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CASE EQUIPMENT LOAN TRUST 1996-B
INDENTURE
between
CASE EQUIPMENT LOAN TRUST 1996-B
and
XXXXXX TRUST AND SAVINGS BANK,
as Indenture Trustee.
Dated as of September 1, 1996
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Table of Contents
Page
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions............................................ 3
SECTION 1.2. Incorporation by Reference of Trust Indenture Act...... 11
SECTION 1.3. Rules of Construction.................................. 11
ARTICLE II
The Indenture Notes
SECTION 2.1. Form................................................... 12
SECTION 2.2. Execution, Authentication and Delivery................. 12
SECTION 2.3. Temporary Indenture Notes.............................. 13
SECTION 2.4. Registration; Registration of Transfer and Exchange.... 13
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Indenture Notes... 15
SECTION 2.6. Persons Deemed Owner................................... 16
SECTION 2.7. Payment of Principal and Interest; Defaulted Interest.. 16
SECTION 2.8. Cancellation........................................... 17
SECTION 2.9. Release of Collateral.................................. 18
SECTION 2.10. Book-Entry Notes...................................... 18
SECTION 2.11. Notices to Clearing Agency............................ 19
SECTION 2.12. Definitive Notes...................................... 19
ARTICLE III
Covenants
SECTION 3.1. Payment of Principal and Interest...................... 20
SECTION 3.2. Maintenance of Office or Agency........................ 20
SECTION 3.3. Money for Payments To Be Held in Trust................. 20
SECTION 3.4. Existence.............................................. 22
SECTION 3.5. Protection of the Collateral and the Trust Estate...... 22
SECTION 3.6. Opinions as to the Collateral and the Trust Estate..... 23
SECTION 3.7. Performance of Obligations; Servicing of Receivables... 24
SECTION 3.8. Negative Covenants..................................... 26
SECTION 3.9. Annual Statement as to Compliance...................... 27
SECTION 3.10. Issuer May Consolidate, etc., Only on Certain Terms... 27
SECTION 3.11. Successor or Transferee............................... 29
SECTION 3.12. No Other Business..................................... 29
SECTION 3.13. No Borrowing.......................................... 29
SECTION 3.14. Servicer's Obligations................................ 30
SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities..... 30
SECTION 3.16. Capital Expenditures.................................. 30
SECTION 3.17. Removal of Administrator.............................. 30
SECTION 3.18. Restricted Payments................................... 30
SECTION 3.19. Notice of Events of Default........................... 31
SECTION 3.20. Further Instruments and Acts.......................... 31
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1. Satisfaction and Discharge of Indenture................ 31
SECTION 4.2. Application of Trust Money............................. 32
SECTION 4.3. Repayment of Moneys Held by Paying Agent............... 33
ARTICLE V
Remedies
SECTION 5.1. Events of Default...................................... 33
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment..... 34
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee................................... 35
SECTION 5.4. Remedies; Priorities................................... 38
SECTION 5.5. Optional Preservation of the Receivables............... 40
SECTION 5.6. Limitation of Suits.................................... 40
SECTION 5.7. Unconditional Rights of Indenture Noteholders To Receive
Principal and Interest.............................. 41
SECTION 5.8. Restoration of Rights and Remedies..................... 41
SECTION 5.9. Rights and Remedies Cumulative......................... 41
SECTION 5.10. Delay or Omission Not a Waiver........................ 42
SECTION 5.11. Control by Indenture Noteholders...................... 42
SECTION 5.12. Waiver of Past Defaults............................... 42
SECTION 5.13. Undertaking for Costs................................. 43
SECTION 5.14. Waiver of Stay or Extension Laws...................... 43
SECTION 5.15. Action on Indenture Notes............................. 44
SECTION 5.16. Performance and Enforcement of Certain Obligations.... 44
ARTICLE VI
The Indenture Trustee
SECTION 6.1. Duties of the Indenture Trustee........................ 45
SECTION 6.2. Rights of Indenture Trustee............................ 47
SECTION 6.3. Individual Rights of the Indenture Trustee............. 48
SECTION 6.4. Indenture Trustee's Disclaimer......................... 48
SECTION 6.5. Notice of Defaults..................................... 48
SECTION 6.6. Reports by Indenture Trustee to the Holders............ 48
SECTION 6.7. Compensation and Indemnity............................. 48
SECTION 6.8. Replacement of the Indenture Trustee................... 49
SECTION 6.9. Successor Indenture Trustee by Merger.................. 50
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee......... 51
SECTION 6.11. Eligibility; Disqualification......................... 52
SECTION 6.12. Preferential Collection of Claims Against the Issuer.. 52
ARTICLE VII
Indenture Noteholders' Lists and Reports
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and Addresses
of Indenture Noteholders............................ 53
SECTION 7.2. Preservation of Information; Communications to
Indenture Noteholders............................... 53
SECTION 7.3. Reports by Issuer...................................... 53
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1. Collection of Money.................................... 54
SECTION 8.2. Trust Accounts......................................... 54
SECTION 8.3. General Provisions Regarding Accounts.................. 56
SECTION 8.4. Release of Trust Estate................................ 57
SECTION 8.5. Opinion of Counsel..................................... 57
ARTICLE IX
Supplemental Indentures
SECTION 9.1. Supplemental Indentures Without Consent of Indenture
Noteholders.................................................... 58
SECTION 9.2. Supplemental Indentures With Consent of Indenture
Noteholders.................................................... 59
SECTION 9.3. Execution of Supplemental Indentures................... 61
SECTION 9.4. Effect of Supplemental Indenture....................... 61
SECTION 9.5. Conformity with Trust Indenture Act.................... 62
SECTION 9.6. Reference in Indenture Notes to Supplemental Indentures 62
ARTICLE X
Redemption of Indenture Notes
SECTION 10.1. Redemption............................................ 62
SECTION 10.2. Form of Redemption Notice............................. 63
SECTION 10.3. Indenture Notes Payable on Redemption Date............ 64
ARTICLE XI
Miscellaneous
SECTION 11.1. Compliance Certificates and Opinions, etc............. 64
SECTION 11.2. Form of Documents Delivered to Indenture Trustee...... 66
SECTION 11.3. Acts of Indenture Noteholders......................... 67
SECTION 11.4. Notices, etc., to the Indenture Trustee, Issuer
and Rating Agencies................................. 68
SECTION 11.5. Notices to Indenture Noteholders; Waiver.............. 69
SECTION 11.6. Alternate Payment and Notice Provisions............... 69
SECTION 11.7. Conflict with Trust Indenture Act..................... 70
SECTION 11.8. Effect of Headings and Table of Contents.............. 70
SECTION 11.9. Successors and Assigns................................ 70
SECTION 11.10. Severability......................................... 70
SECTION 11.11. Benefits of Indenture................................ 70
SECTION 11.12. Legal Holidays....................................... 70
SECTION 11.13. Governing Law........................................ 71
SECTION 11.14. Counterparts......................................... 71
SECTION 11.15. Recording of Indenture............................... 71
SECTION 11.16. Trust Obligation..................................... 71
SECTION 11.17. No Petition.......................................... 71
SECTION 11.18. Inspection........................................... 72
SECTION 11.19. Rights of Collateral Agent........................... 72
EXHIBITS
EXHIBIT A-1 Form of A-1 Notes
EXHIBIT A-2 Form of A-2 Notes
EXHIBIT A-3 Form of A-3 Notes
EXHIBIT B Form of Section 3.9 Officers' Certificate
INDENTURE, dated as of September 1, 1996, between CASE EQUIPMENT LOAN
TRUST 1996-B, a Delaware business trust (the "Issuer"), and XXXXXX TRUST
AND SAVINGS BANK, an Illinois banking corporation ("Xxxxxx"), as trustee
and not in its individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party, for
the equal and ratable benefit of the Holders of the Issuer's 5.5625% Class
A-1 Asset Backed Notes (each an "A-1 Note"), 6.25% Class A-2 Asset Backed
Notes (each an "A-2 Note") and 6.65% Class A-3 Asset Backed Notes (each an
"A-3 Note"; and together with the A-1 Notes and the A-2 Notes, the
"Indenture Notes") and solely to the extent expressly provided below, for
the equal and ratable benefit of the holders of the Issuer's Class B Asset
Backed Notes (each a "Class B Note").
GRANTING CLAUSE
The Issuer hereby Grants to Xxxxxx at the Closing Date, as Indenture
Trustee for the benefit of the Holders of the Indenture Notes and as
Collateral Agent for the benefit of the Class B Noteholders, all of the
Issuer's right, title and interest in, to and under the following, whether
now existing or hereafter arising or acquired (collectively, the
"Collateral"):
(a) the Receivables, including all documents constituting
chattel paper included therewith, and all obligations of the Obligors
thereunder, including all moneys paid thereunder on or after the
Initial Cutoff Date or the applicable Subsequent Cutoff Date;
(b) the security interests in the Financed Equipment granted by
Obligors pursuant to the Receivables and any other interest of the
Issuer in the Financed Equipment;
(c) any proceeds with respect to the Receivables from claims on
insurance policies covering Financed Equipment or Obligors;
(d) the Liquidity Receivables Purchase Agreement (only with
respect to Contracts included in the Receivables) and the Purchase
Agreement, including the right of the Issuer to cause Credit to
repurchase Receivables from the Seller under the circumstances
described therein;
(e) any proceeds from recourse to Dealers with respect to the
Receivables other than any interest in the Dealers' reserve accounts
maintained with Credit;
(f) any Financed Equipment that shall have secured a Receivable
and that shall have been acquired by or on behalf of the Trust;
(g) all funds on deposit from time to time in the Trust
Accounts, including the Spread Account Initial Deposit, the Negative
Carry Account Initial Deposit and the Pre-Funded Amount, and in all
investments and proceeds thereof (including all income thereon);
(h) the Sale and Servicing Agreement (including all rights of
the Seller under the Liquidity Receivables Purchase Agreement and the
Purchase Agreement assigned to the Issuer pursuant to the Sale and
Servicing Agreement); and
(i) all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of the
conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables,
instruments and other property that at any time constitute all or
part of or are included in the proceeds of any and all of the
foregoing.
The foregoing Grant is made in trust to secure (x) first, the payment
of principal of and interest on, and any other amounts owing in respect of,
the Indenture Notes, equally and ratably without prejudice, priority or
distinction, and to secure compliance with this Indenture, all as provided
in this Indenture and (y) second, the payment of principal of and interest
on, and any other amounts owing in respect of, the Class B Notes, equally
and ratably without prejudice, priority or distinction, and to secure
compliance with Class B Notes and the Class B Note Purchase Agreement.
(1) Xxxxxx, as Indenture Trustee on behalf of the Indenture
Noteholders, and the Indenture Trustee, as Collateral Agent on behalf of
the Class B Noteholders, acknowledges such Grant, and (2) as Indenture
Trustee on behalf of the Indenture Noteholders accepts the trusts under
this Indenture in accordance with this Indenture and agrees to perform its
duties required in this Indenture to the best of its ability to the end
that the interests of the Holders of the Indenture Notes may be adequately
and effectively protected. The Indenture Trustee is acting as Collateral
Agent for the Class B Noteholders solely for the purpose of perfecting and
maintaining the lien Granted for their benefit hereunder and shall not be
deemed to be a trustee or fiduciary for, or, except by perfecting and
maintaining such lien, otherwise required to protect the interests of, the
Class B Noteholders, except that nothing contained herein shall impair the
limited voting rights of the Class B Noteholders under this Indenture.
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions. (a) Except as otherwise specified herein
or as the context may otherwise require, the following terms have the
respective meanings set forth below for all purposes of this Indenture:
"A-1 Note" is defined in the recitals. Each A-1 Note shall be
substantially in the form of Exhibit A-1.
"A-1 Note Rate" means 5.5625% per annum, computed on the basis of a
360-day year of twelve 30-day months.
"A-2 Note" is defined in the recitals. Each A-2 Note shall be
substantially in the form of Exhibit A-2.
"A-2 Note Rate" means 6.25% per annum, computed on the basis of a
360-day year of twelve 30-day months.
"A-3 Note" is defined in the recitals. Each A-3 Note shall be
substantially in the form of Exhibit A-3.
"A-3 Note Rate" means 6.65% per annum, computed on the basis of a
360-day year of twelve 30-day months.
"Act" has the meaning specified in Section 11.3(a).
"Administration Agreement" means the Administration Agreement, dated
as of the date hereof, among the Administrator, the Issuer and the
Indenture Trustee.
"Administrator" means Case Credit Corporation, a Delaware
corporation, or any successor Administrator under the Administration
Agreement.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Officer" means, with respect to the Issuer, any officer
of the Trustee who is authorized to act for the Trustee in matters relating
to the Issuer and who is identified on the list of Authorized Officers
delivered by the Trustee to the Indenture Trustee on the Closing Date (as
such list may be modified or supplemented from time to time thereafter)
and, so long as the Administration Agreement is in effect, any Vice
President or more senior officer of the Administrator who is authorized to
act for the Administrator in matters relating to the Issuer and to be acted
upon by the Administrator pursuant to the Administration Agreement and who
is identified on the list of Authorized Officers delivered by the
Administrator to the Indenture Trustee on the Closing Date (in each case as
such list may be modified or supplemented from time to time thereafter).
"Basic Documents" means the Certificate of Trust, the Trust
Agreement, the Purchase Agreement, the Sale and Servicing Agreement, the
Administration Agreement, the Class B Note Purchase Agreement, the Class B
Notes, the Depository Agreement and other documents and certificates
delivered in connection therewith.
"Book-Entry Notes" means a beneficial interest in the Indenture Notes
of a particular Class, ownership and transfers of which shall be made
through book entries by a Clearing Agency as described in Section 2.10.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions or trust companies in The City of New York
and The City of Chicago, Illinois are authorized or obligated by law,
regulation or executive order to remain closed.
"Certificate of Trust" means the certificate of trust of the Issuer
substantially in the form of Exhibit B to the Trust Agreement.
"Class" means any class of Notes.
"Class B Note" is defined in the recitals. Each Class B Note shall be
in the form set forth in the Class B Note Purchase Agreement.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act that has been
designated as the "Clearing Agency" for purposes of this Indenture.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means September 19, 1996.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and Treasury Regulations promulgated thereunder.
"Collateral" has the meaning specified in the Granting Clause of this
Indenture.
"Collateral Agent" means the Indenture Trustee, in its capacity as
collateral agent for the Class B Noteholders, together with any successor
in that capacity.
"Commission" shall mean the Securities and Exchange Commission.
"Corporate Trust Office" means the principal office of the Indenture
Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of the execution of this
Agreement is located at Xxxxxx Trust and Savings Bank, 000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 (facsimile no. (000) 000-0000), Attention:
Indenture Trust Administration; or at such other address as the Indenture
Trustee may designate from time to time by notice to the Indenture
Noteholders and the Issuer, or the principal corporate trust office of any
successor Indenture Trustee (the address of which the successor Indenture
Trustee will notify the Indenture Noteholders and the Issuer).
"Default" means any occurrence that is, or with notice or the lapse
of time or both would become, an Event of Default.
"Definitive Notes" has the meaning specified in Section 2.10.
"Depository Agreement" has the meaning specified in the
Administration Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Executive Vice President, any Vice President, the Secretary or
the Treasurer of such corporation; and with respect to any partnership, any
general partner thereof.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create and xxxxx x Xxxx upon and
a security interest in and right of set-off against, deposit, set over and
confirm pursuant to this Indenture, and other forms of the verb "to Grant"
shall have correlative meanings. A Grant of the Collateral or of any other
agreement or instrument shall include all rights, powers and options (but
none of the obligations) of the Granting party thereunder, including the
immediate and continuing right to claim for, collect, receive and give
receipt for principal and interest payments in respect of the Collateral
and all other moneys payable thereunder, to give and receive notices and
other communications, to make waivers or other agreements, to exercise all
rights and options, to bring Proceedings in the name of the Granting party
or otherwise and generally to do and receive anything that the Granting
party is or may be entitled to do or receive thereunder or with respect
thereto.
"Xxxxxx" means Xxxxxx Trust and Savings Bank, an Illinois banking
corporation.
"Holder" means the Person in whose name an Indenture Note is
registered on the Indenture Note Register.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Indenture Note Depository Agreement" means the agreement among the
Issuer, the Indenture Trustee, the Administrator and The Depository Trust
Company, as the initial Clearing Agency, dated as of the Closing Date.
"Indenture Noteholder" means a Holder.
"Indenture Note Register" and "Indenture Note Registrar" have the
respective meanings specified in Section 2.4.
"Indenture Notes" is defined in the introduction hereto.
"Indenture Trustee" means Xxxxxx Trust and Savings Bank, an Illinois
banking corporation, not in its individual capacity but solely as Indenture
Trustee under this Indenture, or any successor Indenture Trustee under this
Indenture.
"Independent" means, when used with respect to any specified Person,
that the Person: (a) is in fact independent of the Issuer, any other
obligor upon the Indenture Notes, the Seller and any Affiliate of any of
the foregoing Persons, (b) does not have any direct financial interest or
any material indirect financial interest in the Issuer, any such other
obligor, the Seller or any Affiliate of any of the foregoing Persons and
(c) is not connected with the Issuer, any such other obligor, the Seller or
any Affiliate of any of the foregoing Persons as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing
similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in,
and otherwise complying with, the applicable requirements of Section 11.1,
made by an Independent appraiser or other expert appointed by an Issuer
Order and approved by the Indenture Trustee in the exercise of reasonable
care, and such opinion or certificate shall state that the signer has read
the definition of "Independent" in this Indenture and that the signer is
Independent within the meaning thereof.
"Issuer" means Case Equipment Loan Trust 1996-B until a successor
replaces it and, thereafter, means the successor and, for purposes of any
provision contained herein and required by the TIA, each other obligor on
the Indenture Notes.
"Issuer Order" and "Issuer Request" means a written order or request,
respectively, signed in the name of the Issuer by any one of its Authorized
Officers and delivered to the Indenture Trustee.
"Note Owner" means, with respect to a Book-Entry Note, the Person who
is the owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with
the Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of the
Clearing Agency).
"Officers' Certificate" means a certificate signed by any two
Authorized Officers of the Issuer, under the circumstances described in,
and otherwise complying with, the applicable requirements of Section 11.1,
and delivered to the Indenture Trustee.
"Opinion of Counsel" means one or more written opinions of counsel
(who may, except as otherwise expressly provided in this Indenture, be
employees of or counsel to the Issuer), which counsel and opinion shall be
satisfactory to the Indenture Trustee, and which opinion(s) shall be
addressed to the Indenture Trustee as Indenture Trustee and shall comply
with any applicable requirements of Section 11.1 and shall be in form and
substance satisfactory to the Indenture Trustee.
"Outstanding" means, as of the date of determination, all Indenture
Notes theretofore authenticated and delivered under this Indenture except:
(i) Indenture Notes theretofore cancelled by the Indenture Note
Registrar or delivered to the Indenture Note Registrar for
cancellation;
(ii) Indenture Notes or portions thereof the payment for which
money in the necessary amount has been theretofore deposited with the
Indenture Trustee or any Paying Agent in trust for the Holders of
such Indenture Notes (provided, however, that if such Indenture Notes
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture); and
(iii) Indenture Notes in exchange for or in lieu of other
Indenture Notes that have been authenticated and delivered pursuant
to this Indenture unless proof satisfactory to the Indenture Trustee
is presented that any such Indenture Notes are held by a bona fide
purchaser;
provided, that in determining whether the Holders of the requisite
Outstanding Amount of the Indenture Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any
Basic Document, Indenture Notes owned by the Issuer, any other obligor upon
the Indenture Notes, the Seller or any Affiliate of any of the foregoing
Persons shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Indenture Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Indenture Notes that a Responsible Officer of the Indenture
Trustee actually knows to be so owned shall be so disregarded. Indenture
Notes so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Indenture
Trustee the pledgee's right so to act with respect to such Indenture Notes
and that the pledgee is not the Issuer, any other obligor upon the
Indenture Notes, the Seller or any Affiliate of any of the foregoing
Persons.
"Outstanding Amount" means the aggregate principal amount of all
Indenture Notes, or Class of Indenture Notes, as applicable, Outstanding at
the date of determination.
"Paying Agent" means the Indenture Trustee or any other Person that
meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 and is authorized by the Issuer to make the payments to and
distributions from the Collection Account and the Note Distribution
Account, including payment of principal of or interest on the Indenture
Notes and the Class B Notes on behalf of the Issuer.
"Payment Date" has the meaning set forth in the Sale and Servicing
Agreement.
"Person" means any individual, corporation, limited liability
company, estate, partnership, joint venture, association, joint stock
company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Indenture Note" means, with respect to any particular
Indenture Note, every previous Indenture Note evidencing all or a portion
of the same debt as that evidenced by such particular Indenture Note; and,
for the purpose of this definition, any Indenture Note authenticated and
delivered under Section 2.5 in lieu of a mutilated, lost, destroyed or
stolen Indenture Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Indenture Note.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Rating Agency Condition" means, with respect to any action, that
each Rating Agency shall have been given 10 days prior notice thereof and
that each of the Rating Agencies shall have notified the Seller, the
Servicer and the Issuer in writing that such action will not result in a
reduction or withdrawal of the then current rating of any Class of the
Indenture Notes.
"Receivable" means any Contract listed on the Schedule of
Receivables.
"Record Date" means, with respect to a Payment Date or Redemption
Date, the close of business on the fourteenth day of the calendar month in
which such Payment Date or Redemption Date occurs, or, if Definitive Notes
are issued, the close of business on the last day of the calendar month
preceding the month of such Payment Date, whether or not such day is a
Business Day.
"Redemption Date" means: (i) the Payment Date specified by the
Servicer or the Issuer pursuant to Section 10.1(a) or (b), as applicable,
or (ii) in the case of a redemption of Indenture Notes pursuant to Section
10.1(c), the Payment Date specified in Section 5.7(b) of the Sale and
Servicing Agreement on which the Indenture Trustee shall withdraw the
Pre-Funded Percentage for the Indenture Notes of any amount remaining in
the Pre-Funding Account on such Payment Date and deposit such amount in the
Note Distribution Account.
"Redemption Price" means the unpaid principal amount of the Indenture
Notes redeemed, plus accrued and unpaid interest thereon at the applicable
interest rate to but excluding the Redemption Date.
"Registered Holder" means the Person in whose name an Indenture Note
is registered on the Indenture Note Register on the applicable Record Date.
"Responsible Officer" means, with respect to the Indenture Trustee,
any officer within the Corporate Trust Office of the Indenture Trustee,
including any Vice President, Assistant Vice President, Secretary or
Assistant Secretary, or any other officer of the Indenture Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement, dated as of the date hereof, among the Issuer, the Seller and
the Servicer.
"Schedule of Receivables" means the listing of the Receivables set
forth on Schedule A to the Sale and Servicing Agreement, as supplemented as
of each Subsequent Transfer Date to reflect the sale to the Issuer of
Subsequent Receivables.
"State" means any one of the 50 states of the United States of
America or the District of Columbia.
"Successor Servicer" has the meaning specified in Section 3.7(e).
"TIA" means the Trust Indenture Act.
"Trust Estate" means all the money, instruments, rights and other
property that are subject or intended to be subject to the Lien and
security interest of this Indenture for the benefit of the Indenture
Noteholders (including all property and interests Granted to the Indenture
Trustee), including all proceeds thereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as in
force on the date hereof unless otherwise specifically provided.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from
time to time.
(b) Except as otherwise specified herein or as the context may
otherwise require, the capitalized terms used herein but not defined have
the respective meanings set forth in the Sale and Servicing Agreement for
all purposes of this Indenture.
SECTION 1.2. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following terms, where used in the TIA, shall have the following meanings
for the purposes hereof:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Indenture Notes.
"indenture security holder" means an Indenture Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
SECTION 1.3. Rules of Construction. Unless the context otherwise
requires: (i) a term has the meaning assigned to it; (ii) an accounting
term not otherwise defined has the meaning assigned to it in accordance
with generally accepted accounting principles as in effect on the date
hereof; (iii) "or" is not exclusive; (iv) "including" means "including,
without limitation"; and (v) words in the singular include the plural and
words in the plural include the singular.
ARTICLE II
The Indenture Notes
SECTION 2.1. Form. The A-1 Notes, A-2 Notes and A-3 Notes, together
with the Indenture Trustee's certificate of authentication, shall be in
substantially the forms set forth in Exhibits X-0, X-0 and A-3,
respectively, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon, as may, consistently herewith, be
determined by the officers executing such Indenture Notes, as evidenced by
their execution of the Indenture Notes. Any portion of the text of any
Indenture Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Indenture Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without
steel engraved borders), all as determined by the officers executing such
Indenture Notes, as evidenced by their execution of such Indenture Notes.
Each Indenture Note shall be dated the date of its authentication.
The terms of the Indenture Notes set forth in Exhibits X-0, X-0 and A-3 are
part of the terms of this Indenture.
SECTION 2.2. Execution, Authentication and Delivery. The Indenture
Notes shall be executed on behalf of the Issuer by any of its Authorized
Officers. The signature of any such Authorized Officer on the Indenture
Notes may be manual or facsimile.
Indenture Notes bearing the manual or facsimile signature of
individuals who were at the time of signature Authorized Officers of the
Issuer shall bind the Issuer, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Indenture Notes or did not hold such offices at the date
of such Indenture Notes.
The Indenture Trustee shall upon Issuer Order authenticate and
deliver A-1 Notes, A-2 Notes and A-3 Notes for original issue in an
aggregate principal amount of $125,000,000, $362,000,000 and $329,000,000,
respectively. The Outstanding Amount of A-1 Notes, A-2 Notes and A-3 Notes
at any time may not exceed such respective amounts except as provided in
Section 2.5.
Each Indenture Note shall be dated the date of its authentication.
The Indenture Notes shall be issuable as registered Indenture Notes in the
minimum denomination of $1,000 and in integral multiples of $1,000 in
excess thereof.
No Indenture Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears
on such Indenture Note a certificate of authentication substantially in the
form provided for herein executed by the Indenture Trustee by the manual
signature of one of its authorized signatories, and such certificate of
authentication shall be conclusive evidence, and the only evidence, that
such Indenture Note has been duly authenticated and delivered hereunder.
SECTION 2.3. Temporary Indenture Notes. Pending the preparation of
Definitive Notes, the Issuer may execute, and upon receipt of an Issuer
Order, the Indenture Trustee shall authenticate and deliver, temporary
Indenture Notes that are printed, lithographed, typewritten, mimeographed
or otherwise produced, of the tenor of the Definitive Notes in lieu of
which they are issued and with such variations not inconsistent with this
Indenture as the officers executing such Indenture Notes may determine, as
evidenced by their execution of such Indenture Notes.
If temporary Indenture Notes are issued, the Issuer will cause
Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the temporary Indenture Notes shall be
exchangeable for Definitive Notes upon surrender of the temporary Indenture
Notes at the office or agency of the Issuer to be maintained as provided in
Section 3.2, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Indenture Notes, the Issuer shall execute and
the Indenture Trustee shall authenticate and deliver in exchange therefor a
like principal amount of Definitive Notes of authorized denominations.
Until so exchanged, the temporary Indenture Notes shall in all respects be
entitled to the same benefits under this Indenture as if they were
Definitive Notes.
SECTION 2.4. Registration; Registration of Transfer and Exchange.
The Issuer shall cause to be kept a register (the "Indenture Note
Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Indenture Notes
and the registration of transfers of Indenture Notes. The Indenture Trustee
shall be the "Indenture Note Registrar" for the purpose of registering
Indenture Notes and transfers of Indenture Notes as herein provided. Upon
any resignation of any Indenture Note Registrar, the Issuer shall promptly
appoint a successor or, if it elects not to make such an appointment,
assume the duties of the Indenture Note Registrar.
If a Person other than the Indenture Trustee is appointed by the
Issuer as the Indenture Note Registrar, the Issuer will give the Indenture
Trustee prompt written notice of the appointment of such Indenture Note
Registrar and of the location, and any change in the location, of the
Indenture Note Register, and the Indenture Trustee shall have the right to
inspect the Indenture Note Register at all reasonable times, to obtain
copies thereof and to rely upon a certificate executed on behalf of the
Indenture Note Registrar by an Executive Officer thereof as to the names
and addresses of the Holders of the Indenture Notes and the principal
amounts and number of such Indenture Notes.
Upon surrender for registration of transfer of any Indenture Note at
the office or agency of the Issuer to be maintained as provided in Section
3.2, if the requirements of Section 8-401(1) of the UCC are met, the Issuer
shall execute, the Indenture Trustee shall authenticate and the Indenture
Noteholder shall obtain from the Indenture Trustee, in the name of the
designated transferee or transferees, one or more new Indenture Notes in
any authorized denominations of a like aggregate principal amount.
At the option of the Holder, Indenture Notes may be exchanged for
other new Indenture Notes of the same Class in any authorized denominations
of a like aggregate principal amount, upon surrender of the Indenture Notes
to be exchanged at such office or agency. Whenever any Indenture Notes are
so surrendered for exchange, if the requirements of Section 8-401(1) of the
UCC are met, the Issuer shall execute, the Indenture Trustee shall
authenticate and the Indenture Noteholder shall obtain from the Indenture
Trustee, the Indenture Notes that the Indenture Noteholder making the
exchange is entitled to receive.
All Indenture Notes issued upon any registration of transfer or
exchange of Indenture Notes shall be the valid obligations of the Issuer,
evidencing the same debt and entitled to the same benefits under this
Indenture as the Indenture Notes surrendered upon such registration of
transfer or exchange.
Every Indenture 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 duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Indenture Note
Registrar, which requirements include membership or participation in the
Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Indenture Note
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Exchange Act.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Indenture Notes, but the Issuer may require payment
of a sum sufficient to cover any tax or other governmental charge that may
be imposed in connection with any registration of transfer or exchange of
Indenture Notes, other than exchanges pursuant to Section 2.3 or 9.6 not
involving any transfer.
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Indenture Notes.
If: (i) any mutilated Indenture Note is surrendered to the Indenture
Trustee, or the Indenture Trustee receives evidence to its satisfaction of
the destruction, loss or theft of any Indenture Note, and (ii) there is
delivered to the Indenture Trustee such security or indemnity as may be
required by the Indenture Trustee and the Issuer to hold the Indenture
Trustee and the Issuer, respectively, harmless, then, in the absence of
notice to the Issuer, the Indenture Note Registrar or the Indenture Trustee
that such Indenture Note has been acquired by a bona fide purchaser, and
provided that the requirements of Section 8-405 of the UCC are met, the
Issuer shall execute, and upon its request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Indenture Note, a replacement Indenture Note of
the same Class; provided, however, that if any such destroyed, lost or
stolen Indenture Note, but not a mutilated Indenture 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 Indenture Note, the
Issuer may pay such destroyed, lost or stolen Indenture Note when so due or
payable or upon the Redemption Date without surrender thereof. If, after
the delivery of such replacement Indenture Note (or payment of a destroyed,
lost or stolen Indenture Note pursuant to the proviso to the preceding
sentence), a bona fide purchaser of the original Indenture Note in lieu of
which such replacement Indenture Note was issued presents for payment such
original Indenture Note, the Issuer and the Indenture Trustee shall be
entitled to recover such replacement Indenture Note (or such payment) from
the Person to whom it was delivered or any Person taking such replacement
Indenture Note from such Person to whom such replacement Indenture Note was
delivered (or payment made) or any assignee of such Person, except a bona
fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or
expense incurred by the Issuer or the Indenture Trustee in connection
therewith.
Upon the issuance of any replacement Indenture Note under this
Section, the Issuer may require the payment by the Holder of such Indenture
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 the fees and expenses of the Indenture Trustee) connected
therewith.
Every replacement Indenture Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Indenture Note
shall constitute an original additional contractual obligation of the
Issuer, whether or not the mutilated, destroyed, lost or stolen Indenture
Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and
all other Indenture Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Indenture
Notes.
SECTION 2.6. Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Indenture Note, the Issuer, the Indenture
Trustee and any agent of the Issuer or the Indenture Trustee may treat the
Person in whose name any Indenture Note is registered (as of the day of
determination) as the owner of such Indenture Note for the purpose of
receiving payments of principal of and interest, if any, on such Indenture
Note and for all other purposes whatsoever, whether or not such Indenture
Note be overdue, and neither the Issuer, the Indenture Trustee nor any
agent of the Issuer or the Indenture Trustee shall be affected by notice to
the contrary.
SECTION 2.7. Payment of Principal and Interest; Defaulted Interest.
(a) The A-1 Notes, A-2 Notes and A-3 Notes shall accrue interest at the A-1
Note Rate, the A-2 Note Rate and the A-3 Note Rate, respectively, and such
interest shall be payable on each Payment Date, subject to Section 3.1. Any
installment of interest or principal, if any, payable on any Indenture Note
that is punctually paid or duly provided for by the Issuer on the
applicable Payment Date shall be paid to the Person in whose name such
Indenture Note (or one or more Predecessor Indenture Notes) is registered
on the Record Date by check mailed first-class, postage prepaid, to such
Person's address as it appears on the Indenture Note Register on such
Record Date. However, unless Definitive Notes have been issued, with
respect to Indenture Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payment will be made by wire transfer in immediately available funds to the
account designated by such nominee. Notwithstanding the above, the final
installment of principal payable with respect to such Indenture Note (and
except for the Redemption Price for any Indenture Note called for
redemption pursuant to Section 10.1(a)) shall be payable as provided in
clause (b)(ii). The funds represented by any such checks returned
undelivered shall be held in accordance with Section 3.3.
(b)(i) The principal of each Indenture Note shall be payable in
installments on each Payment Date as provided in this Indenture.
Notwithstanding the foregoing, the entire Outstanding Amount shall be due
and payable, ratably to all Indenture Noteholders, on: (A) the date on
which an Event of Default shall have occurred and be continuing if the
Indenture Trustee or the Holders of Indenture Notes representing not less
than a majority of the Outstanding Amount of the Indenture Notes have
declared the Indenture Notes to be immediately due and payable in the
manner provided in Section 5.2, and (B) if any Indenture Notes remain
Outstanding, on and after the September 2003 Payment Date. In all other
circumstances, all principal payments on each Class of Indenture Notes
shall be made pro rata to the Indenture Noteholders of such Class entitled
thereto.
(ii) The Indenture Trustee shall notify the Person in whose
name an Indenture Note is registered at the close of business on the
Record Date preceding the Payment Date on which the Issuer expects
that the final installment of principal of and interest on such
Indenture Note will be paid. Such notice shall be mailed no later
than five days prior to such final Payment Date and shall specify
that such final installment will be payable only upon presentation
and surrender of such Indenture Note and shall specify the place
where such Indenture Note may be presented and surrendered for
payment of such installment. Notices in connection with redemptions
of Indenture Notes shall be mailed to Indenture Noteholders as
provided in Section 10.2.
(c) If the Issuer defaults in a payment of interest on the Indenture
Notes, the Issuer shall pay, in any lawful manner, defaulted interest (plus
interest on such defaulted interest to the extent lawful) at the applicable
interest rate from the Payment Date for which such payment is in default.
The Issuer may pay such defaulted interest to the Persons who are Indenture
Noteholders on a subsequent special record date, which date shall be at
least five Business Days prior to the special payment date. The Issuer
shall fix or cause to be fixed any such special record date and special
payment date, and, at least 15 days before any such special record date,
shall mail to each Indenture Noteholder a notice that states the special
record date, the special payment date and the amount of defaulted interest
to be paid.
SECTION 2.8. Cancellation. All Indenture Notes surrendered for
payment, registration of transfer, exchange or redemption shall, if
surrendered to any Person other than the Indenture Trustee, be delivered to
the Indenture Trustee and shall be promptly cancelled by the Indenture
Trustee. The Issuer may at any time deliver to the Indenture Trustee for
cancellation any Indenture Notes previously authenticated and delivered
hereunder that the Issuer may have acquired in any manner whatsoever, and
all Indenture Notes so delivered shall be promptly cancelled by the
Indenture Trustee. No Indenture Notes shall be authenticated in lieu of or
in exchange for any Indenture Notes cancelled as provided in this Section
except as expressly permitted by this Indenture. All cancelled Indenture
Notes may be held or disposed of by the Indenture Trustee in accordance
with its standard retention or disposal policy as in effect at the time
unless the Issuer shall direct by an Issuer Order that they be returned to
it; provided, that such Issuer Order is timely and the Indenture Notes have
not been previously disposed of by the Indenture Trustee.
SECTION 2.9. Release of Collateral. Subject to Section 11.1 and the
Basic Documents, the Indenture Trustee shall release property from the Lien
of this Indenture only upon receipt of an Issuer Request accompanied by an
Officers' Certificate, an Opinion of Counsel and Independent Certificates
in accordance with TIA 314(c) and 314(d)(l), or an Opinion of Counsel in
lieu of such Independent Certificates to the effect that the TIA does not
require any such Independent Certificates.
SECTION 2.10. Book-Entry Notes. The A-1 Notes, the A-2 Notes and the
A-3 Notes, upon original issuance, will be issued in the form of
typewritten Indenture Notes representing the Book-Entry Notes, to be
delivered to The Depository Trust Company (the initial Clearing Agency), or
its custodian, by, or on behalf of, the Issuer. Such Indenture Notes shall
initially be registered on the Indenture Note Register in the name of Cede
& Co., the nominee of the initial Clearing Agency, and no Note Owner of
such Indenture Note will receive a Definitive Note representing such Note
Owner's interest in such Indenture Note, except as provided in Section
2.12. Unless and until definitive, fully registered Indenture Notes (the
"Definitive Notes") representing the A-1 Notes, the A-2 Notes and the A-3
Notes have been issued to Note Owners:
(i) this Section shall be in full force and effect;
(ii) the Indenture Note Registrar and the Indenture Trustee may
deal with the Clearing Agency for all purposes (including the payment
of principal of and interest on the Indenture Notes) as the
authorized representative of the Note Owners;
(iii) to the extent that this Section conflicts with any other
provisions of this Indenture, this Section shall control;
(iv) the rights of 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 pursuant to the Indenture
Note Depository Agreement. Unless and until Definitive Notes are
issued, the Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit payments of
principal of and interest on the Indenture Notes to such Clearing
Agency Participants; and
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of Indenture
Notes evidencing a specified percentage of the Outstanding Amount of
the Indenture Notes (or a Class of Indenture Notes), the Clearing
Agency shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from Note
Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in
the Indenture Notes (or Class of Indenture Notes) and has delivered
such instructions to the Indenture Trustee.
SECTION 2.11. Notices to Clearing Agency. Whenever a notice or other
communication to the Indenture Noteholders is required under this
Indenture, unless and until Definitive Notes have been issued to Note
Owners, the Indenture Trustee shall give all such notices and
communications to the Clearing Agency.
SECTION 2.12. Definitive Notes. (a) If: (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 the Indenture Notes, and the Administrator is unable to locate a
qualified successor, (ii) the Administrator at its option advises the
Indenture Trustee in writing that it elects to terminate the book-entry
system through the Clearing Agency or (iii) after the occurrence of an
Event of Default or a Servicer Default, Note Owners representing beneficial
interests aggregating at least a majority of the Outstanding Amount of the
Indenture Notes advise the Clearing Agency in writing that the continuation
of a book-entry system through the Clearing Agency is no longer in the best
interests of the Note Owners, then the Clearing Agency has undertaken to
notify all Note Owners and the Indenture Trustee of the occurrence of any
such event and of the availability of Definitive Notes to Note Owners
requesting the same. Upon surrender to the Indenture Trustee of the
typewritten Indenture Notes representing the Book-Entry Notes by the
Clearing Agency, accompanied by registration instructions, the Issuer shall
execute, and the Indenture Trustee shall authenticate, the Definitive Notes
in accordance with the instructions of the Clearing Agency. None of the
Issuer, the Indenture Note Registrar or the Indenture Trustee shall be
liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Notes, the Indenture Trustee shall recognize the
Holders of the Definitive Notes as Indenture Noteholders.
(b) Notwithstanding anything herein to the contrary, the Class B
Notes shall be issued as Definitive Notes in accordance with the applicable
Class B Note Purchase Agreement.
ARTICLE III
Covenants
SECTION 3.1. Payment of Principal and Interest. The Issuer will duly
and punctually pay the principal and interest, if any, on the Indenture
Notes in accordance with the terms of the Indenture Notes and this
Indenture. Without limiting the foregoing, subject to Section 8.2(c), the
Issuer will cause to be distributed all amounts on deposit in the Note
Distribution Account on a Payment Date deposited therein for the benefit of
the Indenture Notes pursuant to the Sale and Servicing Agreement to Holders
of the Indenture Notes. Amounts properly withheld under the Code or any
applicable State law by any Person from a payment to any Indenture
Noteholder of interest and/or principal shall be considered as having been
paid by the Issuer to such Indenture Noteholder for all purposes of this
Indenture.
SECTION 3.2. Maintenance of Office or Agency. The Issuer will
maintain in the Borough of Manhattan, The City of New York, an office or
agency where Indenture Notes may be surrendered for registration of
transfer or exchange, and where notices and demands to or upon the Issuer
in respect of the Indenture 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 will give prompt written
notice to the Indenture Trustee of the location, and of any change in the
location, of any such office or agency. If at any time the Issuer shall
fail to maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders, notices and
demands may be made or served at the Corporate Trust Office, and the Issuer
hereby appoints the Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
SECTION 3.3. Money for Payments To Be Held in Trust. As provided in
Section 8.2(a) and (b), all payments of amounts due and payable with
respect to any Indenture Notes that are to be made from amounts withdrawn
from the Collection Account and the Note Distribution Account pursuant to
Section 8.2(c) shall be made on behalf of the Issuer by the Indenture
Trustee or by another Paying Agent, and no amounts so withdrawn from the
Collection Account and the Note Distribution Account for payments of
Indenture Notes shall be paid over to the Issuer except as provided in this
Section.
On or before each Payment Date and Redemption Date, the Issuer shall
deposit or cause to be deposited in the Note Distribution Account an
aggregate sum sufficient to pay the amounts then becoming due under the
Indenture Notes, such sum to be held in trust for the benefit of the
Persons entitled thereto and (unless the Paying Agent is the Indenture
Trustee) shall promptly notify the Indenture Trustee of its action or
failure so to act.
The Issuer will 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, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Indenture 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 Indenture Notes) of which it
has actual knowledge in the making of any payment required to be made
with respect to the Indenture 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
Indenture Notes if at any time it ceases to meet the standards
required to be met by a Paying Agent; and
(v) comply with all requirements of the Code and any applicable
State law with respect to the withholding from any payments made by
it on any Indenture Notes of any applicable withholding taxes imposed
thereon and with respect to any applicable reporting requirements in
connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order, direct any Paying Agent to pay to the Indenture Trustee 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.
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 Indenture Note and remaining
unclaimed for two years after such amount has become due and payable shall
be discharged from such trust and be paid to the Issuer on Issuer Request;
and the Holder of such Indenture Note shall thereafter, as an unsecured
general creditor, look only to the Issuer for payment thereof (but only to
the extent of the amounts so paid to the Issuer), and all liability of the
Indenture Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided, however, that the Indenture Trustee or
such Paying Agent, before being required to make any such repayment, shall
at the expense and direction of the Issuer cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the
Issuer. The Indenture Trustee shall also adopt and employ, at the expense
of the Issuer, any other reasonable means of notification of such repayment
(including mailing notice of such repayment to Holders whose Indenture
Notes have been called but have not been surrendered for redemption or
whose right to or interest in moneys due and payable but not claimed is
determinable from the records of the Indenture Trustee or of any Paying
Agent, at the last address of record for each such Holder).
SECTION 3.4. Existence. The Issuer will keep in full effect its
existence, rights and franchises as a business trust under the laws of the
jurisdiction of its organization and will obtain and preserve its
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Indenture Notes, the Collateral and
each other instrument or agreement included in the Trust Estate.
SECTION 3.5. Protection of the Collateral and the Trust Estate. The
Issuer will from time to time execute and deliver all such supplements and
amendments hereto and all such financing statements, continuation
statements, instruments of further assurance and other instruments, and
will take such other action necessary or advisable to:
(i) maintain or preserve the Lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Collateral and the Trust
Estate and (A) the rights of the Indenture Trustee and the Indenture
Noteholders in such Collateral and Trust Estate and (B) the rights of
the Collateral Agent and the Class B Noteholders in such Collateral
against the claims of all Persons.
The Issuer hereby designates the Indenture Trustee and Collateral Agent as
its agent and attorney-in-fact to execute any financing statement,
continuation statement, instrument of further assurance or other instrument
required to be executed to accomplish the foregoing.
SECTION 3.6. Opinions as to the Collateral and the Trust Estate. (a)
On the Closing Date, the Issuer shall furnish to the Indenture Trustee and
Collateral Agent 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 created by this
Indenture and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such Lien and
security interest effective.
(b) On or before April 30 in each calendar year, the Issuer shall
furnish to the Indenture Trustee an Opinion of Counsel either stating that,
in the opinion of such counsel, such action has been taken with respect to
the recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents, and with
respect to the execution and filing of any financing statements and
continuation statements, as is necessary to maintain the Lien 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
maintain such Lien and security interest. Such Opinion of Counsel shall
also describe the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite
documents, and the execution and filing of any financing statements and
continuation statements, that will, in the opinion of such counsel, be
required to maintain the Lien and security interest of this Indenture until
April 30 in the following calendar year.
SECTION 3.7. Performance of Obligations; Servicing of Receivables.
(a) The Issuer will not take any action and will use its best efforts not
to permit any action to be taken by others that would release any Person
from any material covenants or obligations under any instrument or
agreement included in the Collateral or 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 expressly provided in this Indenture,
the Sale and Servicing 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 in 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 will 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 Collateral and the
Trust Estate, including filing or causing to be filed all UCC financing
statements and continuation statements required to be filed by this
Indenture and the Sale and Servicing Agreement in accordance with and
within the time periods provided for herein and therein. Except as
otherwise expressly provided therein, the Issuer shall not waive, amend,
modify, supplement or terminate any Basic Document or any provision thereof
without the consent of the Indenture Trustee or the Holders of at least a
majority of the Outstanding Amount of the Indenture Notes.
(d) If the Issuer shall have knowledge of the occurrence of a
Servicer Default, the Issuer shall promptly notify the Indenture Trustee
and the Rating Agencies thereof, and shall specify in such notice the
action, if any, the Issuer is taking with respect to such default. If a
Servicer Default shall arise from the failure of the Servicer to perform
any of its duties or obligations under the Sale and Servicing Agreement
with respect to the Receivables, the Issuer shall take all reasonable steps
available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of
termination to the Servicer of the Servicer's rights and powers pursuant to
Section 8.1 of the Sale and Servicing Agreement, the Issuer shall appoint a
successor servicer (the "Successor Servicer"), and such Successor Servicer
shall accept its appointment by a written assumption in a form acceptable
to the Indenture Trustee. In the event that a Successor Servicer has not
been appointed and accepted its appointment at the time when the previous
Servicer ceases to act as Servicer, the Indenture Trustee without further
action shall automatically be appointed the Successor Servicer. The
Indenture Trustee may resign as the Servicer by giving written notice of
such resignation to the Issuer and in such event will be released from such
duties and obligations, such release not to be effective until the date a
Successor Servicer enters into a servicing agreement with the Issuer as
provided below. Upon delivery of any such notice to the Issuer, the Issuer
shall obtain a new servicer as the Successor Servicer under the Sale and
Servicing Agreement. Any Successor Servicer other than the Indenture
Trustee shall: (i) be an established financial institution having a net
worth of not less than $50,000,000 and whose regular business includes the
servicing of receivables and (ii) enter into a servicing agreement with the
Issuer having substantially the same provisions as the provisions of the
Sale and Servicing Agreement applicable to the Servicer. If within 30 days
after the delivery of the notice referred to above, the Issuer shall not
have obtained such a Successor Servicer, the Indenture Trustee may appoint,
or may petition a court of competent jurisdiction to appoint, a Successor
Servicer. In connection with any such appointment, the Indenture Trustee
may make such arrangements for the compensation of such Successor Servicer
as it and such Successor Servicer shall agree, subject to the limitations
set forth below and in the Sale and Servicing Agreement, and in accordance
with Section 8.2 of the Sale and Servicing Agreement, the Issuer shall
enter into an agreement with such Successor Servicer for the servicing of
the Receivables (such agreement to be in form and substance satisfactory to
the Indenture Trustee). If the Indenture Trustee shall succeed to the
previous Servicer's duties as servicer of the Receivables as provided
herein, it shall do so in its individual capacity and not in its capacity
as Indenture Trustee and, accordingly, the provisions of Article VI shall
be inapplicable to the Indenture Trustee in its duties as the Successor
Servicer and the servicing of the Receivables. In case the Indenture
Trustee shall become the Successor Servicer under the Sale and Servicing
Agreement, the Indenture Trustee shall be entitled to appoint as Servicer
any one of its Affiliates; provided, that it shall be fully liable for the
actions and omissions of such Affiliate in its capacity as Successor
Servicer.
(f) Upon any termination of the Servicer's rights and powers
pursuant to the Sale and Servicing Agreement, the Issuer shall promptly
notify the Indenture Trustee. As soon as a Successor Servicer is appointed,
the Issuer shall notify the Indenture Trustee of such appointment,
specifying in such notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment
Granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees that it will not, without
the prior written consent of the Indenture Trustee or the Holders of at
least a majority of the Outstanding Amount, amend, modify, waive,
supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms of
any Collateral (except to the extent otherwise provided in the Sale and
Servicing Agreement) or the Basic Documents, or waive timely performance or
observance by the Servicer or the Seller under the Sale and Servicing
Agreement or Credit under the Purchase Agreement; provided, however, that
no such amendment shall: (i) increase or reduce in any manner the amount
of, or accelerate or delay the timing of, distributions that are required
to be made for the benefit of the Indenture Noteholders, or (ii) reduce the
aforesaid percentage of the Indenture Notes that are required to consent to
any such amendment, in either case without the consent of the Holders of
all the Outstanding Indenture Notes. If any such amendment, modification,
supplement or waiver shall be so consented to by the Indenture Trustee or
such Holders, the Issuer agrees, promptly following a request by the
Indenture Trustee to do so, to execute and deliver, in its own name and at
its own expense, such agreements, instruments, consents and other documents
as the Indenture Trustee may deem necessary or appropriate in the
circumstances.
SECTION 3.8. Negative Covenants. So long as any Indenture Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture, the
Purchase Agreement or the Sale and Servicing Agreement, sell,
transfer, exchange or otherwise dispose of any of the properties or
assets of the Issuer, including those included in the Collateral and
the Trust Estate, unless directed to do so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Indenture 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 Indenture Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Collateral or the Trust
Estate; or
(iii)(A) permit the validity or effectiveness of this Indenture
to be impaired, or permit the Lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any
Person to be released from any covenants or obligations with respect
to the Indenture Notes under this Indenture except as may be
expressly permitted hereby, (B) permit any Lien (other than the Lien
of this Indenture) to be created on or extend to or otherwise arise
upon or burden the Collateral or the Trust Estate or any part thereof
or any interest therein or the proceeds thereof or (C) permit the
Lien of this Indenture not to constitute a valid first priority
(other than with respect to any tax lien, mechanics' lien or other
lien not considered a Lien) security interest in the Collateral or
the Trust Estate.
SECTION 3.9. Annual Statement as to Compliance. The Issuer will
deliver to the Indenture Trustee, within 120 days after the end of each
fiscal year of the Issuer (commencing with the fiscal year 1996), an
Officers' Certificate, substantially in the form of Exhibit B, stating
that:
(i) a review of the activities of the Issuer during such year
and of performance under this Indenture has been made under such
Authorized Officers' supervision; and
(ii) to the best of such Authorized Officers' knowledge, based
on such review, the Issuer has complied with all conditions and
covenants under this Indenture throughout such year or, if there has
been a default in the compliance of any such condition or covenant,
specifying each such default known to such Authorized Officers and
the nature and status thereof.
SECTION 3.10. Issuer May Consolidate, etc., Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing
under the laws of the United States of America or any State and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the due and punctual payment of the principal of
and interest on all Indenture Notes and the performance or observance
of every agreement and covenant of this Indenture on the part of the
Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to the Issuer, any Indenture Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the Lien and
security interest created by this Indenture shall have been taken;
and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that
such consolidation or merger and such supplemental indenture comply
with this Article III and that all conditions precedent herein
provided for relating to such transaction have been complied with
(including any filing required by the Exchange Act).
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Collateral or the Trust Estate, to
any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of
which is hereby restricted shall: (A) be a United States citizen or a
Person organized and existing under the laws of the United States of
America or any State, (B) expressly assumes, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee,
in form satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all Indenture Notes and
the performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed, all
as provided herein, (C) expressly agrees by means of such
supplemental indenture that all right, title and interest so conveyed
or transferred shall be subject and subordinate to the rights of
Holders of the Indenture Notes, (D) 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 Indenture
Notes and (E) expressly agrees by means of such supplemental
indenture that such Person (or if a group of Persons, then one
specified Person) shall make all filings with the Commission (and any
other appropriate Person) required by the Exchange Act in connection
with the Indenture Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to the Issuer, any Indenture Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the Lien and
security interest created by this Indenture shall have been taken;
and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that
such conveyance or transfer and such supplemental indenture comply
with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with (including
any filing required by the Exchange Act).
SECTION 3.11. Successor or Transferee. (a) Upon any consolidation or
merger of the Issuer in accordance with Section 3.10(a), the Person formed
by or surviving such consolidation or merger (if other than the Issuer)
shall succeed to, and be substituted for, and may exercise every right and
power of, the Issuer under this Indenture with the same effect as if such
Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties
of the Issuer pursuant to Section 3.10(b), the Issuer will be released from
every covenant and agreement of this Indenture to be observed or performed
on the part of the Issuer with respect to the Indenture Notes immediately
upon the delivery of written notice to the Indenture Trustee stating that
the Issuer is to be so released.
SECTION 3.12. No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing of
the Receivables in the manner contemplated by this Indenture and the Basic
Documents and activities incidental thereto.
SECTION 3.13. No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for
any indebtedness except for the Indenture Notes, the Initial Class B Notes
and Additional Class B Notes complying with the following sentence. The
Issuer shall not issue any Additional Class B Notes with an interest rate
exceeding the weighted average APR of all Receivables after giving effect
to all purchases of Subsequent Receivables on or prior to the date of
issuance of such Additional Class B Notes minus 1% unless the Rating Agency
Condition is satisfied as to any higher rate, nor will the Issuer increase
the interest rate on any outstanding Class B Notes to a rate exceeding the
weighted average APR of all Receivables after giving effect to all
purchases of Subsequent Receivables on or prior to the date of such
increase minus 1% unless the Rating Agency Condition is satisfied as to
such increase. Additional credit enhancement may be provided if necessary
to enable the Issuer to issue Additional Class B Notes (or increase the
interest rate on outstanding Class B Notes) bearing an interest rate in
excess of the rate that would otherwise be permitted by the preceding
sentence.
SECTION 3.14. Servicer's Obligations. The Issuer shall cause the
Servicer to comply with Sections 4.8, 4.9, 4.10, 4.11 and 5.9 of the Sale
and Servicing Agreement.
SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by the Sale and Servicing Agreement or this
Indenture, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
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 3.16. Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).
SECTION 3.17. Removal of Administrator. So long as any Indenture
Notes are Outstanding, the Issuer shall not remove the Administrator
without cause unless the Rating Agency Condition shall have been satisfied
in connection with such removal.
SECTION 3.18. Restricted Payments. The Issuer shall not, directly or
indirectly: (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a
combination thereof, to the Trustee or any owner of a beneficial interest
in the Issuer or otherwise with respect to any ownership or equity interest
or security in or of the Issuer or to the Servicer or the Administrator,
(ii) redeem, purchase, retire or otherwise acquire for value any such
ownership or equity interest or security or (iii) 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
Trustee, the Certificateholders and the Administrator as contemplated by,
and to the extent funds are available for such purpose under, the Sale and
Servicing Agreement. The Issuer will not, directly or indirectly, make
payments to or distributions from the Collection Account except in
accordance with this Indenture and the Basic Documents.
SECTION 3.19. Notice of Events of Default. The Issuer shall give the
Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder, each default on the part of the Servicer or the
Seller of its obligations under the Sale and Servicing Agreement and each
default on the part of Credit of its obligations under the Purchase
Agreement.
SECTION 3.20. Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Indenture Notes
except as to: (i) rights of registration of transfer and exchange, (ii)
substitution of mutilated, destroyed, lost or stolen Indenture Notes, (iii)
rights of Indenture Noteholders to receive payments of principal thereof
and interest thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8, 3.10, 3.12 and
3.13, (v) the rights, obligations and immunities of the Indenture Trustee
hereunder (including the rights of the Indenture Trustee under Section 6.7
and the obligations of the Indenture Trustee under Section 4.2) and (vi)
the rights of Indenture 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 Indenture Notes, when:
(A) either:
(1) all Indenture Notes theretofore authenticated and
delivered (other than: (i) Indenture Notes that have been
destroyed, lost or stolen and that have been replaced or paid as
provided in Section 2.5 and (ii) Indenture 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
(2) all Indenture Notes not theretofore delivered to the
Indenture Trustee for cancellation:
(i) have become due and payable,
(ii) will become due and payable on the Final
Scheduled Maturity Date within one year, or
(iii) 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 clause (2)(i), (ii) or (iii), has
irrevocably deposited or caused to be irrevocably deposited with
the Indenture Trustee cash or direct obligations of or
obligations guaranteed by the United States of America (which
will mature prior to the date such amounts are payable), in
trust for such purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such Indenture Notes not
theretofore delivered to the Indenture Trustee for cancellation
when due to the Final Scheduled Maturity Date or Redemption Date
(if Indenture Notes shall have been called for redemption
pursuant to Section 10.1(a)), as the case may be;
(B) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(C) the Issuer has delivered to the Indenture Trustee an
Officers' Certificate, an Opinion of Counsel and (if required by the
TIA or the Indenture Trustee) an Independent Certificate from a firm
of certified public accountants, each meeting the applicable
requirements of Section 11.1(a) and, subject to Section 11.2, each
stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been complied
with;
provided, that, if at any time when the conditions set forth above have
been satisfied the Class B Notes have not been repaid in full, then this
Indenture shall not be discharged but shall continue as a security
agreement for the benefit of the Class B Noteholders, and the Class B Agent
shall succeed to all of the rights of the Indenture Trustee relating to the
Collateral and remedies hereunder, for the benefit of the Class B
Noteholders.
SECTION 4.2. Application of Trust Money. All moneys 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 Indenture Notes and
this Indenture, to the payment, either directly or through any Paying
Agent, as the Indenture Trustee may determine, to the Holders of the
particular Indenture Notes for the payment or redemption of which such
moneys have been deposited with the Indenture Trustee, of all sums due and
to become due thereon for principal and interest; but such moneys need not
be segregated from other funds except to the extent required herein or in
the Sale and Servicing Agreement or as required by law.
SECTION 4.3. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the
Indenture Notes, all moneys then held by any Paying Agent other than the
Indenture Trustee under this Indenture with respect to such Indenture Notes
shall, upon demand of the Issuer, be paid to the Indenture Trustee to be
held and applied according to Section 3.3, and thereupon such Paying Agent
shall be released from all further liability with respect to such moneys.
ARTICLE V
Remedies
SECTION 5.1. Events of Default. "Event of Default", wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body):
(i) default in the payment of any interest on any Indenture Note
when the same becomes due and payable, and such default shall
continue for a period of five days;
(ii) default in the payment of the principal of any Indenture
Note when the same becomes due and payable;
(iii) default in the observance or performance of any covenant
or agreement of the Issuer made in this Indenture (other than a
covenant or agreement a default in the observance or performance of
which is elsewhere in this Section specifically dealt with), or any
representation or warranty of the Issuer made in this Indenture or in
any certificate or other writing delivered pursuant hereto or in
connection herewith proving to have been incorrect in any material
respect as of the time when the same shall have been made, and such
default shall continue or not be cured, or the circumstance or
condition in respect of which such misrepresentation or warranty was
incorrect shall not have been eliminated or otherwise cured, for a
period of 30 days after there shall have been given, by registered or
certified mail, to the Issuer by the Indenture Trustee or to the
Issuer and the Indenture Trustee by the Holders of at least 25% of
the Outstanding Amount of the Indenture Notes, a written notice
specifying such default or incorrect representation or warranty and
requiring it to be remedied and stating that such notice is a notice
of Default hereunder;
(iv) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer or any
substantial part of the Collateral or the Trust Estate in an
involuntary case under any applicable Federal or State bankruptcy,
insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial
part of the Collateral or the Trust Estate, or ordering the
winding-up or liquidation of the Issuer's affairs, and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(v) the commencement by the Issuer of a voluntary case under any
applicable Federal or State bankruptcy, insolvency or other similar
law now or hereafter in effect, or the consent by the Issuer to the
entry of an order for relief in an involuntary case under any such
law, 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 Collateral or the Trust Estate, or the making by the
Issuer of any general assignment for the benefit of creditors, or the
failure by the Issuer generally to pay its debts as such debts become
due, or the taking of action by the Issuer in furtherance of any of
the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five days
after the Issuer or the Administrator obtains actual knowledge thereof,
written notice in the form of an Officers' Certificate of any event that,
with the giving of notice or the lapse of time or both, would become an
Event of Default under clause (iii), its status and what action the Issuer
is taking or proposes to take with respect thereto.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment. If
an Event of Default should occur and be continuing, then and in every such
case the Indenture Trustee or the Holders of Indenture Notes representing
not less than a majority of the Outstanding Amount may declare all the
Indenture Notes to be immediately due and payable, by a notice in writing
to the Issuer (and to the Indenture Trustee if given by Indenture
Noteholders), and upon any such declaration the Outstanding Amount,
together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity has
been made and before a judgment or decree for payment of the money due has
been obtained by the Indenture Trustee as hereinafter in this Article V
provided, the Holders of Indenture Notes representing not less than a
majority of the Outstanding Amount, by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Issuer has paid or deposited with the Indenture Trustee
a sum sufficient to pay:
(A) all payments of principal of and interest on all
Indenture Notes and all other amounts that would then be due
hereunder or upon such Indenture Notes if the Event of Default
giving rise to such acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its
agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the
principal of the Indenture Notes that has become due solely by such
acceleration, have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. (a) The Issuer covenants that if an Event of Default
described in Section 5.1(i) or (ii) occurs, the Issuer will, upon demand of
the Indenture Trustee, pay to it, for the benefit of the Holders of
Indenture Notes, the whole amount then due and payable on such Indenture
Notes for principal and interest, with interest upon the overdue principal
at the applicable interest rate, and, to the extent payment at such rate of
interest shall be legally enforceable, upon overdue installments of
interest, at the applicable interest rate, and in addition thereto such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Indenture Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an
express trust, may institute a Proceeding for the collection of the sums so
due and unpaid, and may prosecute such Proceeding to judgment or final
decree, and may enforce the same against the Issuer or other obligor upon
such Indenture Notes and collect in the manner provided by law out of the
property of the Issuer or other obligor upon such Indenture Notes, wherever
situated, the moneys adjudged or decreed to be payable.
(c) In case 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
Indenture Noteholders, by such appropriate Proceedings as the Indenture
Trustee shall deem most effective to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any
other obligor upon the Indenture Notes or any Person having or claiming an
ownership interest in the Collateral or the Trust Estate, Proceedings under
Title 11 of the United States Code or any other applicable Federal or State
bankruptcy, insolvency or other similar law, or in case a receiver,
assignee, 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 Indenture Notes, or to the creditors or property of the
Issuer or such other obligor, the Indenture Trustee, irrespective of
whether the principal of any Indenture Notes shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of
whether the Indenture Trustee shall have made any demand pursuant to this
Section, shall be entitled and empowered, 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 Indenture
Notes and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Indenture Trustee
(including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence or bad faith) and of the Indenture Noteholders allowed in
such Proceedings;
(ii) unless prohibited by applicable law or regulations, to vote
on behalf of the Holders of the Indenture Notes in any election of a
trustee, a standby trustee or any Person performing similar functions
in any such Proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all
amounts received with respect to the claims of the Indenture
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 Indenture Notes allowed in any
judicial Proceedings relative to the Issuer, its creditors and its
property;
and any trustee, receiver, liquidator, assignee, custodian, sequestrator or
other similar official in any such Proceeding is hereby authorized by each
of such Indenture Noteholders to make payments to the Indenture Trustee,
and, in the event that the Indenture Trustee shall consent to the making of
payments directly to such Indenture Noteholders, to pay to the Indenture
Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee
and their respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Indenture Trustee
and each predecessor Indenture Trustee except as a result of negligence or
bad faith.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Indenture Noteholder any plan of reorganization,
arrangement, adjustment or composition affecting the Indenture Notes or the
rights of any Holder thereof or to authorize the Indenture Trustee to vote
in respect of the claim of any Indenture 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 Indenture Notes, may be enforced by the
Indenture Trustee without the possession of any of the Indenture Notes or
the production thereof in any trial or other Proceedings relative thereto,
and any such action or Proceedings instituted by the Indenture Trustee
shall be brought in its own name and as trustee of an express trust, and
any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for
the ratable benefit of the Holders of the Indenture Notes.
(g) In any Proceedings brought by the Indenture Trustee (and also
any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Holders of the Indenture Notes,
and it shall not be necessary to make any Indenture Noteholder a party to
any such Proceedings.
SECTION 5.4. Remedies; Priorities. (a) If an Event of Default shall
have occurred and be continuing, the Indenture Trustee may do one or more
of the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Indenture Notes or under this Indenture with respect thereto, whether
by declaration or otherwise, enforce any judgment obtained, and
collect from the Issuer and any other obligor upon such Indenture
Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Collateral
or the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC and
take any other appropriate action to protect and enforce the rights
and remedies of the Indenture Trustee and the Holders of the
Indenture Notes;
(iv) sell the Collateral or 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;
and
(v) make demand upon the Servicer, by written notice, that the
Servicer deliver to the Indenture Trustee all Receivable Files;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Collateral or the Trust Estate following an Event of Default,
other than an Event of Default described in Section 5.1(i) or (ii), unless:
(A) all the Indenture Noteholders and the Class B Noteholders consent
thereto, (B) the proceeds of such sale or liquidation distributable to the
Indenture Noteholders and the Class B Noteholders are sufficient to
discharge in full all amounts then due and unpaid upon such Indenture Notes
and the Class B Notes for principal and interest or (C) the Indenture
Trustee determines that the Collateral and the Trust Estate will not
continue to provide sufficient funds for the payment of principal of and
interest on the Indenture Notes and the Class B Notes as they would have
become due if the Indenture Notes and the Class B Notes had not been
declared due and payable, and the Indenture Trustee obtains the consent of
Holders of 66-2/3% of the Outstanding Amount. 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
Collateral and the Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant
to this Article V, it shall pay out such money or property in the following
order:
FIRST: to the Indenture Trustee for amounts due under Section
6.7;
SECOND: to Indenture Noteholders for amounts due and unpaid on
the Indenture Notes for interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Indenture Notes for interest;
THIRD: to Holders of the Indenture Notes for amounts due and
unpaid on the Indenture Notes for principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Indenture Notes for principal;
FOURTH: to Class B Noteholders for amounts due and unpaid on the
Class B Notes for interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Class B
Notes for interest;
FIFTH: to Holders of the Class B Notes for amounts due and
unpaid on the Class B Notes for principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class B Notes for principal; and
SIXTH: to the Issuer for distribution to the Certificateholders.
The Indenture Trustee may fix a special record date and special
payment date for any payment to Indenture Noteholders pursuant to this
Section. At least 15 days before such special record date, the Issuer shall
mail to each Indenture Noteholder and the Indenture Trustee a notice that
states the special record date, the special payment date and the amount to
be paid.
SECTION 5.5. Optional Preservation of the Receivables. If the
Indenture Notes have been declared to be due and payable under Section 5.2
following an Event of Default, and such declaration and its consequences
have not been rescinded and annulled, the Indenture Trustee may, but need
not, elect to maintain possession of the Collateral and the Trust Estate.
It is the desire of the parties hereto and the Indenture Noteholders that
there be at all times sufficient funds for the payment of principal of and
interest on the Indenture Notes, and the Indenture Trustee shall take such
desire into account when determining whether or not to maintain possession
of the Collateral and the Trust Estate. In determining whether to maintain
possession of the Collateral and 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
Collateral and the Trust Estate for such purpose.
SECTION 5.6. Limitation of Suits. No Holder of any Indenture 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:
(i) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Holder(s) of not less than 25% of the Outstanding
Amount of the Indenture 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;
(iii) such Holder(s) have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceeding; and
(v) 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 Indenture
Notes;
it being understood and intended that no one or more Holder(s) of Indenture
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 Holder(s) of Indenture Notes or to obtain
or to seek to obtain priority or preference over any other Holder(s) or to
enforce any right under this Indenture, except in the manner herein
provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Indenture
Noteholders, each representing less than a majority of the Outstanding
Amount of the Indenture 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 Indenture Noteholders To
Receive Principal and Interest. Notwithstanding any other provisions in
this Indenture, the Holder of any Indenture Note shall have the right,
which is absolute and unconditional, to receive payment of the principal of
and interest, if any, on such Indenture Note on or after the respective due
dates thereof expressed in such Indenture Note or in this Indenture (or, in
the case of redemption, on or after the Redemption Date) and to institute
suit for the enforcement of any such payment, and such right shall not be
impaired without the consent of such Holder.
SECTION 5.8. Restoration of Rights and Remedies. If the Indenture
Trustee or any Indenture 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 Indenture Noteholder, then
and in every such case the Issuer, the Indenture Trustee and the Indenture
Noteholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder,
and thereafter all rights and remedies of the Indenture Trustee and the
Indenture 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
Indenture 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 Indenture Notes to exercise any
right or remedy accruing upon any Default or Event of Default shall impair
any such right or remedy or constitute a waiver of any such Default or
Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Indenture Trustee or to the Indenture
Noteholders may be exercised from time to time, and as often as may be
deemed expedient, by the Indenture Trustee or by the Indenture Noteholders,
as the case may be.
SECTION 5.11. Control by Indenture Noteholders. The Holders of not
less than a majority of the Outstanding Amount of the Indenture Notes shall
have the right to direct the time, method and place of conducting any
Proceeding for any remedy available to the Indenture Trustee with respect
to the Indenture Notes or exercising any trust or power conferred on the
Indenture Trustee; provided, that:
(i) such direction shall not be in conflict with any rule of law
or with this Indenture;
(ii) subject to the express terms of Section 5.4, any direction
to the Indenture Trustee to sell or liquidate the Collateral and the
Trust Estate shall be by all the Indenture Noteholders and all the
Class B Noteholders;
(iii) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Collateral
and the Trust Estate pursuant to such Section, then any direction to
the Indenture Trustee by Holders of Indenture Notes representing less
than 100% of the Outstanding Amount of the Indenture Notes to sell or
liquidate the Collateral and the Trust Estate shall be of no force
and effect; and
(iv) 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 involve it in liability or
might materially adversely affect the rights of any Indenture Noteholder(s)
not consenting to such action.
SECTION 5.12. Waiver of Past Defaults. Prior to the time a judgment
or decree for payment of money due has been obtained as described in
Section 5.3, the Holders of Indenture Notes of not less than a majority of
the Outstanding Amount of the Indenture Notes may waive any past Default or
Event of Default and its consequences except a Default: (a) in payment of
principal of or interest on any of the Indenture Notes or (b) in respect of
a covenant or provision hereof that cannot be modified or amended without
the consent of the Holder of each Indenture Note. In the case of any such
waiver, the Issuer, the Indenture Trustee and the Holders of the Indenture
Notes shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereto.
SECTION 5.13. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Indenture Note by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Indenture Trustee for any
action taken, suffered or omitted by it as Indenture Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorney's fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section
shall not apply to: (a) any suit instituted by the Indenture Trustee, (b)
any suit instituted by any Indenture Noteholder(s) holding in the aggregate
more than 10% of the Outstanding Amount of the Indenture Notes or (c) any
suit instituted by any Indenture Noteholder for the enforcement of the
payment of principal of or interest on any Indenture Note on or after the
respective due dates expressed in such Indenture 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 will not at any time
insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Indenture Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 5.15. Action on Indenture Notes. The Indenture Trustee's
right to seek and recover judgment on the Indenture 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 Indenture Noteholders shall be impaired by the recovery of any judgment
by the Indenture Trustee against the Issuer or by the levy of any execution
under such judgment upon any portion of the Collateral and 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).
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 shall 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, as applicable, of each of
their obligations to the Issuer under or in connection with the Sale and
Servicing Agreement or to the Seller under or in connection with the
Purchase Agreement in accordance with the terms thereof, and to exercise
any and all rights, remedies, powers and privileges lawfully available to
the Issuer under or in connection with the Sale and Servicing Agreement (or
the Seller under or in connection with the Purchase 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 Sale and Servicing
Agreement or the Purchase 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) of the Holders of not less than 66-2/3% of the Outstanding Amount
of the Indenture 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 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 Sale and Servicing Agreement, and
any right of the Issuer to take such action shall be suspended.
(c) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing) of the Holders of not less than 66-2/3% of the Outstanding Amount
of the Indenture Notes shall, exercise all rights, remedies, powers,
privileges and claims of the Seller against Credit under or in connection
with the Purchase Agreement, including the right or power to take any
action to compel or secure performance or observance by Credit of each of
its obligations to the Seller thereunder and to give any consent, request,
notice, direction, approval, extension or waiver under the Purchase
Agreement, and any right of the Seller to take such action shall be
suspended.
ARTICLE VI
The Indenture Trustee
SECTION 6.1. Duties of the Indenture Trustee. (a) If an Event of
Default has occurred and is continuing, the Indenture Trustee shall
exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default actually
known to a Responsible Officer:
(i) the Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture
against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; provided, however, in the case of any
such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the
Indenture Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) 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 clause (c) does not limit the effect of clause (b) of
this Section;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Indenture Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to the Indenture;
(iv) the Indenture Trustee shall not be charged with knowledge
of an Event of Default or Servicer Default unless a Responsible
Officer obtains actual knowledge of such event or the Indenture
Trustee receives written notice of such event from the Seller,
Servicer or Note Owners owning Indenture Notes aggregating not less
than 10% of the Outstanding Amount of the Indenture Notes; and
(v) the Indenture Trustee shall have no duty to monitor the
performance of the Issuer, the Trustee, the Seller or the Servicer,
nor shall it have any liability in connection with malfeasance or
nonfeasance by the Issuer, the Trustee, the Seller or the Servicer.
The Indenture Trustee shall have no liability in connection with
compliance of the Issuer, the Trustee, the Seller or the Servicer
with statutory or regulatory requirements related to the Receivables.
The Indenture Trustee shall not make or be deemed to have made any
representations or warranties with respect to the Receivables or the
validity or sufficiency of any assignment of the Receivables to the
Trust Estate or the Indenture Trustee.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to clauses (a), (b), (c) and (g).
(e) 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.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law, this
Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it shall have reasonable grounds
to believe that repayments of such funds or adequate indemnity satisfactory
to it against any loss, liability or expense is not reasonably assured to
it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to this Section and the TIA.
SECTION 6.2. Rights of Indenture Trustee. (a) The Indenture Trustee
may conclusively rely and shall be fully protected in acting 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 any such document.
(b) Before the Indenture Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel. The
Indenture Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on the Officers' 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, attorneys, a custodian or a 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.
(d) The Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith that 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.
(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 Indenture 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.
(f) The Indenture Trustee shall not be required to make any initial
or periodic examination of any files or records related to the Receivables
for the purpose of establishing the presence or absence of defects, the
compliance by the Issuer with its representations and warranties or for any
other purpose.
(g) In the event that the Indenture Trustee is also acting as Paying
Agent or Indenture Note Registrar hereunder, the rights and protections
afforded to the Indenture Trustee pursuant to this Article VI shall also be
afforded to the Indenture Trustee in its capacity as such Paying Agent or
Indenture Note Registrar.
SECTION 6.3. Individual Rights of the Indenture Trustee. The
Indenture Trustee shall not, in its individual capacity, but may in a
fiduciary capacity, become the owner of Indenture Notes or otherwise extend
credit to the Issuer. The Indenture Trustee may otherwise deal with the
Issuer or its Affiliates with the same rights it would have if it were not
the Indenture Trustee. Any Paying Agent, Indenture Note Registrar,
co-registrar or co-paying agent may do the same with like rights. However,
the Indenture Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4. 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 Indenture Notes; shall not
be accountable for the Issuer's use of the proceeds from the Indenture
Notes; and shall not be responsible for any statement of the Issuer in this
Indenture or in any document issued in connection with the sale of the
Indenture Notes or in the Indenture Notes other than the Indenture
Trustee's certificate of authentication.
SECTION 6.5. Notice of Defaults. If a Default occurs and is
continuing and is known to a Responsible Officer, the Indenture Trustee
shall mail to each Indenture 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 Indenture Note (including payments pursuant
to the mandatory redemption provisions of such Indenture 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 Indenture Noteholders.
SECTION 6.6. Reports by Indenture Trustee to the Holders. The
Indenture Trustee shall deliver to each Indenture Noteholder such
information as may be required to enable such Holder to prepare its
Federal, State and other income tax returns. Within 60 days after each
December 31, the Indenture Trustee shall mail to each Indenture Noteholder
a brief report as of such December 31 that complies with TIA 313(a) (if
required by said section).
SECTION 6.7. Compensation and Indemnity. The Issuer shall, or shall
cause the Servicer to, pay to the Indenture Trustee from time to time
reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee
of an express trust. The Issuer shall, or shall cause the Servicer to,
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture
Trustee's agents, counsel, accountants and experts. The Issuer shall or
shall cause the Servicer to indemnify the Indenture Trustee and its
officers, directors, employees and agents against any and all loss,
liability or expense (including attorneys' fees) incurred by them in
connection with the administration of this trust and the performance of its
duties hereunder. The Indenture Trustee shall notify the Issuer and the
Servicer promptly of any claim for which it may seek indemnity. Failure by
the Indenture Trustee to so notify the Issuer and the Servicer shall not
relieve the Issuer or the Servicer of its obligations hereunder. The Issuer
shall, or shall cause the Servicer to, defend the claim and the Indenture
Trustee may have separate counsel and the Issuer shall, or shall cause the
Servicer to, pay the fees and expenses of such counsel. Neither the Issuer
nor the Servicer need reimburse any expense or indemnify against any loss,
liability or expense incurred by the Indenture Trustee through the
Indenture Trustee's own willful misconduct, negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of a Default
specified in Section 5.1(iv) or (v), the expenses are intended to
constitute expenses of administration under Title 11 of the United States
Code or any other applicable Federal or State bankruptcy, insolvency or
similar law.
SECTION 6.8. Replacement of the Indenture Trustee. No resignation or
removal of the Indenture Trustee and no appointment of a successor
Indenture Trustee shall become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section
6.8. The Indenture Trustee may resign at any time by so notifying the
Issuer in writing. The Holders of not less than a majority of the
Outstanding Amount of the Indenture Notes may remove the Indenture Trustee
by so notifying the Indenture Trustee in writing and may appoint a
successor Indenture Trustee. The Issuer shall remove the Indenture Trustee
if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of Indenture Trustee for any reason (the Indenture Trustee in
such event being referred to herein as the retiring Indenture Trustee), the
Issuer shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee and to the Issuer.
Thereupon the resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee shall have all
the rights, powers and duties of the Indenture Trustee under this
Indenture. The successor Indenture Trustee shall mail a notice of its
succession to Indenture Noteholders. The retiring Indenture Trustee shall
promptly transfer all property held by it as Indenture Trustee to the
successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Holders of not less than a majority of
the Outstanding Amount of the Indenture Notes may petition any court of
competent jurisdiction for the appointment of a successor Indenture
Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any
Indenture Noteholder may petition any court of competent jurisdiction for
the removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's and the Administrator's obligations under
Section 6.7 shall continue for the benefit of the retiring Indenture
Trustee. The retiring Indenture Trustee shall have no liability for any act
or omission by any successor Trustee.
SECTION 6.9. Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture
Trustee. The Indenture Trustee shall provide the Rating Agencies and the
Issuer prior written notice of any such transaction; provided, that such
corporation or banking association shall be otherwise qualified and
eligible under Section 6.11.
In case at the time such successor(s) by merger, conversion or
consolidation to the Indenture Trustee shall succeed to the trusts created
by this Indenture any of the Indenture 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 Indenture Notes so authenticated; and in case at that time any of the
Indenture Notes shall not have been authenticated, any successor to the
Indenture Trustee may authenticate such Indenture Notes either in the name
of any predecessor trustee hereunder or in the name of the successor to the
Indenture Trustee; and in all such cases such certificates of
authentication shall have the full force and effect to the same extent
given to the certificate of authentication of the Indenture Trustee
anywhere in the Indenture Notes or in this Indenture.
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Indenture, at any time, for
the purpose of meeting any legal requirement of any jurisdiction in which
any part of the Trust Estate may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Person(s) to act as co-trustee(s), or separate
trustee(s), of all or any part of the Trust Estate, and to vest in such
Person(s), in such capacity and for the benefit of the Indenture
Noteholders, such title to the Trust Estate, or any part thereof, and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall
be required to meet the terms of eligibility as a successor trustee under
Section 6.11 and no notice to Indenture Noteholders of the appointment of
any co-trustee or separate trustee shall be required under Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that
under any law of any jurisdiction in which any particular act(s) are
to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act(s), in which event such rights,
powers, duties and obligations (including the holding of title to the
Trust Estate or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove, in its sole discretion, any separate
trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article VI. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Indenture Trustee or separately, as
may be provided therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the
conduct of, affecting the liability of, or affording protection to, the
Indenture Trustee. Every such instrument shall be filed with the Indenture
Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
the Indenture Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Indenture Trustee, to the
extent permitted by law, without the appointment of a new or successor
trustee.
(e) The Indenture Trustee shall have no obligation to determine
whether a co-trustee or separate trustee is legally required in any
jurisdiction in which any part of the Trust Estate may be located.
SECTION 6.11. Eligibility; Disqualification. The Indenture Trustee
shall at all times satisfy the requirements of TIA 310(a) and Section
26(a)(1) of the Investment Company Act of 1940, as amended. The Indenture
Trustee shall have a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition and it
shall have a long term senior, unsecured debt rating of "Baa3" or better by
Moody's (or, if not rated by Moody's, a comparable rating by another
statistical rating agency). The Indenture Trustee shall comply with TIA
310(b), including the optional provision permitted by the second sentence
of TIA 310(b)(9); provided, however, that there shall be excluded from
the operation of TIA 310(b)(1) any indenture(s) under which other
securities of the Issuer are outstanding if the requirements for such
exclusion set forth in TIA 310(b)(1) are met.
SECTION 6.12. Preferential Collection of Claims Against the Issuer.
The Indenture Trustee shall comply with TIA 311(a), excluding any
creditor relationship listed in TIA 311(b). An Indenture Trustee who has
resigned or been removed shall be subject to TIA 311(a) to the extent
indicated.
ARTICLE VII
Indenture Noteholders' Lists and Reports
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and Addresses
of Indenture Noteholders. The Issuer will furnish or cause to be furnished
to the Indenture Trustee: (a) not more than five days after the earlier of:
(i) each Record Date and (ii) three months after the last Record Date, a
list, in such form as the Indenture Trustee may reasonably require, of the
names and addresses of the Holders of Indenture Notes as of such Record
Date, and (b) at such other times as the Indenture Trustee may request in
writing, within 30 days after receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than 10 days prior
to the time such list is furnished; provided, however, that so long as the
Indenture Trustee is the Indenture Note Registrar, no such list shall be
required to be furnished.
SECTION 7.2. Preservation of Information; Communications to
Indenture Noteholders. (a) The Indenture Trustee shall preserve, in as
current a form as is reasonably practicable, the names and addresses of the
Holders of Indenture 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 Indenture Notes received by the Indenture Trustee
in its capacity as Indenture Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in Section 7.1 upon receipt of
a new list so furnished.
(b) Three or more Indenture Noteholders, or one or more Holder(s) of
Indenture Notes evidencing at least 25% of the Outstanding Amount of the
Indenture Notes, may communicate pursuant to TIA 312(b) with other
Indenture Noteholders with respect to their rights under this Indenture or
under the Indenture Notes.
(c) The Issuer, the Indenture Trustee and the Indenture Note
Registrar shall have the protection of TIA 312(c).
SECTION 7.3. Reports by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
that the Issuer may be required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this
Indenture (with a copy of any such filings being delivered promptly
to the Indenture Trustee); and
(iii) supply to the Indenture Trustee (and the Indenture Trustee
shall transmit by mail to all Indenture Noteholders described in TIA
313(c)) such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to clauses (i) and (ii)
as may be required by the rules and regulations prescribed from time
to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1. Collection of 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. 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
Collateral and the Trust Estate, the Indenture Trustee may take such action
as may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action
shall be without prejudice to any right to claim a Default or Event of
Default under this Indenture and any right to proceed thereafter as
provided in Article V.
SECTION 8.2. Trust Accounts. (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 Indenture Noteholders and
the Certificateholders, the Trust Accounts as provided in Section 5.1 of
the Sale and Servicing Agreement.
(b) On or before each Payment Date, the Total Distribution Amount
with respect to the preceding Collection Period will be deposited in the
Collection Account as provided in Section 5.2 of the Sale and Servicing
Agreement. On or before each Payment Date, the Indenture Noteholders'
Distributable Amount with respect to the preceding Collection Period will
be transferred to the Note Distribution Account as provided in Sections 5.5
and 5.6 of the Sale and Servicing Agreement.
(c) On each Payment Date and Redemption Date, the Indenture Trustee
shall distribute all amounts on deposit in the Note Distribution Account to
Indenture Noteholders to the extent of amounts due and unpaid on the
Indenture Notes for principal and interest in the following amounts and in
the following order of priority (except as otherwise provided in Section
5.4(b)):
(i) accrued and unpaid interest on the A-1 Notes, the A-2 Notes
and the A-3 Notes; provided, that if there are not sufficient funds
in the Note Distribution Account to pay the entire amount of accrued
and unpaid interest then due on such Indenture Notes, the amount in
the Note Distribution Account shall be applied to the payment of such
interest on such Indenture Notes pro rata on the basis of the total
such interest due on such Indenture Notes;
(ii) only to the extent of funds withdrawn from the Pre-Funding
Account and deposited in the Note Distribution Account by the
Indenture Trustee pursuant to Section 5.7(b) of the Sale and
Servicing Agreement: (A) first, to the Holders of A-1 Notes, (B)
second, to the Holders of A-2 Notes, (C) third, 96% of the remainder
to the Holders of A-3 Notes and Class B Notes pro rata on the basis
of the respective initial principal amounts of each such Note and (D)
fourth, 4% of such remainder to the Holders of the Certificates;
provided, however, that if the balance on deposit in the Spread
Account is less than the Spread Account Floor, then all distributions
shall be made to the Holders of Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes, Class B Notes and Certificates in such order;
(iii) only to the extent of funds deposited in the Note
Distribution Account by the Seller pursuant to Section 2.2(c) and the
last sentence of Section 5.7(b) of the Sale and Servicing Agreement,
to the Holders of each X-0 Xxxx, X-0 Note and A-3 Note, an amount
equal to the Indenture Noteholders' Prepayment Premium with respect
to that Class (and if the amount so deposited is insufficient, pro
rata in accordance with the Indenture Noteholders' Prepayment Premium
owed to each Indenture Noteholder);
(iv) to the Holders of A-1 Notes until the Outstanding Amount of
the A-1 Notes is reduced to zero;
(v) to the Holders of A-2 Notes until the Outstanding Amount of
the A-2 Notes is reduced to zero;
(vi) to the Holders of A-3 Notes until the amount so distributed
equals the A-3 Noteholders' Principal Distributable Amount;
(vii) accrued and unpaid interest on the Class B Notes;
(viii) to the Holders of Class B Notes until the amount so
distributed equals the Class B Noteholders' Principal Distributable
Amount;
(ix) thereafter, any excess shall be deposited to the
Certificate Distribution Account.
SECTION 8.3. General Provisions Regarding Accounts. (a) So long as
no Default or Event of Default shall have occurred and be continuing, all
or a portion of the funds in the Trust Accounts shall be invested in
Eligible Investments and reinvested by the Indenture Trustee upon Issuer
Order, subject to the provisions of Section 5.1(b) of the Sale and
Servicing Agreement. All income or other gain from investments of moneys
deposited in the Trust Accounts shall be deposited by the Indenture Trustee
in the Collection Account, and any loss or expenses resulting from such
investments shall be charged to such account. The Issuer will not direct
the Indenture Trustee to make any investment of any funds or to sell any
investment held in any of the Trust Accounts unless the security interest
granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the
Indenture Trustee to make any such investment or sale, if requested by the
Indenture Trustee, the Issuer shall deliver to the Indenture Trustee an
Opinion of Counsel to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in
any way be held liable for the selection of Eligible Investments or by
reason of any insufficiency in any of the Trust 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.
(c) If: (i) the Issuer shall have failed to give investment
directions for any funds on deposit in the Trust Accounts to the Indenture
Trustee by 11:00 a.m. (New York City time) (or such other time as may be
agreed by the Issuer and the Indenture Trustee) on any Business Day; or
(ii) a Default or Event of Default shall have occurred and be continuing
with respect to the Indenture Notes but the Indenture Notes shall not have
been declared due and payable pursuant to Section 5.2, or, if such
Indenture Notes shall have been declared due and payable following an Event
of Default, amounts collected or receivable from the Trust Estate are being
applied in accordance with Section 5.4(b) 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 Trust Accounts in the
Eligible Investments identified in clause (d) of the definition of Eligible
Investments.
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 this Indenture shall, execute instruments to release
property from the Lien of this Indenture, or convey the Indenture Trustee's
interest in the same, in a manner and under circumstances that are not
inconsistent with this Indenture. No party relying upon an instrument
executed by the Indenture Trustee as provided in this Article shall be
bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
moneys.
(b) The Indenture Trustee shall, at such time as there are no
Indenture Notes Outstanding and all sums due to the Indenture Trustee
pursuant to Section 6.7 have been paid, release any remaining portion of
the Trust Estate that secured the Indenture 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 Trust Accounts. The Indenture Trustee
shall release property from the Lien of this Indenture pursuant to this
paragraph only upon receipt of an Issuer Request accompanied by an
Officers' Certificate, an Opinion of Counsel and (if required by the TIA)
Independent Certificates in accordance with TIA 314(c) and 314(d)(1)
meeting the applicable requirements of Section 11.1.
(c) Notwithstanding the foregoing or any other provision of this
Indenture, the Indenture Trustee shall not release the Trust Estate in
whole or in part from the Lien of this Indenture unless either (i) the
Class B Notes have been repaid in full or (ii) the Class B Agent has
consented to such release.
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 stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding
that all conditions precedent to the taking of such action have been
complied with and such action will not materially and adversely impair the
security for the Indenture Notes or the rights of the Indenture Noteholders
in contravention of this Indenture; provided, however, that such Opinion of
Counsel shall not be required to express an opinion as to the fair value of
the Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate
or other instrument delivered to the Indenture Trustee in connection with
any such action.
ARTICLE IX
Supplemental Indentures
SECTION 9.1. Supplemental Indentures Without Consent of Indenture
Noteholders. (a) Without the consent of the Holders of Indenture Notes but
with prior written notice to the Rating Agencies, the Issuer and the
Indenture Trustee, when authorized by an Issuer Order, at any time and from
time to time, may enter into one or more indentures supplemental hereto
(which shall conform to the Trust Indenture Act as in force at the date of
the execution thereof), in form satisfactory to the Indenture Trustee, for
any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the Lien of this Indenture, or to subject
to the Lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another Person to the Issuer, and
the assumption by any such successor of the covenants of the Issuer
herein and in the Indenture Notes;
(iii) to add to the covenants of the Issuer, for the benefit of
the Holders of Indenture Notes, or to surrender any right or power
herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to replace the Spread Account with another form of credit
enhancement; provided, the Rating Agency Condition is satisfied;
(vi) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; provided, that such action shall not materially adversely
affect the interests of the Holders of Indenture Notes;
(vii) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the
Indenture Notes 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; or
(viii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
Federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA.
The Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an
Issuer Order, may, without the consent of the any of the Holders of
Indenture Notes but with prior written notice to the Rating Agencies, enter
into an indenture or indentures supplemental hereto to cure any ambiguity,
to correct or supplement any provisions in this Indenture or for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Indenture Notes 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
Indenture Noteholder.
SECTION 9.2. Supplemental Indentures With Consent of Indenture
Noteholders. The Issuer and the Indenture Trustee, when authorized by an
Issuer Order, may, with prior written notice to the Rating Agencies and
with the consent of the Holders of Indenture Notes evidencing not less than
a majority of the Outstanding Amount of the Indenture Notes, by Act of such
Holders delivered to the Issuer and the Indenture Trustee, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of
the Holders of Indenture Notes under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Indenture Note affected thereby:
(i) change the date of payment of any installment of principal
of or interest on any Indenture Note, or reduce the principal amount
thereof, the interest rate thereon or the Redemption Price with
respect thereto, change the provisions of this Indenture relating to
the application of collections on, or the proceeds of the sale of,
the Trust Estate to the payment of principal of or interest on the
Indenture Notes, or change any place of payment where, or the coin or
currency in which, any Indenture Note or the interest thereon is
payable, or impair the right to institute suit for the enforcement of
the provisions of this Indenture requiring the application of funds
available therefor, as provided in Article V, to the payment of any
such amount due on or after the respective due dates thereof (or, in
the case of redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount, 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 provided for in
this Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of "Outstanding";
(iv) reduce the percentage of the Outstanding Amount required to
direct the Indenture Trustee to direct the Issuer to sell or
liquidate the Trust Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture or the Basic Documents cannot be
modified or waived without the consent of the Holder of each
Outstanding Indenture Note affected thereby;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Indenture Note on any Payment Date
(including the calculation of any of the individual components of
such calculation) or to affect the rights of the Holders of Indenture
Notes to the benefit of any provisions for the mandatory redemption
of the Indenture Notes contained herein; or
(vii) permit the creation of any Lien ranking prior to or on a
parity with the Lien of this Indenture with respect to any part of
the Trust Estate or, except as otherwise permitted or contemplated
herein, terminate the Lien of this Indenture on any property at any
time subject hereto or deprive any Holder of Indenture Notes of the
security provided by the Lien of this Indenture.
It shall not be necessary for any Act of the Indenture Noteholders
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof. The manner of obtaining such consents (and
any other consents of Indenture Noteholders provided for in this Indenture
or in any other Basic Document) and of evidencing the authorization of the
execution thereof by Indenture Noteholders shall be subject to such
reasonable requirements as the Indenture Trustee may provide.
Promptly after the execution by the Issuer and the Indenture Trustee
of any supplemental indenture pursuant to this Section, the Indenture
Trustee shall mail to the Holders of the Indenture Notes to which such
amendment or supplemental indenture relates a notice setting forth in
general terms the substance of such supplemental indenture. Any failure of
the Indenture Trustee to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 9.3. Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts
created by this Indenture, the Indenture Trustee shall be entitled to
receive, and, subject to Sections 6.1 and 6.2, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Indenture Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Indenture Trustee's own rights,
duties, liabilities or immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to the Indenture Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities
and immunities under this Indenture of the Indenture Trustee, the Issuer
and the Holders of the Indenture Notes shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be 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 Trust Indenture Act as
then in effect so long as this Indenture shall then be qualified under the
Trust Indenture Act.
SECTION 9.6. Reference in Indenture Notes to Supplemental
Indentures. Indenture Notes authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and if required
by the Indenture Trustee shall, bear a notation in form approved by the
Indenture Trustee as to any matter provided for in such supplemental
indenture. If the Issuer or the Indenture Trustee shall so determine, new
Indenture 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 Indenture Notes.
ARTICLE X
Redemption of Indenture Notes
SECTION 10.1. Redemption. (a) The A-3 Notes are subject to
redemption in whole, but not in part, at the direction of the Servicer
pursuant to Section 9.1(a) of the Sale and Servicing Agreement, on any
Payment Date on which the Servicer exercises its option to purchase the
Trust Estate pursuant to said Section 9.1(a), for a purchase price equal to
the Redemption Price; provided, however, that the Issuer has available
funds sufficient to pay the Redemption Price. The Servicer or the Issuer
shall furnish the Rating Agencies notice of such redemption. If such
Indenture Notes are to be redeemed pursuant to this Section 10.1(a), the
Servicer or the Issuer shall furnish notice of such election to the
Indenture Trustee not later than 25 days prior to the Redemption Date and
the Issuer shall deposit with the Indenture Trustee in the Note
Distribution Account the Redemption Price of the Indenture Notes to be
redeemed.
(b) In the event that the assets of the Trust are sold pursuant to
Section 9.2 of the Trust Agreement, all amounts on deposit in the Note
Distribution Account shall be paid to the Indenture Noteholders up to the
Outstanding Amount and all accrued and unpaid interest thereon. If amounts
are to be paid to Indenture Noteholders pursuant to this Section 10.1(b),
the Servicer or the Issuer shall, to the extent practicable, furnish notice
of such event to the Indenture Trustee not later than 25 days prior to the
Redemption Date whereupon all such amounts shall be payable on the
Redemption Date.
(c) If the Pre-Funded Amount has not been reduced to zero on the
Payment Date on which the Funding Period ends (or, if the Funding Period
does not end on a Payment Date, on the first Payment Date following the end
of the Funding Period), after giving effect to any reductions in the
Pre-Funded Amount on such Payment Date or Determination Date pursuant to
Section 5.7(a) of the Sale and Servicing Agreement, the Indenture Notes
will be redeemed in part as described in Section 8.2(c)(ii) in a principal
amount described therein.
If the aggregate principal amount of Indenture Notes, if any, to be
redeemed pursuant to this clause exceeds $100,000, the Indenture Trustee
shall distribute to the Indenture Noteholders of each Class the Indenture
Noteholders' Prepayment Premium for that Class; provided, however, that,
notwithstanding anything to the contrary contained in Section 8.2(c)(iii)
or elsewhere in this Indenture or the Indenture Notes, the Issuer's
obligation to pay the Indenture Noteholders' Prepayment Premium shall be
limited solely to funds that are deposited by the Seller in the Note
Distribution Account pursuant to Section 2.2(c) and the last sentence of
Section 5.7(b) of the Sale and Servicing Agreement as liquidated damages
for the failure of the Seller to deliver Subsequent Receivables, and no
other assets of the Issuer will be available to pay the Indenture
Noteholders' Prepayment Premium under any circumstances.
SECTION 10.2. Form of Redemption Notice. (a) Notice of redemption
under Section 10.1(a) 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 Holder of Indenture Notes, as of the
close of business on the Record Date preceding the applicable Redemption
Date, at such Holder's address appearing in the Indenture Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such Indenture Notes are to be surrendered
for payment of the Redemption Price (which shall be the office or
agency of the Issuer to be maintained as provided in Section 3.2);
and
(iv) CUSIP numbers.
Notice of redemption of the Indenture 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
Indenture Note shall not impair or affect the validity of the redemption of
any other Indenture Note.
(b) Prior notice of redemption under Section 10.1(b) is not required
to be given to Indenture Noteholders.
SECTION 10.3. Indenture Notes Payable on Redemption Date. The
Indenture Notes or portions thereof to be redeemed shall, following notice
of redemption pursuant to this Article, become due and payable on the
Redemption Date at the Redemption Price and (unless the Issuer shall
default in the payment of the Redemption Price) no interest shall accrue on
the Redemption Price for any period after the date to which accrued
interest is calculated for purposes of calculating the Redemption Price.
ARTICLE XI
Miscellaneous
SECTION 11.1. Compliance Certificates and Opinions, etc. (a) Upon
any application or request by the Issuer to the Indenture Trustee to take
any action under this Indenture, the Issuer shall furnish to the Indenture
Trustee: (i) an Officers' 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, except that, in the case of any
such application or request as to which the furnishing of such documents is
specifically required by this Indenture, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(w) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(x) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(y) a statement that, in the opinion of each such signatory,
such signatory has made (or has caused to be made) such examination
or investigation as is necessary to enable such signatory to express
an informed opinion as to whether or not such covenant or condition
has been complied with; and
(z) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b)(i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the Lien of this
Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.1(a) or elsewhere in this Indenture, furnish to the Indenture
Trustee an Officers' Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days of
such deposit) to the Issuer of the Collateral or other property or
securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officers' Certificate described in clause (i), the Issuer
shall also deliver to the Indenture Trustee an Independent
Certificate as to the same matters, if the fair value to the Issuer
of the Collateral or other property or securities to be so deposited
and of all other such Collateral or other property or securities made
the basis of any such withdrawal or release since the commencement of
the then-current fiscal year of the Issuer, as set forth in the
certificates delivered pursuant to clause (i) and this clause (ii),
is 10% or more of the Outstanding Amount of the Indenture Notes, but
such a certificate need not be furnished with respect to any
Collateral or other property or securities so deposited if the fair
value thereof to the Issuer as set forth in the related Officers'
Certificate is less than $25,000 or less than one percent of the then
Outstanding Amount of the Indenture Notes.
(iii) Other than with respect to property as contemplated by
clause (v), whenever any Collateral or other property or securities
are to be released from the Lien of this Indenture, the Issuer shall
also furnish to the Indenture Trustee an Officers' Certificate
certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such release) of
the Collateral or other property or securities proposed to be
released and stating that in the opinion of such person the proposed
release will not impair the security under this Indenture in
contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officers' Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (iii), the
Issuer shall also furnish to the Indenture Trustee an Independent
Certificate as to the same matters if the fair value to the Issuer of
the Collateral or other property or securities and of all other
property, other than property as contemplated by clause (v), or
securities released from the Lien of this Indenture since the
commencement of the then-current fiscal year, as set forth in the
certificates required by clause (iii) and this clause (iv), equals
10% or more of the Outstanding Amount of the Indenture Notes, but
such certificate need not be furnished in the case of any release of
Collateral or other property or securities if the fair value thereof
to the Issuer as set forth in the related Officers' Certificate is
less than $25,000 or less than one percent of the then Outstanding
Amount of the Indenture Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section, the Issuer may, without compliance with the requirements of
the other provisions of this Section: (A) collect, liquidate, sell or
otherwise dispose of Receivables and Financed Equipment as and to the
extent permitted or required by the Basic Documents and (B) make cash
payments out of the Trust Accounts as and to the extent permitted or
required by the Basic Documents so long as the Issuer shall deliver
to the Indenture Trustee every six months, commencing November 1,
1996, an Officers' Certificate of the Issuer stating that all such
dispositions of Collateral that occurred since the execution of the
previous such Officers' Certificate (or for the first such Officers'
Certificate, since the Closing Date) were in the ordinary course of
the Issuer's business and that the proceeds thereof were applied in
accordance with the Basic Documents.
SECTION 11.2. Form of Documents Delivered to Indenture Trustee. In
any case where several matters are required to be certified by, or covered
by an opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate,
opinion or representations with respect to the matters upon which his
certificate or opinion is based is/are erroneous. Any such certificate of
an Authorized Officer or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the 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, as applicable, unless such Authorized Officer
or counsel knows, or in the exercise of reasonable care should know, that
the certificate, opinion or representations with respect to such matters
is/are erroneous.
Where any Person is required or permitted to make, give or execute
two or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need not,
be consolidated and form one instrument.
Whenever in this Indenture, in connection with any application,
certificate or report to the Indenture Trustee, it is provided that the
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer's compliance with any term
hereof, it is intended that the truth and accuracy, at the time of the
granting of such application or at the effective date of such certificate
or report (as the case may be), of the facts and opinions stated in such
document shall in such case be conditions precedent to the right of the
Issuer to have such application granted or to the sufficiency of such
certificate or report. The foregoing shall not, however, be construed to
affect the Indenture Trustee's right to rely upon the truth and accuracy of
any statement or opinion contained in any such document as provided in
Article VI.
SECTION 11.3. Acts of Indenture Noteholders. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Indenture Noteholders
may be embodied in and evidenced by one or more instrument(s) of
substantially similar tenor signed by such Indenture Noteholders in person
or by agents duly appointed in writing; and except as herein otherwise
expressly provided, such action shall become effective when such
instrument(s) are delivered to the Indenture Trustee, and, where it is
hereby expressly required, to the Issuer. Such instrument(s) (and the
action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Indenture Noteholders signing such
instrument(s). Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Indenture
Trustee and the Issuer, if made in the manner provided in this Section.
(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 Indenture Notes shall be proved by the
Indenture Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or Act by the Holder of any Indenture Notes shall bind the Holder of
every Indenture Note issued upon the registration thereof, 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 Indenture
Note.
SECTION 11.4. Notices, etc., to the Indenture Trustee, Issuer and
Rating Agencies. Any request, demand, authorization, direction, notice,
consent, waiver or Act of Indenture Noteholders, or other documents
provided or permitted by this Indenture, shall be in writing and, if such
request, demand, authorization, direction, notice, consent, waiver or Act
of Indenture Noteholders is to be made upon, given or furnished to or filed
with:
(a) the Indenture Trustee by any Indenture 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 Indenture
Noteholder, shall be sufficient for every purpose hereunder if in
writing and mailed, first-class, postage prepaid, to the Issuer
addressed to: Case Equipment Loan Trust 1996-B, in care of Chase
Manhattan Bank Delaware, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Administration Department;
with copies to The Chase Manhattan Bank, N.A., 0 Xxxxx XxxxxXxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: Institutional Trust
Group - Third Floor, and to Case Credit Corporation, as
Administrator, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000, Attention:
Vice President & Treasurer, or at any other address previously
furnished in writing to the Indenture Trustee by the Issuer or the
Administrator. The Issuer shall promptly transmit any notice received
by it from the Indenture Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer,
the Indenture Trustee or the Trustee shall be in writing, personally
delivered or mailed by certified mail, return receipt requested, to their
respective addresses set forth in Section 10.3 of the Sale and Servicing
Agreement.
SECTION 11.5. Notices to Indenture Noteholders; Waiver. Where this
Indenture provides for notice to Indenture Noteholders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class, postage prepaid to each
Indenture Noteholder affected by such event, at his address as it appears
on the Indenture Note Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Indenture Noteholders is given by mail, neither
the failure to mail such notice nor any defect in any notice so mailed to
any particular Indenture Noteholder shall affect the sufficiency of such
notice with respect to other Indenture Noteholders, and any notice that is
mailed in the manner herein provided shall conclusively be presumed to have
been duly given.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent
of such notice. Waivers of notice by Indenture Noteholders shall be filed
with the Indenture Trustee but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such a
waiver.
In case, by reason of the suspension of regular mail service, it
shall be impractical to mail notice of any event to Indenture Noteholders
when such notice is required to be given pursuant to this Indenture, then
any manner of giving such notice as shall be satisfactory to the Indenture
Trustee shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance
constitute a Default or Event of Default.
SECTION 11.6. Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Indenture
Notes to the contrary, the Issuer may enter into any agreement with any
Holder of an Indenture 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 or the Indenture Notes for
such payments or notices. The Issuer will furnish to the Indenture Trustee
a copy of each such agreement and the Indenture Trustee will cause payments
to be made and notices to be given in accordance with such agreements.
SECTION 11.7. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by the Trust Indenture Act, such
required provision shall control.
The provisions of TIA 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 11.8. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 11.9. Successors and Assigns. All covenants and agreements
in this Indenture and the Indenture Notes by the Issuer shall bind its
successors and assigns, whether so expressed or not. All agreements of the
Indenture Trustee in this Indenture shall bind its successors, co-trustees
and agents of the Indenture Trustee.
SECTION 11.10. Severability. Any provision of this Indenture or the
Indenture Notes that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof or of the Indenture Notes, as applicable, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 11.11. Benefits of Indenture. Nothing in this Indenture or
in the Indenture Notes, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder, the Indenture
Noteholders, any other party secured hereunder and any other Person with an
ownership interest in any part of the Trust Estate, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 11.12. Legal Holidays. In any case where the date on which
any payment is due shall not be a Business Day, then (notwithstanding any
other provision of the Indenture Notes or this Indenture) payment need not
be made on such date, but may be made on the next Business Day with the
same force and effect as if made on the date on which nominally due, and no
interest shall accrue for the period from and after any such nominal date.
SECTION 11.13. 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 when so executed shall be deemed to
be an original, but all such counterparts shall together constitute but one
and the same instrument.
SECTION 11.15. Recording of Indenture. If this Indenture is subject
to recording in any public recording offices, such recording is to be
effected by the Issuer and, at its expense, accompanied by an Opinion of
Counsel (which may be counsel to the Indenture Trustee or any other counsel
reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Indenture
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. Trust Obligation. No recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Trustee
or the Indenture Trustee on the Indenture Notes or under this Indenture or
any certificate or other writing delivered in connection herewith or
therewith, against: (i) the Indenture Trustee or the Trustee in their
individual capacities, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, officer, director,
employee or agent of: (a) the Indenture Trustee or the Trustee in their
individual capacities, (b) any owner of a beneficial interest in the
Issuer, the Trustee or the Indenture Trustee or (c) of any successor or
assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Trustee have no such
obligations in their individual capacities) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided
by applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such
entity. For all purposes of this Indenture, in the performance of any
duties or obligations of the Issuer hereunder, the Trustee shall be subject
to, and entitled to the benefits of, Articles VI, VII and VIII of the Trust
Agreement.
SECTION 11.17. No Petition. The Indenture Trustee, by entering into
this Indenture, and each Indenture Noteholder, by accepting an Indenture
Note, hereby covenant and agree that they will not at any time institute
against the Seller or the Issuer, or join in any institution against the
Seller or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any
United States Federal or State bankruptcy or similar law in connection with
any obligations relating to the Indenture Notes, this Indenture or any of
the Basic Documents. The foregoing shall not limit the rights of the
Indenture Trustee to file any claim in or otherwise take any action with
respect to any insolvency proceeding that was instituted against the Issuer
by any Person other than the Indenture Trustee.
SECTION 11.18. Inspection. The Issuer agrees that, on reasonable
prior notice, it will permit any representative of the Indenture Trustee,
during the Issuer's normal business hours, to examine all the books of
account, records, reports and other papers of the Issuer, to make copies
and extracts therefrom, to cause such books to be audited by Independent
certified public accountants, and to discuss the Issuer's affairs, finances
and accounts with the Issuer's officers, employees and Independent
certified public accountants, all at such reasonable times and as often as
may be reasonably requested. The Indenture Trustee shall and shall cause
its representatives to hold in confidence all such information; provided,
however, that the foregoing shall not be construed to prohibit: (i)
disclosure of any and all information that is or becomes publicly know, or
information obtained by the Indenture Trustee from sources other than the
Issuer or Servicer, (ii) disclosure of any and all information: (A) if
required to do so by any applicable statute, law, rule or regulation, (B)
to any government agency or regulatory or self-regulatory body having or
claiming authority to regulate or oversee any aspects of the Indenture
Trustee's business or that of its Affiliates, (C) pursuant to any subpoena,
civil investigative demand or similar demand or request of any court,
regulatory authority, arbitrator or arbitration to which the Indenture
Trustee or an Affiliate or any officer, director, employee or shareholder
thereof is subject, (D) in any preliminary or final offering circular,
registration statement or contract or other document pertaining to the
transactions contemplated by the Indenture and approved in advance by the
Issuer or (E) to any Affiliate, independent or internal auditor, agent,
employee or attorney of the Indenture Trustee having a need to know the
same; provided, that the Indenture Trustee advises such recipient of the
confidential nature of the information being disclosed and such recipient
agrees to keep such information confidential, (iii) any other disclosure
authorized by the Issuer or the Servicer or (iv) disclosure to the other
parties to the transactions contemplated by the Basic Documents.
SECTION 11.19. Rights of Collateral Agent. The parties hereto agree
that the Collateral Agent is afforded all of the same rights, powers,
immunities and indemnities as are afforded to the Indenture Trustee under
this Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers duly authorized as of the day
and year first above written.
CASE EQUIPMENT LOAN TRUST 1996-B;
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as
Trustee
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Trust Officer
XXXXXX TRUST AND SAVINGS BANK,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ Xxxxx Xxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Assistant Vice President
EXHIBIT A-1
to Indenture
FORM OF A-1 NOTES
REGISTERED $____________1/
No. R-____ CUSIP NO. 000000XX0
------------------
1/ Denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
Unless this Indenture Note is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Issuer or its agent for registration of transfer, exchange
or payment, and any Indenture Note issued is registered in the name of Cede
& Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS INDENTURE NOTE IS PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
INDENTURE NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
CASE EQUIPMENT LOAN TRUST 1996-B
5.5625% CLASS A-1 ASSET BACKED NOTES
Case Equipment Loan Trust 1996-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________________ DOLLARS
($___________), partially payable on each Payment Date in an amount equal
to the aggregate amount, if any, payable from the Note Distribution Account
in respect of principal on the A-1 Notes pursuant to Section 3.1 of the
Indenture; provided, however, that the entire unpaid principal amount of
this Indenture Note shall be due and payable on the earlier of the
September 1997 Payment Date and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. The Issuer will pay interest on this
Indenture Note at the rate per annum shown above, on each Payment Date
until the principal of this Indenture Note is paid or made available for
payment, on the principal amount of this Indenture Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Indenture Note
will accrue for each Payment Date from the most recent Payment Date on
which interest has been paid to but excluding the then current Payment Date
or, if no interest has yet been paid, from the date hereof. Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Indenture Note shall be paid in the
manner specified in the Indenture.
The principal of and interest on this Indenture Note are payable in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Indenture Note shall be
applied first to interest due and payable on this Indenture Note as
provided above and then to the unpaid principal of this Indenture Note.
Reference is made to the further provisions of this Indenture Note
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Indenture Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee by manual signature, this Indenture Note shall not be
entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated: September 19, 1996
CASE EQUIPMENT LOAN TRUST 1996-B
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but
solely as Trustee
under the Trust Agreement
By: ________________________________
Name:___________________________
Title:__________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Indenture Notes designated above and referred to
in the within-mentioned Indenture.
Dated: September 19, 1996
XXXXXX TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture
Trustee
By: ___________________________________
Authorized Signatory
[REVERSE OF INDENTURE NOTE]
This Indenture Note is one of a duly authorized issue of Indenture
Notes of the Issuer, designated as its 5.5625% Class A-1 Asset Backed Notes
(herein called the "A-1 Notes" or the "Indenture Notes"), all issued under
an Indenture dated as of September 1, 1996 (such Indenture, as supplemented
or amended, is herein called the "Indenture"), between the Issuer and
Xxxxxx Trust and Savings Bank, not in its individual capacity but solely as
trustee (the "Indenture Trustee", which term includes any successor
Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Indenture Notes. The Indenture
Notes are subject to all terms of the Indenture. All terms used in this
Indenture Note that are not otherwise defined herein and that are defined
in the Indenture shall have the meanings assigned to them in or pursuant to
the Indenture.
The Indenture Notes, the A-2 Notes and the A-3 Notes are and will be
equally and ratably secured by the collateral pledged as security therefor
as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the A-1 Note Rate to the extent lawful.
Each Indenture Noteholder or Note Owner, by acceptance of an
Indenture Note, or, in the case of a Note Owner, a beneficial interest in
the Indenture Note, covenants and agrees that no recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer or
the Indenture Trustee on the Indenture Notes or under the Indenture or any
certificate or other writing delivered in connection therewith, against:
(i) the Indenture Trustee or the Trustee in their individual capacities,
(ii) any owner of a beneficial interest in the Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of: (a) the
Indenture Trustee or the Trustee in their individual capacities, (b) any
holder of a beneficial interest in the Issuer, the Trustee or the Indenture
Trustee or of (c) any successor or assign of the Indenture Trustee or the
Trustee in their individual capacities, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any
unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
It is the intent of the Seller, the Servicer, the Indenture
Noteholders and the Note Owners that, for purposes of Federal and State
income tax and any other tax measured in whole or in part by income, the
Indenture Notes will qualify as indebtedness of the Trust. Each Indenture
Noteholder or Note Owner, by acceptance of an Indenture Note, or, in the
case of a Note Owner, a beneficial interest in an Indenture Note, agrees to
treat, and to take no action inconsistent with the treatment of, the
Indenture Notes for such tax purposes as indebtedness of the Trust.
Each Indenture Noteholder or Note Owner, by acceptance of an
Indenture Note, or, in the case of a Note Owner, a beneficial interest in
an Indenture Note, covenants and agrees that by accepting the benefits of
the Indenture that such Indenture Noteholder will not at any time institute
against the Seller or the Issuer, or join in any institution against the
Seller or the Issuer of, any bankruptcy, reorganization or arrangement,
insolvency or liquidation proceedings under any United States Federal or
State bankruptcy or similar law in connection with any obligations relating
to the Indenture Notes, the Indenture or the Basic Documents.
This Indenture Note and the Indenture shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Indenture Note or of the Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of
and interest on this Indenture Note at the times, place and rate, and in
the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Xxxxxx Trust and Savings Bank, in
its individual capacity, any owner of a beneficial interest in the Issuer,
nor any of their respective partners, beneficiaries, agents, officers,
directors, employees, successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of
or interest on, or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in this Indenture Note
or the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Indenture Trustee
for the sole purposes of binding the interests of the Indenture Trustee in
the assets of the Issuer. The Holder of this Indenture Note by the
acceptance hereof, and each Note Owner by the acceptance of a beneficial
interest herein, each agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture,
the Holder and Note Owner shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this
Indenture Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
-------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto ______________________________________________
_________________________________________________________________________
(name and address of assignee)
the within Indenture Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
Indenture Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
________________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the
requirements of the Indenture Note Registrar,
which requirements include membership or
participation in STAMP or such other
"signature guarantee program" as may be
determined by the Indenture Note Registrar in
addition to, or in substitution for, STAMP,
all in accordance with the Securities
Exchange Act of 1934, as amended.
_________________________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within
Indenture Note in every particular without alteration, enlargement or
any change whatsoever.
EXHIBIT A-2
to Indenture
FORM OF A-2 NOTES
REGISTERED $____________2/
No. R-____ CUSIP NO. 000000XX0
---------------------------
2/ Denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
Unless this Indenture Note is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Issuer or its agent for registration of transfer, exchange
or payment, and any Indenture Note issued is registered in the name of Cede
& Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS INDENTURE NOTE IS PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
INDENTURE NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
CASE EQUIPMENT LOAN TRUST 1996-B
6.25% CLASS A-2 ASSET BACKED NOTES
Case Equipment Loan Trust 1996-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________________ DOLLARS
($___________), partially payable on each Payment Date in an amount equal
to the result obtained by multiplying: (i) a fraction the numerator of
which is $____________ and the denominator of which is $362,000,000 by (ii)
the aggregate amount, if any, payable from the Note Distribution Account in
respect of principal on the A-2 Notes pursuant to Section 3.1 of the
Indenture; provided, however, that the entire unpaid principal amount of
this Indenture Note shall be due and payable on the earlier of the
September 2003 Payment Date and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. No payments of principal of the Indenture
Notes will be made until the principal of the A-1 Notes has been paid in
full. The Issuer will pay interest on this Indenture Note at the rate per
annum shown above, on each Payment Date until the principal of this
Indenture Note is paid or made available for payment, on the principal
amount of this Indenture Note outstanding on the preceding Payment Date
(after giving effect to all payments of principal made on the preceding
Payment Date), subject to certain limitations contained in Section 3.1 of
the Indenture. Interest on this Indenture Note will accrue for each Payment
Date from the most recent Payment Date on which interest has been paid to
but excluding the then current Payment Date or, if no interest has yet been
paid, from the date hereof. Interest will be computed on the basis of a
360-day year of twelve 30-day months. Such principal of and interest on
this Indenture Note shall be paid in the manner specified in the Indenture.
The principal of and interest on this Indenture Note are payable in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Indenture Note shall be
applied first to interest due and payable on this Indenture Note as
provided above and then to the unpaid principal of this Indenture Note.
Reference is made to the further provisions of this Indenture Note
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Indenture Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee by manual signature, this Indenture Note shall not be
entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated: September 19, 1996
CASE EQUIPMENT LOAN TRUST 1996-B
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but
solely as Trustee
under the Trust Agreement
By:_________________________________
Name:___________________________
Title:__________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Indenture Notes designated above and referred to
in the within-mentioned Indenture.
Dated: September 19, 1996
XXXXXX TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture
Trustee
By: __________________________________
Authorized Signatory
[REVERSE OF INDENTURE NOTE]
This Indenture Note is one of a duly authorized issue of Indenture
Notes of the Issuer, designated as its 6.25% Class A-2 Asset Backed Notes
(herein called the "A-2 Notes" or the "Indenture Notes"), all issued under
an Indenture dated as of September 1, 1996 (such Indenture, as supplemented
or amended, is herein called the "Indenture"), between the Issuer and
Xxxxxx Trust and Savings Bank, not in its individual capacity but solely as
trustee (the "Indenture Trustee", which term includes any successor
Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Indenture Notes. The Indenture
Notes are subject to all terms of the Indenture. All terms used in this
Indenture Note that are not otherwise defined herein and that are defined
in the Indenture shall have the meanings assigned to them in or pursuant to
the Indenture.
The Indenture Notes, the A-1 Notes and the A-3 Notes are and will be
equally and ratably secured by the collateral pledged as security therefor
as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the A-2 Note Rate to the extent lawful.
Each Indenture Noteholder or Note Owner, by acceptance of an
Indenture Note, or, in the case of a Note Owner, a beneficial interest in
the Indenture Note, covenants and agrees that no recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer or
the Indenture Trustee on the Indenture Notes or under the Indenture or any
certificate or other writing delivered in connection therewith, against:
(i) the Indenture Trustee or the Trustee in their individual capacities,
(ii) any owner of a beneficial interest in the Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of: (a) the
Indenture Trustee or the Trustee in their individual capacities, (b) any
holder of a beneficial interest in the Issuer, the Trustee or the Indenture
Trustee or of (c) any successor or assign of the Indenture Trustee or the
Trustee in their individual capacities, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any
unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
It is the intent of the Seller, the Servicer, the Indenture
Noteholders and the Note Owners that, for purposes of Federal and State
income tax and any other tax measured in whole or in part by income, the
Indenture Notes will qualify as indebtedness of the Trust. Each Indenture
Noteholder or Note Owner, by acceptance of an Indenture Note, or, in the
case of a Note Owner, a beneficial interest in an Indenture Note, agrees to
treat, and to take no action inconsistent with the treatment of, the
Indenture Notes for such tax purposes as indebtedness of the Trust.
Each Indenture Noteholder or Note Owner, by acceptance of an
Indenture Note, or, in the case of a Note Owner, a beneficial interest in
an Indenture Note, covenants and agrees that by accepting the benefits of
the Indenture that such Indenture Noteholder will not at any time institute
against the Seller or the Issuer, or join in any institution against the
Seller or the Issuer of, any bankruptcy, reorganization or arrangement,
insolvency or liquidation proceedings under any United States Federal or
State bankruptcy or similar law in connection with any obligations relating
to the Indenture Notes, the Indenture or the Basic Documents.
This Indenture Note and the Indenture shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Indenture Note or of the Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of
and interest on this Indenture Note at the times, place and rate, and in
the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Xxxxxx Trust and Savings Bank, in
its individual capacity, any owner of a beneficial interest in the Issuer,
nor any of their respective partners, beneficiaries, agents, officers,
directors, employees, successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of
or interest on, or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in this Indenture Note
or the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Indenture Trustee
for the sole purposes of binding the interests of the Indenture Trustee in
the assets of the Issuer. The Holder of this Indenture Note by the
acceptance hereof, and each Note Owner by the acceptance of a beneficial
interest herein, each agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture,
the Holder and Note Owner shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this
Indenture Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee
------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto____________________________________________________
______________________________________________________________________________
(name and address of assignee)
the within Indenture Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
Indenture Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
________________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the
requirements of the Indenture Note Registrar,
which requirements include membership or
participation in STAMP or such other
"signature guarantee program" as may be
determined by the Indenture Note Registrar in
addition to, or in substitution for, STAMP,
all in accordance with the Securities
Exchange Act of 1934, as amended.
_________________________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within
Indenture Note in every particular without alteration, enlargement or
any change whatsoever.
EXHIBIT A-3
to Indenture
FORM OF A-3 NOTES
REGISTERED $____________3/
No. R-___ CUSIP NO. 000000XX0
----------------------
3/ Denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
Unless this Indenture Note is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Issuer or its agent for registration of transfer, exchange
or payment, and any Indenture Note issued is registered in the name of Cede
& Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS INDENTURE NOTE IS PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
INDENTURE NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
CASE EQUIPMENT LOAN TRUST 1996-B
6.65% CLASS A-3 ASSET BACKED NOTES
Case Equipment Loan Trust 1996-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________________ DOLLARS
($___________), partially payable on each Payment Date in an amount equal
to the result obtained by multiplying: (i) a fraction the numerator of
which is $____________ and the denominator of which is $329,000,000 by (ii)
the aggregate amount, if any, payable from the Note Distribution Account in
respect of principal on the A-3 Notes pursuant to Section 3.1 of the
Indenture; provided, however, that the entire unpaid principal amount of
this Indenture Note shall be due and payable on the earlier of the
September 2003 Payment Date and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. No payments of principal of the Indenture
Notes will be made until the principal of the A-1 Notes and the A-2 Notes
has been paid in full. The Issuer will pay interest on this Indenture Note
at the rate per annum shown above, on each Payment Date until the principal
of this Indenture Note is paid or made available for payment, on the
principal amount of this Indenture Note outstanding on the preceding
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Indenture Note will accrue
for each Payment Date from the most recent Payment Date on which interest
has been paid to but excluding the then current Payment Date or, if no
interest has yet been paid, from the date hereof. Interest will be computed
on the basis of a 360-day year of twelve 30-day months. Such principal of
and interest on this Indenture Note shall be paid in the manner specified
in the Indenture.
The principal of and interest on this Indenture Note are payable in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Indenture Note shall be
applied first to interest due and payable on this Indenture Note as
provided above and then to the unpaid principal of this Indenture Note.
Reference is made to the further provisions of this Indenture Note
set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Indenture Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee by manual signature, this Indenture Note shall not be
entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated: September 19, 1996
CASE EQUIPMENT LOAN TRUST 1996-B
By: CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but
solely as Trustee
under the Trust Agreement
By: ________________________________
Name:___________________________
Title:__________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Indenture Notes designated above and referred to
in the within-mentioned Indenture.
Dated: September 19, 1996
XXXXXX TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture
Trustee
By:______________________________
Authorized Signatory
[REVERSE OF INDENTURE NOTE]
This Indenture Note is one of a duly authorized issue of Indenture
Notes of the Issuer, designated as its 6.65% Class A-3 Asset Backed Notes
(herein called the "A-3 Notes" or the "Indenture Notes"), all issued under
an Indenture dated as of September 1, 1996 (such Indenture, as supplemented
or amended, is herein called the "Indenture"), between the Issuer and
Xxxxxx Trust and Savings Bank, not in its individual capacity but solely as
trustee (the "Indenture Trustee", which term includes any successor
Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Indenture Notes. The Indenture
Notes are subject to all terms of the Indenture. All terms used in this
Indenture Note that are not otherwise defined herein and that are defined
in the Indenture shall have the meanings assigned to them in or pursuant to
the Indenture.
The Indenture Notes, the A-1 Notes and the A-2 Notes are and will be
equally and ratably secured by the collateral pledged as security therefor
as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the A-3 Note Rate to the extent lawful.
Each Indenture Noteholder or Note Owner, by acceptance of an
Indenture Note, or, in the case of a Note Owner, a beneficial interest in
the Indenture Note, covenants and agrees that no recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer or
the Indenture Trustee on the Indenture Notes or under the Indenture or any
certificate or other writing delivered in connection therewith, against:
(i) the Indenture Trustee or the Trustee in their individual capacities,
(ii) any owner of a beneficial interest in the Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of: (a) the
Indenture Trustee or the Trustee in their individual capacities, (b) any
holder of a beneficial interest in the Issuer, the Trustee or the Indenture
Trustee or of (c) any successor or assign of the Indenture Trustee or the
Trustee in their individual capacities, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any
unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
It is the intent of the Seller, the Servicer, the Indenture
Noteholders and the Note Owners that, for purposes of Federal and State
income tax and any other tax measured in whole or in part by income, the
Indenture Notes will qualify as indebtedness of the Trust. Each Indenture
Noteholder or Note Owner, by acceptance of an Indenture Note, or, in the
case of a Note Owner, a beneficial interest in an Indenture Note, agrees to
treat, and to take no action inconsistent with the treatment of, the
Indenture Notes for such tax purposes as indebtedness of the Trust.
Each Indenture Noteholder or Note Owner, by acceptance of an
Indenture Note, or, in the case of a Note Owner, a beneficial interest in
an Indenture Note, covenants and agrees that by accepting the benefits of
the Indenture that such Indenture Noteholder will not at any time institute
against the Seller or the Issuer, or join in any institution against the
Seller or the Issuer of, any bankruptcy, reorganization or arrangement,
insolvency or liquidation proceedings under any United States Federal or
State bankruptcy or similar law in connection with any obligations relating
to the Indenture Notes, the Indenture or the Basic Documents.
This Indenture Note and the Indenture shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Indenture Note or of the Indenture shall alter or impair the obligation of
the Issuer, which is absolute and unconditional, to pay the principal of
and interest on this Indenture Note at the times, place and rate, and in
the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Xxxxxx Trust and Savings Bank, in
its individual capacity, any owner of a beneficial interest in the Issuer,
nor any of their respective partners, beneficiaries, agents, officers,
directors, employees, successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of
or interest on, or performance of, or omission to perform, any of the
covenants, obligations or indemnifications contained in this Indenture Note
or the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Indenture Trustee
for the sole purposes of binding the interests of the Indenture Trustee in
the assets of the Issuer. The Holder of this Indenture Note by the
acceptance hereof, and each Note Owner by the acceptance of a beneficial
interest herein, each agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture,
the Holder and Note Owner shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
enforcement against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in the Indenture or in this
Indenture Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee
------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto ___________________________________________________
______________________________________________________________________________
(name and address of assignee)
the within Indenture Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
Indenture Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
________________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the
requirements of the Indenture Note Registrar,
which requirements include membership or
participation in STAMP or such other
"signature guarantee program" as may be
determined by the Indenture Note Registrar in
addition to, or in substitution for, STAMP,
all in accordance with the Securities
Exchange Act of 1934, as amended.
_________________________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within
Indenture Note in every particular without alteration, enlargement or
any change whatsoever.
EXHIBIT B
to Indenture
FORM OF SECTION 3.9 OFFICERS' CERTIFICATE
____________, 199_
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Indenture Trust Administration
Pursuant to Section 3.9 of the Indenture, dated as of September 1,
1996 (the "Indenture"), between Case Equipment Loan Trust 1996-B (the
"Issuer") and Xxxxxx Trust and Savings Bank, as Indenture Trustee, the
undersigned hereby certify that:
(a) a review of the activities of the Issuer during the previous
fiscal year and of performance under the Indenture has been made
under the supervision of the undersigned; and
(b) to the best knowledge of the undersigned, based on such
review, the Issuer has complied with all conditions and covenants
under the Indenture throughout such year. [or, if there has been a
default in the compliance of any such condition or covenant, this
certificate is to specify each such default known to the undersigned
and the nature and status thereof]
CASE EQUIPMENT LOAN TRUST 1996-B
By:_____________________________________________
Name:_________________________________________
Title:________________________________________
By:_____________________________________________
Name:_________________________________________
Title:________________________________________
