Exhibit 4.2
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DAIMLERCHRYSLER MASTER OWNER TRUST
as Issuer
and
THE BANK OF NEW YORK
as Indenture Trustee
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AMENDED AND RESTATED INDENTURE
dated as of December 16, 2004
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions..................................................3
SECTION 102. Compliance Certificates and Opinions........................16
SECTION 103. Form of Documents Delivered to Indenture Trustee............17
SECTION 104. Acts of Noteholders.........................................17
SECTION 105. Notices, etc., to Indenture Trustee and Issuer..............18
SECTION 106. Notices to Noteholders; Waiver..............................19
SECTION 107. Conflict with Trust Indenture Act...........................20
SECTION 108. Effect of Headings and Table of Contents....................20
SECTION 109. Successors and Assigns......................................20
SECTION 110. Separability................................................20
SECTION 111. Benefits of Indenture.......................................20
SECTION 112. Governing Law...............................................20
SECTION 113. Counterparts................................................20
SECTION 114. Indenture Referred to in the Trust Agreement................20
ARTICLE II
NOTE FORMS
SECTION 201. Forms Generally.............................................21
SECTION 202. Forms of Notes..............................................21
SECTION 203. Form of Indenture Trustee's Certificate of Authentication...21
SECTION 204. Notes Issuable in the Form of a Global Note.................22
SECTION 205. Temporary Global Notes and Permanent Global Notes...........24
SECTION 206. Beneficial Ownership of Global Notes........................25
SECTION 207. Notices to Depository.......................................26
ARTICLE III
THE NOTES
SECTION 301. General Title; General Limitations; Issuable in Series; Terms
of a Series or Class........................................26
SECTION 302. Denominations...............................................29
SECTION 303. Execution, Authentication and Delivery and Dating...........29
SECTION 304. Temporary Notes.............................................30
SECTION 305. Registration, Transfer and Exchange.........................30
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes.................32
SECTION 307. Payment of Interest; Interest Rights Preserved..............33
SECTION 308. Persons Deemed Owners.......................................33
SECTION 309. Cancellation................................................33
SECTION 310. New Issuances of Notes......................................34
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SECTION 311. Specification of Required Subordinated Amount,
Overcollateralization Amount and other Terms with
Respect to each Class.......................................35
SECTION 312. Reallocation of Interest Collections and Principal
Collections..............36
SECTION 313. Excess Available Interest Amounts Sharing...................36
SECTION 314. Excess Available Principal Amounts Sharing..................36
ARTICLE IV
ACCOUNTS AND INVESTMENTS
SECTION 401. Collections.................................................36
SECTION 402. Accounts....................................................36
SECTION 403. Investment of Funds in the Accounts.........................37
ARTICLE V
ALLOCATIONS, DEPOSITS AND PAYMENTS
SECTION 501. Allocations of Interest Collections.........................39
SECTION 502. Allocations of Principal Collections........................39
SECTION 503. Final Payment...............................................39
SECTION 504. Payments within a Series or Class...........................39
ARTICLE VI
SATISFACTION AND DISCHARGE;
CANCELLATION OF NOTES HELD BY THE ISSUER OR DCWR
SECTION 601. Satisfaction and Discharge of Indenture.....................40
SECTION 602. Application of Trust Money..................................40
SECTION 603. Cancellation of Notes Held by the Issuer or DCWR............40
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 701. Events of Default...........................................41
SECTION 702. Acceleration of Maturity; Rescission and Annulment..........42
SECTION 703. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee...........................................43
SECTION 704. Indenture Trustee May File Proofs of Claim..................44
SECTION 705. Indenture Trustee May Enforce Claims Without Possession of
Notes...........................44
SECTION 706. Application of Money Collected..............................45
SECTION 707. Continued Application of Collections Pursuant to Regular
Distribution Provisions...........45
SECTION 708. Sale of Receivables for Accelerated Notes...................45
SECTION 709. Noteholders Have the Right to Direct the Time, Method and
Place of Conducting Any Proceeding for Any
Remedy Available to the Indenture Trustee...................46
SECTION 710. Limitation on Suits.........................................46
SECTION 711. Unconditional Right of Noteholders to Receive Principal and
Interest; Limited Recourse..................................46
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SECTION 712. Restoration of Rights and Remedies..........................47
SECTION 713. Rights and Remedies Cumulative..............................47
SECTION 714. Delay or Omission Not Waiver................................47
SECTION 715. Control by Noteholders......................................47
SECTION 716. Waiver of Past Defaults.....................................47
SECTION 717. Undertaking for Costs.......................................48
SECTION 718. Waiver of Stay or Extension Laws............................48
ARTICLE VIII
THE INDENTURE TRUSTEE
SECTION 801. Certain Duties and Responsibilities.........................48
SECTION 802. Notice of Defaults..........................................50
SECTION 803. Certain Rights of Indenture Trustee.........................50
SECTION 804. Not Responsible for Recitals or Issuance of Notes...........51
SECTION 805. May Hold Notes..............................................51
SECTION 806. Money Held in Trust.........................................51
SECTION 807. Compensation and Reimbursement, Limit on Compensation,
Reimbursement and Indemnity.................................52
SECTION 808. Disqualification; Conflicting Interests.....................52
SECTION 809. Corporate Indenture Trustee Required; Eligibility...........52
SECTION 810. Resignation and Removal; Appointment of Successor...........53
SECTION 811. Acceptance of Appointment by Successor......................54
SECTION 812. Merger, Conversion, Consolidation or Succession to Business.55
SECTION 813. Preferential Collection of Claims Against Issuer............55
SECTION 814. Appointment of Authenticating Agent.........................55
SECTION 815. Tax Returns.................................................57
SECTION 816. Representations and Covenants of the Indenture Trustee......57
SECTION 817. Custody of the Collateral...................................57
SECTION 818. Indenture Trustee's Application for Instructions from
the Issuer..................................................58
ARTICLE IX
NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY INDENTURE TRUSTEE, ISSUER
AND BENEFICIARY
SECTION 901. Issuer to Furnish Indenture Trustee Names and Addresses of
Noteholders.................................................59
SECTION 902. Preservation of Information; Communications to Noteholders..59
SECTION 903. Reports by Indenture Trustee................................60
SECTION 904. Meetings of Noteholders.....................................61
SECTION 905. Reports by Issuer to the Commission.........................62
SECTION 906. Reports by Indenture Trustee................................62
SECTION 907. Monthly Noteholders' Statement..............................63
SECTION 908. Payment Instruction to Indenture Trustee....................63
SECTION 909. Information Provided by Issuer..............................63
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ARTICLE X
INDENTURE SUPPLEMENTS; AMENDMENTS TO THE SALE AND SERVICING
AGREEMENT AND AMENDMENTS TO THE TRUST AGREEMENT
SECTION 1001. Supplemental Indentures without Consent of Noteholders......63
SECTION 1002. Supplemental Indentures with Consent of Noteholders.........65
SECTION 1003. Execution of Indenture Supplements..........................66
SECTION 1004. Effect of Indenture Supplements.............................67
SECTION 1005. Conformity with Trust Indenture Act.........................67
SECTION 1006. Reference in Notes to Indenture Supplements.................67
SECTION 1007. Amendments to the Sale and Servicing Agreement..............67
SECTION 1008. Amendments to the Trust Agreement...........................67
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
SECTION 1101. Payment of Principal and Interest...........................68
SECTION 1102. Maintenance of Office or Agency.............................68
SECTION 1103. Money for Note Payments to be Held in Trust.................69
SECTION 1104. Statement as to Compliance..................................70
SECTION 1105. Legal Existence.............................................71
SECTION 1106. Further Instruments and Acts................................71
SECTION 1107. Compliance with Laws........................................71
SECTION 1108. Notice of Events of Default.................................71
SECTION 1109. Certain Negative Covenants..................................71
SECTION 1110. No Other Business...........................................71
SECTION 1111. No Borrowing................................................72
SECTION 1112. Rule 144A Information.......................................72
SECTION 1113. Performance of Obligations..................................72
SECTION 1114. Issuer May Consolidate, Etc., Only on Certain Terms.........73
SECTION 1115. Successor Substituted.......................................75
SECTION 1116. Guarantees, Loans, Advances and Other Liabilities...........75
SECTION 1117. Capital Expenditures........................................75
SECTION 1118. Restricted Payments.........................................75
SECTION 1119. Representations and Warranties as to the Security Interest of
the Indenture Trustee in the Receivables....................75
SECTION 1120. Derivative Instruments......................................76
ARTICLE XII
EARLY REDEMPTION OF NOTES
SECTION 1201. Applicability of Article....................................77
SECTION 1202. Optional Repurchase.........................................77
SECTION 1203. Notice......................................................78
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ARTICLE XIII
COLLATERAL
SECTION 1301. Recording, Etc..............................................78
SECTION 1302. Trust Indenture Act Requirements............................80
SECTION 1303. Suits to Protect the Collateral.............................80
SECTION 1304. Purchaser Protected.........................................81
SECTION 1305. Powers Exercisable by Receiver or Trustee...................81
SECTION 1306. Determinations Relating to Collateral.......................81
SECTION 1307. Release of Collateral.......................................81
SECTION 1308. Certain Actions by Indenture Trustee........................82
SECTION 1309. Opinions as to Collateral...................................82
SECTION 1310. Delegation of Duties........................................83
ARTICLE XIV
MISCELLANEOUS
SECTION 1401. No Petition.................................................83
SECTION 1402. Trust Obligations...........................................83
SECTION 1403. Limitations on Liability....................................83
SECTION 1404. Tax Treatment...............................................84
SECTION 1405. Actions Taken by the Issuer.................................84
SECTION 1406. Alternate Payment Provisions................................84
SECTION 1407. Termination of Issuer.......................................84
SECTION 1408. Final Distribution..........................................84
SECTION 1409. Termination Distributions...................................85
SECTION 1410. Enhancement Providers as Third-Party Beneficiaries..........85
EXHIBITS
EXHIBIT A FORM OF PAYMENT INSTRUCTION TO INDENTURE TRUSTEE
EXHIBIT B FORM OF MONTHLY NOTEHOLDERS' STATEMENT
EXHIBIT C FORM OF INVESTMENT LETTER
EXHIBIT D-1 FORM OF CLEARANCE SYSTEM CERTIFICATE TO BE GIVEN TO THE
INDENTURE TRUSTEE BY EUROCLEAR OR CLEARSTREAM FOR
DELIVERY OF DEFINITIVE NOTES IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL NOTE
EXHIBIT D-2 FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR
CLEARSTREAM WITH RESPECT TO REGISTERED NOTES SOLD TO
QUALIFIED INSTITUTIONAL BUYERS
EXHIBIT D-3 FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR
CLEARSTREAM BY A BENEFICIAL OWNER OF NOTES, OTHER THAN A
QUALIFIED INSTITUTIONAL BUYER
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This AMENDED AND RESTATED INDENTURE between DAIMLERCHRYSLER MASTER
OWNER TRUST, a statutory trust organized under the laws of the State of
Delaware (the "Issuer"), having its principal office at 000 Xxxxxxx Xxxxxxxxxx
Xx., Xxxxxx, Xxxxxxxx 00000, and THE BANK OF NEW YORK, a New York banking
corporation, in its capacity as Indenture Trustee (the "Indenture Trustee"),
is made and entered into as of December 16, 2004.
PRELIMINARY STATEMENT
The Issuer and the Indenture Trustee are parties to the Indenture,
dated as of June 1, 2002 (the "Existing Indenture"). In accordance with
Section 1001(l) of the Existing Indenture and the terms of the Program
Amendment Agreement, the parties hereto now desire to amend and restate the
Existing Indenture to provide for, among other things, the direct ownership of
the Receivables and related Collateral Security by the Issuer and the grant of
a security interest in such property by the Issuer hereunder to the Indenture
Trustee.
In consideration of the mutual agreements herein contained, and of
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby amend and restate the Existing
Indenture in its entirety as follows:
RECITALS OF THE ISSUER
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its notes to be issued in one or more
fully registered or bearer series or classes. All things necessary to make
this Indenture a valid and legally binding agreement of the Issuer, in
accordance with its terms, have been done.
GRANTING CLAUSE
The Issuer hereby grants to the Indenture Trustee for the benefit
and security of (a) the Noteholders, (b) each Enhancement Provider under an
Enhancement Agreement entered into in connection with issuance of a class of
Notes that expressly states that such Enhancement Provider is entitled to the
benefit of the Collateral, and (c) the Indenture Trustee, in its individual
capacity (each, a "Secured Party"), a security interest in all of its right,
title and interest, whether now owned or hereafter acquired, in and to:
(i) the Receivables transferred to the Issuer pursuant to the Sale
and Servicing Agreement, including the Receivables transferred
to the Issuer pursuant to the Program Amendment Agreement, in
each case together with all the Collateral Security with
respect thereto;
(ii) the Collection Account and the Excess Funding Account;
(iii) any Supplemental Account;
(iv) all sub-Accounts of the Collection Account, the Excess Funding
Account or any Supplemental Account;
(v) all investment property, money and other property held in or
through the Collection Account, the Excess Funding Account, any
Supplemental Account or any sub-Account thereof;
(vi) all rights, benefits and powers under any Enhancement Agreement
relating to any series or class of Notes;
(vii) all rights of enforcement of the Issuer against DCWR, DCS or
the CARCO Trust under the Sale and Servicing Agreement, the
Receivables Purchase Agreement and the Program Amendment
Agreement, as applicable, and against the Beneficiary under the
Trust Agreement;
(viii) all present and future claims, demands, causes of and choses
in action in respect of any of the foregoing and all interest,
principal, payments and distributions of any nature or type on
any of the foregoing;
(ix) all accounts, general intangibles, chattel paper, instruments,
documents, goods, money, investment property, deposit accounts,
certificates of deposit, letters of credit, letter-of-credit
rights and advices of credit consisting of, arising from, or
relating to any of the foregoing; and
(x) all proceeds of the foregoing.
The collateral described above is referred to as the "Collateral."
The Security Interest in the Collateral is granted to secure the Notes (and,
to the extent specified in the applicable Indenture Supplement or Enhancement
Agreement, the obligations under any applicable Enhancement Agreements)
equally and ratably without prejudice, priority or distinction between any
Note and any other Note by reason of difference in time of issuance or
otherwise, except as otherwise expressly provided in this Indenture or in the
Indenture Supplement which establishes any series or class of Notes, and to
secure (i) the payment of all amounts due on such Notes (and, to the extent so
specified, the obligations under any applicable Enhancement Agreements) in
accordance with their terms, (ii) the payment of all other sums payable by the
Issuer under this Indenture or any Indenture Supplement and (iii) compliance
by the Issuer with the provisions of this Indenture or any Indenture
Supplement. This Indenture is a security agreement within the meaning of the
UCC.
The Indenture Trustee acknowledges the grant of such Security
Interest, and accepts the Collateral in trust hereunder in accordance with the
provisions hereof and agrees to perform the duties herein.
Particular Notes and Enhancement Agreements will benefit from the
Security Interest to the extent (and only to the extent) proceeds of and
distributions on the Collateral are allocated for their benefit pursuant to
this Indenture and the applicable Indenture Supplement.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms and
conditions upon which the Notes are and are to be authenticated, issued and
delivered, and in consideration of the
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premises and the purchase of Notes by the Holders thereof, it is mutually
agreed as follows, for the equal and proportionate benefit of all Holders of
the Notes or of a series or class thereof, as the case may be:
LIMITED RECOURSE
The obligation of the Issuer to make payments of principal, interest and other
amounts on the Notes and to make payments on Enhancement Agreements is limited
in recourse as set forth in Section 711.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture and of
any Indenture Supplement, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act or in
the Sale and Servicing Agreement, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder means such accounting
principles as are generally accepted in the United States of America at
the date of such computation;
(4) all references in this Indenture to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this Indenture as originally executed.
The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(5) if any term or provision contained in an Indenture Supplement
for a series of Notes shall conflict with or be inconsistent with any
term or provision in this Indenture, the terms and provisions of such
Indenture Supplement shall control in respect of such series of Notes;
(6) "including" and words of similar import will be deemed to be
followed by "without limitation"; and
(7) "or" is not exclusive.
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"Accounts" means, collectively, the Collection Account, the Excess
Funding Account and any Supplemental Account, in each case including any
sub-Accounts therein.
"Act," when used with respect to any Noteholder, is defined in
Section 104(a).
"action," when used with respect to any Noteholder, is defined in
Section 104(a).
"Adjusted Outstanding Dollar Principal Amount" with respect to any
series or class of Notes has the meaning specified in the related Indenture
Supplement.
"Administration Agreement" means the Amended and Restated
Administration Agreement, dated as of December 16, 2004, among the
Administrator, the Issuer and the Indenture Trustee, as amended, supplemented
or restated from time to time.
"Administrator" means DaimlerChrysler Services North America LLC, a
Michigan limited liability company, or any successor Administrator under the
Administration Agreement.
"Adverse Effect" means, whenever used in this Indenture with respect
to any series or class of Notes with respect to any action, that such action
will (a) at the time of its occurrence or at any future date result in the
occurrence of an Early Redemption Event or Event of Default relating to such
series or class, as applicable, (b) adversely affect the amount of funds
available to be distributed to the Noteholders of any such series or class
pursuant to this Indenture or the timing of such distributions, or (c)
adversely affect the security interest of the Indenture Trustee in the
Collateral.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect 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.
"applicable investment category"; with respect to any series or
class of Notes, has the meaning assigned in the related Indenture Supplement.
"Authenticating Agent" means any Person authorized by the Indenture
Trustee to authenticate Notes under Section 814.
"Authorized Newspaper" means, with respect to any class of Notes,
publication in the newspaper of record specified in the applicable Indenture
Supplement for that class, or if and so long as Notes of that class are listed
on any securities exchange and that exchange so requires, in the newspaper of
record required by the applicable securities exchange, printed in any language
specified in the applicable Indenture Supplement or satisfying the
requirements of such exchange.
"Bearer Note" means a Note in bearer form.
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"Beneficiary" is defined in the Trust Agreement.
"Beneficiary Trust Account" means the account established by the
Owner Trustee on behalf of the Issuer in accordance with Section 4.04 of the
Trust Agreement.
"Business Day," unless otherwise specified in the Indenture
Supplement for any series or class of Notes, means any day other than (a) a
Saturday or Sunday or (b) any other day on which national banking associations
or state banking institutions in New York, New York or Wilmington, Delaware,
are authorized or obligated by law, executive order or governmental decree to
be closed.
"CARCO Trust" means the CARCO Auto Loan Master Trust established
pursuant to the Pooling and Servicing Agreement.
"class" means, with respect to any Note, the class designated for
such Note in the applicable Indenture Supplement. Unless the context otherwise
requires, references herein to a class of Notes include a series of Notes that
has not been subdivided into multiple classes.
"Collateral" is defined in the Granting Clause.
"Collateral Certificate" means the Auto Loan Asset Backed
Certificates, Series 2002-CC issued by the CARCO Trust pursuant to the Pooling
and Servicing Agreement, as supplemented by the Series 2002-CC Supplement.
"Collection Account" is defined in Section 402(a).
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act, or, if at
any time after the execution of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties on such date.
"Corporate Trust Office" means the principal office of the Indenture
Trustee in New York, New York at which at any particular time its corporate
trust business will be principally administered, which office at the date
hereof is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"DCWR" means DaimlerChrysler Wholesale Receivables LLC, a Delaware
limited liability company, and its successors in interest.
"Depository" means a U.S. Depository or a Foreign Depository, as the
case may be.
"Derivative Agreement" means any currency, interest rate or other
swap, cap, collar, guaranteed investment contract or other derivative
agreement. For the avoidance of doubt, a Derivative Agreement shall be an
Enhancement Agreement.
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"Derivative Counterparty" means any party to any Derivative
Agreement other than the Issuer or the Indenture Trustee. For the avoidance of
doubt, a Derivative Counterparty shall be an Enhancement Provider.
"Discount Note" means a Note that provides for an amount less than
the Stated Principal Amount (but not less than the Initial Dollar Principal
Amount) thereof to be due and payable upon the occurrence of an Early
Redemption Event or other optional or mandatory redemption or the occurrence
of an Event of Default and the acceleration of such Note, in each case before
the Expected Principal Payment Date of the applicable Note.
"Dollar" means (a) United States dollars or (b) denominated in
United States dollars.
"Early Redemption Event" is defined in Section 1201.
"Effective Date" means the date on which this Indenture is executed
and delivered by the parties hereto.
"Enhancement Agreement" is defined in the Sale and Servicing
Agreement.
"Enhancement Provider" is defined in the Sale and Servicing
Agreement. "Entity" means any Person other than an individual or government
(including any agency or political subdivision thereof).
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Event of Default" is defined in Section 701.
"Excess Funding Account" is defined in Section 402(b).
"Exchange Date" means, with respect to any class of Notes, the
latest of:
(a) in the case of exchanges of beneficial interests in Temporary
Global Notes for beneficial interests in Permanent Global Notes in
registered form, any date that is after the related issuance date;
(b) in the case of exchanges of beneficial interests in Temporary
Global Notes for beneficial interests in Permanent Global Notes in bearer
form, the date of presentation of certification of non-United States
beneficial ownership (as described in Section 205); and
(c) the earliest date on which such an exchange of a beneficial
interest in a Temporary Global Note for a beneficial interest in a
Permanent Global Note is permitted by applicable law.
"Existing Indenture" is defined in the Preliminary Statement hereof.
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"Expected Principal Payment Date" means, with respect to any
series or class of Notes, the scheduled due date of any payment of principal
on such Notes, as specified in the related Indenture Supplement, or if such
day is not a Business Day, the next following Business Day, unless such day is
in the next calendar month, in which case such Expected Principal Payment
Date, unless otherwise specified in the related Indenture Supplement, will be
the last Business Day of the current calendar month.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"Federal Bankruptcy Code" means Title 11 of the United States Code,
as amended from time to time.
"Fitch" means Fitch, Inc., or any successor thereto.
"foreign currency" means (a) a currency other than Dollars or (b)
denominated in a currency other than Dollars.
"Foreign Depository" means the Person specified in the applicable
Indenture Supplement, in its capacity as depository for the accounts of any
clearing agencies located outside the United States.
"Global Note" means any Note issued pursuant to Section 204.
"Holder," when used with respect to any Note, means a Noteholder.
"Indenture" or "this Indenture" means this Indenture as originally
executed and as amended, supplemented, restated or otherwise modified from
time to time by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof, and will include the terms of
particular series or classes of Notes created as contemplated by Section 301.
"Indenture Supplement" means, with respect to any series of Notes, a
supplement to this Indenture, executed and delivered in conjunction with the
issuance of such Notes pursuant to Section 1001, together with any applicable
terms document related to such Indenture Supplement and any amendment to the
Indenture Supplement executed pursuant to Section 1001 or 1002, and, in either
case, including all amendments thereof and supplements thereto.
"Indenture Trustee" means the Person named as the Indenture Trustee
in the first paragraph of this Indenture until a successor Indenture Trustee
shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Indenture Trustee" means and includes each Person
who is then an Indenture Trustee hereunder. If at any time there is more than
one such Person, "Indenture Trustee" as used with respect to the Notes of any
series or class means the Indenture Trustee with respect to Notes of that
series or class.
"Indenture Trustee Authorized Officer", when used with respect to
the Indenture Trustee, means any vice president, any assistant vice president,
the treasurer, any assistant treasurer, any senior trust officer or trust
officer, or any other officer of the Indenture Trustee
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customarily performing functions similar to those performed by any of the
above designated officers and having direct responsibility for the
administration of the Indenture, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Initial Dollar Principal Amount" means (a) unless otherwise
specified in the applicable Indenture Supplement, with respect to classes of
Dollar Interest-bearing Notes, the aggregate initial principal amount of the
Outstanding Notes of such class, and (b) with respect to classes of Discount
Notes and foreign currency Notes, the amount specified in the applicable
Indenture Supplement as the Initial Dollar Principal Amount thereof.
"Interest-bearing Note" means a Note that bears interest at a stated
or computed rate on the principal amount thereof. A Note may be both an
Interest-bearing Note and a Discount Note.
"Interest Collections" is defined in the Sale and Servicing
Agreement.
"Interest Payment Date" means, with respect to any series or class
of Notes, the scheduled due date of any payment of interest on such Notes, as
specified in the applicable Indenture Supplement, or if such day is not a
Business Day, the next following Business Day, unless such day is in the next
calendar month, in which case the Interest Payment Date, unless otherwise
specified in the related Indenture Supplement, will be the last Business Day
of the current calendar month; provided, however, that upon the acceleration
of a series or class of Notes following an Event of Default or upon the
occurrence of an Early Redemption Event, or other optional or mandatory
redemption of that series or class of Notes, the date specified in the
applicable Indenture Supplement will be an Interest Payment Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Investment Company Act" means the Investment Company Act of 1940,
as amended from time to time.
"Issuer" is defined in the first paragraph of this Indenture.
"Issuer Authorized Officer" means (a) an authorized signatory of the
Owner Trustee, (b) the chairman or vice-chairman of the board of directors,
chairman or vice-chairman of the executive committee of the board of
directors, the president, any vice-president, the secretary, any assistant
secretary, the treasurer, or any assistant treasurer, in each case of the
Beneficiary (or a member of the Beneficiary acting on behalf of the
Beneficiary), or any other officer or employee of the Beneficiary (or a member
of the Beneficiary acting on behalf of the Beneficiary) who is authorized to
act on behalf of the Issuer or (c) 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 Issuer Authorized Officers
delivered by the Administrator to the Indenture Trustee as such list may be
modified or supplemented from time to time.
8
"Issuer Certificate" means a certificate (including an Officer's
Certificate) signed in the name of an Issuer Authorized Officer, or the Issuer
by an Issuer Authorized Officer, and in each case delivered to the Indenture
Trustee relating to, among other things, the issuance of a new series or class
of Notes. Wherever this Indenture requires that an Issuer Certificate be
signed also by an accountant or other expert, such accountant or other expert
(except as otherwise expressly provided in this Indenture) may be in the
employ of the Beneficiary.
"Issuer Tax Opinion" means, with respect to any action, an Opinion
of Counsel to the effect that, for federal income tax purposes, (a) such
action will not adversely affect the tax characterization as debt of any
Outstanding series or class of Notes that were characterized as debt at the
time of their issuance, (b) following such action the Issuer will not be
treated as an association (or publicly traded partnership) taxable as a
corporation, (c) such action will not cause or constitute an event in which
gain or loss would be recognized by any Holder of any such Notes, and (d)
except as otherwise provided in the related Indenture Supplement, where such
action is the issuance of a series or class of Notes, following such action
such series or class of Notes will be properly characterized as debt.
"Legal Maturity Date" means, with respect to a series or class of
Notes, the date specified in the Indenture Supplement, for such Note as the
fixed date on which the principal of such series or class of Notes is due and
payable.
"Majority Holders" means, with respect to any series or class of
Notes or all Outstanding Notes, the Holders of a majority in Outstanding
Dollar Principal Amount of the Outstanding Notes of that series or class or of
all Outstanding Notes, as the case may be.
"Monthly Noteholders' Statement" means a report substantially in the
form of Exhibit B, as the same may be supplemented as set forth in the related
Indenture Supplement.
"Monthly Period" means a calendar month, except as otherwise
specified for a series of Notes in its Indenture Supplement. The Monthly
Period with respect to a Payment Date is the Monthly Period that ends
immediately prior to such date.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor
thereto.
"Nominal Liquidation Amount" means, with respect to any Outstanding
class of Notes, an amount determined in accordance with the applicable
Indenture Supplement.
"Note" or "Notes" means any note or notes of any series or class
authenticated and delivered from time to time under this Indenture.
"Note Owner" means the beneficial owner of an interest in a Global
Note.
"Note Rating Agency" means, with respect to any Outstanding series
or class of Notes, each statistical rating agency selected by the Issuer to
rate such Notes.
"Note Register" is defined in Section 305.
9
"Note Registrar" means the Person who keeps the Note Register
specified in Section 305.
"Noteholder" means a Person in whose name a Note is registered in
the Note Register or the bearer of any Bearer Note (including a Global Note in
bearer form), as the case may be.
"Noteholders' Interest" is defined in the Sale and Servicing
Agreement.
"Officer's Certificate" means a certificate signed by the
Beneficiary or the Owner Trustee and delivered to the Indenture Trustee.
Wherever this Indenture requires that an Officer's Certificate be signed also
by an accountant or other expert, such accountant or other expert (except as
otherwise expressly provided in this Indenture) may be in the employ of the
Beneficiary.
"Opinion of Counsel" means a written opinion of counsel, who may,
without limitation, and except as otherwise expressly provided in this
Indenture, be an employee of or of counsel to the Issuer, the Beneficiary or
any of their Affiliates.
"Outstanding," when used with respect to a Note or with respect to
Notes of any series or class means, as of the date of determination, all such
Notes theretofore authenticated and delivered under this Indenture, except:
(a) any Notes theretofore canceled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation, or canceled by the
Issuer, DCWR or any Affiliate thereof pursuant to Section 309;
(b) any Notes for whose full payment (including principal and
interest) or redemption money in the necessary amount has been theretofore
deposited with the Indenture Trustee or any Paying Agent in trust for the
Holders of such Notes; provided that, if such Notes are to be redeemed, notice
of such redemption has been duly given if required pursuant to this Indenture,
the related Indenture Supplement, or provision therefor satisfactory to the
Indenture Trustee has been made;
(c) any Notes which are deemed to have been paid in full pursuant to
Section 503; and
(d) any such Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture, or which
will have been paid pursuant to the terms of Section 306 (except with respect
to any such Note as to which proof satisfactory to the Indenture Trustee is
presented that such Note is held by a Person in whose hands such Note is a
legal, valid and binding obligation of the Issuer).
For purposes of determining the amounts of deposits, allocations,
reallocations or payments to be made, unless the context clearly requires
otherwise, references to "Notes" will be deemed to be references to
"Outstanding Notes." In determining whether the Holders of the requisite
principal amount of such Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, and for
purposes of Section 904, Notes beneficially owned
10
by the Issuer or DCWR or any Affiliate of the Issuer or DCWR will be
disregarded and deemed not to be Outstanding. In determining whether the
Indenture Trustee will be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which an
Indenture Trustee Authorized Officer actually knows to be so owned by the
Issuer or DCWR or any Affiliate of the Issuer or DCWR will be so disregarded.
Notes so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee creates to the satisfaction of the Indenture
Trustee the pledgee's right to act as owner with respect to such Notes and
that the pledgee is not the Issuer, DCWR or any other obligor upon the Notes
or any Affiliate of the Issuer, DCWR or such other obligor.
"Outstanding Dollar Principal Amount" means at any time,
(a) with respect to any series or class of non-Discount Notes, the
aggregate Initial Dollar Principal Amount of the Outstanding Notes of such
series or class at such time, less the amount of any withdrawals from the
Principal Funding Account or Principal Funding sub-Account for such class of
Notes for payment of principal to the Holders of such series or class or to
the applicable Enhancement Provider pursuant to the related Indenture
Supplement, and
(b) with respect to any series or class of Discount Notes, an amount
of the Outstanding Notes of such series or class calculated by reference to
the applicable formula set forth in the applicable Indenture Supplement,
taking into account the amount and timing of payments of principal made to the
Holders of such series or class or to the applicable Enhancement Provider and
accretions of principal, each pursuant to the related Indenture Supplement.
"Overcollateralization Amount" has, with respect to any series of
Notes, the meaning specified in the related Indenture Supplement.
"Owner Trustee" means Chase Manhattan Bank USA, National
Association, not in its individual capacity but solely as owner trustee of the
Issuer, and each of its successors and assigns.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of or interest on any Notes on behalf of the Issuer, which shall
initially be the Indenture Trustee.
"Payment Date" means, with respect to any series or class of Notes,
the applicable Principal Payment Date or Interest Payment Date.
"Payment Instruction" means an instruction substantially in the form
of Exhibit A, or such other form as the Issuer may determine, as the same may
be supplemented as set forth in the related Indenture Supplement.
"Permanent Global Note" is defined in Section 205.
11
"Permitted Investments" means, unless otherwise provided in the
Indenture Supplement with respect to any series of Notes:
(a) instruments, investment property or other property consisting
of:
(i) obligations of or fully guaranteed by the United States of
America;
(ii) time deposits or certificates of deposit of any depository
institution or trust company incorporated under the laws of the
United States of America or any state thereof (or domestic branches
of foreign depository institutions or trust companies) and subject
to supervision and examination by federal or state banking or
depository institution authorities; provided, however, that at the
time of the Indenture Trustee's investment or contractual commitment
to invest therein, the certificates of deposit or short-term
deposits of such depository institution or trust company shall have
a credit rating from Moody's and Standard & Poor's of P-1 and A-1+,
respectively, and, if rated by Fitch, F1+ from Fitch;
(iii) commercial paper (including but not limited to asset
backed commercial paper) having, at the time of the Indenture
Trustee's investment or contractual commitment to invest therein, a
rating from Moody's and Standard & Poor's of P-1 and A-1+,
respectively, and, if rated by Fitch, F1+ from Fitch;
(iv) bankers' acceptances issued by any depository institution
or trust company described in clause (a)(ii) above; and
(v) investments in money market funds rated AAA-m or AAA-mg by
Standard & Poor's and Aaa by Moody's or otherwise approved in
writing by each Note Rating Agency;
(b) demand deposits in the name of the Indenture Trustee in any
depository institution or trust company referred to in clause (a)(ii)
above;
(c) uncertificated securities that are registered in the name
of the Indenture Trustee upon books maintained for that purpose by the
issuer thereof and identified on books maintained for that purpose by the
Indenture Trustee as held for the benefit of the Noteholders, and
consisting of shares of an open end diversified investment company which
is registered under the Investment Company Act, and which (i) invests its
assets exclusively in obligations of or guaranteed by the United States
of America or any instrumentality or agency thereof having in each
instance a final maturity date of less than one year from their date of
purchase or other Permitted Investments, (ii) seeks to maintain a
constant net asset value per share, (iii) has aggregate net assets of not
less than $100,000,000 on the date of purchase of such shares and (iv)
with respect to which each Note Rating Agency confirms in writing that
such investment will not cause a Ratings Effect; and
(d) any other investment if each Note Rating Agency confirms in
writing that such investment will not cause a Ratings Effect.
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"Person" means any individual, corporation, estate, partnership,
limited liability company, limited liability partnership, joint venture,
association, joint-stock company, business trust, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" means, with respect to any class of Notes issued
hereunder, the city or political subdivision so designated with respect to
such class of Notes in accordance with the provisions of Section 301.
"Pooling and Servicing Agreement" means the Amended and Restated
Pooling and Servicing Agreement, dated as of December 5, 2001, as amended by
the First Amendment thereto, dated as of November 14, 2003, among DCWR, as
seller, DaimlerChrysler Services North America LLC, as servicer, and The Bank
of New York, as trustee.
"Predecessor Notes" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in lieu of a mutilated, lost,
destroyed or stolen Note will be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Principal Collections" is defined in the Sale and Servicing
Agreement.
"Principal Payment Date" means, with respect to any series or class
of Notes, each Expected Principal Payment Date, or upon the acceleration of
such series or class of Notes following an Event of Default or upon the
occurrence of an Early Redemption Event, or other optional or mandatory
redemption of such series or class of Notes, the date specified in the related
Indenture Supplement.
"Program Amendment Agreement" is defined in the Sale and Servicing
Agreement.
"Put Feature" means, with respect to a series of Notes, the
provisions in the Indenture Supplement for such series of Notes that allow the
Noteholders, under specified circumstances, to put the Notes of such series to
the Issuer in exchange for the proceeds (up to the amount specified in the
Indenture Supplement) from the sale of Receivables specified in such Indenture
Supplement.
"Qualified Account" means either (a) a segregated account (including
a securities account) with a Qualified Institution, (b) a segregated trust
account with the corporate trust department of a depository institution
organized under the laws of the United States of America or any one of the
States thereof or the District of Columbia (or any domestic branch of a
foreign bank), having corporate trust powers and acting as trustee for funds
deposited in such account, so long as any of the securities of such depository
institution shall have a credit rating from each Note Rating Agency in one of
its generic rating categories which signifies investment grade or (c) any
other account in respect of which each Note Rating Agency confirms in writing
that use of such account will not cause a Ratings Effect.
13
"Qualified Institution" means (a) a depository institution, which
may include the Indenture Trustee (so long as it is a paying agent under the
Indenture) or the Owner Trustee, organized under the laws of the United States
of America or any one of the States thereof or the District of Columbia, the
deposits in which are insured by the FDIC and which at all times has a
short-term unsecured debt rating in the applicable investment category of each
Note Rating Agency or (b) a depository institution as to which each Note
Rating Agency confirms in writing that such deposition institution as a
Qualified Institution will not cause a Rating Effect.
"Ratings Effect" means a reduction, qualification or withdrawal of
any then current rating of the Notes.
"Receivables" is defined in the Sale and Servicing Agreement.
"Record Date" for the interest or principal payable on any Note on
any applicable Payment Date means the last day of the month before the related
Interest Payment Date or Principal Payment Date, as applicable, unless
otherwise specified in the applicable Indenture Supplement.
"Registered Note" means a Note issued in registered form.
"Registered Noteholder" means a holder of a Registered Note.
"Required Subordinated Amount" means, with respect to any class of a
senior class of Notes, the amount specified in the related Indenture
Supplement.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement, dated as of December 16, 2004, among DCWR, as Seller,
DaimlerChrysler Services North America LLC, as Servicer, and the Issuer, as
amended, supplemented or restated from time to time.
"Secured Party" is defined in the Granting Clause.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time.
"Security Interest" means the security interest granted pursuant to
the Granting Clause.
"Seller" means DCWR in its capacity as Seller under the Sale and
Servicing Agreement, or any successor thereto in such capacity to the extent
permitted under the Sale and Servicing Agreement.
"senior class," with respect to a class of Notes of any series, has
the meaning specified in the related Indenture Supplement.
"series" means, with respect to any Note, the series specified in
the applicable Indenture Supplement.
14
"Series Available Interest Amount Shortfalls," with respect to any
series of Notes, has the meaning specified in the related Indenture
Supplement.
"Series Available Principal Amount Shortfalls," with respect to any
series of Notes, has the meaning specified in the related Indenture
Supplement.
"Series Floating Allocation Percentage," with respect to any series
of Notes, has the meaning specified in the related Indenture Supplement.
"Series Nominal Liquidation Amount," with respect to any series of
Notes, is defined in the related Indenture Supplement.
"Series Principal Allocation Percentage," with respect to any series
of Notes, has the meaning specified in the related Indenture Supplement.
"Series 2002-CC Supplement" means the Series 2002-CC Supplement to
the Pooling and Servicing Agreement, dated as of June 1, 2002.
"Servicer" is defined in the Sale and Servicing Agreement.
"Shared Excess Available Interest Amounts" means the aggregate of
the amounts allocated to the Notes of each series that the applicable
Indenture Supplement for such series specifies are to be treated as "Shared
Excess Available Interest Amounts."
"Shared Excess Available Principal Amounts" means the aggregate of
the amounts allocated to the Notes of each series that the applicable
Indenture Supplement for such series specifies are to be treated as "Shared
Excess Available Principal Amounts."
"Standard & Poor's" means Standard & Poor's Ratings Services or any
successor thereto.
"Stated Principal Amount," with respect to any Note, has the meaning
specified in the related Indenture Supplement.
"sub-Account" means each portion of an Account designated as such
pursuant to this Indenture or the related Indenture Supplement.
"subordinated class," with respect to a class of Notes of any
series, has the meaning specified in the related Indenture Supplement.
"subordinated Notes" means Notes of a subordinated class of a
series.
"Supplemental Account" means the trust account or accounts
designated as such and established pursuant to Section 402(c).
"Supplemental Certificate" is defined in the Trust Agreement.
"Temporary Global Note" is defined in Section 205.
15
"Trust Agreement" means the Amended and Restated Trust Agreement,
dated as of December 16, 2004, between DCWR, as Beneficiary, and Chase
Manhattan Bank USA, National Association, as Owner Trustee, as amended,
supplemented or restated from time to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, as in force at the date as
of which this Indenture was executed except as provided in Section 1005.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction.
"U.S. Depository" means, unless otherwise specified by the Issuer
pursuant to either Section 204, 206, or 301, with respect to Notes of any
class issuable or issued as Global Note within the United States, The
Depository Trust Company, New York, New York, or any successor thereto
registered as a clearing agency under the Securities Exchange Act, or other
applicable statute regulation.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Issuer to the Indenture Trustee to take any
action under any provision of this Indenture, the Issuer will furnish to the
Indenture Trustee (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and (ii) an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
The Indenture Trustee may rely, as to authorization by the Issuer of
any class of Notes, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and the
other documents delivered pursuant to Section 310 and this Section, as
applicable, in connection with the first authentication of Notes of such
class.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for the written
statement required by Section 1104) will include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) 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;
(c) a statement that such individual has made such examination or
investigation as is necessary to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
16
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. 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, one or more specified Persons, one such Person may certify or
give an opinion with respect to some matters and one or more other such
Persons as to the 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 the Issuer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless the Issuer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations are erroneous.
Any such certificate or opinion of, or representation by, counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, the Issuer stating that the information with
respect to such factual matters is in the possession of the Issuer, unless
such counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action (collectively, "action") provided by this Indenture to
be given or taken by Noteholders of any series or class may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by an agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action will become
effective when such instrument or instruments are delivered to the Indenture
Trustee, and, where it is hereby expressly required, to the Issuer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Noteholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent will be sufficient for
any purpose of this Indenture and (subject to Section 801) 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 by the affidavit of a witness to such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by an officer of a corporation or a
member of a partnership, on behalf of such corporation or partnership, such
certificate or affidavit will also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Indenture Trustee deems sufficient.
17
(c) (i) The ownership of Registered Notes will be proved by the Note
Register.
(ii) The ownership of Bearer Notes or coupons will be proved by
the production of such Bearer Notes or coupons or by a certificate,
satisfactory to the Issuer, executed by any bank, trust company or
recognized securities dealer, wherever situated, satisfactory to the
Issuer. Each such certificate will be dated and will state that on
the date thereof a Bearer Note or coupon bearing a specified serial
number was deposited with or exhibited to such bank, trust company
or recognized securities dealer by the Person named in such
certificate. Any such certificate may be issued in respect of one or
more Bearer Notes or coupons specified therein. The holding by the
Person named in any such certificate of any Bearer Note specified
therein will be presumed to continue for a period of one year from
the date of such certificate unless at the time of any determination
of such holding (A) another certificate bearing a later date issued
in respect of the same Bearer Note or coupon produced, (B) the
Bearer Note or coupon specified in such certificate is produced by
some other Person or (C) the Bearer Note or coupon specified in such
certificate has ceased to be Outstanding.
(d) If the Issuer will solicit from the Holders any action, the
Issuer may, at its option, by an Officer's Certificate, fix in advance a
record date for the determination of Holders entitled to give such action, but
the Issuer will have no obligation to do so. If the Issuer does not so fix a
record date, such record date will be the later of thirty (30) days before the
first solicitation of such action or the date of the most recent list of
Noteholders furnished to the Indenture Trustee pursuant to Section 901 before
such solicitation. Such action may be given before or after the record date,
but only the Holders of record at the close of business on the record date
will be deemed to be Holders for the purposes of determining whether Holders
of the requisite proportion of Notes Outstanding have authorized or agreed or
consented to such action, and for that purpose the Notes Outstanding will be
computed as of the record date; provided that no such authorization, agreement
or consent by the Holders on the record date will be deemed effective unless
it will become effective pursuant to the provisions of this Indenture not
later than six (6) months after the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Note will bind the Holder of every
Note issued upon the transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done or suffered to be done by the Indenture
Trustee or the Issuer in reliance thereon whether or not notation of such
action is made upon such Note.
SECTION 105. Notices, etc., to Indenture Trustee and Issuer. Any
action of Noteholders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Indenture Trustee by any Noteholder or by the Issuer will 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
18
(b) the Issuer by the Indenture Trustee or by any Noteholder will be
sufficient for every purpose hereunder (except as provided in Section 701(c))
if in writing and mailed, first-class postage prepaid, to the Issuer addressed
to it at the address of its principal office specified in the first paragraph
of this Indenture or at any other address previously furnished in writing to
the Indenture Trustee by the Issuer.
SECTION 106. Notices to Noteholders; Waiver.
(a) Where this Indenture, any Indenture Supplement or any Registered
Note provides for notice to Registered Noteholders of any event, such notice
will be sufficiently given (unless otherwise herein, in such Indenture
Supplement or in such Registered Note expressly provided) if in writing and
mailed, first-class postage prepaid, sent by facsimile, sent by electronic
transmission or personally delivered to each Holder of Registered Note
affected by such event, at such Noteholder's address as it appears in the 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
Registered Noteholders is given by mail, facsimile, electronic transmission or
delivery neither the failure to mail, send by facsimile, electronic
transmission or deliver such notice, nor any defect in any notice so mailed,
to any particular Noteholders will affect the sufficiency of such notice with
respect to other Noteholders and any notice that is mailed, sent by facsimile,
electronic transmission or delivered in the manner herein provided shall
conclusively have been presumed to have been duly given.
Where this Indenture, any Indenture Supplement or any Registered
Note provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the
event, and such waiver will be the equivalent of such notice. Waivers of
notice by Registered Noteholders will be filed with the Indenture Trustee, but
such filing will not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
(b) In case, by reason of the suspension of regular mail service as
a result of a strike, work stoppage or otherwise, it will be impractical to
mail notice of any event to any Holder of a Registered Note when such notice
is required to be given pursuant to any provision of this Indenture, then any
method of notification as will be satisfactory to the Indenture Trustee and
the Issuer will be deemed to be a sufficient giving of such notice.
(c) No notice will be given by mail, facsimile, electronic
transmission or otherwise delivered to a Holder of Bearer Notes or coupons in
bearer form. In the case of any class with respect to which any Bearer Notes
are Outstanding, any notice required or permitted to be given to Holders of
such Bearer Notes will be published in an Authorized Newspaper within the time
period prescribed in this Indenture or the applicable Indenture Supplement.
(d) With respect to any class of Notes, the applicable Indenture
Supplement may specify different or additional means of giving notice to the
Holders of the Notes of such class.
19
(e) Where this Indenture provides for notice to any Note Rating
Agency, failure to give such notice will not affect any other rights or
obligations created hereunder and will not under any circumstance constitute
an Adverse Effect.
SECTION 107. Conflict with Trust Indenture Act. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318, inclusive, of
the Trust Indenture Act, such imposed duties or incorporated provision will
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision will be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and will not affect the construction hereof.
SECTION 109. Successors and Assigns. All covenants and agreements in
this Indenture by the Issuer will bind its successors and assigns, whether so
expressed or not. All covenants and agreements of the Indenture Trustee in
this Indenture shall bind its successors, co-trustees and agents of the
Indenture Trustee.
SECTION 110. Separability. In case any provision in this Indenture
or in the Notes will be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.
SECTION 111. Benefits of Indenture. Nothing in this Indenture or in
any Notes, express or implied, will give to any Person, other than the parties
hereto and their successors hereunder, any Authenticating Agent or Paying
Agent, the Note Registrar, the Enhancement Providers (to the extent specified
in the applicable Enhancement Agreements) and the Holders of Notes (or such of
them as may be affected thereby), any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 112. Governing Law. THIS INDENTURE WILL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 113. Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed will be deemed to be an
original, but all such counterparts will together constitute but one and the
same instrument.
SECTION 114. Indenture Referred to in the Trust Agreement. This is
the Indenture referred to in the Trust Agreement.
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ARTICLE II
NOTE FORMS
SECTION 201. Forms Generally. The Notes will have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or the applicable Indenture Supplement and may
have such letters, numbers or other marks of identification and such legends
or endorsements placed thereon, as may be required to comply with applicable
laws or regulations or with the rules of any securities exchange, or as may,
consistently herewith, be determined by the Issuer, as evidenced by the
Issuer's execution of such Notes. Any portion of the text of any Note may be
set forth on the reverse thereof, with an appropriate reference thereto on the
face of the Note.
The definitive Notes will be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without
steel engraved borders) or may be produced in any other manner, all as
determined by the Issuer, as evidenced by the Issuer's execution of such
Notes, subject, with respect to the Notes of any series or class, to the rules
of any securities exchange on which such Notes are listed.
SECTION 202. Forms of Notes. Each Note will be in one of the forms
approved from time to time by or pursuant to an Indenture Supplement. Before
the delivery of a Note to the Indenture Trustee for authentication in any form
approved by or pursuant to an Issuer Certificate, the Issuer will deliver to
the Indenture Trustee the Issuer Certificate by or pursuant to which such form
of Note has been approved, which Issuer Certificate will have attached thereto
a true and correct copy of the form of Note which has been approved thereby
or, if an Issuer Certificate authorizes a specific officer or officers of the
Beneficiary to approve a form of Note, a certificate of such officer or
officers approving the form of Note attached thereto. Any form of Note
approved by or pursuant to an Issuer Certificate must be acceptable as to form
to the Indenture Trustee, such acceptance to be evidenced by the Indenture
Trustee's authentication of Notes in that form or a certificate signed by an
Indenture Trustee Authorized Officer and delivered to the Issuer.
SECTION 203. Form of Indenture Trustee's Certificate of
Authentication. The form of Indenture Trustee's Certificate of Authentication
for any Note issued pursuant to this Indenture will be substantially as
follows:
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INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series or class designated therein
referred to in the within-mentioned Indenture.
The Bank of New York,
as Indenture Trustee,
By: ______________________________________
Authorized Signatory
Dated:______________________________________
SECTION 204. Notes Issuable in the Form of a Global Note.
(a) If the Issuer establishes pursuant to Sections 202 and 301 that
the Notes of a particular series or class are to be issued in whole or in part
in the form of one or more Global Notes, then the Issuer will execute and the
Indenture Trustee or its agent will, in accordance with Section 303 and the
Issuer Certificate delivered to the Indenture Trustee or its agent thereunder,
authenticate and deliver, such Global Note or Notes, which, unless otherwise
provided in the applicable Indenture Supplement (i) will represent, and will
be denominated in an amount equal to the aggregate Stated Principal Amount (or
in the case of Discount Notes, the aggregate Stated Principal Amount at the
Expected Principal Payment Date of such Notes) of the Outstanding Notes of
such series or class to be represented by such Global Note or Notes, or such
portion thereof as the Issuer will specify in an Issuer Certificate, (ii) in
the case of Registered Notes, will be registered in the name of the Depository
for such Global Note or Notes or its nominee, (iii) will be delivered by the
Indenture Trustee or its agent to the Depository or pursuant to the
Depository's instruction, (iv) if applicable, will bear a legend substantially
to the following effect: "Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Issuer or its agent for registration of transfer, exchange or
payment, and any note issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), any transfer, pledge or other use hereof
for value or otherwise by or to any person is wrongful inasmuch as the
registered owner hereof, Cede & Co., has an interest herein" and (v) may bear
such other legend as the Issuer, upon advice of counsel, deems to be
applicable.
(b) Notwithstanding any other provisions of this Section 204 or of
Section 305, and subject to the provisions of paragraph (c) below, unless the
terms of a Global Note or the applicable Indenture Supplement expressly permit
such Global Note to be exchanged in whole or in part for individual Notes, a
Global Note may be transferred, in whole but not in part and in the manner
provided in Section 305, only to a nominee of the Depository for such Global
Note, or to the Depository, or a successor Depository for such Global Note
selected or approved by the Issuer, or to a nominee of such successor
Depository.
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(c) With respect to Notes issued within the United States, unless
otherwise specified in the applicable Indenture Supplement, or with respect to
Notes issued outside the United States, if specified in the applicable
Indenture Supplement:
(i) If at any time the Depository for a Global Note notifies
the Issuer that it is unwilling or unable to continue as Depository
for such Global Note or if at any time the Depository for the Notes
for such series or class ceases to be a clearing agency registered
under the Securities Exchange Act, or other applicable statute or
regulation, the Issuer will appoint a successor Depository with
respect to such Global Note. If a successor Depository for such
Global Note is not appointed by the Issuer within ninety (90) days
after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer will execute, and the Indenture Trustee or
its agent, upon receipt of an Issuer Certificate requesting the
authentication and delivery of individual Notes of such series or
class in exchange for such Global Note, will authenticate and
deliver, individual Notes of such series or class of like tenor and
terms in an aggregate Stated Principal Amount equal to the Stated
Principal Amount of the Global Note in exchange for such Global
Note.
(ii) The Issuer may at any time and in its sole discretion
determine that the Notes of any series or class or portion thereof
issued or issuable in the form of one or more Global Notes will no
longer be represented by such Global Note or Notes. In such event
the Issuer will execute, and the Indenture Trustee, upon receipt of
an Issuer request for the authentication and delivery of individual
Notes of such series or class in exchange in whole or in part for
such Global Note, will authenticate and deliver individual Notes of
such series or class of like tenor and terms in definitive form in
an aggregate Stated Principal Amount equal to the Stated Principal
Amount of such Global Note or Notes representing such series or
class or portion thereof in exchange for such Global Note or Notes.
(iii) If specified by the Issuer pursuant to Sections 202 and
301 with respect to Notes issued or issuable in the form of a Global
Note, the Depository for such Global Note may surrender such Global
Note in exchange in whole or in part for individual Notes of such
series or class of like tenor and terms in definitive form on such
terms as are acceptable to the Issuer and such Depository. Thereupon
the Issuer will execute, and the Indenture Trustee or its agent will
authenticate and deliver, without service charge, (A) to each Person
specified by such Depository a new Note or Notes of the same series
or class of like tenor and terms and of any authorized denomination
as requested by such Person in aggregate Stated Principal Amount
equal to and in exchange for such Person's beneficial interest in
the Global Note; and (B) to such Depository a new Global Note of
like tenor and terms and in an authorized denomination equal to the
difference, if any, between the Stated Principal Amount of the
surrendered Global Note and the aggregate Stated Principal Amount of
Notes delivered to the Holders thereof.
(iv) If any Event of Default has occurred with respect to such
Global Notes, and Holders of Notes evidencing not less than 50% of
the unpaid Outstanding Dollar Principal Amount of the Global Notes
of that class advise the Indenture Trustee and the Depository that a
Global Note is no longer in the best interest of the Noteholders,
the Holders of Global Notes of that class may exchange such Notes
for individual Notes.
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(v) In any exchange provided for in any of the preceding three
paragraphs, the Issuer will execute and the Indenture Trustee or its
agent will authenticate and deliver individual Notes in definitive
registered form in authorized denominations. Upon the exchange of
the entire Stated Principal Amount of a Global Note for individual
Notes, such Global Note will be canceled by the Indenture Trustee or
its agent. Except as provided in the preceding paragraphs, Notes
issued in exchange for a Global Note pursuant to this Section will
be registered in such names and in such authorized denominations as
the Depository for such Global Note, pursuant to instructions from
its direct or indirect participants or otherwise, will instruct the
Indenture Trustee or the Note Registrar. The Indenture Trustee or
the Note Registrar will deliver such Notes to the Persons in whose
names such Notes are so registered.
SECTION 205. Temporary Global Notes and Permanent Global Notes.
(a) If specified in the applicable Indenture Supplement for any
series or class, all or any portion of a Global Note may initially be issued
in the form of a single temporary Global Bearer Note or Registered Note (the
"Temporary Global Note"), without interest coupons, in the denomination of the
entire aggregate principal amount of such series or class and substantially in
the form set forth in the exhibit with respect thereto attached to the
applicable Indenture Supplement. The Temporary Global Note will be
authenticated by the Indenture Trustee upon the same conditions, in
substantially the same manner and with the same effect as the Notes in
definitive form. The Temporary Global Note may be exchanged as described below
or in the applicable Indenture Supplement for permanent global Bearer Notes or
Registered Notes (the "Permanent Global Notes").
(b) Unless otherwise provided in the applicable Indenture
Supplement, exchanges of beneficial interests in Temporary Global Notes for
beneficial interests in Permanent Global Notes will be made as provided in
this clause. The Beneficiary will, upon its determination of the date of
completion of the distribution of the Notes of such series or class, so advise
the Indenture Trustee, the Issuer, the Foreign Depository, and each foreign
clearing agency forthwith. Without unnecessary delay, but in any event not
prior to the Exchange Date, the Issuer will execute and deliver to the
Indenture Trustee at its London office or its designated agent outside the
United States Permanent Global Notes in bearer or registered form (as
specified in the applicable Indenture Supplement) in an aggregate principal
amount equal to the entire aggregate principal amount of such series or class.
Bearer Notes so issued and delivered may have coupons attached. The Temporary
Global Note may be exchanged for an equal aggregate principal amount of
Permanent Global Notes only on or after the Exchange Date. A United States
Person may exchange the portion of the Temporary Global Note beneficially
owned by it only for an equal aggregate principal amount of Permanent Global
Notes in registered form bearing the applicable legend set forth in the form
of Registered Note attached to the applicable Indenture Supplement and having
a minimum denomination of $500,000, which may be in temporary form if the
Issuer so elects. The Issuer may waive the $500,000 minimum denomination
requirement if it so elects. Upon any demand for exchange for Permanent Global
Notes in accordance with this clause, the Issuer will cause the Indenture
Trustee to authenticate and deliver the Permanent Global Notes to the Holder
(x) outside the United States, in the case of Bearer Notes and (y) according
to the instructions of the Holder, in the case of Registered Notes, but in
either case only upon presentation to the Indenture Trustee of a written
statement
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substantially in the form of Exhibit D-1 (or such other form as the Issuer may
determine) with respect to the Temporary Global Note, or portion thereof being
exchanged, signed by a foreign clearing agency and dated on the Exchange Date
or a subsequent date, to the effect that it has received in writing or by
tested telex a certification substantially in the form of (i) in the case of
beneficial ownership of the Temporary Global Note, or a portion thereof being
exchanged, by a United States institutional investor pursuant to this clause,
the certificate in the form of Exhibit D-2 (or such other form as the Issuer
may determine) signed by the beneficiary which sold the relevant Notes or (ii)
in all other cases, the certificate in the form of Exhibit D-3 (or such other
form as the Issuer may determine), the certificate referred to in this clause
(ii) being dated on the earlier of the first payment of interest in respect of
such Note and the date of the delivery of such Note in definitive form. Upon
receipt of such certification, the Indenture Trustee will cause the Temporary
Global Note to be endorsed in accordance with paragraph (d). Any exchange as
provided in this Section will be made free of charge to the Holders and the
beneficial owners of the Temporary Global Note and to the beneficial owners of
the Permanent Global Note issued in exchange, except that a Person receiving
the Permanent Global Note must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not receive
such Permanent Global Note in person at the offices of a foreign clearing
agency.
(c) The delivery to the Indenture Trustee by a foreign clearing
agency of any written statement referred to above may be relied upon by the
Issuer and the Indenture Trustee as conclusive evidence that a corresponding
certification or certifications has or have been delivered to such foreign
clearing agency pursuant to the terms of this Indenture.
(d) Upon any such exchange of all or a portion of the Temporary
Global Note for a Permanent Global Note or Notes, such Temporary Global Note
will be endorsed by or on behalf of the Indenture Trustee to reflect the
reduction of its principal amount by an amount equal to the aggregate
principal amount of such Permanent Global Note or Notes. Until so exchanged in
full, such Temporary Global Note will in all respects be entitled to the same
benefits under this Indenture as Permanent Global Notes authenticated and
delivered hereunder except that the beneficial owners of such Temporary Global
Note will not be entitled to receive payments of interests on the Notes until
they have exchanged their beneficial interests in such Temporary Global Note
for Permanent Global Notes.
SECTION 206. Beneficial Ownership of Global Notes. Until definitive
Notes have been issued to the applicable Noteholders pursuant to Section 204
or as otherwise specified in any applicable Indenture Supplement,
(a) the Issuer and the Indenture Trustee may deal with the
applicable clearing agency and the clearing agency's participants for all
purposes (including the making of distributions) as the authorized
representatives of the respective Note Owners; and
(b) the rights of the respective Note Owners will be exercised only
through the applicable clearing agency and the clearing agency's participants
and will be limited to those established by law and agreements between such
Note Owners and the clearing agency and/or the clearing agency's participants.
Pursuant to the operating rules of the applicable clearing agency, unless and
until Notes in definitive form are issued pursuant to Section 204, the
clearing agency will make book-entry transfers among the clearing agency's
participants and receive and
25
transmit distributions of principal and interest on the related Notes to such
clearing agency's participants.
For purposes of any provision of this Indenture requiring or
permitting actions with the consent of, or at the direction of, Noteholders
evidencing a specified percentage of the aggregate unpaid principal amount of
Outstanding Notes, such direction or consent may be given by Note Owners
(acting through the clearing agency and the clearing agency's participants)
owning interests in Notes evidencing the requisite percentage of principal
amount of Notes.
SECTION 207. Notices to Depository. Whenever any notice or other
communication is required to be given to Noteholders with respect to which
book-entry Notes have been issued, unless and until Notes in definitive form
will have been issued to the related Note Owners, the Indenture Trustee will,
at the written direction of the Issuer, give all such notices and
communications to the applicable Depository.
ARTICLE III
THE NOTES
SECTION 301. General Title; General Limitations; Issuable in Series;
Terms of a Series or Class.
(a) The aggregate Stated Principal Amount of Notes which may be
authenticated and delivered and Outstanding under this Indenture is not
limited.
(b) The Notes may be issued in one or more series or classes up to
an aggregate Stated Principal Amount of Notes as from time to time may be
authorized by the Issuer. All Notes of each series or class under this
Indenture will in all respects be equally and ratably entitled to the benefits
hereof with respect to such series or class without preference, priority or
distinction on account of the actual time of the authentication and delivery
or the Expected Principal Payment Date or Legal Maturity Date of the Notes of
such series or class, except as specified in the applicable Indenture
Supplement for such series or class.
(c) Each Note issued must be part of a series or class of Notes for
purposes of allocations pursuant to Article V. A series of Notes is created
pursuant to an Indenture Supplement. A class of Notes of that series is
created pursuant to such Indenture Supplement.
(d) Each series of Notes may, but need not be, subdivided into
multiple classes. Unless the context otherwise requires, references herein to
a class of Notes include a series of Notes that has not been subdivided into
multiple classes. Notes belonging to a class in any series may be entitled to
specified payment priorities over other classes of Notes in that series.
(e) There shall also be established in or pursuant to an Indenture
Supplement or pursuant to an Issuer Certificate or terms document related to
the applicable Indenture Supplement before the initial issuance of Notes of
each such series or class, provision for:
(i) the series designation;
26
(ii) the Stated Principal Amount of the Notes;
(iii) whether such Notes are of a particular class of Notes;
(iv) the Required Subordinated Amount (if any) for such class
of Notes;
(v) the currency or currencies in which such Notes will be
denominated and in which payments of principal of, and interest on,
such Notes will or may be payable;
(vi) if the principal of or interest, if any, on such Notes are
to be payable, at the election of the Issuer or a Holder thereof, in
a currency or currencies other than that in which the Notes are
stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made; (vii) if
the amount of payments of principal of or interest, if any, on such
Notes may be determined with reference to an index based on (A) a
currency or currencies other than that in which the Notes are stated
to be payable, (B) changes in the prices of one or more other
securities or groups or indexes of securities or (C) changes in the
prices of one or more commodities or groups or indexes of
commodities, or any combination of the foregoing, the manner in
which such amounts will be determined;
(viii) the times at which such Notes may, pursuant to any
optional or mandatory redemption provisions, be redeemed, and the
other terms and provisions of any such redemption provisions;
(ix) the rate per annum at which such Notes will bear interest,
if any, or the formula or index on which such rate will be
determined, including all relevant definitions, and the date from
which interest will accrue;
(x) each Interest Payment Date, Expected Principal Payment Date
and Legal Maturity Date for such Notes;
(xi) the Initial Dollar Principal Amount of such Notes, and the
means for calculating the Outstanding Dollar Principal Amount of
such Notes;
(xii) whether or not application will be made to list such
Notes on any securities exchange;
(xiii) any Events of Default or Early Redemption Events with
respect to such Notes, if not set forth herein and any additions,
deletions or other changes to the Events of Default or Early
Redemption Events set forth herein that will be applicable to such
Notes (including a provision making any Event of Default or Early
Redemption Event set forth herein inapplicable to the Notes of that
series or class);
(xiv) the appointment by the Indenture Trustee of an
Authenticating Agent in one or more places other than the location
of the office of the Indenture Trustee
27
with power to act on behalf of the Indenture Trustee and subject to its
direction in the authentication and delivery of such Notes in connection with
such transactions as will be specified in the provisions of this Indenture or
in or pursuant to the applicable Indenture Supplement creating such series or
class;
(xv) if such Notes will be issued in whole or in part in the
form of a Global Note or Global Notes, the terms and conditions, if
any, upon which such Global Note or Global Notes may be exchanged in
whole or in part for other individual Notes; and the Depository for
such Global Note or Global Notes (if other than the Depository
specified in Section 101);
(xvi) the subordination of such Notes to any other indebtedness
of the Issuer, including the Notes of any other series or class;
(xvii) if such Notes are to have the benefit of any Enhancement
Agreement, the terms and provisions of such agreement;
(xviii) the Record Date for any Payment Date of such Notes, if
different from the last day of the month before the related Payment
Date;
(xix) the controlled accumulation amount, if any, the
controlled amortization amount, if any, or other principal
amortization amount, if any, scheduled for such Notes;
(xx) the Overcollateralization Amount, if any, for such series
or class of Notes; and
(xxi) any other terms of such Notes;
all upon such terms as may be determined in or pursuant to an Indenture
Supplement with respect to such series or class.
(f) The form of the Notes of each series or class will be
established pursuant to the provisions of this Indenture and the related
Indenture Supplement creating such series or class. The Notes of each series
or class will be distinguished from the Notes of each other series or class in
such manner, reasonably satisfactory to the Indenture Trustee, as the Issuer
may determine.
(g) Unless otherwise provided with respect to Notes of a particular
series or class, the Notes of any particular series or class will be issued in
registered form, without coupons.
(h) Any terms or provisions in respect of the Notes of any series or
class issued under this Indenture may be determined pursuant to this Section
by providing in the applicable Indenture Supplement for the method by which
such terms or provisions will be determined.
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(i) The Notes of each series or class may have such Expected
Principal Payment Date or Dates or Legal Maturity Date or Dates, be issuable
at such premium over or discount from their face value, bear interest at such
rate or rates (which may be fixed or floating), from such date or dates,
payable in such installments and on such dates and at such place or places to
the Holders of Notes registered as such on such Record Dates, or may bear no
interest, and have such terms, all as will be provided for in or pursuant to
the applicable Indenture Supplement.
SECTION 302. Denominations. The Notes of each class will be
issuable in such denominations and currency as will be provided in the
provisions of this Indenture or in or pursuant to the applicable Indenture
Supplement. In the absence of any such provisions with respect to the
Registered Notes of any class, the Registered Notes of that class will be
issued in denominations of $1,000 and multiples thereof. In the absence of any
such provisions with respect to the Bearer Notes of any class, the Bearer
Notes of that class will be issued in denominations of 1,000, 5,000, 50,000
and 100,000 units of the applicable currency.
SECTION 303. Execution, Authentication and Delivery and Dating.
(a) The Notes will be executed on behalf of the Issuer by an Issuer
Authorized Officer. The signature of any officer of the Beneficiary (or a
member of the Beneficiary acting on behalf of the Beneficiary) or the Owner
Trustee on the Notes may be manual or facsimile.
(b) Notes bearing the manual or facsimile signatures of individuals
who were at any time an Issuer Authorized Officer will bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices before the authentication and delivery of such Notes or did not hold
such offices at the date of issuance of such Notes.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Notes executed by the
Issuer to the Indenture Trustee for authentication; and the Indenture Trustee
will, upon request by an Officer's Certificate, authenticate and deliver such
Notes as in this Indenture provided and not otherwise.
(d) Before any such authentication and delivery, the Indenture
Trustee will be provided with, in addition to any Officer's Certificate and
Opinion of Counsel required to be furnished to the Indenture Trustee pursuant
to Section 102, the Issuer Certificate and any other opinion or certificate
relating to the issuance of the series or class of Notes required to be
furnished pursuant to Section 202 or Section 310.
(e) The Indenture Trustee will not be required to authenticate such
Notes if the issue thereof will adversely affect the Indenture Trustee's own
rights, duties or immunities under the Notes and this Indenture.
(f) Unless otherwise provided in the form of Note for any series or
class, all Notes will be dated the date of their authentication.
(g) No Note will be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by manual
29
signature of an authorized signatory, and such certificate upon any Note will
be conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
SECTION 304. Temporary Notes.
(a) Pending the preparation of definitive Notes of any class, the
Issuer may execute, and, upon receipt of the documents required by Section
303, together with an Officer's Certificate, the Indenture Trustee will
authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Notes in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the Issuer may determine, as evidenced
by the Issuer's execution of such Notes.
(b) If temporary Notes of any class are issued, the Issuer will
cause definitive Notes of such class to be prepared without unreasonable
delay. After the preparation of definitive Notes, the temporary Notes of such
class will be exchangeable for definitive Notes of such class upon surrender
of the temporary Notes of such class at the office or agency of the Issuer in
a Place of Payment, without charge to the Holder; and upon surrender for
cancellation of any one or more temporary Notes the Issuer will execute and
the Indenture Trustee will authenticate and deliver in exchange therefor a
like Stated Principal Amount of definitive Notes of such class of authorized
denominations and of like tenor and terms. Until so exchanged the temporary
Notes of such class will in all respects be entitled to the same benefits
under this Indenture as definitive Notes of such class.
SECTION 305. Registration, Transfer and Exchange.
(a) The Issuer will keep or cause to be kept a register (herein
sometimes referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer will provide for the
registration of Registered Notes, or of Registered Notes of a particular
class, and for transfers of Registered Notes or of Registered Notes of such
class. Any such register will be in written form or in any other form capable
of being converted into written form within a reasonable time. At all
reasonable times the information contained in such register or registers will
be available for inspection by the Indenture Trustee at the office or agency
to be maintained by the Issuer as provided in Section 1102.
(b) Subject to Section 204, upon surrender for transfer of any
Registered Note of any class at the office or agency of the Issuer in a Place
of Payment, if the requirements of Section 8-401(a) of the UCC are met, the
Issuer will execute, and, upon receipt of such surrendered note, the Indenture
Trustee will authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Notes of such class of
any authorized denominations, of a like aggregate Stated Principal Amount,
Expected Principal Payment Date and Legal Maturity Date and of like terms.
(c) Subject to Section 204, at the option of the Holder, Notes of
any class may be exchanged for other Notes of such class of any authorized
denominations, of a like aggregate Stated Principal Amount, Expected Principal
Payment Date and Legal Maturity Date and of like
30
terms, upon surrender of the Notes to be exchanged at such office or agency.
Registered Notes, including Registered Notes received in exchange for Bearer
Notes, may not be exchanged for Bearer Notes. At the option of the Holder of a
Bearer Note, subject to applicable laws and regulations, Bearer Notes may be
exchanged for other Bearer Notes or Registered Notes (of the same class) of
authorized denominations of like aggregate fractional undivided interests in
the Noteholders' interest, upon surrender of the Bearer Notes to be exchanged
at an office or agency of the Note Registrar located outside the United
States. Each Bearer Note surrendered pursuant to this Section will have
attached thereto all unmatured coupons; provided, however, that any Bearer
Note, so surrendered after the close of business on the last day of the month
preceding the relevant Payment Date need not have attached the coupon relating
to such Payment Date. Whenever any Notes are so surrendered for exchange, the
Issuer will execute, and the Indenture Trustee will authenticate and deliver
(in the case of Bearer Notes, outside the United States), the Notes which the
Noteholders making the exchange are entitled to receive.
(d) All Notes issued upon any transfer or exchange of Notes will be
the valid and legally binding obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such transfer or exchange.
(e) Every Note presented or surrendered for transfer or exchange
will (if so required by the Issuer or the Indenture Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Issuer and the Note Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
(f) Unless otherwise provided in the Note to be transferred or
exchanged, no service charge will be made on any Noteholder for any transfer
or exchange of Notes, but the Issuer may (unless otherwise provided in such
Note) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Notes, other than exchanges pursuant to Section 304 or 1006 not
involving any transfer.
(g) None of the Issuer, the Indenture Trustee, any agent of the
Indenture Trustee, any Paying Agent or the Note Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Note or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
(h) The Issuer initially appoints The Bank of New York to act as
Note Registrar for the Registered Notes on its behalf. The Issuer may at any
time and from time to time authorize any Person to act as Note Registrar in
place of the Indenture Trustee with respect to any class of Notes issued under
this Indenture.
(i) Registration of transfer of Notes containing the following
legend or to which the following legend is applicable:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS NOTE NOR ANY
PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN
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COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES
ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR
SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH
REGISTRATION PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO
CERTAIN CONDITIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN.
will be effected only if such transfer is made pursuant to an effective
registration statement under the Securities Act, or is exempt from the
registration requirements under the Securities Act. In the event that
registration of a transfer is to be made in reliance upon an exemption from
the registration requirements under the Securities Act other than Rule 144A
under the Securities Act or Rule 903 or Rule 904 of Regulation S under the
Securities Act, the transferor or the transferee will deliver, at its expense,
to the Issuer and the Indenture Trustee, an investment letter from the
transferee, substantially in the form of the investment letter attached hereto
as Exhibit C or such other form as the Issuer may determine, and no
registration of transfer will be made until such letter is so delivered.
Notes issued upon registration or transfer of, or Notes issued in
exchange for, Notes bearing the legend referred to above will also bear such
legend unless the Issuer, the Indenture Trustee and the Note Registrar receive
an Opinion of Counsel, satisfactory to each of them, to the effect that such
legend may be removed.
Whenever a Note containing the legend referred to above is presented
to the Note Registrar for registration of transfer, the Note Registrar will
promptly seek instructions from the Issuer regarding such transfer and will be
entitled to receive an Issuer Certificate prior to registering any such
transfer. The Issuer hereby agrees to indemnify the Note Registrar and the
Indenture Trustee and to hold each of them harmless against any loss,
liability or expense incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by them in
relation to any such instructions furnished pursuant to this clause.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes.
(a) If (i) any mutilated Note (together, in the case of Bearer
Notes, with all unmatured coupons, if any, appertaining thereto) is
surrendered to the Indenture Trustee, or the Issuer and the Indenture Trustee
receive evidence to their satisfaction of the destruction, loss or theft of
any Note, and (ii) there is delivered to the Issuer and the Indenture Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Issuer or the Indenture
Trustee that such Note has been acquired by a protected purchaser, the Issuer
will execute and upon its request the Indenture Trustee will authenticate and
deliver (in the case of Bearer Notes, outside the United States), in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Note, a new
Note of like tenor, series or class, Expected Principal Payment Date, Legal
Maturity Date and Stated Principal Amount, bearing a number not
contemporaneously Outstanding.
(b) In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Issuer in its discretion
may, instead of issuing a new Note, pay such Note.
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(c) Upon the issuance of any new Note under this Section, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Indenture Trustee) connected
therewith.
(d) Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note will constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Note will be at any time enforceable by anyone, and will be entitled to
all the benefits of this Indenture equally and proportionately with any and
all other Notes of the same series or class duly issued hereunder.
(e) The provisions of this Section are exclusive and will preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise provided with respect to such Note pursuant to
Section 301, interest payable on any Registered Note will be paid to the
Person in whose name that Note (or one or more Predecessor Notes) is
registered at the close of business on the most recent Record Date and
interest payable on any Bearer Note will be paid to the bearer of that Note
(or the applicable coupon).
(b) Subject to paragraph (a), each Note delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Note
will carry the rights to interest accrued or principal accreted and unpaid,
and to accrue or accrete, which were carried by such other Note.
SECTION 308. Persons Deemed Owners. The Issuer, the Indenture
Trustee, the Owner Trustee, the Beneficiary and any agent of the Issuer, the
Indenture Trustee, the Owner Trustee, or the Beneficiary may treat the Person
who is proved to be the owner of such Note pursuant to Section 104(c) as the
owner of such Note for the purpose of receiving payment of principal of and
(subject to Section 307) interest on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Issuer, the
Indenture Trustee, the Owner Trustee, nor any agent of the Issuer, the
Indenture Trustee, the Owner Trustee, or the Beneficiary will be affected by
notice to the contrary.
SECTION 309. Cancellation. All Notes surrendered for payment,
redemption, transfer, conversion or exchange will, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and, if not already canceled, will be promptly canceled by it. The Issuer may
at any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered will be promptly
canceled by the Indenture Trustee. No Note will be authenticated in lieu of or
in exchange for any Notes canceled as provided in this Section, except as
expressly permitted by this Indenture. The Indenture Trustee will dispose of
all canceled Notes in accordance with its customary procedures and will, upon
request from the Issuer, deliver a certificate of such disposition to the
Issuer.
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SECTION 310. New Issuances of Notes.
(a) The Issuer may issue new Notes of any series or class, so long
as the following conditions precedent are satisfied:
(i) on or before the fifth Business Day before the date that
the new issuance is to occur, the Issuer gives the Indenture Trustee and
the Note Rating Agencies written notice of the issuance;
(ii) on or prior to the date that the new issuance is to occur,
the Issuer delivers to the Indenture Trustee and each Note Rating Agency
an Issuer Certificate to the effect that:
(A) the Issuer reasonably believes that the new issuance
will not at the time of its occurrence or at a future date cause an
Adverse Effect on any Outstanding Notes;
(B) all instruments furnished to the Indenture Trustee
conform to the requirements of this Indenture and constitute
sufficient authority hereunder for the Indenture Trustee to
authenticate and deliver such Notes;
(C) the form and terms of such Notes have been established
in conformity with the provisions of this Indenture;
(D) all laws and requirements with respect to the
execution and delivery by the Issuer of such Notes have been
complied with, the Issuer has the trust power and authority to issue
such Notes and such Notes have been duly authorized and delivered by
the Issuer and, assuming due authentication and delivery by the
Indenture Trustee, constitute legal, valid and binding obligations
of the Issuer enforceable in accordance with their terms (subject,
as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws and legal
principles affecting creditors' rights generally from time to time
in effect and to general equitable principles, whether applied in an
action at law or in equity) and entitled to the benefits of this
Indenture, equally and ratably with all other Notes, if any, of such
series or class Outstanding, subject to the terms of this Indenture
and each Indenture Supplement; and
(E) such other matters as the Indenture Trustee may
reasonably request;
(iii) on or before the date that the new issuance is to occur,
the Issuer will have delivered to the Indenture Trustee and the Note
Rating Agencies an Issuer Tax Opinion with respect to such issuance;
(iv) on or before the date that the new issuance is to occur,
the Issuer will have delivered to the Indenture Trustee an Indenture
Supplement and, if applicable, the Issuer Certificate or terms document
relating to the applicable series, class or classes of Notes;
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(v) in the case of foreign currency Notes, the Issuer will have
appointed one or more Paying Agents in the appropriate countries;
(vi) the Note Rating Agencies have provided written
confirmation that such issuance will not have a Ratings Effect;
(vii) the conditions specified herein or in Section 311 are
satisfied; and
(viii) any other conditions specified herein in the applicable
Indenture Supplement;
provided, however, that any one of the aforementioned conditions (other than
clauses (iii) and (iv)) may be eliminated or modified as a condition precedent
to any new issuance of a series or class of Notes if the Issuer has obtained
written confirmation from each Note Rating Agency that there will be no
Ratings Effect with respect to any Outstanding Notes as a result of a new
issuance of Notes.
(b) The Issuer and the Indenture Trustee will not be required to
obtain the consent of any Noteholder of any Outstanding series or class to
issue any additional Notes of any series or class.
(c) There are no restrictions on the timing or amount of any
additional issuance of Notes of an Outstanding class of a multiple issuance
series, so long as the conditions described in paragraph (a) are met. As of
the date of any additional issuance of Notes of an Outstanding class of Notes,
the Stated Principal Amount, Outstanding Dollar Principal Amount and Nominal
Liquidation Amount of that class will be increased to reflect the principal
amount of the additional Notes. If the additional Notes are a class of Notes
that has the benefit of an Enhancement Agreement, the Issuer will enter into
an Enhancement Agreement for the benefit of the additional Notes. The targeted
deposits, if any, to the principal funding sub-account will be increased
proportionately to reflect the principal amount of the additional Notes.
When issued, the additional Notes of a class will be identical in
all respects to the other Outstanding Notes of that class and will be equally
and ratably entitled to the benefits of the Indenture and the related
Indenture Supplement as the other Outstanding Notes of that class without
preference, priority or distinction.
SECTION 311. Specification of Required Subordinated Amount,
Overcollateralization Amount and other Terms with Respect to each Class.
(a) The applicable Indenture Supplement for each class of Notes will
specify a Required Subordinated Amount, if any, of each subordinated class of
Notes, if any, and the Overcollateralization Amount, if any, for each series
or class of Notes.
(b) The Issuer may change the Required Subordinated Amount, if any,
for any class of Notes or the Overcollateralization Amount, if any, for any
class or series of Notes at any time without the consent of any Noteholders so
long as the Issuer has (i) received confirmation from the Note Rating Agencies
that have rated any Outstanding Notes of that series or class, as applicable,
that the change in the Required Subordinated Amount or Overcollateralization
35
Amount will not result in a Ratings Effect with respect to any Outstanding
Notes in that series or class, as applicable, and (ii) delivered to the
Indenture Trustee and the Note Rating Agencies an Issuer Tax Opinion.
SECTION 312. Reallocation of Interest Collections and Principal
Collections. Interest Collections, Principal Collections and other specified
amounts allocated to each series shall be reallocated to cover interest and
expenses related to each series to the extent, if any, specified in each
related Indenture Supplement.
SECTION 313. Excess Available Interest Amounts Sharing. The Issuer
shall reallocate and redistribute Shared Excess Available Interest Amounts to
cover Series Available Interest Amount Shortfalls incurred by other series as
specified in the related Indenture Supplements.
SECTION 314. Excess Available Principal Amounts Sharing. The Issuer
shall reallocate and redistribute Shared Excess Available Principal Amounts to
cover Series Available Principal Amount Shortfalls incurred by other series as
specified in the related Indenture Supplements.
ARTICLE IV
ACCOUNTS AND INVESTMENTS
SECTION 401. Collections. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and will
receive and collect, directly and without intervention or assistance from any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture including all
funds and other property payable to the Indenture Trustee in connection with
the Collateral. The Indenture Trustee will hold all such money and property
received by it as part of the Collateral and will apply it as provided in this
Indenture.
SECTION 402. Accounts.
(a) Collection Account. On or before the Effective Date, the Issuer
will cause to be established and maintained one or more Qualified Accounts
(collectively, the "Collection Account") in the name of the Indenture Trustee,
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Indenture Trustee, the Noteholders and any
applicable Enhancement Provider. Amounts received in respect of the Collateral
shall be deposited into the Collection Account to the extent provided in the
Sale and Servicing Agreement and this Indenture. The Collection Account shall
be under the sole dominion and control of the Indenture Trustee for the
benefit of the Secured Parties. If, at any time, the institution holding the
Collection Account ceases to be a Qualified Institution, the Issuer will
within ten (10) Business Days (or such longer period, not to exceed thirty
(30) calendar days, as to which each Note Rating Agency may consent in
writing) establish a new Collection Account that is a Qualified Account and
shall transfer any cash and/or investments to such new Collection Account.
From the date such new Collection Account is established, it will be the
"Collection Account."
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(b) Excess Funding Account. On or before the Effective Date, the
Issuer will cause to be established and maintained one or more Qualified
Accounts (collectively, the "Excess Funding Account") in the name of the
Indenture Trustee, bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Indenture Trustee, the
Noteholders and any applicable Enhancement Provider. Amounts received in
respect of the Collateral shall be deposited into the Excess Funding Account
to the extent provided in the Sale and Servicing Agreement and this Indenture.
The Excess Funding Account shall be under the sole dominion and control of the
Indenture Trustee for the benefit of the Secured Parties. If, at any time, the
institution holding the Excess Funding Account ceases to be a Qualified
Institution, the Issuer will within ten (10) Business Days (or such longer
period, not to exceed thirty (30) calendar days, as to which each Note Rating
Agency may consent in writing) establish a new Excess Funding Account that is
a Qualified Account and shall transfer any cash and/or investments to such new
Excess Funding Account. From the date such new Excess Funding Account is
established, it will be the "Excess Funding Account."
(c) Supplemental Accounts. From time to time in connection with the
issuance of a series or class of Notes, the Indenture Trustee may establish
one or more Qualified Accounts denominated as "Supplemental Accounts" in the
name of the Indenture Trustee. Supplemental Accounts will be created as
specified in the applicable Indenture Supplement. Any Supplemental Account
will receive deposits as set forth in the applicable Indenture Supplement.
(d) Withdrawals from Accounts. All payments to be made from time to
time by or on behalf of the Indenture Trustee to Noteholders out of funds in
the Accounts pursuant to this Indenture will be made by or on behalf of the
Indenture Trustee to the Paying Agent not later than 12:00 noon on the
applicable Payment Date or earlier, if necessary, or as otherwise provided in
Article V or the applicable Indenture Supplement but only to the extent of
available funds in the applicable Account or sub-Account.
SECTION 403. Investment of Funds in the Accounts.
(a) Funds on deposit in the Accounts will be invested and reinvested
by the Indenture Trustee at the written direction of the Issuer in one or more
Permitted Investments. The Issuer may authorize the Indenture Trustee to make
specific investments pursuant to written instructions, in such amounts as the
Issuer will specify. Notwithstanding the foregoing, funds held by the
Indenture Trustee in any of the Accounts will be invested in Permitted
Investments that will mature in each case no later than the date on which such
funds in the Accounts are scheduled to be transferred or distributed by the
Indenture Trustee pursuant to this Indenture (or as necessary to provide for
timely payment of principal or interest on the applicable Principal Payment
Date or Interest Payment Date).
(b) All funds deposited from time to time in the Accounts pursuant
to this Indenture and all investments made with such funds will be held by the
Indenture Trustee in the Accounts as part of the Collateral as herein
provided, subject to withdrawal by the Indenture Trustee for the purposes set
forth herein.
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(c) Funds and other property in any of the Accounts will not be
commingled with any other funds or property of the Issuer or the Indenture
Trustee. The Indenture Trustee shall: (i) hold each Permitted Investment
(other than those described in clause (c) of the definition thereof) that
constitutes investment property through a securities intermediary, which
securities intermediary shall agree with the Indenture Trustee that (A) such
investment property at all times shall be credited to a securities account of
the Indenture Trustee, (B) all property credited to such securities account
shall be treated as a financial asset, (C) such securities intermediary shall
treat the Indenture Trustee as entitled to exercise the rights that comprise
each financial asset credited to such securities account, (D) such securities
intermediary shall comply with entitlement orders originated by the Indenture
Trustee without the further consent of any other person or entity, (E) such
securities intermediary shall not agree with any person or entity other than
the Indenture Trustee to comply with entitlement orders originated by any
person or entity other than the Indenture Trustee, (F) such securities account
and all property credited thereto shall not be subject to any lien, security
interest, right of set-off, or encumbrance in favor of such securities
intermediary or anyone claiming through such securities intermediary (other
than the Indenture Trustee), and (G) such agreement between such securities
intermediary and the Indenture Trustee shall be governed by the laws of the
State of New York; (ii) maintain possession of each other Permitted Investment
not described in clause (i) above (other than those described in clause (c) of
the definition thereof) in the State of New York separate and apart from all
other property held by the Indenture Trustee; and (iii) cause each Permitted
Investment described in clause (c) of the definition thereof to be registered
in the name of the Indenture Trustee by the issuer thereof; provided that,
other than following an Event of Default and acceleration pursuant to Section
702, no Permitted Investment shall be disposed of prior to its maturity.
Notwithstanding any other provision of this Indenture, the Indenture Trustee
shall not hold any Permitted Investment through an agent except as expressly
permitted by this Section 403(c). Each term used in this Section 403(c) and
defined in the New York UCC shall have the meaning set forth in the New York
UCC.
(d) All interest and earnings (net of losses and investment
expenses) on funds on deposit in the Collection Account will be deposited into
the Collection Account when the related Permitted Investments mature and are
available and, for purposes of Section 501, will be treated as part of
Interest Collections for the Monthly Period in which the investment was made.
Unless otherwise stated in the related Indenture Supplement, for purposes of
determining the availability of funds or the balance in the Accounts for any
reason under this Indenture or any Indenture Supplement, investment earnings
on such funds shall be deemed not to be available or on deposit.
(e) Subject to Section 801(c), the Indenture Trustee will not in any
way be held liable by reason of any insufficiency in such Accounts resulting
from any loss on any Permitted Investment included therein except for losses
attributable to the Indenture Trustee's failure to make payments on such
Permitted Investments issued by the Indenture Trustee, in its commercial
capacity, in accordance with their terms.
(f) Funds on deposit in the Accounts will be invested and reinvested
by the Indenture Trustee to the fullest extent practicable, in such manner as
the Indenture Trustee will from time to time determine, but only in one or
more Permitted Investments, upon the occurrence of any of the following
events:
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(i) the Issuer will have failed to give investment
directions to the Indenture Trustee; or
(ii) an Event of Default will have occurred and is
continuing but no Notes have been declared due and payable pursuant
to Section 702.
ARTICLE V
ALLOCATIONS, DEPOSITS AND PAYMENTS
SECTION 501. Allocations of Interest Collections. With respect to
each Monthly Period, the Indenture Trustee will allocate to each series of
Notes its portion of the Interest Collections related to such Monthly Period
in an amount equal to the product of (i) the Series Floating Allocation
Percentage for such series times (ii) the Interest Collections for such
Monthly Period.
SECTION 502. Allocations of Principal Collections. With respect to
each Monthly Period, the Indenture Trustee will allocate to each series of
Notes its portion of the Principal Collections related to such Monthly Period
in an amount equal to the product of (i) the Series Principal Allocation
Percentage for such series times (ii) the Principal Collections for such
Monthly Period.
SECTION 503. Final Payment. Each class of Notes will be considered
to be paid in full, the Holders of such class of Notes will have no further
right or claim, and the Issuer will have no further obligation or liability
with respect to such class of Notes, on the earliest to occur of:
(a) the date of the payment in full of the Stated Principal Amount
of and all accrued interest on that class of Notes;
(b) the date on which the Outstanding Dollar Principal Amount of
such Notes, after giving effect to all deposits, allocations, reallocations,
sales of Receivables and payments to be made on such date, is reduced to zero,
and all accrued interest on such Notes is paid in full; or
(c) on the Legal Maturity Date of such Notes, after giving effect to
all deposits, allocations, reallocations, sales of Receivables and payments to
be made on such date.
SECTION 504. Payments within a Series or Class. All payments of
principal, interest or other amounts to Holders of the Notes of a series or
class will be made in accordance with the related Indenture Supplement.
Holders of Notes of a series or class shall only be entitled to receive the
payments from amounts allocated to such series or class in accordance with the
allocation, deposit and payment provisions of this Indenture and the
applicable Indenture Supplements.
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ARTICLE VI
SATISFACTION AND DISCHARGE;
CANCELLATION OF NOTES HELD BY THE ISSUER OR DCWR
SECTION 601. Satisfaction and Discharge of Indenture. This Indenture
will cease to be of further effect with respect to any series or class of
Notes (except as to any surviving rights of transfer or exchange of Notes of
that series or class expressly provided for herein or in the form of Note for
that series or class), and the Indenture Trustee, on demand of and at the
expense of the Issuer, will execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to that series or class, when:
(a) all Notes of that series or class theretofore authenticated and
delivered (other than (A) Notes of that series or class which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306, and (B) Notes of that series or class 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 that trust, as
provided in Section 1103) have been delivered to the Indenture Trustee
canceled or for cancellation;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder (including payments to the Indenture Trustee pursuant to Section
807) by the Issuer with respect to the Notes of that series or class; and
(c) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture with respect to the Notes of that series or class have been
complied with. Notwithstanding the satisfaction and discharge of this
Indenture with respect to any series or class of Notes, the obligations of the
Issuer to the Indenture Trustee with respect to that series or class under
Section 807 and the obligations of the Indenture Trustee under Sections 602
and 1103 will survive such satisfaction and discharge.
SECTION 602. Application of Trust Money. All money and obligations
deposited with the Indenture Trustee pursuant to Section 601 or Section 603
and all money received by the Indenture Trustee in respect of such obligations
will be held in trust and applied by it, in accordance with the provisions of
the series or class of Notes in respect of which it was deposited and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Indenture Trustee
may determine, to the Persons entitled thereto, of the principal and interest
for whose payment that money and obligations have been deposited with or
received by the Indenture Trustee; but that money and obligations need not be
segregated from other funds held by the Indenture Trustee except to the extent
required by law.
SECTION 603. Cancellation of Notes Held by the Issuer or DCWR. If
the Issuer, DCWR or any of their Affiliates holds any Notes, that Holder may,
subject to any provisions of a related Indenture Supplement limiting the
repayment of subordinated classes of Notes, if any, by notice from that Holder
to the Indenture Trustee cause that Note to be cancelled, whereupon (a) the
Note will no longer be Outstanding, and (b) the Noteholders'
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Interest shall be reduced by an amount equal to the Nominal Liquidation Amount
allocable to that cancelled Note.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 701. Events of Default. "Event of Default," wherever used
herein, means with respect to any series or class of Notes any one of the
following events (whatever the reason for such Event of Default and whether it
will 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), unless such event is
either expressly stated to be inapplicable to a particular series or class or
specifically deleted or modified in the applicable Indenture Supplement
creating such series or class of Notes or in the form of Note for such series
or class:
(a) with respect to any series or class of Notes, a default by the
Issuer in the payment of any interest on such Notes when such interest becomes
due and payable, and continuance of such default for a period of five (5)
Business Days following the date on which such interest became due and
payable;
(b) with respect to any series or class of Notes, a default by the
Issuer in the payment of the principal amount of such Notes at the applicable
Legal Maturity Date;
(c) a default in the performance, or breach, of any covenant or
warranty of the Issuer in this Indenture in respect of the Notes of such
series or class (other than a covenant or warranty in respect of the Notes of
such series or class a default in the performance of which or the breach of
which is elsewhere in this Section specifically dealt with), all of such
covenants and warranties in this Indenture which are not expressly stated to
be for the benefit of a particular series or class of Notes being deemed to be
in respect of the Notes of all series or classes for this purpose, and
continuance of such default or breach for a period of sixty (60) days after
there has 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% in Outstanding Dollar Principal Amount of the Outstanding Notes
of such series or class, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder and, as a result of such default, the interests of the
Holders of the Notes of such series or class are materially and adversely
affected and continue to be materially and adversely affected during the sixty
(60) day period;
(d) the entry of an order for relief against the Issuer under the
Federal Bankruptcy Code by a court having jurisdiction in the premises or a
decree or order by a court having jurisdiction in the premises adjudging the
Issuer a bankrupt or insolvent under any other applicable Federal or State
law, or the entry of a decree or order approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Issuer under the Federal Bankruptcy Code or any other
applicable Federal or State law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Issuer or
of any substantial part of its property, or ordering the winding up or
liquidation of its
41
affairs, and the continuance of any such decree or order unstayed and in
effect for a period of ninety (90) consecutive days;
(e) the consent by the Issuer to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under the Federal Bankruptcy Code
or any other applicable Federal or State law, or the consent by it to the
filing of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Issuer or
of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Issuer in furtherance of any such action; or
(f) with respect to any series or class, any additional Event of
Default specified in the Indenture Supplement for such series or class as
applying to such series or class, or specified in the form of Note for such
series or class.
SECTION 702. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default described in clause (a), (b), (c) or (f)
(if the Event of Default under clause (c) or (f) is with respect to less than
all series and classes of Notes then Outstanding) of Section 701 occurs and is
continuing with respect to any series or class, then and in each and every
such case, unless the principal of all the Notes of such series or class shall
have already become due and payable, either the Indenture Trustee or the
Majority Holders of the Notes of such series or class then Outstanding
hereunder (each such series or class acting as a separate class), by notice in
writing to the Issuer (and to the Indenture Trustee if given by Holders), may
declare the Outstanding principal amount of all the Notes of such series or
class then Outstanding and all interest accrued or principal accreted and
unpaid (if any) thereon to be due and payable immediately, and upon any such
declaration the same will become and will be immediately due and payable,
anything in this Indenture, the related Indenture Supplement or in the Notes
of such series or class to the contrary notwithstanding. Such payments are
subject to Article V and the allocation, deposits and payment sections of the
related Indenture Supplement.
(b) If an Event of Default described in clause (c) or (f) (if the
Event of Default under clause (c) or (f) is with respect to all series and
classes of Notes then Outstanding) of Section 701 occurs and is continuing,
then and in each and every such case, unless the principal of all the Notes
shall have already become due and payable, either the Indenture Trustee or the
Majority Holders of all the Notes then Outstanding hereunder (treated as one
class), by notice in writing to the Issuer (and to the Indenture Trustee if
given by Holders), may declare the Outstanding principal amount of all the
Notes then Outstanding and all interest accrued or principal accreted and
unpaid (if any) thereon to be due and payable immediately, and upon any such
declaration the same will become and will be immediately due and payable,
notwithstanding anything in this Indenture, the related Indenture Supplements
or the Notes to the contrary.
(c) If an Event of Default described in clause (d) or (e) of Section
701 occurs and is continuing, then the Notes of all series and classes will
automatically be and become
42
immediately due and payable by the Issuer, without notice or demand to any
Person, and the Issuer will automatically and immediately be obligated to pay
off the Notes.
(d) At any time after such a declaration of acceleration has been
made with respect to the Notes of any series or class and before a judgment or
decree for payment of the money due has been obtained by the Indenture Trustee
as hereinafter in this Article VII provided, the Majority Holders of such
series or classes, by written notice to the Issuer and the Indenture Trustee,
may rescind and annul such declaration and its consequences if:
(x) the Issuer has paid or deposited with the Indenture Trustee
a sum sufficient to pay (i) all overdue installments of interest on the
Notes of such series or class, (ii) the principal of any Notes of such
series or class which have become due otherwise than by such declaration
of acceleration, and interest thereon at the rate or rates prescribed
therefor by the terms of the Notes of such series or class, to the extent
that payment of such interest is lawful, (iii) interest upon overdue
installments of interest at the rate or rates prescribed therefor by the
terms of the Notes of such series or class to the extent that payment of
such interest is lawful, and (iv) all sums paid by the Indenture Trustee
hereunder and the reasonable compensation, expenses and disbursements of
the Indenture Trustee, its agents and counsel and all other amounts due
the Indenture Trustee under Section 807; and
(y) all Events of Default with respect to such series or class
of Notes, other than the nonpayment of the principal of the Notes of such
series or class which has become due solely by such acceleration, have
been cured or waived as provided in Section 716.
No such rescission will affect any subsequent default or impair any
right consequent thereon.
SECTION 703. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. The Issuer covenants that if:
(a) the Issuer defaults in the payment of interest on any series or
class of Notes when such interest becomes due and payable and such default
continues for a period of five (5) Business Days following the date on which
such interest became due and payable, or
(b) the Issuer defaults in the payment of the principal of any
series or class of Notes at the Legal Maturity Date thereof,
and any such default continues beyond any specified grace period provided with
respect to such series or class of Notes, the Issuer will, upon demand of the
Indenture Trustee, pay (subject to the allocation provided in Article V, this
Article VII and any related Indenture Supplement) to the Indenture Trustee,
for the benefit of the Holders of any such Notes of the affected series or
class, the whole amount then due and payable on any such Notes for principal
and interest, with interest, to the extent that payment of such interest will
be legally enforceable, upon the overdue principal and upon overdue
installments of interest, (i) in the case of Interest-bearing Notes, at the
rate of interest applicable to the stated principal amount thereof, unless
otherwise specified in the applicable Indenture Supplement; and (ii) in the
case of Discount Notes, as specified in the
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applicable Indenture Supplement, and in addition thereto, will pay such
further amount as will be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee, its agents and counsel and all other
amounts due the Indenture Trustee under Section 807.
If the Issuer fails to pay such amounts forthwith upon such demand,
the Indenture Trustee, in its own name and as trustee of an express trust, may
institute a judicial 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 any other obligor upon the Notes of
such series or class and collect the money adjudged or decreed to be payable
in the manner provided by law out of the Collateral or any other obligor upon
such Notes, wherever situated.
SECTION 704. Indenture Trustee May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Issuer or any other obligor upon the Notes or the
property of the Issuer or of such other obligor or their creditors, the
Indenture Trustee (irrespective of whether the principal of the Notes will
then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Indenture Trustee will have made any demand on
the Issuer for the payment of overdue principal or interest) will be entitled
and empowered, by intervention in such proceedings or otherwise,
(i) to file and prove a claim for the whole amount of principal
and interest owing and unpaid in respect of the Notes and to file such
other papers or documents as may be necessary and advisable in order to
have the claims of the Indenture Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee, its agents and counsel and all other amounts due the
Indenture Trustee under Section 807) and of the Noteholders allowed in
such judicial proceeding, and
(ii) to collect and receive any funds or other property payable
or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized by each
Noteholder to make such payment to the Indenture Trustee and in the event that
the Indenture Trustee will consent to the making of such payments directly to
the Noteholders, to pay to the Indenture Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee, its agents and counsel, and any other amounts due the Indenture
Trustee under Section 807.
Nothing herein contained will be deemed to authorize the Indenture
Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan or reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Indenture Trustee to vote in respect of the claim of any Noteholder in any
such proceeding.
SECTION 705. Indenture Trustee May Enforce Claims Without Possession
of Notes. All rights of action and claims under this Indenture or the Notes of
any series or class
44
may be prosecuted and enforced by the Indenture Trustee without the possession
of any of the Notes of such series or class or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Indenture Trustee will be brought in its own name as trustee of an express
trust, and any recovery of judgment will, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee, its agent and counsel, be for the ratable benefit of the
Holders of the Notes of the series or class in respect of which such judgment
has been recovered.
SECTION 706. Application of Money Collected. Except as otherwise
provided in Section 707, any money or other property collected by the
Indenture Trustee with respect to a series or class of Notes pursuant to this
Article VII will be applied in the following order, at the date or dates fixed
by the Indenture Trustee and, in case of the distribution of such money on
account of principal or interest, upon presentation of the Notes of such
series or class and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
(a) first, to the payment of all amounts due the Indenture Trustee
under Section 807(a);
(b) second, to the payment of the amounts then due and unpaid upon
the Notes of that series or class for principal and interest, in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind (but subject to the allocation
provided in Article V of this Indenture and the related Indenture
Supplements), according to the amounts due and payable on such Notes for
principal and interest, respectively; and
(c) third, to the Issuer.
SECTION 707. Continued Application of Collections Pursuant to
Regular Distribution Provisions. Following an acceleration of any series or
class of Notes and subject to Section 708, the Indenture Trustee will continue
to apply Interest Collections, Principal Collections and any other amounts
received on the Collateral (other than any proceeds from a sale of Receivables
in connection with the exercise of the Put Feature) in accordance with the
regular distribution provisions pursuant to Article V of this Indenture,
except that principal will be paid on the accelerated series or class of Notes
to the extent funds are received and allocated to the accelerated series or
class, and payment is permitted by the subordination provisions, if any, of
the accelerated series or class.
SECTION 708. Sale of Receivables for Accelerated Notes. In the case
of a series or class of Notes that has been accelerated following an Event of
Default, if the Put Feature of such series or class of Notes has been deemed
to be exercised as provided in the related Indenture Supplement, the Indenture
Trustee will sell Principal Receivables and the related Non-Principal
Receivables (or interests therein) as provided in such Indenture Supplement.
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SECTION 709. Noteholders Have the Right to Direct the Time, Method
and Place of Conducting Any Proceeding for Any Remedy Available to the
Indenture Trustee. The Majority Holders of any accelerated series or class of
Notes have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Indenture Trustee, or exercising
any trust or power conferred on the Indenture Trustee, in respect of such
series or class. This right may be exercised only if the direction provided by
the Noteholders does not conflict with applicable law or this Indenture and
does not have a substantial likelihood of involving the Indenture Trustee in
personal liability.
SECTION 710. Limitation on Suits. No Holder of any Note of any
series or class will have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default with respect to Notes of such series
or class;
(b) the Holders of not less than 25% in Outstanding Dollar Principal
Amount of the Outstanding Notes of such series or class have made written
request to the Indenture Trustee to institute proceedings in respect of such
Event of Default in its own name as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Indenture Trustee for sixty (60) days after its receipt of
such notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Indenture Trustee during such sixty (60) day period by the
Majority Holders of such series or class;
it being understood and intended that no one or more Holders of Notes of such
series or class will have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders of Notes of such series or class, or to obtain
or to seek to obtain priority or preference over any other such Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and proportionate benefit of all the Holders of all Notes of
such series or class.
SECTION 711. Unconditional Right of Noteholders to Receive Principal
and Interest; Limited Recourse. Notwithstanding any other provisions in this
Indenture, the Holder of any Note will have the right, which is absolute and
unconditional, to receive payment of the principal of and interest on such
Note on the Legal Maturity Date expressed in the related Indenture Supplement
and to institute suit for the enforcement of any such payment, and such right
will not be impaired without the consent of such Holder; provided, however,
that notwithstanding any other provision of this Indenture to the contrary,
the obligation to pay principal of or interest on the Notes or any other
amount payable to any Noteholder will be
46
without recourse to DCWR, the Indenture Trustee, the Owner Trustee or any
affiliate, officer, employee or director of any of them, and the obligation of
the Issuer to pay principal of or interest on the Notes or any other amount
payable to any Noteholder will be subject to Article V and the allocation and
payment provisions of the Indenture Supplements.
SECTION 712. Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any proceeding to enforce any right
or remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders will, 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 Noteholders will continue as though no such proceeding had
been instituted.
SECTION 713. Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy will, 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, will not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 714. Delay or Omission Not Waiver. No delay or omission
of the Indenture Trustee or of any Holder of any Note to exercise any right or
remedy accruing upon any Event of Default will impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the
Indenture Trustee or to the Noteholders may be exercised from time to time,
and as often as may be deemed expedient, by the Indenture Trustee or by the
Noteholders, as the case may be.
SECTION 715. Control by Noteholders. The Majority Holders of any
series or class will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee or
exercising any trust or power conferred on the Indenture Trustee with respect
to the Notes of such series or class; provided that:
(a) the Indenture Trustee will have the right to decline to follow
any such direction if the Indenture Trustee, being advised by counsel,
determines that the action so directed may not lawfully be taken or would
conflict with this Indenture or if the Indenture Trustee in good faith will,
by an Indenture Trustee Authorized Officer, determine that the proceedings so
directed would involve it in personal liability or be unjustly prejudicial to
the Holders not taking part in such direction, and
(b) the Indenture Trustee may take any other action permitted
hereunder deemed proper by the Indenture Trustee which is not inconsistent
with such direction.
SECTION 716. Waiver of Past Defaults. The Majority Holders of any
series or class may on behalf of the Holders of all the Notes of such series
or class waive any past default
47
hereunder or under the related Indenture Supplement with respect to such
series or class and its consequences, except a default not theretofore cured:
(a) in the payment of the principal of or interest on any Note of
such series or class, or
(b) in respect of a covenant or provision hereof which under Article
X cannot be modified or amended without the consent of the Holder of each
Outstanding Note of such series or class.
Upon any such waiver, such default will cease to exist, and any
Event of Default arising therefrom will be deemed to have been cured, for
every purpose of this Indenture; but no such waiver will extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 717. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by his acceptance thereof will 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 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 attorneys' fees and
expenses, 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 will not apply to any suit instituted by
the Indenture Trustee, to any suit instituted by any Noteholder, or group of
Noteholders, holding in the aggregate more than 25% in Outstanding Dollar
Principal Amount of the Outstanding Notes of any series or class to which the
suit relates, or to any suit instituted by any Noteholders for the enforcement
of the payment of the principal of or interest on any Note on or after the
applicable Legal Maturity Date expressed in such Note.
SECTION 718. 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, which 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.
ARTICLE VIII
THE INDENTURE TRUSTEE
SECTION 801. Certain Duties and Responsibilities.
(a) The Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with respect to
the Notes of any series or
48
classes, and no implied covenants or obligations will be read into this
Indenture against the Indenture Trustee.
(b) In the absence of bad faith on its part, the Indenture Trustee
may, with respect to Notes of any series or class, 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; but in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Indenture Trustee, the Indenture Trustee will
be under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture but need not confirm or investigate the
accuracy of any mathematical calculations or other facts stated therein.
(c) In case an Event of Default with respect to any series or class
of Notes has occurred and is continuing, the Indenture Trustee will exercise
with respect to the Notes of such series or class such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a fiduciary would exercise or use under the
circumstances in the conduct of such person's own affairs.
(d) No provision of this Indenture will be construed to relieve the
Indenture Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this paragraph (d) will not be construed to limit the
effect of paragraph (a) of this Section;
(ii) the Indenture Trustee will not be liable for any error of
judgment made in good faith by an Indenture Trustee Authorized Officer,
unless it will be proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Indenture Trustee will not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Majority Holders of any series or class
relating to the time, method and place of conducting any proceeding for
any remedy available to the Indenture Trustee, or exercising any trust or
power conferred upon the Indenture Trustee, under this Indenture with
respect to the Notes of such series or class; and
(iv) no provision of this Indenture will require the Indenture
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it will have reasonable
grounds for believing that repayment of such funds or indemnity
satisfactory to the Indenture Trustee against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Indenture Trustee will be subject to the
provisions of this Section.
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SECTION 802. Notice of Defaults. Within ninety (90) days after the
occurrence of any default hereunder known to the Indenture Trustee with
respect to Notes of any series or class,
(a) the Indenture Trustee will transmit by mail to all Registered
Noteholders of such series or class, as their names and addresses appear in
the Note Register, notice of such default hereunder,
(b) the Indenture Trustee will notify all Holders of Bearer Notes of
such series or class, by publication of notice of such default in an
Authorized Newspaper, or as otherwise provided in the applicable Indenture
Supplement, and
(c) the Indenture Trustee will give prompt written notification
thereof to the Note Rating Agencies, unless such default will have been cured
or waived;
provided, however, that, except in the case of a default in the payment of the
principal of or interest on any Note of such series or class, the Indenture
Trustee will be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Indenture Trustee Authorized Officers of the Indenture Trustee in good
faith determine that the withholding of such notice is in the interests of the
Noteholders of such series or class. For the purpose of this Section, the term
"default," with respect to Notes of any series or class, means any event which
is, or after notice or lapse of time or both would become, an Event of Default
with respect to Notes of such series or class.
SECTION 803. Certain Rights of Indenture Trustee. Except as
otherwise provided in Section 801:
(a) the Indenture Trustee may conclusively rely and will be
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document (whether
in its original or facsimile form) believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein will be
sufficiently evidenced by an Officer's Certificate;
(c) whenever in the administration of this Indenture the Indenture
Trustee will deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Indenture Trustee
(unless other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officer's Certificate;
(d) the Indenture Trustee may consult with counsel of its own
selection and the advice of such counsel or any Opinion of Counsel will be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Indenture Trustee will be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the
50
Noteholders pursuant to this Indenture, unless such Noteholders shall have
offered to the Indenture Trustee security or indemnity reasonably satisfactory
to it against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Indenture Trustee will not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document, but the Indenture Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Indenture Trustee will
determine to make such further inquiry or investigation, it will be entitled
to examine the books, records and premises of the Issuer, personally or by
agent or attorney, at the expense of the Issuer;
(g) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Indenture Trustee will not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(h) the Indenture Trustee will not be responsible for filing any
financing statements or continuation statements in connection with the Notes,
but will cooperate with the Issuer in connection with the filing of such
financing statements or continuation statements;
(i) in no event shall the Indenture Trustee be responsible or liable
for special, indirect or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Indenture Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action; and
(j) the rights, privileges, protections, immunities and benefits
given to the Indenture Trustee, including its right to be indemnified, are
extended to, and shall be enforceable by, the Indenture Trustee in each of its
capacities hereunder.
SECTION 804. Not Responsible for Recitals or Issuance of Notes. The
recitals contained herein and in the Notes, except the certificates of
authentication, will be taken as the statements of the Issuer, and the
Indenture Trustee assumes no responsibility for their correctness. The
Indenture Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Notes. The Indenture Trustee will not be
accountable for the use or application by the Issuer of Notes or the proceeds
thereof.
SECTION 805. May Hold Notes. The Indenture Trustee, any Paying
Agent, the Note Registrar or any other agent of the Issuer, in its individual
or any other capacity, may become the owner or pledgee of Notes and, subject
to Sections 808 and 813, may otherwise deal with the Issuer with the same
rights it would have if it were not Indenture Trustee, Paying Agent, Note
Registrar or such other agent.
SECTION 806. Money Held in Trust. Money held by the Indenture
Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Indenture Trustee will be under no liability
for interest on any money received by it hereunder except as otherwise agreed
with the Issuer.
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SECTION 807. Compensation and Reimbursement, Limit on Compensation,
Reimbursement and Indemnity.
(a) The Issuer agrees:
(i) to pay to the Indenture Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation will not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein, to
reimburse the Indenture Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Indenture
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the reasonable expenses and disbursements of
its agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(iii) to indemnify the Indenture Trustee for, and to hold it
harmless against, any and all loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability (whether
asserted by the Issuer, the Servicer, any Holder or any other Person) in
connection with the exercise or performance of any of its powers or
duties hereunder.
The Indenture Trustee will have no recourse to any asset of the Issuer other
than funds available pursuant to Section 706 or to any Person other than the
Servicer or the Issuer.
(b) This Section will survive the termination of this Indenture and
the resignation or replacement of the Indenture Trustee under Section 810.
SECTION 808. Disqualification; Conflicting Interests. If the
Indenture Trustee has or will acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Indenture Trustee will, if so required
by the Trust Indenture Act, either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture. Nothing herein will prevent the
Indenture Trustee from filing with the Commission the application referred to
in the second to last paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 809. Corporate Indenture Trustee Required; Eligibility.
There will at all times be an Indenture Trustee hereunder with respect to each
series or class of Notes, which will be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000, subject to supervision
or examination by Federal or State authority, and having a rating of at least
BBB- by Standard & Poor's. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation will be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. The Issuer
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may not, nor may any Person directly or indirectly controlling, controlled by,
or under common control with the Issuer, serve as Indenture Trustee. If at any
time the Indenture Trustee with respect to any series or class of Notes will
cease to be eligible in accordance with the provisions of this Section, it
will resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 810. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Indenture Trustee and no
appointment of a successor Indenture Trustee pursuant to this Article will
become effective until the acceptance of appointment by the successor
Indenture Trustee under Section 811.
(b) The Indenture Trustee may resign with respect to any series or
class of Notes at any time by giving written notice thereof to the Issuer. If
an instrument of acceptance by a successor Indenture Trustee shall not have
been delivered to the Indenture Trustee within thirty (30) days after the
giving of such notice of resignation, the resigning Indenture Trustee may
petition, at the expense of the Issuer, any court of competent jurisdiction
for the appointment of a successor Indenture Trustee.
(c) The Indenture Trustee may be removed with respect to any series
or class of Notes at any time by Act of the Majority Holders of that series or
class, delivered to the Indenture Trustee and to the Issuer. If an instrument
of acceptance by a successor Indenture Trustee shall not have been delivered
to the Indenture Trustee within thirty (30) days after the giving of notice of
removal, the removed Indenture Trustee may petition, at the expense of the
Issuer, any court of competent jurisdiction for the appointment of a successor
Indenture Trustee.
(d) If at any time:
(i) the Indenture Trustee fails to comply with Section 310(b)
of the Trust Indenture Act with respect to any series or class of Notes
after written request therefor by the Issuer or by any Noteholder who has
been a bona fide Holder of a Note of that series or class for at least
six (6) months, or
(ii) the Indenture Trustee ceases to be eligible under Section
809 with respect to any series or class of Notes and fails to resign
after written request therefor by the Issuer or by any such Noteholder,
or
(iii) the Indenture Trustee becomes incapable of acting with
respect to any series or class of Notes, or
(iv) the Indenture Trustee is adjudged bankrupt or insolvent or a receiver
of the Indenture Trustee or of its property is appointed or any
public officer takes charge or control of the Indenture Trustee or of
its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Issuer may remove the Indenture Trustee, with
respect to the series or class, or in the case of clause (iv), with respect to
all series or classes, or (B) subject to Section 717, any Noteholder who has
been a bona fide Holder of a Note of such series, class and
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class for at least six (6) months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Indenture Trustee with respect to such series or class and the
appointment of a successor Indenture Trustee with respect to the series or
class, or, in the case of clause (iv), with respect to all series and classes.
(e) If the Indenture Trustee resigns, is removed or becomes
incapable of acting with respect to any series or class of Notes, or if a
vacancy shall occur in the office of the Indenture Trustee with respect to any
series or class of Notes for any cause, the Issuer will promptly appoint a
successor Indenture Trustee for that series or class of Notes. If, within one
year after such resignation, removal or incapacity, or the occurrence of such
vacancy, a successor Indenture Trustee with respect to such series or class of
Notes is appointed by Act of the Majority Holders of such series or class
delivered to the Issuer and the retiring Indenture Trustee, the successor
Indenture Trustee so appointed will, forthwith upon its acceptance of such
appointment, become the successor Indenture Trustee with respect to such
series or class and supersede the successor Indenture Trustee appointed by the
Issuer with respect to such series or class. If no successor Indenture Trustee
with respect to such series or class shall have been so appointed by the
Issuer or the Noteholders of such series or class and accepted appointment in
the manner hereinafter provided, any Noteholder who has been a bona fide
Holder of a Note of that series or class for at least six (6) months may, on
behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Indenture Trustee
with respect to such series or class.
(f) The Issuer will give written notice of each resignation and each
removal of the Indenture Trustee with respect to any series or class and each
appointment of a successor Indenture Trustee with respect to any series or
class to each Noteholder as provided in Section 106 and to each Note Rating
Agency. Each notice will include the name of the successor Indenture Trustee
and the address of its principal Corporate Trust Office.
SECTION 811. Acceptance of Appointment by Successor. Every successor
Indenture Trustee appointed hereunder will execute, acknowledge and deliver to
the Issuer and to the predecessor Indenture Trustee an instrument accepting
such appointment, with a copy to the Note Rating Agencies, and thereupon the
resignation or removal of the predecessor Indenture Trustee will become
effective with respect to any series or class as to which it is resigning or
being removed as Indenture Trustee, and such successor Indenture Trustee,
without any further act, deed or conveyance, will become vested with all the
rights, powers, trusts and duties of the predecessor Indenture Trustee with
respect to any such series or class; but, on request of the Issuer or the
successor Indenture Trustee, such predecessor Indenture Trustee will, upon
payment of its reasonable charges, if any, execute and deliver an instrument
transferring to such successor Indenture Trustee all the rights, powers and
trusts of the predecessor Indenture Trustee, and will duly assign, transfer
and deliver to such successor Indenture Trustee all property and money held by
such predecessor Indenture Trustee hereunder with respect to all or any such
series or class, subject nevertheless to its lien, if any, provided for in
Section 807. Upon request of any such successor Indenture Trustee, the Issuer
will execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Indenture Trustee all such rights, powers and
trusts.
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In case of the appointment hereunder of a successor Indenture
Trustee with respect to the Notes of one or more (but not all) series or
classes, the Issuer, the predecessor Indenture Trustee and each successor
Indenture Trustee with respect to the Notes of any applicable series or class
will execute and deliver an Indenture Supplement which will contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Indenture Trustee with
respect to the Notes of any series or class as to which the predecessor
Indenture Trustee is not being succeeded will continue to be vested in the
predecessor Indenture Trustee, and will add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Indenture Trustee, it
being understood that nothing herein or in such Indenture Supplement will
constitute such Indenture Trustees co- trustees of the same trust and that
each such Indenture Trustee will be Indenture Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered
by any other such Indenture Trustee.
No successor Indenture Trustee with respect to any series or class
of Notes will accept its appointment unless at the time of such acceptance
such successor Indenture Trustee will be qualified and eligible with respect
to that series or class under this Article.
SECTION 812. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Indenture Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Indenture Trustee, will be the successor
of the Indenture Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto. The Issuer will give prompt written notice of such merger, conversion,
consolidation or succession to the Note Rating Agencies. In case any Notes
shall have been authenticated, but not delivered, by the Indenture Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Indenture Trustee may adopt such authentication and deliver the
Notes so authenticated with the same effect as if such successor Indenture
Trustee had itself authenticated such Notes.
SECTION 813. Preferential Collection of Claims Against Issuer. If
and when the Indenture Trustee shall be or become a creditor of the Issuer (or
any other obligor upon the Notes), the Indenture Trustee will be subject to
the provisions of Section 311 of the Trust Indenture Act. An Indenture Trustee
who has resigned or been removed will be subject to Section 311(a) of the
Trust Indenture Act to the extent provided therein.
SECTION 814. Appointment of Authenticating Agent. At any time when
any of the Notes remain Outstanding, the Indenture Trustee, with the approval
of the Issuer, may appoint an Authenticating Agent or Agents with respect to
one or more series or classes of Notes which will be authorized to act on
behalf of the Indenture Trustee to authenticate Notes of such series or
classes issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Notes so authenticated will be
entitled to the benefits of this Indenture and will be valid and obligatory
for all purposes as if authenticated by the Indenture Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and
delivery of Notes by the Indenture Trustee or the Indenture Trustee's
certificate of
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authentication, such reference will be deemed to include authentication and
delivery on behalf of the Indenture Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Indenture Trustee by
an Authenticating Agent. Each Authenticating Agent will be acceptable to the
Issuer and will at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as an Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and,
if other than the Issuer itself, subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent will be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent will cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent will resign immediately in the manner and with the effect
specified in this Section. The initial Authenticating Agent for the Notes of
all series and classes will be the Indenture Trustee.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent will be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, will continue to be an
Authenticating Agent, provided such corporation will be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Indenture Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Indenture Trustee and to the Issuer. The Indenture
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent will cease to be eligible in
accordance with the provisions of this Section, the Indenture Trustee, with
the approval of the Issuer, may appoint a successor Authenticating Agent which
will be acceptable to the Issuer and will give notice to each Noteholder as
provided in Section 106. Any successor Authenticating Agent upon acceptance of
its appointment hereunder will become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent will be
appointed unless eligible under the provisions of this Section.
The Indenture Trustee agrees to pay to each Authenticating Agent
(other than an Authenticating Agent appointed at the request of the Issuer
from time to time) reasonable compensation for its services under this
Section, and the Indenture Trustee will be entitled to be reimbursed for such
payments, subject to the provisions of Section 807.
If an appointment with respect to one or more series or classes is
made pursuant to this Section, the Notes of such series or classes may have
endorsed thereon, in addition to the Indenture Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
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This is one of the Notes of the series or classes designated
therein referred to in the within-mentioned Indenture.
The Bank of New York,
as Indenture Trustee
By: _________________________
As Authenticating Agent
By: _________________________
Authorized Signatory
SECTION 815. Tax Returns. In the event the Issuer shall be required
to file tax returns, the Servicer shall prepare or shall cause to be prepared
such tax returns and shall provide such tax returns to the Owner Trustee or
the Beneficiary for signature at least five (5) days before such tax returns
are due to be filed. The Issuer, in accordance with the terms of each
Indenture Supplement, shall also prepare or shall cause to be prepared all tax
information required by law to be distributed to Noteholders and shall deliver
such information to the Indenture Trustee at least five (5) days prior to the
date it is required by law to be distributed to Noteholders. The Indenture
Trustee, upon written request, will furnish the Servicer with all such
information known and available to the Indenture Trustee as may be reasonably
requested and required in connection with the preparation of all tax returns
of the Issuer. In no event shall the Indenture Trustee or the Owner Trustee be
personally liable for any liabilities, costs or expenses of the Issuer or any
Noteholder arising under any tax law, including federal, state or local income
or excise taxes or any other tax imposed on or measured by income (or any
interest or penalty with respect thereto arising from a failure to comply
therewith).
SECTION 816. Representations and Covenants of the Indenture
Trustee. The Indenture Trustee represents, warrants and covenants that:
(i) The Indenture Trustee is a banking corporation duly
organized and validly existing under the laws of the State of New York;
(ii) The Indenture Trustee has full power and authority to
deliver and perform this Indenture and has taken all necessary action to
authorize the execution, delivery and performance by it of this Indenture
and othier documents to which it is a party; and
(iii) Each of this Indenture and other documents to which it is
a party has been duly executed and delivered by the Indenture Trustee and
constitutes its legal, valid and binding obligation in accordance with
its terms.
SECTION 817. Custody of the Collateral. As provided for in Section
1119(g) hereof and Section 3.03(e) of the Sale and Servicing Agreement, the
Servicer as custodian for the Issuer shall have in its possession all original
copies of the contracts that constitute or evidence
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the Receivables, and will hold all such contracts for the benefit of the
Indenture Trustee. The Indenture Trustee shall hold such of the Collateral as
constitutes a Permitted Investment in accordance with Section 403(c). All
other Collateral that is not described in the preceding two sentences (i) that
constitutes investment property shall be held by the Indenture Trustee through
a securities intermediary, which securities intermediary shall agree with the
Indenture Trustee that (A) such investment property at all times shall be
credited to a securities account of the Indenture Trustee, (B) all property
credited to such securities account shall be treated as a financial asset, (C)
such securities intermediary shall treat the Indenture Trustee as entitled to
exercise the rights that comprise each financial asset credited to such
securities account, (D) such securities intermediary shall comply with
entitlement orders originated by the Indenture Trustee without the further
consent of any other person or entity, (E) such securities intermediary shall
not agree with any person or entity other than the Indenture Trustee to comply
with entitlement orders originated by any person or entity other than the
Indenture Trustee, (F) such securities account and all property credited
thereto shall not be subject to any lien, security interest, right of set-off,
or encumbrance in favor of such securities intermediary or anyone claiming
through such securities intermediary (other than the Indenture Trustee), and
(G) such agreement between such securities intermediary and the Indenture
Trustee shall be governed by the laws of the State of New York; and (ii) not
described in clause (i) above shall be held by the Indenture Trustee in the
State of New York separate and apart from all other property held by the
Indenture Trustee. Notwithstanding any other provision of this Indenture, the
Indenture Trustee shall not hold any Collateral through an agent except as
expressly permitted by this Section 817 and Section 403(c). Each term used in
this Section 817 and defined in the New York UCC shall have the meaning set
forth in the New York UCC.
SECTION 818. Indenture Trustee's Application for Instructions from
the Issuer. Any application by the Indenture Trustee for written instructions
from the Issuer may, at the option of the Indenture Trustee, set forth in
writing any action proposed to be taken or omitted by the Indenture Trustee
under and in accordance with this Indenture and the date on and/or after which
such action shall be taken or such omission shall be effective, provided that
such application shall make specific reference to this Section 818. The
Indenture Trustee shall not be liable for any action taken by, or omission of,
the Indenture Trustee in accordance with a proposal included in such
application on or after the date specified in such application (which date
shall not be less than five (5) Business Days after the date any officer of
the Issuer actually receives such application, unless any such officer shall
have consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Indenture
Trustee shall have received written instructions in response to such
application specifying the action be taken or omitted.
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ARTICLE IX
NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY
INDENTURE TRUSTEE, ISSUER AND BENEFICIARY
SECTION 901. Issuer to Furnish Indenture Trustee Names and Addresses
of Noteholders. The Issuer will furnish or cause to be furnished to the
Indenture Trustee:
(a) not more than fifteen (15) days after each Record Date, in each
year in such form as the Indenture Trustee may reasonably require, a list of
the names and addresses of the Registered Noteholders of such series or
classes as of such date, and
(b) at such other times as the Indenture Trustee may request in
writing, within thirty (30) days after the receipt by the Issuer of any such
request, a list of similar form and content as of a date not more than fifteen
(15) days before the time such list is furnished; provided, however, that so
long as the Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.
SECTION 902. Preservation of Information; Communications to
Noteholders.
(a) The Indenture Trustee will preserve, in as current a form as is
reasonably practicable, the names and addresses of Registered Noteholders
contained in the most recent list furnished to the Indenture Trustee as
provided in Section 901 and the names and addresses of Registered Noteholders
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in Section
901 upon receipt of a new list so furnished.
(b) If three (3) or more Holders of Notes of any series or class
(hereinafter referred to as "applicants") apply in writing to the Indenture
Trustee, and furnish to the Indenture Trustee reasonable proof that each such
applicant has owned a Note of such series or class for a period of at least
six (6) months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of Notes
of such series or class or with the Holders of all Notes with respect to their
rights under this Indenture or under such Notes and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Indenture Trustee will, within five (5) Business Days after
the receipt of such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Indenture Trustee in accordance with
Section 902(a), or
(ii) such applicants as to the approximate number of
Holders of Notes of such series or class or all Notes, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Indenture Trustee in accordance with Section
902(a), and as to the approximate cost of mailing to such Noteholders
the form of proxy or other communication, if any, specified in such
application.
If the Indenture Trustee shall elect not to afford such applicants
access to such information, the Indenture Trustee shall, upon the written
request of such applicants, mail to each
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Holder of a Registered Note of such series or class or to all Registered
Noteholders, as the case may be, whose names and addresses appear in the
information preserved at the time by the Indenture Trustee in accordance with
Section 902(a), a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Indenture Trustee of the material to be mailed and of payment, or provision
for the payment, of the reasonable expenses of mailing, unless, within five
(5) days after such tender, the Indenture Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material
to be mailed, a written statement to the effect that, in the opinion of the
Indenture Trustee, such mailing would be contrary to the best interests of the
Holders of Notes of such series or class or all Noteholders, as the case may
be, or would be in violation of applicable law. Such written statement will
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections
so sustained have been met and shall enter an order so declaring, the
Indenture Trustee will mail copies of such material to all Registered
Noteholders of such series or class or all Registered Noteholders, as the case
may be, with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Indenture Trustee will be relieved of
any obligation or duty to such applicants respecting their application.
(c) Every Holder of Notes, by receiving and holding the same, agrees
with the Issuer and the Indenture Trustee that neither the Issuer nor the
Indenture Trustee will be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders of Notes in
accordance with Section 902(b), regardless of the source from which such
information was derived, and that the Indenture Trustee will not be held
accountable by reason of mailing any material pursuant to a request made under
Section 902(b).
SECTION 903. Reports by Indenture Trustee.
(a) The term "reporting date" as used in this Section means April 1.
Within sixty (60) days after the reporting date in each year, beginning in
2003, the Indenture Trustee will transmit to Noteholders, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such reporting date if required by Section 313(a) of the
Trust Indenture Act.
(b) To the extent required by the Trust Indenture Act, the Indenture
Trustee will mail each year to all Registered Noteholders, with a copy to the
Note Rating Agencies a report concerning:
(i) its eligibility and qualifications to continue as trustee
under this Indenture;
(ii) any amounts advanced by the Indenture Trustee under this
Indenture;
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(iii) the amount, interest rate and maturity date or
indebtedness owing by the Issuer to the Indenture Trustee in the
Indenture Trustee's individual capacity;
(iv) the property and funds physically held by the Indenture
Trustee as Indenture Trustee;
(v) any release or release and substitution of Collateral
subject to the lien of this Indenture which has not previously been
reported; and
(vi) any action taken by the Indenture Trustee that materially
affects the Notes and that has not previously been reported.
(c) The Indenture Trustee will comply with Sections 313(b) and
313(c) of the Trust Indenture Act.
(d) A copy of each such report will, at the time of such
transmission to Noteholders, be filed by the Indenture Trustee with each stock
exchange upon which the Notes are listed, and also with the Commission. The
Issuer will notify the Indenture Trustee when the Notes are admitted to
trading on any stock exchange.
SECTION 904. Meetings of Noteholders.
(a) The Indenture Trustee may call a meeting of the Noteholders of a
series or class at any time. The Indenture Trustee will call a meeting upon
request of the Issuer or the Holders of at least 10% in aggregate Outstanding
Dollar Principal Amount of the Outstanding Notes of such series or class. In
any case, a meeting will be called after notice is given to the Noteholders
pursuant to Section 106.
(b) Except for any consent that must be given by the Holders of each
Outstanding Note affected, any resolution presented at any meeting at which a
quorum is present may be adopted by the affirmative vote of the Majority
Holders of that series or class, as the case may be. However, any resolution
with respect to any consent, waiver, request, demand, notice, authorization,
direction or other action which may be given by the Holders of not less than a
specified percentage in aggregate Outstanding Dollar Principal Amount of
Outstanding Notes of a series or class or all Notes may be adopted at any
meeting at which a quorum is present only by the affirmative vote of the
Holders of not less than the specified percentage in aggregate Outstanding
Dollar Principal Amount of the Outstanding Notes of that series or class or
all Outstanding Notes, as the case may be. Any resolution passed or decision
taken at any meeting of Noteholders duly held in accordance with this
Indenture will be binding on all Noteholders of the affected series or class.
(c) The quorum at any meeting will be Persons holding or
representing the Majority Holders of a series or class or all Notes, as the
case may be; provided, however, that if any action is to be taken at that
meeting concerning a consent, waiver, request, demand, notice, authorization,
direction or other action that may be given by the Holders of not less than a
specified percentage in aggregate Outstanding Dollar Principal Amount of the
Outstanding Notes of a series or class or all Notes, as applicable, the
Persons holding or representing such specified
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percentage in aggregate Outstanding Dollar Principal Amount of the Outstanding
Notes of such series or class or all Notes will constitute a quorum.
(d) The ownership of Registered Notes will be proved by the Note
Register. The Ownership of Bearer Notes will be proved as provided in Section
104(c)(ii).
(e) The Issuer may make reasonable rules for other matters relating
to action by or a meeting of Noteholders not otherwise covered by this
Section.
SECTION 905. Reports by Issuer to the Commission. The Issuer will:
(a) file with the Indenture Trustee, within fifteen (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) which the Issuer may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act; or, if the Issuer is not required to file
information, documents or reports pursuant to either of said Sections, then it
will file with the Indenture Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) file with the Indenture Trustee and the Commission, in
accordance with 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
as may be required from time to time by such rules and regulations; and
(c) transmit by mail to all Registered Noteholders, as their names
and addresses appear in the Note Register, and notify all Holders of Bearer
Notes of such series or class, by publication of such notice in an Authorized
Newspaper or as otherwise provided in the applicable Indenture Supplement,
within thirty (30) days after the filing thereof with the Indenture Trustee,
such summaries of any information, documents and reports required to be filed
by the Issuer pursuant to paragraphs (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission;
provided, however, that the Indenture Trustee's receipt of such information,
documents and reports filed by the Issuer with the Commission, to the extent
delivered to the Indenture Trustee pursuant to paragraphs (a) and (b) of this
Section, shall not constitute constructive notice of any information contained
therein or determinable from information contained therein.
SECTION 906. Reports by Indenture Trustee. The Indenture Trustee
will report to the Issuer with respect to the amount on deposit in the
Accounts, and the identity of the investments included therein, as the Issuer
may from time to time reasonably request which, absent the occurrence of an
Event of Default hereunder, will not occur more often than monthly.
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SECTION 907. Monthly Noteholders' Statement. By the Business Day
immediately preceding each Payment Date, the Issuer will, in cooperation with
the Servicer, complete and deliver to the Indenture Trustee (with a copy to
each Note Rating Agency) a Monthly Noteholders' Statement. Notwithstanding
anything herein to the contrary, the Issuer may amend the form of Monthly
Noteholder's Statement from time to time without the consent of the Indenture
Trustee or any Noteholder if it receives written confirmation from each Note
Rating Agency that such amendment will not cause a Ratings Effect.
SECTION 908. Payment Instruction to Indenture Trustee. By the
Business Day immediately preceding each Payment Date, the Issuer will, in
cooperation with the Servicer, complete the Payment Instruction and deliver a
copy thereof to the Indenture Trustee. Notwithstanding anything herein to the
contrary, the Issuer may amend the form of Payment Instruction from time to
time without the consent of the Indenture Trustee or any Noteholder if it
receives written confirmation from each Note Rating Agency that such amendment
will not cause a Ratings Effect.
SECTION 909. Information Provided by Issuer. From time to time, the
Issuer will notify (or will cause the Indenture Trustee to notify) the
Servicer of the Aggregate Series Nominal Liquidation Amount (including the
component amounts thereof) and such other information as may be necessary for
the Servicer to calculate certain of the amounts and percentages to be
included in the Monthly Noteholders' Statements and the Payment Instructions.
ARTICLE X
INDENTURE SUPPLEMENTS; AMENDMENTS TO THE SALE AND SERVICING
AGREEMENT AND AMENDMENTS TO THE TRUST AGREEMENT
SECTION 1001. Supplemental Indentures without Consent of
Noteholders. Without the consent of the Holders of any Notes but with prior
notice to each Note Rating Agency, the Issuer and the Indenture Trustee, at
any time and from time to time, upon delivery of an Issuer Tax Opinion and
upon delivery by the Issuer to the Indenture Trustee of an Officer's
Certificate to the effect that the Issuer reasonably believes that such
amendment will not have an Adverse Effect and is not reasonably expected to
have an Adverse Effect at any time in the future and, in the case of an
amendment pursuant to clause (a), (i), (j) or (k), upon delivery to the
Indenture Trustee of a written confirmation from each applicable Note Rating
Agency that such amendment will not have a Rating Effect, may amend this
Indenture or any Indenture Supplement or enter into one or more supplemental
indentures hereto or thereto, in form satisfactory to the Indenture Trustee,
for any of the following purposes:
(a) to evidence the succession of another Entity to the Issuer, and
the assumption by any such successor of the covenants of the Issuer herein and
in the Notes; or
(b) to add to the covenants of the Issuer, or to surrender any right
or power herein conferred upon the Issuer for the benefit of the Holders of
the Notes of any or all series or classes (and if such covenants or the
surrender of such right or power are to be for the benefit of less than all
series or classes of Notes, stating that such covenants are expressly being
included
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or such surrenders are expressly being made solely for the benefit of one or
more specified series or classes); or
(c) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or with the
descriptions thereof or of the Notes contained in the related offering
document (including any prospectus and prospectus supplements), or to make any
other provisions with respect to matters or questions arising under this
Indenture; or
(d) to add to this Indenture such provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at
the date as of which this Indenture was executed or any corresponding
provision in any similar federal statute hereafter enacted; or
(e) to establish any form of Note, as provided in Article II, and to
provide for the issuance of any series or class of Notes as provided in
Article III and to set forth the terms thereof, and/or to add to the rights of
the Holders of the Notes of any series or class; or
(f) to evidence and provide for the acceptance of appointment by
another corporation as a successor Indenture Trustee hereunder with respect to
one or more series or classes of Notes and to add to or change any of the
provisions of this Indenture as will be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Indenture Trustee,
pursuant to Section 811; or
(g) to add any additional Early Redemption Events or Events of
Default in respect of the Notes of any or all series or classes (and if such
additional Events of Default are to be in respect of less than all series or
classes of Notes, stating that such Events of Default are expressly being
included solely for the benefit of one or more specified series or classes);
or
(h) [reserved]
(i) if one or more additional Sellers under the Sale and Servicing
Agreement are added to, or replaced under, the Sale and Servicing Agreement,
or one or more additional Beneficiaries under the Trust Agreement are added
to, or replaced under, the Trust Agreement, or one or more Supplemental
Certificates are issued under the Trust Agreement, to make any necessary
changes to the Indenture or any other related document; or
(j) to provide for the inclusion in the Owner Trust of additional
collateral and the issuance of Notes backed by any such additional collateral;
or
(k) to provide for additional or alternative credit enhancement for
any class of Notes; or
(l) to amend this Indenture and other documents to reflect or
facilitate the direct ownership of Receivables by the Issuer.
Additionally, notwithstanding any provision of this Article X to the
contrary, this Indenture or any Indenture Supplement may be amended without
the consent of the Indenture
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Trustee or any of the Noteholders, upon delivery of an Issuer Tax Opinion for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or any Indenture
Supplement or of modifying in any manner the rights of the Holders of the
Notes under this Indenture or any Indenture Supplement; provided, however,
that (i) the Issuer shall deliver to the Indenture Trustee and the Owner
Trustee an Officer's Certificate to the effect that the Issuer reasonably
believes that such amendment will not have an Adverse Effect and is not
reasonably expected to have an Adverse Effect at any time in the future and
(ii) the Note Rating Agencies have provided written confirmation that such
amendment will not have a Ratings Effect.
Notwithstanding any provision of this Article X to the contrary, (i)
no amendment may be made to this Indenture or any Indenture Supplement which
would adversely affect in any material respect the interests of the Servicer
without the consent of the Servicer and (ii) no amendment may be made to this
Indenture or any Indenture Supplement which would adversely affect in any
material respect the interests of any holders of the Seller's Certificates
issued by the Trust pursuant to the Trust Agreement without the consent of the
holders of Seller's Certificates evidencing not less than a majority of the
Percentage Interests (as defined in the Trust Agreement) of the outstanding
Seller's Certificates.
SECTION 1002. Supplemental Indentures with Consent of Noteholders.
With prior notice to each applicable Note Rating Agency and the consent of not
less than 66 2/3% in Outstanding Dollar Principal Amount of each class or
classes affected by such amendment of this Indenture or any Indenture
Supplement or any supplemental indenture hereto or thereto by Act of said
Holders delivered to the Issuer and the Indenture Trustee, the Issuer and the
Indenture Trustee, upon delivery of an Issuer Tax Opinion, may enter into an
amendment of this Indenture or such Indenture Supplement for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or any Indenture Supplement or of modifying in
any manner the rights of the Holders of the Notes of each such series or class
under this Indenture or any Indenture Supplement; provided, however, that no
such amendment or supplemental indenture will, without the consent of the
Holder of each Outstanding Note affected thereby:
(a) change the scheduled payment date of any payment of interest on
any Note, or change an Expected Principal Payment Date or Legal Maturity Date
of any Note;
(b) reduce the Stated Principal Amount of, or the interest rate on
any Note, or change the method of computing the Outstanding Dollar Principal
Amount, the Adjusted Outstanding Dollar Principal Amount or the Nominal
Liquidation Amount of any Note in a manner that is adverse to the Holder of
any Note;
(c) reduce the amount of a Discount Note payable upon the occurrence
of an Early Redemption Event or other optional or mandatory redemption or upon
the acceleration of its maturity;
(d) impair the right to institute suit for the enforcement of any
payment on any Note;
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(e) reduce the percentage in Outstanding Dollar Principal Amount of
the Outstanding Notes of any series or class, the consent of whose Holders is
required for any such Indenture Supplement, or the consent of whose Holders is
required for any waiver of compliance with the provisions of this Indenture or
of defaults hereunder and their consequences, provided for in this Indenture;
(f) modify any of the provisions of this Section or Section 718,
except to increase any percentage of Holders required to consent to any such
amendment or to provide that other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding Note
affected thereby;
(g) permit the creation of any lien or other encumbrance on the
Collateral that secures any class of Notes that is prior to the lien in favor
of the Holders of the Notes of such class;
(h) change any Place of Payment where any principal of, or interest
on, any Note is payable, unless otherwise provided in the applicable Indenture
Supplement; or
(i) change the method of computing the amount of principal of, or
interest on, any Note on any date.
Notwithstanding anything to the contrary in the foregoing, any
amendment to be effected pursuant to this Section 1002 without the consent of
each adversely affected Noteholder shall be subject to the Indenture Trustee's
receipt of written confirmation from each applicable Note Rating Agency that
such amendment will not have a Ratings Effect with respect to the adversely
affected Notes.
An amendment of this Indenture or an Indenture Supplement which
changes or eliminates any covenant or other provision of this Indenture which
has expressly been included solely for the benefit of one or more particular
series or class of Notes, or which modifies the rights of the Holders of Notes
of such series or class with respect to such covenant or other provision, will
be deemed not to affect the rights under this Indenture of the Holders of
Notes of any other series or class.
It will not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed amendment or
supplemental indenture, but it will be sufficient if such Act will approve the
substance thereof.
SECTION 1003. Execution of Indenture Supplements. In executing or
accepting the additional trusts created by any amendment of this Indenture or
Indenture Supplement or any supplemental indenture hereto or thereto permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Indenture Trustee will be provided with, and (subject to
Section 801) will be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such amendment or supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent
thereto have been satisfied. The Indenture Trustee may, but will not (except
to the extent required in the case of an amendment or supplemental indenture
entered into under Section 1001(d) or 1001(f)) be obligated to, enter into
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any such amendment or supplemental indenture which affects the Indenture
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 1004. Effect of Indenture Supplements. Upon the execution of
any amendment of this Indenture or Indenture Supplement or any supplemental
indenture under this Article, this Indenture will be modified in accordance
therewith with respect to each series or class of Notes affected thereby, or
all Notes, as the case may be, and such amendment or supplemental indenture
will form a part of this Indenture for all purposes; and every Holder of Notes
theretofore or thereafter authenticated and delivered hereunder will be bound
thereby to the extent provided therein.
SECTION 1005. Conformity with Trust Indenture Act. Every amendment
of this Indenture or Indenture Supplement or any supplemental indenture
executed pursuant to this Article will conform to the requirements of the
Trust Indenture Act as then in effect.
SECTION 1006. Reference in Notes to Indenture Supplements. Notes
authenticated and delivered after the execution of any amendment of this
Indenture or Indenture Supplement or any supplemental indenture pursuant to
this Article may, and will, if required by the Indenture Trustee, bear a
notation in form approved by the Indenture Trustee as to any matter provided
for in such amendment or supplemental indenture. If the Issuer will so
determine, new Notes so modified as to conform, in the opinion of the
Indenture Trustee and the Issuer, to any such amendment or supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
SECTION 1007. Amendments to the Sale and Servicing Agreement.
(a) By their acceptance of a Note, the Noteholders acknowledge that
the Seller, the Servicer and the Issuer may amend the Sale and Servicing
Agreement pursuant to Section 13.01 thereof without the consent of any
Noteholder, so long as such amendment would not materially adversely affect
the interest of any Noteholder and the Indenture Trustee shall have received
written confirmation from each Note Rating Agency that such amendment will not
have a Ratings Effect.
(b) By their acceptance of a Note, each Noteholder will be deemed to
have consented to any amendment to the Sale and Servicing Agreement and any
other document or agreement relating thereto (i) for the purpose of providing
for the transfer of Receivables from DCWR (or any additional seller under the
Sale and Servicing Agreement) to a bankruptcy remote special purpose entity
and from such entity to the Issuer and the substitution of a bankruptcy remote
special purpose entity as the beneficiary of the Issuer or (ii) for the
purpose of providing for any Designated Affiliate Transfer (as defined in the
Sale and Servicing Agreement) pursuant to Section 7.04 of the Sale and
Servicing Agreement.
SECTION 1008. Amendments to the Trust Agreement.
(a) Subject to the provisions of the Trust Agreement, without the
consent of the Holders of any Notes or the Indenture Trustee, the Owner
Trustee (at the written direction of the Beneficiary) and the Beneficiary may
amend the Trust Agreement so long as such amendment will not have an Adverse
Effect and is not reasonably expected to have an Adverse
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Effect at any time in the future and the Indenture Trustee shall have received
written confirmation from each Note Rating Agency that such amendment will not
have a Ratings Effect.
(b) Subject to the provisions of the Trust Agreement, (A) in the
case of a significant change in the permitted activities of the Issuer which
is not materially adverse to Holders of the Notes, with the consent of the
Majority Holders of each class or classes of Notes affected by such change,
and (B) in all other cases, with the consent of the Holders of not less than
662/3% in Outstanding Dollar Principal Amount of each class or classes the
Outstanding Notes affected by such amendment, by Act of said Holders delivered
to the Issuer, DCWR and the Owner Trustee (at the written direction of the
Beneficiary) may amend the Trust Agreement for the purpose of adding, changing
or eliminating any provisions of the Trust Agreement or of modifying the
rights of those Noteholders. Notwithstanding anything to the contrary in the
foregoing, any amendment to the Trust Agreement described in this paragraph
(b) to be effected without the consent of each adversely affected Noteholder
shall be subject to the Indenture Trustee's receipt of written confirmation
from each applicable Note Rating Agency that such amendment will not have a
Ratings Effect with respect to the adversely affected Notes.
(c) By their acceptance of a Note, each Noteholder will be deemed to
have consented to any amendment to the Trust Agreement and any other document
or agreement relating thereto (i) for the purpose of providing for the
transfer of Receivables from DCWR (or any additional seller under the Sale and
Servicing Agreement) to a bankruptcy remote special purpose entity and from
such entity to the Issuer and the substitution of a bankruptcy remote special
purpose entity as the beneficiary of the Issuer or (ii) for the purpose of
providing for any Designated Affiliate Transfer (as defined in the Sale and
Servicing Agreement) pursuant to Section 7.04 of the Sale and Servicing
Agreement.
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
SECTION 1101. Payment of Principal and Interest. With respect to
each series or class of Notes, the Issuer will duly and punctually pay the
principal of and interest on such Notes in accordance with their terms and
this Indenture, and will duly comply with all the other terms, agreements and
conditions contained in, or made in this Indenture for the benefit of, the
Notes of such series or class.
SECTION 1102. Maintenance of Office or Agency. The Issuer will
maintain an office, agency or Paying Agent in each Place of Payment where
Notes may be presented or surrendered for payment, where Notes may be
surrendered for transfer or exchange and where notices and demands to or upon
the Issuer in respect of the Notes and this Indenture may be served. The
Issuer will give prompt written notice to the Indenture Trustee of the
location, and of any change in the location, of such office or agency. If at
any time the Issuer will fail to maintain such office or agency or will fail
to furnish the Indenture Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and the Issuer hereby appoints the Indenture Trustee its agent to
receive all such presentations, surrenders, notices and demands.
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SECTION 1103. Money for Note Payments to be Held in Trust. The
Paying Agent, on behalf of the Indenture Trustee, will make distributions to
Noteholders from the Collection Account or other applicable Account pursuant
to the provisions of Article V of this Indenture or any Indenture Supplement
and will report the amounts of such distributions to the Indenture Trustee.
Any Paying Agent will have the revocable power to withdraw funds from the
Collection Account or other applicable Account for the purpose of making the
distributions referred to above. The Indenture Trustee may revoke such power
and remove the Paying Agent if the Indenture Trustee determines in its sole
discretion that the Paying Agent has failed to perform its obligations under
this Indenture or any Indenture Supplement in any material respect. The Paying
Agent upon removal will return all funds in its possession to the Indenture
Trustee.
The Issuer will cause each Paying Agent (other than the Indenture
Trustee) for any series or class of Notes to execute and deliver to the
Indenture Trustee an instrument in which such Paying Agent will agree with the
Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it so
agrees), subject to the provisions of this Section, that such Paying Agent
will:
(a) hold all sums held by it for the payment of principal of or
interest on Notes of such series or class in trust for the benefit of the
Persons entitled thereto until such sums will be paid to such Persons or
otherwise disposed of as herein provided;
(b) if such Paying Agent is not the Indenture Trustee, give the
Indenture Trustee notice of any default by the Issuer (or any other obligor
upon the Notes of such series or class) in the making of any such payment of
principal or interest on the Notes of such series or class;
(c) if such Paying Agent is not the Indenture Trustee, 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;
(d) immediately resign as a Paying Agent and, if such Paying Agent
is not the Indenture Trustee, forthwith pay to the Indenture Trustee all sums
held by it in trust for the payment of Notes if at any time it ceases to meet
the standards described in this Section required to be met by a Paying Agent
at the time of its appointment; and
(e) comply with all requirements of the Internal Revenue Code with
respect to the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to any series or
class of Notes or for any other purpose, pay, or by an Officer's Certificate
direct any Paying Agent to pay, to the Indenture Trustee all sums held in
trust by the Issuer or such Paying Agent in respect of each and every series
or class of Notes as to which it seeks to discharge this Indenture or, if for
any other purpose, all sums so held in trust by the Issuer in respect of all
Notes, such sums to be held by the Indenture Trustee upon the same trusts as
those upon which such sums were held by the Issuer or such Paying
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Agent; and, upon such payment by any Paying Agent to the Indenture Trustee,
such Paying Agent will be released from all further liability with respect to
such money.
Any money deposited with the Indenture Trustee or any Paying Agent,
or then held by the Issuer, in trust for the payment of the principal of or
interest on any Note of any series or class and remaining unclaimed for two
years after such principal or interest has become due and payable will be paid
to the Issuer upon request in an Officer's Certificate, or (if then held by
the Issuer) will be discharged from such trust; and the Holder of such Note
will thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all liability of the Indenture Trustee or such Paying
Agent with respect to such trust money, and all liability of the Issuer as
trustee thereof, will thereupon cease. The Indenture Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of
the Issuer give notice to the Holders of the Notes as to which the money to be
repaid was held in trust, as provided in Section 106, a notice that such funds
remain unclaimed and that, after a date specified in the notice, which will
not be less than thirty (30) days from the date on which the notice was first
mailed or published to the Holders of the Notes as to which the money to be
repaid was held in trust, any unclaimed balance of such funds then remaining
will be paid to the Issuer free of the trust formerly impressed upon it.
The Issuer initially authorizes the Indenture Trustee to act as
Paying Agent for the Notes on its behalf. The Issuer may at any time and from
time to time authorize one or more Persons (including the Indenture Trustee)
to act as Paying Agent in addition to or in place of the Indenture Trustee
with respect to any series or class of Notes issued under this Indenture.
Each Paying Agent will at all times have a combined capital and
surplus of at least $50,000,000 and be subject to supervision or examination
by a United States Federal or State authority or be regulated by or subject to
the supervision or examination of a governmental authority of a nation that is
member of the Organization for Economic Co-operation and Development. If such
Paying Agent publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of
such Paying Agent will be deemed to be its combined capital and surplus as set
forth in its most recent report of condition as so published.
SECTION 1104. Statement as to Compliance. The Issuer will deliver to
the Indenture Trustee and the Note Rating Agencies, on or before April 1 of
each year, beginning in 2003, a written statement signed by an Issuer
Authorized Officer stating that:
(a) a review of the activities of the Issuer during the prior year
and of the Issuer's performance under this Indenture and under the terms of
the Notes has been made under such Issuer Authorized Officer's supervision;
and
(b) to the best of such Issuer Authorized Officer's knowledge, based
on such review, the Issuer has complied in all material respects with all
conditions and covenants under this Indenture throughout such year, or, if
there has been a default in the fulfillment of any such condition or covenant
(without regard to any grace period or requirement of notice), specifying each
such default known to such Issuer Authorized Officer and the nature and status
thereof.
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SECTION 1105. Legal Existence. The Issuer will do or cause to be
done all things necessary to preserve and keep in full force and effect its
legal existence.
SECTION 1106. Further Instruments and Acts. Upon request of the
Indenture Trustee or as necessary, 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.
SECTION 1107. Compliance with Laws. The Issuer will comply with the
requirements of all applicable laws, the noncompliance with which would,
individually or in the aggregate, materially and adversely affect the ability
of the Issuer to perform its obligations under the Notes or this Indenture.
SECTION 1108. Notice of Events of Default. The Issuer agrees to give
the Indenture Trustee and the Note Rating Agencies prompt written notice of
each Event of Default hereunder and each default on the part of the Issuer,
the Servicer or the Seller of its respective obligations under the Sale and
Servicing Agreement and any default of an Enhancement Provider.
SECTION 1109. Certain Negative Covenants. The Issuer will not:
(a) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts withheld in good
faith from such payments under the Internal Revenue Code or other applicable
tax law);
(b) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien in favor of the Indenture Trustee, the
Noteholders and any applicable Enhancement Provider created by this Indenture
to be amended, hypothecated, subordinated, terminated or discharged, or permit
any Person to be released from any covenants or obligations with respect to
the Notes under this Indenture except as may be expressly permitted hereby;
(c) permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien in favor of the Indenture
Trustee, the Noteholders and any applicable Enhancement Provider created by
this Indenture) to be created on or extend to or otherwise arise upon or
burden the Collateral or any part thereof or any interest therein or the
proceeds thereof; or
(d) permit the lien in favor of the Indenture Trustee, the
Noteholders and any applicable Enhancement Provider created by this Indenture
not to constitute a valid first priority security interest in the Collateral;
or
(e) voluntarily dissolve or liquidate.
SECTION 1110. No Other Business. The Issuer will not engage in any
business other than as permitted under the Trust Agreement.
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SECTION 1111. No Borrowing. The Issuer will not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness for borrowed money except for the Notes.
SECTION 1112. Rule 144A Information. For so long as any of the Notes
of any series or class are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Act, the Issuer agrees to provide to any
Noteholder of such series or class and to any prospective purchaser of Notes
designated by such Noteholder, upon the request of such Noteholder or
prospective purchaser, any information required to be provided to such Holder
or prospective purchaser to satisfy the conditions set forth in Rule
144A(d)(4) under the Securities Act.
SECTION 1113. Performance of Obligations.
(a) The Issuer will not take any action and will use its best
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Collateral or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or
impair the validity or effectiveness of, any such instrument or agreement,
except as expressly provided in this Indenture, the Sale and Servicing
Agreement, the Receivables Purchase Agreement, the Trust Agreement or such
other instrument or agreement.
(b) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, any Indenture
Supplement, the Sale and Servicing Agreement, the Receivables Purchase
Agreement, the Trust Agreement and in the instruments and agreements relating
to the Collateral, including but not limited to filing or causing to be filed
all UCC financing statements and continuation statements required to be filed
by the terms of this Indenture, the Sale and Servicing Agreement, the
Receivables Purchase Agreement and the Trust Agreement in accordance with and
within the time periods provided for herein and therein. Except as otherwise
expressly provided herein or therein, the Issuer shall not waive, amend,
modify, supplement or terminate this Indenture, any Indenture Supplement, the
Sale and Servicing Agreement, the Receivables Purchase Agreement or the Trust
Agreement or any provision thereof without the consent of the Holders of a
majority of the Outstanding Dollar Principal Amount of the Notes of each
adversely affected series or class. The Issuer may contract with other Persons
to assist it in performing its duties under this Indenture, and any
performance of such duties by a Person identified to the Indenture Trustee in
an Officer's Certificate of the Issuer shall be deemed to be action taken by
the Issuer. Initially, the Issuer has contracted with the Administrator to
assist the Issuer in performing its duties under this Indenture.
(c) 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 (i) that it will not, without
the prior written consent of the Indenture Trustee and a majority in
Outstanding Dollar Principal Amount of the Notes of each affected series or
class, 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 this
Indenture, the Sale and Servicing Agreement, the
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Receivables Purchase Agreement or the Trust Agreement), or waive timely
performance or observance by the Servicer of its obligations under the Sale
and Servicing Agreement; and (ii) that any such amendment, modification,
waiver, supplement, termination or surrender shall not (A) increase or reduce
in any manner the amount of, or accelerate or delay the timing of, collections
of payments on the Receivables or distributions that are required to be made
for the benefit of the Noteholders or (B) reduce the aforesaid percentage of
the Notes that is required to consent to any such amendment, modification,
waiver, supplement, termination or surrender without the consent of the
Holders of all the Outstanding Notes. If any such amendment, modification,
waiver, supplement, termination or surrender shall be so consented to by the
Indenture Trustee and such Noteholders, the Issuer agrees to execute and
deliver, in its own name and at its own expense, such agreements, instruments,
consents and other documents as are necessary or appropriate in the
circumstances.
SECTION 1114. Issuer May Consolidate, Etc., Only on Certain
Terms.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(1) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger (i) shall be a Person organized
and existing under the laws of the United States of America or any state
or the District of Columbia, (ii) shall not be subject to regulation as
an "investment company" under the Investment Company Act and (iii) shall
expressly assume, by a supplemental indenture hereto, executed and
delivered to the Indenture Trustee, in a form satisfactory to the
Indenture Trustee, the due and punctual payment of the principal of and
interest on all Notes and the performance of every covenant of this
Indenture on the part of the Issuer to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default or Early Redemption Event shall have occurred and be
continuing;
(3) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that (i)
such consolidation or merger and such supplemental indenture comply with
this Section 1114, (ii) all conditions precedent in this Section 1114
relating to such transaction have been complied with (including any
filing required by the Securities Exchange Act), and (iii) such
supplemental indenture is duly authorized, executed and delivered and is
valid, binding and enforceable against such Person;
(4) the Issuer shall have received written confirmation from
each Note Rating Agency that there will be no Ratings Effect with respect
to any Outstanding Notes as a result of such consolidation or merger;
(5) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that, for federal income tax purposes, such transaction will not
have any material adverse tax consequence to any Noteholder;
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(6) any action that is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(7) such action shall not be contrary to the status of the
Issuer as a qualified special purpose entity under existing accounting
literature.
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Collateral, substantially as an
entirety to any Person, unless:
(1) 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, or the District of Columbia, (B) expressly assume, by a
supplemental indenture hereto, executed and delivered to the Indenture
Trustee, in form satisfactory to the Indenture Trustee, the due and
punctual payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed, all as
provided herein, (C) expressly agree by means of such supplemental
indenture that all right, title and interest so conveyed or transferred
shall be subject and subordinate to the rights of Holders of the Notes,
(D) unless otherwise provided in such supplemental indenture hereto,
expressly agree to indemnify, defend and hold harmless the Issuer against
and from any loss, liability or expense arising under or related to this
Indenture and the Notes, (E) expressly agree by means of such
supplemental indenture that such Person (or if a group of Persons, then
one specified Person) shall make all filings with the Commission (and any
other appropriate Person) required by the Securities Exchange Act in
connection with the Notes and (F) not be an "investment company" as
defined in the Investment Company Act;
(2) immediately after giving effect to such transaction, no
Event of Default or Early Redemption Event shall have occurred and be
continuing;
(3) the Issuer shall have received written confirmation from
each Note Rating Agency that there will be no Ratings Effect with respect
to any Outstanding Notes as a result of such conveyance or transfer;
(4) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that, for federal income tax purposes, such transaction will not
have any material adverse tax consequence to any Noteholder;
(5) any action that is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(6) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such supplemental indenture comply with this
Section 1114 and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Securities Exchange Act).
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SECTION 1115. Successor Substituted. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the
Issuer substantially as an entirety in accordance with Section 1114 hereof,
the Person formed by or surviving such consolidation or merger (if other than
the Issuer) or the Person to which such conveyance or transfer is made 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. In the event of any such conveyance or
transfer, the Person named as the Issuer in the first paragraph of this
Indenture or any successor which shall theretofore have become such in the
manner prescribed in this Section 1115 shall be released from its obligations
under this Indenture as issued immediately upon the effectiveness of such
conveyance or transfer, provided that the Issuer shall not be released from
any obligations or liabilities to the Indenture Trustee or the Noteholders
arising prior to such effectiveness.
SECTION 1116. Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by this Indenture, the Sale and Servicing Agreement or
the Trust Agreement, 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 1117. 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 1118. 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 Owner 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, (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, (x)
distributions as contemplated by, and to the extent funds are available for
such purpose under, the Sale and Servicing Agreement or the Trust Agreement
and (y) payments to the Indenture Trustee pursuant to Section 807 hereof. The
Issuer will not, directly or indirectly, make payments to or distributions
from the Collection Account or the Excess Funding Account except in accordance
with the Sale and Servicing Agreement, this Indenture or any Indenture
Supplement.
SECTION 1119. Representations and Warranties as to the Security
Interest of the Indenture Trustee in the Receivables. The Issuer makes the
following representations and warranties to the Indenture Trustee. The
representations and warranties speak as of the execution and delivery of this
Indenture and as of the issuance date of each series of Notes and shall
survive the pledge of the Collateral to the Indenture Trustee pursuant to this
Indenture.
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(a) Except as may be expressly permitted herein or in the other
Transaction Documents, this Indenture creates a valid and continuing security
interest (as defined in the UCC) in the Receivables in favor of the Indenture
Trustee, which security interest is prior to all other liens and security
interests, and is enforceable as such as against creditors of and purchasers
from the Issuer.
(b) The Receivables constitute "tangible chattel paper", "accounts"
or "payment intangibles" within the meaning of Article 9 of the UCC.
(c) The Issuer has taken all necessary steps to perfect its security
interest (if any) against account debtors on the Receivables in any property
securing the Receivables.
(d) The Issuer owns and has good and marketable title to the
Receivables free and clear of any lien, claim or encumbrance of any Person
(other than the Indenture Trustee).
(e) The Issuer has caused or will have caused, within ten days after
the date of execution of this Indenture, the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest
in the Receivables granted to the Issuer hereunder.
(f) Other than the security interest granted to the Indenture
Trustee pursuant to this Indenture, the Issuer has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Receivables . The Issuer has not authorized the filing of and is not aware of
any financing statements against the Issuer that include a description of
collateral covering the Receivables other than any financing statement
relating to the security interest granted to the Indenture Trustee hereunder
or that has been terminated. The Issuer is not aware of any judgment or tax
lien filings against it.
(g) The Servicer as custodian for the Issuer has in its possession
all original copies of the contracts that constitute or evidence the
Receivables, and will hold all such contracts for the benefit of the Indenture
Trustee. The contracts that constitute or evidence the Receivables do not have
any marks or notations indicating that they have been pledged, assigned or
otherwise conveyed to any Person other than the Issuer. All financing
statements filed or to be filed against the Issuer in favor of the Indenture
Trustee in connection herewith and describing the Receivables contain a
statement to the following effect: "A purchase of or security interest in any
collateral described in this financing statement will violate the rights of
the Indenture Trustee."
(h) The Issuer has received all consents and approvals (if any)
required by the terms of the Receivables to the grant of a security interest
in the Receivables hereunder to the Indenture Trustee.
SECTION 1120. Derivative Instruments. If the Issuer enters into any
interest rate swap or derivative instrument (each, a "derivative instrument")
in connection with its issuance of a series of Notes, such derivative
instrument shall be entered into at the time of issuance of such series of
Notes, at the time of issuance shall not have a notional amount in excess of
the Stated Principal Amount of such Notes and is not thereafter expected to
exceed such Stated Principal Amount outstanding from time to time, shall not
require the Issuer to make
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discretionary decisions (other than decisions relating to the servicing of the
Receivables) and shall have characteristics that relate to and are intended to
hedge (partly or fully) against some risk or risks related to such series of
Notes or the Receivables or Permitted Investments.
ARTICLE XII
EARLY REDEMPTION OF NOTES
SECTION 1201.Applicability of Article. Unless otherwise specified in
the applicable Indenture Supplement related to a series or class of Notes,
pursuant to the terms of this Article, the Issuer will redeem and pay,
provided that funds are available, each affected series or class of Notes upon
the occurrence of any Early Redemption Event. Unless otherwise specified in
the applicable Indenture Supplement relating to a series or class of Notes, or
in the form of Notes for such series or class, the following are "Early
Redemption Events":
(a) with respect to any class of Notes, the occurrence of the
Expected Principal Payment Date of such Note;
(b) the Issuer becomes an investment company within the meaning of
the Investment Company Act; or
(c) with respect to any series or class of Notes, any additional
Early Redemption Event specified in the Indenture Supplement for such series
or class as applying to such series or class.
The redemption price of a class of Notes so redeemed will equal the
Outstanding Dollar Principal Amount of such series or class, plus interest
accrued and unpaid to but excluding the date of redemption, the payment of
which will be subject to Article V, Article VII and the allocations, deposits
and payments sections of the related Indenture Supplement.
If the Issuer is unable to pay the redemption price in full on the
Payment Date following the end of the Monthly Period in which the Early
Redemption Event occurs, monthly payments on such series or class of Notes
will thereafter be made on each following Payment Date until the Outstanding
Dollar Principal Amount of such series or class, plus all accrued and unpaid
interest, is paid in full or the Legal Maturity Date occurs, whichever is
earlier, subject to Article V, Article VII and the allocations, deposits and
payments provisions of the related Indenture Supplement. Any funds in any
Supplemental Account for a redeemed class will be applied to make the
principal and interest payments on that series or class on the redemption
date, subject to Article V, Article VII and the allocations, deposits and
payments sections of the related Indenture Supplement. Principal payments on
redeemed classes will be made first to the senior-most Notes until paid in
full, then to the subordinated Notes, if any, until paid in full.
SECTION 1202. Optional Repurchase. Unless otherwise provided in the
applicable Indenture Supplement for a series or class of Notes, the Servicer
has the right, but not the obligation, to cause the Issuer to redeem a series
or class of Notes in whole but not in part on any day on or after the day on
which the aggregate Nominal Liquidation Amount of the Notes of such series or
class is reduced to less than 10% of its Initial Dollar Principal Amount;
provided, however, that if such series or class of Notes is of a subordinated
class, the Servicer will not
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cause the Issuer to redeem such Notes if the provisions of the related
Indenture Supplement would prevent the payment of such subordinated Note until
a level of prefunding of the principal funding sub-accounts for the senior
classes of Notes for that series has been reached such that the amount of such
deficiency in the required subordination of a senior class of Notes is no
longer required to provide subordination protection for the senior classes of
that series. If the Servicer elects to cause the Issuer to redeem a series or
class of Notes, it will cause the Issuer to notify the Holders of such
redemption at least thirty (30) days prior to the redemption date. The
redemption price of a series or class so redeemed will equal the Outstanding
Dollar Principal Amount of such class, plus interest accrued and unpaid or
principal accreted and unpaid on such class to but excluding the date of
redemption, the payment of which will be subject to Article V, Article VII and
the allocations, deposits and payments provisions of the related Indenture
Supplement.
If the Servicer is unable to pay the redemption price in full on the
redemption date, monthly payments on such class of Notes will thereafter be
made until the Outstanding Dollar Principal Amount of such class, plus all
accrued and unpaid interest, is paid in full or the Legal Maturity Date
occurs, whichever is earlier, subject to Article V, Article VII and the
allocations, deposits and payments provisions of the related Indenture
Supplement. Any funds in any Supplemental Account for a redeemed class will be
applied to make the principal and interest payments on that class on the
redemption date in accordance with the related Indenture Supplement. Principal
payments on redeemed classes will be made in accordance with the related
Indenture Supplement.
SECTION 1203. Notice. Promptly after the occurrence of any Early
Redemption Event or a redemption pursuant to Section 1202, the Issuer will
notify the Indenture Trustee and the Note Rating Agencies in writing of the
identity, Stated Principal Amount and Outstanding Dollar Principal Amount of
the affected series or class of Notes to be redeemed. Notice of redemption
will promptly be given as provided in Section 106. All notices of redemption
will state (a) the date on which the redemption of the applicable series or
class of Notes pursuant to this Article will begin, which will be the
Principal Payment Date next following the end of the Monthly Period in which
the applicable Early Redemption Event or redemption pursuant to Section 1202
occurs, (b) the redemption price for such series or class of Notes, which will
be equal to the Outstanding Dollar Principal Amount of such series or class
plus interest accrued or principal accreted and unpaid (if any), the payment
of which will be subject to Article V, Article VII and the allocations,
deposits and payments provisions of the related Indenture Supplement and (c)
the series or class of Notes to be redeemed pursuant to this Article.
ARTICLE XIII
COLLATERAL
SECTION 1301.Recording, Etc.
(a) The Issuer intends the Security Interest granted pursuant to
this Indenture in favor of the Indenture Trustee to be prior to all other
liens in respect of the Collateral. Subject to Section 1303, the Issuer will
take all actions necessary to obtain and maintain a perfected lien
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on and security interest in the Collateral in favor of the Indenture Trustee.
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, all as prepared by the
Issuer, and will take such other action necessary or advisable to:
(i) grant a Security Interest more effectively in all or any
portion of the Collateral;
(ii) maintain or preserve the Security Interest (and the
priority thereof) created by this Indenture or carry out more effectively
the purposes hereof;
(iii) perfect, publish notice of or protect the validity of any
grant made or to be made by this Indenture;
(iv) enforce the Receivables, the Enhancement Agreements and
each other instrument or agreement included in the Collateral;
(v) preserve and defend title to the Collateral and the rights
of the Indenture Trustee in such Collateral against the claims of all
persons and parties; or
(vi) pay all taxes or assessments levied or assessed upon the
Collateral when due.
(b) The Issuer will from time to time promptly pay and discharge all
financing and continuation statement recording and/or filing fees, charges and
taxes relating to this Indenture, any amendments thereto and any other
instruments of further assurance. The Issuer hereby designates the Indenture
Trustee its agent and attorney-in-fact to execute upon the Issuer's failure to
do so, any financing statement, continuation statement or other instrument
required by and provided to the Indenture Trustee pursuant to this Section.
(c) Without limiting the generality of clauses (a)(ii) or (a)(iii):
(i) The Issuer will cause this Indenture, all amendments and
supplements hereto and/or all financing statements and continuation
statements and any other necessary documents covering the Indenture
Trustee's right, title and interest to the Collateral to be promptly
recorded, registered and filed, and at all times to be kept, recorded,
registered and filed, all in such manner and in such places as may be
required by law fully to preserve and protect the right, title and
interest of the Indenture Trustee to all property comprising the
Collateral; it being understood and agreed that the parties hereto hereby
authorize a financing statement or a financing statement amendment
describing as collateral "all assets and all personal property of the
Debtor whether now owned or hereafter acquired, other than the
Beneficiary Trust Account" and naming the Issuer as debtor and the
Indenture Trustee as secured party to be filed by or on behalf of the
Issuer in the applicable jurisdiction, which shall be the State of
Delaware, within ten days of the Effective Date. The Issuer will deliver
to the Indenture Trustee file-stamped copies of, or filing receipts for,
any document recorded, registered or filed as provided above, as soon as
available following such recording, registration or filing.
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(ii) Within 30 days after the Issuer makes any change in its
name, identity or corporate structure which would make any financing
statement or continuation statement filed in accordance with paragraph
(d)(i) seriously misleading within the meaning of Section 9-507 or 9-508
(or any comparable provision) of the UCC, the Issuer will give the
Indenture Trustee notice of any such change and will file such financing
statements or amendments as may be necessary to continue the perfection
of the Indenture Trustee's security interest in the Collateral.
(d) The Issuer will give the Indenture Trustee prompt notice of any
relocation of its chief executive office, place of business or State of
location, and any change in the jurisdiction of its organization, and whether,
as a result of such relocation or change, the applicable provision of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and will file such
financing statements or amendments as may be necessary to perfect or to
continue the perfection of the Indenture Trustee's security interest in the
Collateral. The Issuer will at all times maintain its chief executive office
within the United States.
(e) The duty of the Indenture Trustee to execute any instrument
required pursuant to this Section will arise only if the Indenture Trustee has
knowledge of the type described in Section 701(c) of any default of the Issuer
in complying with the provisions of this Section.
SECTION 1302. Trust Indenture Act Requirements. The release of any
Collateral from the lien created by this Indenture or the release of, in whole
or in part, such liens, will not be deemed to impair the Security Interest in
contravention of the provisions hereof if and to the extent the Collateral or
liens are released pursuant to the terms of this Indenture, the Sale and
Servicing Agreement or the Trust Agreement. The Indenture Trustee and each of
the Noteholders and any applicable Enhancement Provider acknowledge that a
release of Collateral or liens in accordance with the terms of this Indenture,
the Sale and Servicing Agreement or the Trust Agreement will not be deemed for
any purpose to be an impairment of the Security Interest in contravention of
the terms of this Indenture. To the extent applicable, without limitation, the
Issuer and each other obligor on the Notes will cause Trust Indenture Act
Section 314(d) relating to the release of property or securities from the
liens hereof to be complied with. Any certificate or opinion required by Trust
Indenture Act Section 314(d) may be made by an officer of the appropriate
obligor, except in cases in which Trust Indenture Act Section 314(d) requires
that such certificate or opinion be made by an independent person.
SECTION 1303. Suits to Protect the Collateral. Subject to the
provisions of this Indenture, the Indenture Trustee will have power to
institute and to maintain such suits and proceedings as it may deem expedient
to prevent any impairment of the Collateral by any acts which may be unlawful
or in violation of this Indenture, and such suits and proceedings as the
Indenture Trustee may deem expedient to preserve or protect the interests of
the Noteholders and any applicable Enhancement Provider and the interests of
the Indenture Trustee and the Holders of the Notes in the Collateral
(including power to institute and maintain suits or proceedings to restrain
the enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or order would
impair the Security Interest or be
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prejudicial to the interests of the Holders of the Notes or the Indenture
Trustee). No counterparties to an Enhancement Agreement may direct the
Indenture Trustee to enforce the Security Interest. Each Enhancement
Provider's rights consist solely of the right to receive collections allocated
for its benefit pursuant to the related Indenture Supplement.
SECTION 1304. Purchaser Protected. In no event will any purchaser in
good faith of any property purported to be released hereunder be bound to
ascertain the authority of the Indenture Trustee to execute the release or to
inquire as to the satisfaction of any conditions required by the provisions
hereof for the exercise of such authority or to see to the application of any
consideration given by such purchaser or other transferee; nor will any
purchaser or other transferee of any property or rights permitted by this
Article to be sold be under any obligation to ascertain or inquire into the
authority of the Issuer or any other obligor, as applicable, to make any such
sale or other transfer.
SECTION 1305. Powers Exercisable by Receiver or Trustee. In case the
Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article upon the Issuer or any other
obligor, as applicable, with respect to the release, sale or other disposition
of such property may be exercised by such receiver or trustee, and an
instrument signed by such receiver or trustee shall be deemed the equivalent
of any similar instrument of the Issuer or any other obligor, as applicable,
or of any officer or officers thereof required by the provisions of this
Article.
SECTION 1306. Determinations Relating to Collateral. In the event (i)
the Indenture Trustee shall receive any written request from the Issuer or any
other obligor for consent or approval with respect to any matter or thing
relating to any Collateral or the Issuer's or any other obligor's obligations
with respect thereto or (ii) there shall be due to or from the Indenture
Trustee under the provisions hereof any performance or the delivery of any
instrument or (iii) the Indenture Trustee shall become aware of any
nonperformance by the Issuer or any other obligor of any covenant or any
breach of any representation or warranty of the Issuer or any other obligor
set forth in this Indenture, then, in each such event, the Indenture Trustee
shall be entitled to hire experts, consultants, agents and attorneys to advise
the Indenture Trustee on the manner in which the Indenture Trustee should
respond to such request or render any requested performance or response to
such nonperformance or breach (the expenses of which will be reimbursed to
such experts, consultants, agents and attorneys and to the Indenture Trustee
pursuant to Section 807). The Indenture Trustee will be fully protected in the
taking of any action recommended or approved by any such expert, consultant,
agent or attorney or agreed to by the Majority Holders of the Outstanding
Notes.
SECTION 1307. Release of Collateral.
(a) Subject to the payment of its fees and expenses pursuant to
Section 807, the Indenture Trustee will, at the request of the Issuer or when
otherwise required by the provisions of this Indenture or the Sale and
Servicing Agreement, 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 which are not inconsistent with the provisions
of this Indenture or the Sale and Servicing Agreement. No party relying upon
an instrument executed by the Indenture Trustee as provided in this Article
will be bound to ascertain the Indenture
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Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any funds.
(b) Upon delivery of an Officer's Certificate certifying that the
Issuer's obligations under this Indenture have been satisfied and discharged
by complying with the provisions of this Article, the Indenture Trustee will
(i) execute and deliver such releases, termination statements and other
instruments (in recordable form, where appropriate) as the Issuer or any other
obligor, as applicable, may reasonably request evidencing the termination of
the Security Interest created by this Indenture and (ii) not to be deemed to
hold the Security Interest for the benefit of the Indenture Trustee, the
Noteholders and any applicable Enhancement Provider.
(c) DCWR and the Noteholders will be entitled to receive at least
ten (10) days written notice when the Indenture Trustee proposes to take any
action pursuant to clause (a), accompanied by copies of any instruments
involved, and the Indenture Trustee will also be entitled to 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. 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.
SECTION 1308. Certain Actions by Indenture Trustee. Any action taken
by the Indenture Trustee pursuant to this Article in respect of the release of
Collateral will be taken by the Indenture Trustee as its interest in such
Collateral may appear, and no provision of this Article is intended to, or
will, excuse compliance with any provision hereof.
SECTION 1309. Opinions as to Collateral.
(a) On the Effective Date, the Issuer will furnish to the Indenture
Trustee an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording and filing
of this Indenture, any indentures supplemental hereto, and any other requisite
documents, and with respect to the execution and filing of any financing
statements and continuation statements, as are necessary to perfect and
maintain the perfection of the Security Interest in the Receivables and the
proceeds thereof granted by this Indenture in favor of the Indenture Trustee
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 perfected.
(b) On or before March 31 in each calendar year, beginning in 2003,
the Issuer will furnish to the Indenture Trustee an Opinion of Counsel with
respect to each Uniform Commercial Code financing statement which has been
filed by the Issuer either stating that, (i) 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 first priority lien and Security Interest in the Receivables and the
proceeds thereof created by this Indenture and reciting the details of
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such action or (ii) in the opinion of such counsel no such action is necessary
to maintain such lien and Security Interest. Such Opinion of Counsel will 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 March 31 in the following
calendar year.
SECTION 1310. Delegation of Duties. The Issuer may contract with or
appoint other Persons (including DCWR and its Affiliates) to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate
will be deemed to be action taken by the Issuer.
ARTICLE XIV
MISCELLANEOUS
SECTION 1401. No Petition. The Indenture Trustee, by entering into
this Indenture, each Enhancement Provider, by designating that the obligations
of the Issuer pursuant to the applicable Enhancement Agreement are secured by
the Collateral, and each Noteholder, by accepting a Note, agrees that it will
not at any time institute against DCWR, the CARCO Trust or the Issuer, or join
in any institution against DCWR, the CARCO Trust 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
Notes, this Indenture or any Enhancement Agreement.
SECTION 1402. Trust Obligations. No recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer on the Notes or
under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against (i) the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer or the Owner Trustee or of any successor or
assign of the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed (it being understood that the Owner Trustee
has no such obligations in its individual capacity).
SECTION 1403. Limitations on Liability.
(a) It is expressly understood and agreed by the parties hereto that
(i) this Indenture is executed and delivered by the Beneficiary not
individually or personally but solely as Beneficiary, in the exercise of the
powers and authority conferred and vested in it, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as a personal representation, undertaking or
agreement by the Beneficiary but is made and intended for the purpose of
binding only the Issuer, (iii) nothing herein contained will be construed as
creating any liability on the Beneficiary individually or personally, to
perform any covenant of the Issuer either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties to
this Indenture and by any Person claiming by, through or under them and (iv)
under no circumstances will the Beneficiary be personally liable for the
83
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Indenture or any related documents.
(b) None of the Indenture Trustee, the Owner Trustee, DCWR, DCS or
any other beneficiary of the Issuer or any of their respective officers,
directors, employers or agents will have any liability with respect to this
Indenture, and recourse may be had solely to the Collateral pledged to secure
the Notes issued by the Issuer.
SECTION 1404. Tax Treatment. The Issuer and the Noteholders agree
that the Notes are intended to be debt of DCWR for federal, state and local
income, franchise and single business tax purposes and agree to treat the
Notes accordingly for all such purposes, unless otherwise required by a taxing
authority.
SECTION 1405. Actions Taken by the Issuer. Any and all actions that
are to be taken by the Issuer may be taken by either the Beneficiary or the
Owner Trustee on behalf of the Issuer.
SECTION 1406. Alternate Payment Provisions. Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, the Issuer,
with the written consent of the Indenture Trustee, may enter into any
agreement with any Holder of a Note providing for a method of payment or
notice that is different from the methods provided for in this Indenture 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 or
notices, as applicable, to be made in accordance with such agreements.
SECTION 1407. Termination of Issuer. The Issuer and the respective
obligations and responsibilities of the Indenture Trustee created hereby
(other than the obligation of the Indenture Trustee to make payments to
Noteholders as hereinafter set forth) shall terminate, except with respect to
the duties described in Section 1408(b), as provided in the Trust Agreement.
SECTION 1408. Final Distribution.
(a) The Servicer shall give the Indenture Trustee at least thirty
(30) days prior written notice of the Payment Date on which the Noteholders of
any series or class may surrender their Notes for payment of the final
distribution on and cancellation of such Notes. Not later than the fifth day
of the month in which the final distribution in respect of such series or
class is payable to Noteholders, the Indenture Trustee shall provide notice to
Noteholders of such series or class specifying (i) the date upon which final
payment of such series or class will be made upon presentation and surrender
of Notes of such series or class at the office or offices therein designated,
(ii) the amount of any such final payment and (iii) that the Record Date
otherwise applicable to such payment date is not applicable, payments being
made only upon presentation and surrender of such Notes at the office or
offices therein specified (which, in the case of Bearer Notes, shall be
outside the United States). The Indenture Trustee shall give such notice to
the Note Registrar and the Paying Agent at the time such notice is given to
Noteholders.
84
(b) Notwithstanding a final distribution to the Noteholders of any
series or class (or the termination of the Issuer), except as otherwise
provided in this paragraph, all funds then on deposit in any Account allocated
to such Noteholders shall continue to be held in trust for the benefit of such
Noteholders, and the Paying Agent or the Indenture Trustee shall pay such
funds to such Noteholders upon surrender of their Notes, if certificated. In
the event that all such Noteholders shall not surrender their Notes for
cancellation within six (6) months after the date specified in the notice from
the Indenture Trustee described in paragraph (a), the Indenture Trustee shall
give a second notice to the remaining such Noteholders to surrender their
Notes for cancellation and receive the final distribution with respect thereto
(which surrender and payment, in the case of Bearer Notes, shall be outside
the United States). If within one year after the second notice all such Notes
shall not have been surrendered for cancellation, the Indenture Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining such Noteholders concerning surrender of their Notes,
and the cost thereof shall be paid out of the funds in the Collection Account,
the Excess Funding Account or any Supplemental Account held for the benefit of
such Noteholders. The Indenture Trustee and the Paying Agent shall pay to the
Issuer any monies held by them for the payment of principal or interest that
remains unclaimed for two (2) years. After payment to the Issuer, Noteholders
entitled to the money must look to the Issuer for payment as general creditors
unless an applicable abandoned property law designates another Person.
SECTION 1409. Termination Distributions. Upon the termination of the
Issuer pursuant to the terms of the Trust Agreement, the Indenture Trustee
shall release, assign and convey to the Beneficiary or any of its designees,
without recourse, representation or warranty, all of its right, title and
interest in the Collateral, whether then existing or thereafter created, all
monies due or to become due and all amounts received or receivable with
respect thereto (including all moneys then held in any Account) and all
proceeds thereof, except for amounts held by the Indenture Trustee pursuant to
Section 1408(b). The Indenture Trustee shall execute and deliver such
instruments of transfer and assignment as shall be provided to it, in each
case without recourse, as shall be reasonably requested by the Beneficiary to
vest in the Beneficiary or any of its designees all right, title and interest
which the Indenture Trustee had in the Collateral and such other property.
SECTION 1410. Enhancement Providers as Third-Party Beneficiaries.
Each Enhancement Provider is a third-party beneficiary of this Indenture to
the extent specified in the applicable Enhancement Agreement or Indenture
Supplement.
[END OF ARTICLE XIV]
85
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Indenture to be duly executed as of the day and year first above
written.
DAIMLERCHRYSLER MASTER
OWNER TRUST
By DaimlerChrysler Wholesale Receivables LLC,
as Beneficiary and not in its individual capacity,
By Chrysler Financial Receivables Corporation, a
member
By: /s/ X. X. Xxxxx
----------------------------------------------
Name: X. X. Xxxxx
Title: Assistant Controller
THE BANK OF NEW YORK
as Indenture Trustee and not in its individual
capacity
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Acknowledged and Accepted:
DAIMLERCHRYSLER SERVICES
NORTH AMERICA LLC
as Servicer
By: /s/ X. X. Xxxxx
-----------------------------------------
Name: X. X. Xxxxx
Title: Assistant Controller
86
EXHIBIT A
FORM OF PAYMENT INSTRUCTION TO INDENTURE TRUSTEE
A-1
DAIMLERCHRYSLER MASTER OWNER TRUST:
Reconciliation of Cash Flows
Collection Period: __________ through __________
Accrual Period: __________ through __________
Distribution Date: __________
Trust Seller's DCMOT DCMOT DCMOT DCMOT
Totals Interest [o] [o] [o] [o]
------ -------- --------------------------------------------
AMOUNTS AVAILABLE FOR DISBURSEMENT
Interest Collections
Recoveries on Defaulted Receivables
Investment Income on Collection Account
PFA Earnings
PFA Earnings Shortfall
Series EFA Earnings
Principal Collections
Miscellaneous Payments
Balance in Principal Funding Accounts
Balance in Excess Funding
Account Other Adjustments--
------------- ------------- ----------------------------------------------
Total Available
============= ============== ===============================================
AMOUNTS DISBURSED
Interest Due to Noteholders
Principal Due to Noteholders
Principal to Principal Funding Accounts
Principal to Excess Funding Account
Servicing Fees
Excess Avail Interest Amount to Seller
Excess Avail Principal Amount to Seller
Excess Funding Account Balance to Seller
Other Adjustments
------------------ ------------------- ------------------------------------------
Total Disbursements
Proof ================== =================== ==========================================
================== =================== ==========================================
A-2
NET FUNDS TRANSFER TO/(FROM) BNY(1):
================== =================== ==========================================
A-3
------------------------------------------------------------------------------
INSTRUCTIONS TO THE BANK OF NEW YORK
1. Receive funds from:
DCS
Investment Income
Collection Account
Balance in EFA and PFA
-----------------
2. Distribute funds to:
Series Noteholders
DCS
EFA and PFA
-----------------
3. Verify account balances in Collection and Funding Accounts.
------------------------------------------------------------------------------
A-4
EXHIBIT B
FORM OF MONTHLY NOTEHOLDERS' STATEMENT
B-1
NY1 5638104v1
DAIMLERCHRYSLER MASTER OWNER TRUST
Collections Accrual Distribution
-----------------------------------------------------------
-----------------------------------------------------------
From:
To:
Days:
S&P Long Term Debt Rating of DaimlerChrysler AG:
Series Allocation - Beginning of Collection Period
(after giving effect to payments and deposits on __________)
---------------------------------------------------------------------------------------------------------------------
Outstanding [A] [B] [C] [A]+[B]+[C] [D]
Dollar EFA and Nominal Liq. Primary Incremental Series Seller's Req.
Principal PFA Amount OC OC Nominal Liq. Participation
Series Amount Balances of Notes Amount Amount Amount Amount
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
Series [o]
Series [o]
Series [o]
Series [o]
Series [o]
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Total
Seller's Percentages:
Series Allocation - Beginning of Collection Period
(after giving effect to payments and deposits on __________)
--------------------------------------------------------------------------------
[A]+[B]+[C]+[D] [SNLA/Pool] [SNLA/Pool] [SNLA/AggSNLA]
Required Floating Principal Miscellaneous
Participation Allocation Allocation Allocation
Series Amount Percentage Percentage Percentage
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Series [o]
Series [o]
Series [o]
Series [o]
Series [o]
--------------------------------------------------------------------------------
Total
Seller's Percentages:
Series Allocation - End of Collection Period
(after giving effect to payments and deposits on __________)
----------------------------------------------------------------------------------------------------------------------------------
Outstanding [A] [B] [C] [A]+[B]+[C] [D]
Dollar EFA and Nominal Liq. Primary Incremental Series Seller's Req.
Principal PFA Amount OC OC Nominal Liq. Participation
Series Amount Balances of Notes Amount Amount Amount Amount
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
Series [o]
Series [o]
Series [o]
Series [o]
Series [o]
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
Total
Seller's Percentages:
Series Allocation - End of Collection Period
(after giving effect to payments and deposits on __________)
--------------------------------------------------------------------------------
[A]+[B]+[C]+[D] [SNLA/Pool] [SNLA/Pool] [SNLA/AggSNLA]
Required Floating Principal Miscellaneous
Participation Allocation Allocation Allocation
Series Amount Percentage Percentage Percentage
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Series [o]
Series [o]
Series [o]
Series [o]
Series [o]
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Total
Seller's Percentages:
B-2
Trust Principal Receivables Trust Non-Principal Receivables
--------------------------- -------------------------------
Beginning Pool Balance Total Interest Collections
Interest Collections
Total Principal Collections Interest Collections on "D" and "L"
Principal Collections Recoveries on Defaulted Receivables
Principal Adjustments Investment Income from Collection Account
Principal Collections for "D" and "L" Investment Income from Excess Funding Account
New Principal Receivables
Receivables Added for Additional Accouunts Average Interest Collection Rate
--------------------------------
Principal Default Amounts Total Interest Collections
As a Pct of Collections/Avg. Receivables / Average Daily Pool Balance (prior month)
* 360
Ending Pool Balance / Actual Days (prior month)
------------------------------------------------ --------------
Ending Required Participation Amount (trust-wide) Average Interest Collections Rate
Ending Excess Receivables (trust-wide)
Summary of Collections
----------------------
Average Daily Pool Balance Total Principal Collections
Monthly Payment Rate Total Interest Collections
------------------------------------------------ --------------
Previous Monthly Payment Rate Total Collections
2-Month Average Payment Rate
Monthly Payment Rate 2 Months Ago Deposit into EFA per Section 4.06(b)(i) of SSA
----------------------------------------------
3-Month Average Payment Rate Aggregate Outstanding Dollar Principal Amount
Aggregate OC Amounts
------------------------------------------------ --------------
Used Vehicle Balance Total "A"
As Pct of Ending Pool Balance
Aggregate Series NLA minus "Adjustment Amount"
AutoNation Affiliated Dealer Balance Aggregate Principal Balance in all PFAs
As Pct of Ending Pool Balance Aggregate Principal Balance in EFA
------------------------------------------------ --------------
UAG Affiliated Dealer Balance Total "B"
As Pct of Ending Pool Balance
Largest Dlr Balance (other than AutoNation/UAG) Amount to be deposited into EFA ("A" minus "B")
As Pct of Ending Pool Balance
2nd Largest Dlr Balance (other than AutoNation/UAG)
As Pct of Ending Pool Balance
3rd Largest Dlr Balance (other than AutoNation/UAG)
As Pct of Ending Pool Balance
Overconcentration Amount (may be multiple dealers)
Aggregate Ineligible Receivables
Miscellaneous Payments (if any)
B-3
EXHIBIT C
FORM OF INVESTMENT LETTER
[Date]
The Bank of New York
as Indenture Trustee
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
DaimlerChrysler Master Owner Trust
c/o DaimlerChrysler Wholesale Receivables LLC, as Beneficiary
00000 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Assistant Secretary
Re: Purchase of U.S.$[____________] principal amount of
DaimlerChrysler Master Owner Trust, Series [______],
[Class] [_] Notes
Ladies and Gentlemen:
In connection with our purchase of the above Notes (the "Notes") we
confirm that:
(1) We understand that the Notes are not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), and are being sold
to us in a transaction that is exempt from the registration requirements of
the Securities Act.
(2) Any information we desire concerning the Notes or any other
matter relevant to our decision to purchase the Notes is or has been made
available to us.
(3) We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment
in the Notes, and we (and any account for which we are purchasing under
paragraph (4) below) are able to bear the economic risk of an investment in
the Notes. We (and any account for which we are purchasing under paragraph (4)
below) are an "accredited investor" (as such term is defined in Rule
501(a)(1), (2) or (3) of Regulation D under the Securities Act).
(4) We are acquiring the Notes for our own account or for accounts as
to which we exercise sole investment discretion and not with a view to any
distribution of the Notes, subject, nevertheless, to the understanding that
the disposition of our property shall at all times be and remain within our
control;
C-1
(5) We agree that the Notes must be held indefinitely by us unless
subsequently registered under the Securities Act or an exemption from any
registration requirements of the Securities Act and any applicable state
securities law is available;
(6) We agree that in the event that at some future time we wish to
dispose of or exchange any of the Notes (such disposition or exchange not
being currently foreseen or contemplated), we will not transfer or exchange
any of the Notes unless:
(a) (i) the sale is of at least U.S.$250,000 principal
amount of Notes to an Eligible Purchaser (as defined below), (ii) a
letter to substantially the same effect as paragraphs (1), (2), (3),
(4), (5) and (6) of this letter is executed promptly by the purchaser
and (iii) all offers or solicitations in connection with the sale,
whether directly or through any agent acting on our behalf, are
limited only to Eligible Purchasers and are not made by means of any
form of general solicitation or general advertising whatsoever; or
(b) the Notes are transferred pursuant to Rule 144 under the
Securities Act by us after we have held them for more than three
years; or
(c) the Notes are sold in any other transaction that does
not require registration under the Securities Act and, if the Issuer,
the Servicer, the Indenture Trustee or the Note Registrar so
requests, we theretofore have furnished to such party an opinion of
counsel satisfactory to such party, in form and substance
satisfactory to such party, to such effect; or
(d) the Notes are transferred pursuant to an exception from
the registration requirements of the Securities Act under Rule 144A
under the Securities Act; and
(7) We understand that the Notes will bear a legend to substantially
the following effect:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS
NOTE NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE
SECURITIES ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE
BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE TRANSFER OF
THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE
INDENTURE REFERRED TO HEREIN."
This legend may be removed if the Issuer, the Indenture Trustee and the Note
Registrar have received an opinion of counsel satisfactory to them, in form
and substance satisfactory to them, to the effect that the legend may be
removed.
"Eligible Purchaser" means either an Eligible Dealer or a
corporation, partnership or other entity which we have reasonable grounds to
believe and do believe can make
C-2
representations with respect to itself to substantially the same effect as the
representations set forth herein.
"Eligible Dealer" means any corporation or other entity the principal
business of which is acting as a broker and/or dealer in securities.
Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Amended and Restated Indenture dated as of December
16, 2004, between DaimlerChrysler Master Owner Trust and The Bank of New York,
as indenture trustee.
Very truly yours,
------------------------------------------
(Name of Purchaser)
By:
---------------------------------------
(Authorized Officer)
C-3
EXHIBIT D-1
FORM OF CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE INDENTURE TRUSTEE BY
EUROCLEAR OR CLEARSTREAM FOR DELIVERY OF
DEFINITIVE NOTES IN EXCHANGE FOR A PORTION OF
A TEMPORARY GLOBAL NOTE
DAIMLERCHRYSLER MASTER OWNER TRUST,
Series [______], [Class] [_] Notes
We refer to that portion of the Temporary Global Note in respect of
the Series [______], [Class] [_] Notes to be exchanged for definitive Notes
(the "Submitted Portion") pursuant to this certificate (the "Notes") as
provided in the Amended and Restated Indenture dated as of December 16, 2004
(as amended and supplemented, the "Indenture") in respect of such issue. This
is to certify that (i) we have received a certificate or certificates, in
writing or by tested telex, with respect to each of the persons appearing in
our records as being entitled to a beneficial interest in the Submitted
Portion and with respect to such person's beneficial interest either (a) from
such person, substantially in the form of Exhibit [__] to the Indenture
Supplement dated as of [______], 20[__] (as amended and supplemented, the
"Indenture Supplement"), or (b) from such person, substantially in the form of
Exhibit [__] to the Indenture Supplement, and (ii) the Submitted Portion
includes no part of the Temporary Global Note excepted in such certificates.
We further certify that as of the date hereof we have not received
any notification from any of the persons giving such certificates to the
effect that the statements made by them with respect to any part of the
Submitted Portion are no longer true and cannot be relied on as of the date
hereof.
We understand that this certificate is required in connection with
certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in
such proceedings.
Dated: _____________ ___, ______,
[EUROCLEAR BANK S.A./N.V.
as Operator of the Euroclear System]
[CLEARSTREAM BANK, societe anonyme]
By:
------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE TO BE DELIVERED TO
EUROCLEAR OR CLEARSTREAM
WITH RESPECT TO REGISTERED NOTES SOLD TO
QUALIFIED INSTITUTIONAL BUYERS
DAIMLERCHRYSLER MASTER OWNER TRUST,
Series [______], [Class] [_] Notes
In connection with the initial issuance and placement of the Series
[______], [Class] [_] Notes (the "Notes"), an institutional investor in the
United States (an "institutional investor") is purchasing
[U.S.$/(pound)/(U)/SF] aggregate principal amount of the Notes held in our
account at [Euroclear Bank S.A./N.V., as operator of the Euroclear System]
[Clearstream, Luxembourg] on behalf of such investor.
We reasonably believe that such institutional investor is a qualified
institutional buyer as such term is defined under Rule 144A of the Securities
Act of 1933, as amended.
[We understand that this certificate is required in connection with
United States laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered by this
certificate.]
The Definitive Notes in respect of this certificate are to be issued
in registered form in the minimum denomination of [U.S.$/(pound)/(U)/SF] and
such Definitive Notes (and, unless the Indenture or terms document relating to
the Notes otherwise provides, any Notes issued in exchange or substitution for
or on registration of transfer of Notes) shall bear the following legend:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS
NOTE NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE
SECURITIES ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE
BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE TRANSFER OF
THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE
INDENTURE REFERRED TO HEREIN. THIS NOTE CANNOT BE EXCHANGED
FOR A BEARER NOTE."
Dated: _____________ ___, ______, [ ]
By_________________________________
Authorized officer
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE TO BE DELIVERED TO
EUROCLEAR OR CLEARSTREAM
BY A BENEFICIAL OWNER OF NOTES,
OTHER THAN A QUALIFIED INSTITUTIONAL BUYER
DAIMLERCHRYSLER MASTER OWNER TRUST,
Series [______], [Class] [_] Notes
This is to certify that as of the date hereof and except as provided
in the third paragraph hereof, the Series [______], [Class] [_] Notes held by
you for our account (the "Notes") (i) are owned by a person that is a United
States person, or (ii) are owned by a United States person that is (A) the
foreign branch of a United States financial institution (as defined in U.S.
Treasury Regulations Section 1.165- 12(c)(1)(v)) (a "financial institution")
purchasing for its own account or for resale, or (B) a United States person
who acquired the Notes through the foreign branch of a financial institution
and who holds the Notes through the financial institution on the date hereof
(and in either case (A) or (B), the financial institution hereby agrees to
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by a financial institution for purposes of resale during the
Restricted Period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)). In addition, financial institutions described in
clause (iii) of the preceding sentence (whether or not also described in
clause (i) or (ii)) certify that they have not acquired the Notes for purposes
of resale directly or indirectly to a United States person or to a person
within the United States or its possessions.
We undertake to advise you by tested telex if the above statement as
to beneficial ownership is not correct on the date of delivery of the Notes in
bearer form with respect to such of the Notes as then appear in your books as
being held for our account.
This certificate excepts and does not relate to
[U.S.$/(pound)/(U)/SF] principal amount of Notes held by you for our account,
as to which we are not yet able to certify beneficial ownership. We understand
that delivery of Definitive Notes in such principal amount cannot be made
until we are able to so certify.
D-3-2
We understand that this certificate is required in connection with
certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in
such proceedings. As used herein, "United States" means the United States of
America, including the States and the District of Columbia, its territories,
its possessions and other areas subject to its jurisdiction; and "United
States Person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States, or any political subdivision thereof, or an estate
or trust the income of which is subject to United States federal income
taxation regardless of its source.
Dated: _____________ ___, ______ By______________________________
Name:
As , or as agent
for, the beneficial owner(s)
of the interest in the Notes to
which this certificate relates.
D-3-3
