on the basis of the Outstanding Amount attributable to each such series.
Distributions shall be made to the Holders of each such series of Revolving
Notes on each such date, pro rata on the basis of the respective Outstanding
Amounts attributable to the Revolving Notes of each such Holder, (i) unless
otherwise provided in any Officer's Issuance Certificate or (ii) if and as
otherwise directed by the Issuer, in the respective amounts directed by the
Issuer (up to, in any such case, the Outstanding Amount of the Revolving Note
held by each such Holder). If and as requested by the Holders of any series of
Revolving Notes, distributions may be made directly to the account(s) directed
by such Holders and such account(s) shall be the Revolver Distribution Account
for all purposes of this Indenture and the Trust Sale and Servicing Agreement.
(c) On or before each Distribution Date (i) amounts shall be
deposited in the Collection Account as provided in SECTION 4.5 of the Trust
Sale and Servicing Agreement, (ii) the Aggregate Noteholders' Interest and the
Aggregate Revolver Interest shall be transferred from the Collection Account to
the Note Distribution Account or as otherwise provided in the Officer's
Certificate with respect to any series of Notes and to the Revolver
Distribution Account, respectively, if and to the extent provided in SECTION
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4.5(C)of the Trust Sale and Servicing Agreement, (iii) if such Distribution Date
is related to an Early Amortization Period or the Wind Down Period, the
Aggregate Noteholders' Principal and the Required Revolver Payment shall be
transferred from the Collection Account or the Accumulation Accounts to the Note
Distribution Account and the Revolver Distribution Account, respectively, as
provided in SECTION 4.5(D) of the Trust Sale and Servicing Agreement and (iv)
with respect to the Revolving Period, if such Distribution Date is related to a
Payment Period for a series of Notes or if a principal payment is required to be
made on (or set aside for) any series of Notes on such Distribution Date, the
amount required to be deposited or paid in the Note Distribution Account, the
Revolver Distribution Account or as otherwise provided in the Officer's Issuance
Certificate with respect to any series of Notes, as applicable, on such date
pursuant to the related Officer's Issuance Certificate and the Trust Sale and
Servicing Agreement shall be transferred from the Collection Account or the
Accumulation Accounts or any other applicable account. Notwithstanding the
preceding sentence, to the extent permitted and as provided by SECTION 4.7 of
the Trust Sale and Servicing Agreement, deposits may be netted against amounts
owing to the depositor and all distributions, deposits or other remittances in
respect of a series of Notes or the Note Distribution Account or the Revolver
Distribution Account, as applicable, which are otherwise required to be made on
an Exempt Deposit Date for such series may be made on the next succeeding
Payment Date for such series, on which Payment Date the cumulative amount of all
such distributions, deposits and other remittances with respect to such series
for such Payment Date and the immediately preceding Exempt Deposit Date or Dates
shall be made.
(d) On each Distribution Date, the Indenture Trustee shall (unless
otherwise provided in any Officer's Issuance Certificate) allocate the amount
deposited into the Note Distribution Account or as otherwise provided in the
Officer's Certificate with respect to any series of Notes pursuant to SECTION
4.5(C) of the Trust Sale and Servicing Agreement for the payment of interest on
each outstanding series of Term Notes to such Term Notes and, to the extent of
the funds available for such purpose, make the payments required under any
Specified Support Arrangements to the extent and at the times as provided in
the related Officer's Issuance Certificate. On the related Payment Date (which
may be such Distribution Date) for each series of Term Notes, the Indenture
Trustee shall pay amounts to the Holders of such series to the extent and at
the times provided in the related Officer's Issuance Certificate.
(e) On each Distribution Date, the Indenture Trustee shall allocate
the amount deposited into the Revolver Distribution Account as Aggregate
Revolver Interest pursuant to SECTION 4.5(C) of the Trust Sale and Servicing
Agreement among all outstanding series of Revolving Notes pro rata on the basis
of the accrued and unpaid interest on such Revolving Notes. On the related
Payment Date (which may be such Distribution Date) for each series of Revolving
Notes, the Indenture Trustee shall pay to the Holders of such series all
amounts in the Revolver Distribution Account so allocated to such series.
(f) On each Distribution Date described in subsection (c) above, the
Indenture Trustee shall allocate amounts deposited in the Note Distribution
Account and the Revolver Distribution Account for payments of principal among
all series of Term Notes and Revolving Notes, respectively, and pay amounts to
the Holders thereof, to the extent and at the times provided in the related
Officer's Issuance Certificates.
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(g) On the first Distribution Date related to an Early Amortization
Period that commences during the Wind Down Period or a Payment Period or during
the Revolving Period (if amounts are then being set aside for payments of
principal on any Revolving Notes), the Indenture Trustee shall, unless
otherwise provided in any Officer's Issuance Certificate, pay to the Holders of
each series of Term Notes and Revolving Notes all amounts deposited in the Note
Distribution Account, the Revolver Distribution Account or as otherwise
provided in the Officer's Issuance Certificate with respect to any series of
Notes, as appropriate, on prior Distribution Dates allocated to the payment of
principal on such Notes and not theretofore paid to the Holders of such Notes
and, to the extent described in the related Officer's Issuance Certificate,
such other amounts allocated to the payment of principal on such Notes on such
Distribution Date with respect to the period prior to the commencement of such
Early Amortization Period.
(h) Notwithstanding anything to the contrary herein, all investment
earnings on funds on deposit in the Note Distribution Account and the Revolver
Distribution Account, net of losses and investment expenses, shall constitute
Investment Proceeds and be applied as described in the Trust Sale and Servicing
Agreement.
SECTION 8.3 GENERAL PROVISIONS REGARDING DESIGNATED ACCOUNTS.
(a) Subject to SECTION 6.1(C), the Indenture Trustee shall not in
any way be held liable by reason of any insufficiency in any of the Designated
Accounts resulting from any loss on any Eligible Investment included therein
except for losses attributable to the Indenture Trustee's failure to make
payments on such Eligible Investments issued by the Indenture Trustee, in its
commercial capacity as principal obligor and not as trustee, in accordance with
their terms.
(b) If (i) the Servicer shall have failed to give investment
directions for any funds on deposit in the Designated Accounts to the Indenture
Trustee by 11:00 a.m., New York City time (or such other time as may be agreed
by the Servicer and the Indenture Trustee) on any Business Day or (ii) an Event
of Default shall have occurred and be continuing with respect to the Notes but
the Notes shall not have been declared due and payable pursuant to SECTION 5.2,
or, if such Notes shall have been declared due and payable following an Event
of Default, but amounts collected or receivable from the Trust Estate are being
applied in accordance with SECTION 5.5 as if there had not been such a
declaration, then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Designated Accounts in one or
more Eligible Investments selected by the Indenture Trustee.
SECTION 8.4 RELEASE OF TRUST ESTATE.
(a) Subject to the payment of its fees and expenses pursuant to
SECTION 6.7, the Indenture Trustee may, and when required by the provisions of
this Indenture shall, execute instruments to release property from the lien of
this Indenture, or convey the Indenture Trustee's interest in the same, in a
manner and under circumstances that are consistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Indenture
Trustee as provided in this ARTICLE VIII shall be bound to ascertain the
Indenture Trustee's authority, inquire into the satisfaction of any conditions
precedent or see to the application of any monies.
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(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due to the Indenture Trustee pursuant to SECTION 6.7
have been paid, notify the Issuer thereof in writing and upon receipt of an
Issuer Request, release any remaining portion of the Trust Estate that secured
the Notes from the lien of this Indenture and release to the Issuer or any
other Person entitled thereto any funds then on deposit in the Note
Distribution Account and the Revolver Distribution Account. The Indenture
Trustee shall (i) release any remaining portion of the Trust Estate that
secured the Certificates from the lien of this Indenture and (ii) release to
the Issuer or any other Person entitled thereto any funds then on deposit in
the Reserve Fund or the Collection Account only at such time as (x) there are
no Notes Outstanding, (y) all payments in respect of Certificate Balance and
interest due to the Certificateholders have been paid in full and (z) all sums
due to the Indenture Trustee pursuant to SECTION 6.7 have been paid.
SECTION 8.5 OPINION OF COUNSEL. The Indenture Trustee shall receive
at least seven days' notice when requested by the Issuer to take any action
pursuant to SECTION 8.4(A), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require as a condition to such action, an
Opinion of Counsel, in form and substance satisfactory to the Indenture
Trustee, stating the legal effect of any such action, outlining the steps
required to complete the same, and concluding that all conditions precedent to
the taking of such action have been complied with and such action shall not
materially and adversely impair the security for the Notes or the rights of the
Noteholders in contravention of the provisions of this Indenture; PROVIDED,
HOWEVER, that such Opinion of Counsel shall not be required to express an
opinion as to the fair value of the Trust Estate. Counsel rendering any such
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee pursuant to the provisions of this Indenture in connection with any
such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
(a) Without the consent of the Holders of any Notes but with prior
notice to the Rating Agencies, the Issuer and the Indenture Trustee, when
authorized by an Issuer Order, at any time and from time to time, may enter
into one or more indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as in force at the date of the execution
thereof), in form satisfactory to the Indenture Trustee, for any of the
following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject
additional property to the lien of this Indenture;
(ii) to evidence the succession, in compliance with SECTION
3.10 and the applicable provisions hereof, of another Person to the
Issuer, and the assumption by any such successor of the covenants of the
Issuer contained herein and in the Notes;
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(iii) to add to the covenants of the Issuer for the benefit of
the Noteholders;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity or to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes and
the Indenture and to add to or change any of the provisions of this
Indenture as shall be necessary to facilitate the administration of the
trusts hereunder by more than one trustee, pursuant to the requirements of
ARTICLE VI;
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification
of this Indenture under the TIA or under any similar federal statute
hereafter enacted and to add to this Indenture such other provisions as
may be expressly required by the TIA, and the Indenture Trustee is hereby
authorized to join in the execution of any such supplemental indenture and
to make any further appropriate agreements and stipulations that may be
therein contained; or
(viii)to increase or decrease the Specified Maximum Revolver
Balance with respect to the Revolving Notes, subject to the satisfaction
of the Rating Agency Condition, in the case of an increase, and the other
conditions set forth in the Trust Sale and Servicing Agreement.
(b) The Issuer and the Indenture Trustee, when authorized by an
Issuer Order, may, also without the consent of any of the Noteholders but with
prior notice to the Rating Agencies, at any time and from time to time enter
into one or more indentures supplemental hereto for the purpose of adding any
provisions to, changing in any manner, or eliminating any of the provisions of,
this Indenture or modifying in any manner the rights of the Noteholders under
this Indenture; PROVIDED, HOWEVER, that such action shall not, as evidenced by
an Opinion of Counsel, adversely affect in any material respect the interests
of any Noteholder.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS.
(a) The Issuer and the Indenture Trustee, when authorized by an
Issuer Order, also may, with prior notice to the Rating Agencies and with the
consent of the Holders of not less than a majority of the Outstanding Amount of
the Notes, by Act of such Holders delivered to the Issuer and the Indenture
Trustee, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, changing in any manner, or eliminating any
of the provisions of, this Indenture or modifying in any manner the rights of
the Noteholders under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
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(i) change the due date of any instalment of principal of or
interest on any Note, or reduce the principal amount thereof, the interest
rate applicable thereto, or the Redemption Price with respect thereto,
change any place of payment where, or the coin or currency in which, any
Note or any interest thereon is payable, or impair the right to institute
suit for the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in ARTICLE V, to the
payment of any such amount due on the Notes on or after the respective due
dates thereof (or, in the case of redemption, on or after the Redemption
Date);
(ii) reduce the percentage of the Outstanding Amount of the
Notes, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences as provided for in this
Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the
Notes required to direct the Indenture Trustee to sell or liquidate the
Trust Estate pursuant to SECTION 5.4 if the proceeds of such sale would be
insufficient to pay the principal amount of and accrued but unpaid
interest on the Outstanding Notes;
(v) modify any provision of this SECTION 9.2 to decrease the
required minimum percentage necessary to approve any amendments to any
provisions of this Indenture;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Payment Date (including the
calculation of any of the individual components of such calculation) (it
being understood that the issuance of any Notes and the specification of
the terms and provisions thereof pursuant to an Officer's Issuance
Certificate shall not be deemed to have such effect for purposes hereof),
or modify or alter the provisions of the Indenture regarding the voting of
Notes held by the Issuer, the Seller or any Affiliate of either of them;
or
(vii) permit the creation of any Lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Trust Estate or, except as otherwise permitted or contemplated herein,
terminate the lien of this Indenture on any property at any time subject
hereto or deprive the Holder of any Note of the security afforded by the
lien of this Indenture.
(b) The Indenture Trustee may in its discretion determine whether or
not any Notes would be affected (such that the consent of each Noteholder would
be required) by any supplemental indenture proposed pursuant to this SECTION
9.2 and any such determination shall be
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conclusive and binding upon the Holders of all Notes, whether authenticated and
delivered thereunder before or after the date upon which such supplemental
indenture becomes effective. The Indenture Trustee shall not be liable for any
such determination made in good faith.
(c) It shall be sufficient if an Act of Noteholders approves the
substance, but not the form, of any proposed supplemental indenture.
(d) Promptly after the execution by the Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this SECTION 9.2, the
Indenture Trustee shall mail to the Noteholders to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
permitting the additional trusts created by any supplemental indenture
permitted by this ARTICLE IX or the modifications thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to SECTIONS 6.1 AND 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent to
the execution of any such amendment have been satisfied. The Indenture Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
that affects the Indenture Trustee's own rights, duties, liabilities or
immunities under this Indenture or otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations
of rights, obligations, duties, liabilities and immunities under this Indenture
of the Indenture Trustee, the Issuer and the Noteholders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
ARTICLE IX shall conform to the requirements of the TIA as then in effect so
long as this Indenture shall then be qualified under the TIA.
SECTION 9.6 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this ARTICLE IX may, and if required by the Indenture Trustee
shall, bear a notation in form approved by the Indenture Trustee as to any
matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes of the
same series.
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ARTICLE X
REDEMPTION OF TERM NOTES
SECTION 10.1 REDEMPTION. A series of Term Notes shall be subject to
redemption if and to the extent provided in the related Officer's Issuance
Certificate. The purchase price for any Term Notes shall be equal to the
applicable Redemption Price set forth in the related Officer's Issuance
Certificate, provided the Issuer has available funds sufficient to pay such
amount. The Issuer shall furnish the Rating Agencies notice of any such
redemption. If any Term Notes are to be redeemed pursuant to this SECTION 10.1,
the Issuer shall furnish notice thereof to the Indenture Trustee not later than
25 days prior to the applicable Redemption Date and the Issuer shall deposit
into the Note Distribution Account, on or before the applicable Redemption
Date, the aggregate Redemption Price of the Term Notes to be redeemed,
whereupon all such Term Notes shall be due and payable on the Redemption Date.
SECTION 10.2 FORM OF REDEMPTION NOTICE.
(a) Notice of redemption of any Term Notes under SECTION 10.1 shall
be given by the Indenture Trustee by first-class mail, postage prepaid, mailed
not less than five days prior to the applicable Redemption Date to each Term
Noteholder of record of the Term Notes to be redeemed at such Term Noteholder's
address appearing in the Note Register.
(b) All notices of redemption shall state:
(i) the applicable Redemption Date;
(ii) the applicable Redemption Price;
(iii) the place where the Term Notes are to be surrendered for
payment of the Redemption Price (which shall be the Agency Office of the
Indenture Trustee to be maintained as provided in SECTION 3.2);
(iv) the CUSIP number, if applicable; and
(v) the principal amount of Notes to be redeemed.
(c) Notice of redemption of the Term Notes shall be given by the
Indenture Trustee in the name and at the expense of the Issuer. Failure to give
notice of redemption, or any defect therein, to any Holder of any Term Note
shall not impair or affect the validity of the redemption of any other Term
Note.
SECTION 10.3 TERM NOTES PAYABLE ON REDEMPTION DATE.
With respect to any Term Notes, such Term Notes shall, following
notice of redemption as required by SECTION 10.2 (in the case of redemption
pursuant to SECTION 10.1), on the
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applicable Redemption Date cease to be Outstanding for purposes of this
Indenture and shall thereafter represent only the right to receive the
applicable Redemption Price and (unless the Issuer shall default in the payment
of such Redemption Price) no interest shall accrue on such Redemption Price for
any period after the date to which accrued interest is calculated for purposes
of calculating such Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 COMPLIANCE CERTIFICATES AND OPINIONS, ETC.
(a) Upon any application or request by the Issuer to the Indenture
Trustee to take any action under any provision of this Indenture, the Issuer
shall furnish to the Indenture Trustee: (i) an Officer's Certificate stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with, (ii) an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with and (iii) (if required by the TIA) an Independent
Certificate from a firm of certified public accountants meeting the applicable
requirements of this SECTION 11.1, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished. Every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition and
the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such
signatory, such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit with the Indenture Trustee of any
Collateral or other property or securities that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture,
the Issuer shall, in addition to any obligation imposed in SECTION 11.1(A) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officers'
Certificate certifying or stating the opinion of each Person signing such
certificate as to the fair value (within
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90 days of such deposit) to the Issuer of the Collateral or other property or
securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officers' Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause (b)(i)
above, the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to the
Issuer of the securities to be so deposited and of all other such
securities made the basis of any such withdrawal or release since the
commencement of the then current fiscal year of the Issuer, as set forth
in the certificates delivered pursuant to clause (i) above and this clause
(b)(ii), is 10% or more of the Outstanding Amount of the Notes, but such a
certificate need not be furnished with respect to any securities so
deposited, if the fair value thereof to the Issuer as set forth in the
related Officers' Certificate is less than $25,000 or less than one
percent of the Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any Warranty
Receivables, Administrative Receivables or Defaulted Receivables, whenever
any property or securities are to be released from the lien of this
Indenture, the Issuer shall also furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each Person
signing such certificate as to the fair value (within 90 days of such
release) of the property or securities proposed to be released and stating
that in the opinion of such Person the proposed release will not impair
the security under this Indenture in contravention of the provisions
hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signatory thereof as to the matters described in clause
(b)(iii) above, the Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value of the
property or securities and of all other property, other than Warranty
Receivables, Administrative Receivables or Defaulted Receivables, or
securities released from the lien of this Indenture since the commencement
of the then current calendar year, as set forth in the certificates
required by clause (b)(iii) above and this clause (b)(iv), equals 10% or
more of the Outstanding Amount of the Notes, but such certificate need not
be furnished in the case of any release of property or securities if the
fair value thereof as set forth in the related Officer's Certificate is
less than $25,000 or less than one percent of the then Outstanding Amount
of the Notes.
(v) Notwithstanding SECTION 2.9 or any other provision of this
SECTION 11.1, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of Receivables and related Collateral Security and proceeds of
both as and to the extent permitted or required by the Basic Documents,
(B) make cash payments out of the Designated Accounts and the Certificate
Distribution Account as and to the extent permitted or required by the
Basic Documents and (C) take any other action not inconsistent with the
TIA.
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SECTION 11.2 FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE.
(a) 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.
(b) Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Servicer, the Seller, the Issuer or the Administrator, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Seller, the Issuer or the Administrator, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
(c) 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.
(d) Whenever in this Indenture, in connection with any application
or certificate or report to the Indenture Trustee, it is provided that the
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer's compliance with any term hereof, it
is intended that the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or report (as the case
may be), of the facts and opinions stated in such document shall in such case
be conditions precedent to the right of the Issuer to have such application
granted or to the sufficiency of such certificate or report. The foregoing
shall not, however, be construed to affect the Indenture Trustee's right to
rely upon the truth and accuracy of any statement or opinion contained in any
such document as provided in Article VI.
SECTION 11.3 ACTS OF NOTEHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders or a series of Noteholders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Noteholders
in person or by agents duly appointed in writing; and except as herein
otherwise expressly provided such action shall become effective when such
instrument or instruments are delivered to the Indenture Trustee, and, where it
is hereby expressly required, to the Issuer. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Noteholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for
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any purpose of this Indenture and (subject to SECTION 6.1) conclusive in favor
of the Indenture Trustee and the Issuer, if made in the manner provided in this
SECTION 11.3.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes (or any one or more
Predecessor Notes) shall bind the Holder of every Note issued upon the
registration thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Indenture Trustee or the
Issuer in reliance thereon, whether or not notation of such action is made upon
such Note.
SECTION 11.4 NOTICES, ETC., TO INDENTURE TRUSTEE, ISSUER AND RATING
AGENCIES. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer shall
be sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder shall
be sufficient for every purpose hereunder if in writing and either sent by
electronic facsimile transmission (with hard copy to follow via first class
mail) or mailed, by certified mail, return receipt requested to the Issuer and
the Owner Trustee each at the address specified in APPENDIX B to the Trust Sale
and Servicing Agreement.
The Issuer shall promptly transmit any notice received by it from
the Noteholders to the Indenture Trustee and the Indenture Trustee shall
likewise promptly transmit any notice received by it from the Noteholders to
the Issuer.
(c) Notices required to be given to the Rating Agencies by the
Issuer, the Indenture Trustee or the Owner Trustee shall be delivered as
specified in APPENDIX B to the Trust Sale and Servicing Agreement.
SECTION 11.5 NOTICES TO NOTEHOLDERS; WAIVER.
(a) Where this Indenture provides for notice to Noteholders of any
condition or event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if it is in writing and mailed, first-class, postage
prepaid to each Noteholder affected by such event, at such Person's address as
it appears on the Note Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. If
notice to Noteholders is given by mail, neither the failure to mail such notice
nor any defect in any notice so mailed to any particular Noteholder shall
affect the sufficiency of such notice with respect to other Noteholders, and
any
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notice that is mailed in the manner herein provided shall conclusively be
presumed to have been duly given regardless of whether such notice is in fact
actually received.
(b) Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular mail service as
a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event of Noteholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute an Event of
Default.
SECTION 11.6 ALTERNATE PAYMENT AND NOTICE PROVISIONS.
Notwithstanding any provision of this Indenture or any of the Notes
to the contrary, the Issuer may enter into any agreement with any Holder of a
Note providing for a method of payment, or notice by the Indenture Trustee or
any Paying Agent to such Holder, that is different from the methods provided
for in this Indenture for such payments or notices. The Issuer shall furnish to
the Indenture Trustee a copy of each such agreement and the Indenture Trustee
shall cause payments to be made and notices to be given in accordance with such
agreements.
SECTION 11.7 CONFLICT WITH TRUST INDENTURE ACT.
(a) If any provision hereof limits, qualifies or conflicts with
another provision hereof that is required to be included in this Indenture by
any of the provisions of the TIA, such required provision shall control.
(b) The provisions of TIA xx.xx. 310 through 317 that impose duties
on any Person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 11.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
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SECTION 11.9 SUCCESSORS AND ASSIGNS.
(a) All covenants and agreements in this Indenture and the Notes by
the Issuer shall bind its successors and assigns, whether so expressed or not.
(b) All covenants and agreements of the Indenture Trustee in this
Indenture shall bind its successors and assigns, whether so expressed or not.
SECTION 11.10 SEPARABILITY.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.11 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the Noteholders and the Note Owners and (only to the extent
expressly provided herein) the Certificateholders and the Certificate Owners
and any other party secured hereunder, and any other Person with an ownership
interest in any part of the Trust Estate, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 11.12 LEGAL HOLIDAYS.
If the date on which any payment is due shall not be a Business Day,
then (notwithstanding any other provision of the Notes or this Indenture)
payment need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date on which
nominally due, and no interest shall accrue for the period from and after any
such nominal date.
SECTION 11.13 GOVERNING LAW.
THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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SECTION 11.15 RECORDING OF INDENTURE.
If this Indenture is subject to recording in any appropriate public
recording offices, such recording is to be effected by the Issuer and at its
expense accompanied by an Opinion of Counsel (which may be counsel to the
Indenture Trustee or any other counsel reasonably acceptable to the Indenture
Trustee) to the effect that such recording is necessary either for the
protection of the Noteholders or any other Person secured hereunder or for the
enforcement of any right or remedy granted to the Indenture Trustee under this
Indenture.
SECTION 11.16 NO RECOURSE.
(a) Each Noteholder will agree by acceptance of a Note (or interest
therein) that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under this Indenture or any certificate or other writing delivered
in connection herewith or therewith, against:
(i) the Indenture Trustee or the Owner Trustee in its
individual capacity;
(ii) any owner of a beneficial interest in the Issuer; or
(iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee or the Owner Trustee in its
individual capacity, any holder of a beneficial interest in the Issuer,
the Owner Trustee or the Indenture Trustee or of any successor or assign
of the Indenture Trustee or the Owner Trustee in its individual capacity,
except as any such Person may have expressly agreed (it being understood
that the Indenture Trustee and the Owner Trustee have no such obligations
in their individual capacity) and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution
or failure to pay any instalment or call owing to such entity. For all
purposes of this Indenture, in the performance of any duties or
obligations of the Issuer hereunder, the Owner Trustee shall be subject
to, and entitled to the benefits of, the terms and provisions of ARTICLES
VI, VII AND VIII of the Trust Agreement.
(b) Except as expressly provided in the Basic Documents, neither the
Seller, the Servicer, the Indenture Trustee nor the Owner Trustee in their
respective individual capacities, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, owners, beneficiaries, agents,
officers, directors, employees or successors or assigns, shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on, or performance of, or omission to perform, any of
the covenants, obligations or indemnifications contained in the Notes or this
Indenture, it being expressly understood that said covenants, obligations and
indemnifications have been made by the Owner Trustee solely as the Owner
Trustee in the assets of the Issuer. Each Noteholder or Note Owner by the
acceptance of a Note (or beneficial interest therein) will agree that, except
as expressly provided in the Basic Documents, in the case of an Event of
Default under this Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; PROVIDED, HOWEVER, that
nothing contained herein shall be taken to prevent recourse to, and enforcement
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against, the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in this Indenture or in the Notes.
SECTION 11.17 NO PETITION.
The Indenture Trustee, by entering into this Indenture, and each
Noteholder and Note Owner, by accepting a Note (or interest therein) issued
hereunder, hereby covenant and agree that they shall not, prior to the date
which is one year and one day after the termination of the Trust Agreement,
acquiesce, petition or otherwise invoke or cause the Seller or the Issuer to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Seller or the Issuer under any
Insolvency Law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Seller or the Issuer
or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Seller or the Issuer.
SECTION 11.18 INSPECTION.
The Issuer agrees that, on reasonable prior notice, it shall permit
any representative of the Indenture Trustee, during the Issuer's normal
business hours, to examine all the books of account, records, reports and other
papers of the Issuer, to make copies and extracts therefrom, to cause such
books to be audited by Independent certified public accountants, and to discuss
the Issuer's affairs, finances and accounts with the Issuer's officers,
employees and Independent certified public accountants, all at such reasonable
times and as often as may be reasonably requested. The Indenture Trustee shall
and shall cause its representatives to hold in confidence all such information
except to the extent disclosure may be required by law (and all reasonable
applications for confidential treatment are unavailing) and except to the
extent that the Indenture Trustee may reasonably determine that such disclosure
is consistent with its obligations hereunder.
* * * * *
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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized, all as of the day and year first above written.
SUPERIOR WHOLESALE INVENTORY
FINANCING TRUST [ ]
By: [ ], not in its
individual capacity but solely as
Owner Trustee
By:
Name:
Title:
[ ], as Indenture Trustee
By:
Name:
Title:
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EXHIBIT A
TRANSFER CERTIFICATE
Wholesale Auto Receivables Corporation
Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
[ Indenture Trustee]
Attn:Corporate Trust Trustee Administration
as Indenture Trustee for Superior
Wholesale Inventory Financing Trust [ ]
Ladies and Gentlemen:
In connection with the purchase of a Note subject to Section 2.15 of
the Indenture dated as of ________, ____ (the "UNREGISTERED NOTE") of the
Superior Wholesale Inventory Financing Trust [ ], the undersigned buyer
("BUYER") hereby acknowledges, represents and agrees that:
(a) The Buyer has received the [describe offering document] relating
to the offering of the Unregistered Note (including exhibits thereto).
(b) The Buyer understands that the Unregistered Note has not been
registered under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
and may not be sold except as permitted in the following sentence. The Buyer
agrees, on its own behalf and on behalf of any accounts for which it is acting
as hereinafter stated, that such Unregistered Note may be resold, pledged or
transferred only (i) to an institutional investor that is an "Accredited
Investor" as defined in Rule 501(a)(1),(2),(3) or (7) (an "INSTITUTIONAL
ACCREDITED INVESTOR") under the Securities Act acting for its own account (and
not for the account of others) or as a fiduciary or agent for others (which
others also are Institutional Accredited Investors unless the holder is a bank
acting in its fiduciary capacity) that, if so requested by the Seller or the
Indenture Trustee, executes a certificate in the form hereof, (ii) so long as
such Unregistered Note is eligible for resale pursuant to Rule 144A under the
Securities Act ("RULE 144A"), to a person whom the Buyer reasonably believes
after due inquiry to be a "qualified institutional buyer" (as defined in Rule
144A) acting for its own account (and not for the account of others) or as a
fiduciary or agent for others (which others also are "qualified institutional
buyers") that, if so requested by the Seller or the Indenture Trustee, executes
a certificate in the form hereof or (iii) in a sale, pledge or other transfer
made in a transaction otherwise exempt from the registration requirements of
the Securities Act, in which case (A) the Indenture Trustee shall require that
both the prospective transferor and the prospective transferee certify to the
Indenture Trustee and the Seller in writing the facts surrounding such
transfer, which
indt.form.01.wpd
certification shall be in form and substance satisfactory to the Indenture
Trustee and the Seller, and (B) the Indenture Trustee shall require a written
opinion of counsel (which will not be at the expense of the Seller, the
Servicer or the Indenture Trustee) satisfactory to the Seller and the Indenture
Trustee to the effect that such transfer will not violate the Securities Act,
in each case in accordance with any applicable securities laws of any state of
the United States. The Buyer will notify any purchaser of the Unregistered Note
from it of the above resale restrictions, if then applicable. The Buyer further
understands that in connection with any transfer of the Unregistered Note by it
that the Seller and the Indenture Trustee may request, and if so requested the
Buyer will furnish, such certificates and other information as they may
reasonably require to confirm that any such transfer complies with the
foregoing restrictions.
(c)
[CHECK ONE]
o (1) The Buyer is an institutional investor and an
"accredited investor" (as defined in Rule 501(a)(1),(2),(3)
or (7) of Regulation D under the Securities Act) acting for
its own account (and not for the account of others) or as a
fiduciary or agent for others (which others also are
Institutional Accredited Investors unless the Buyer is bank
acting in its fiduciary capacity). The Buyer has such
knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of its
investment in the Unregistered Note, and the Buyer and any
accounts for which it is acting are able to bear the
economic risk of investment in the Unregistered Note for an
indefinite period of time. The Buyer is acquiring the
Unregistered Note for investment and not with a view to, or
for offer and sale in connection with, a public
distribution.
o (2) The Buyer is a "qualified institutional buyer" as
defined under Rule 144A under the Securities Act and is
acquiring the Unregistered Note for its own account (and not
for the account of others) or as a fiduciary or agent for
others (which others also are "qualified institutional
buyers"). The Buyer is are familiar with Rule 144A under the
Securities Act and is aware that the seller of the
Unregistered Note and other parties intend to rely on the
statements made herein and the exemption from the
registration requirements of the Securities Act provided by
Rule 144A.
indt.form.01.wpd
(d) You are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Print Name of Buyer
By:
Name:
Title:
Date:
indt.form.01.wpd
EXHIBIT B
UNDERTAKING LETTER
Wholesale Auto Receivables Corporation
Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
[ Indenture Trustee] ,
Attn: Corporate Trust Trustee Administration
as Indenture Trustee for Superior
Wholesale Inventory Financing Trust [ ]
Ladies and Gentlemen:
In connection with our purchase of record or beneficial ownership of
a Note subject to the provisions of Section 2.15 of the Indenture dated as of
________, ____ (the "UNREGISTERED NOTE") of the Superior Wholesale Inventory
Financing Trust [ ], the undersigned purchaser, record owner or beneficial
owner hereby acknowledges, represents and warrants that such purchaser, record
owner or beneficial owner:
(1) is not, and has not acquired the Unregistered Note by or for the
benefit of, (i) an employee benefit plan (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")) that is
subject to the provisions of Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended, or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in such entity; and
(2) acknowledges that you and others will rely on our
acknowledgments, representations and warranties, and agrees to notify you
promptly in writing if any of our acknowledgments, representations or
warranties herein cease to be accurate and complete.
Name of Note Owner
By:
Name:
Title:
Date:
indt.form.01.wpd
