EXHIBIT 10.11
INDENTURE dated as of November 15, 2005, by and among PAGE THREE
FUNDING LLC, a Delaware limited liability company (the "ISSUER") and XXXXX FARGO
BANK, NATIONAL ASSOCIATION, a national banking association, as trustee (the
"TRUSTEE").
Each party agrees as follows for the benefit of the other parties and
for the benefit of the Note Purchaser and each Holder of the Issuer's Variable
Funding Notes (the "NOTES"):
To secure the payment of principal of and interest on, and any other
amounts owing in respect of the Notes and the other Secured Obligations, and to
secure compliance with this Indenture, the Issuer has agreed to pledge the
Collateral (as defined below) as collateral to the Trustee for the benefit of
the Noteholders and the Note Purchaser.
As security for the performance by the Issuer of the Secured
Obligations, the Issuer has agreed to assign the Collateral (as defined below)
as collateral to the Trustee for the benefit of the Noteholders and the Note
Purchaser.
GRANTING CLAUSE
The Issuer hereby Grants to the Trustee on each Funding Date, as
Trustee for the benefit of the Noteholders and the Note Purchaser, all right,
title and interest of the Issuer, whether now existing or hereafter arising, in
and to the following;
(a) the Receivables listed in the Schedule of Receivables and each
Addition Notice;
(b) all monies received under the Receivables after the related Cutoff
Date and all Net Liquidation Proceeds received with respect to the Receivables
on and after the related Cutoff Date;
(c) the security interests in the Financed Vehicles and any accessions
thereto granted by Obligors pursuant to the related Contracts and any other
interest of the Issuer in such Financed Vehicles, including, without limitation,
the certificates of title or, with respect to such Financed Vehicles in the
States listed in Annex B to the Sale and Servicing Agreement, other evidence of
title issued by the applicable Department of Motor Vehicles or similar authority
in such States, with respect to such Financed Vehicles;
(d) any proceeds from claims on any Receivables Insurance Policies or
certificates relating to the Financed Vehicles securing the Receivables or the
Obligors thereunder;
(e) all proceeds from recourse against Dealers with respect to the
Receivables and all other rights (but none of the obligations) of the Seller
under any agreements with Dealers;
(f) refunds for the costs of extended service contracts with respect to
Financed Vehicles securing Receivables, refunds of unearned premiums with
respect to credit life and credit accident and health insurance policies or
certificates covering an Obligor or Financed Vehicle under a Receivable or his
or her obligations with respect to a Financed Vehicle and any recourse to
Dealers for any of the foregoing;
(g) the Receivable File related to each Receivable and all other
documents that the Issuer keeps on file in accordance with its customary
procedures relating to the Receivables, for Obligors of the Financed Vehicles;
(h) all amounts and property from time to time held in or credited to
the Collection Account, the Note Distribution Account and the Lockbox Account;
(i) all property (including the right to receive future Net Liquidation
Proceeds) that secures a Receivable that has been acquired by or on behalf of
the Seller, the Purchaser or the Issuer pursuant to a liquidation of such
Receivable;
(j) all of the rights and benefits (but none of the obligations of the
Issuer) under the Sale and Servicing Agreement and all other Basic Documents,
including a direct right to cause the Seller to purchase Receivables from the
Issuer pursuant to the Sale and Servicing Agreement under the circumstances
specified therein;
(k) the Note Purchase Agreement (to the extent of the Issuer's rights
against, but not including any of its obligations to, the Servicer);
(l) the proceeds from any Servicer's errors and omissions policy or
fidelity bond, to the extent that such proceeds relate to any Receivable,
Financed Vehicle or other Collateral; and
(m) all present and future claims, demands, causes and choses in action
in respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion, voluntary or involuntary,
into cash or other liquid property, all cash proceeds, accounts, accounts
receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of any and every kind
and other forms of obligations and receivables, instruments and other property
which at any time constitute all or part of or are included in the proceeds of
any of the foregoing (collectively, the property described in this Granting
Clause, the "COLLATERAL").
The foregoing Grant is made in trust to the Trustee, for the benefit of
the Noteholders and the Note Purchaser, to secure the payment of principal of
and interest on, and any other amounts owing in respect of the Notes, to secure
the payment of all Secured Obligations and to secure compliance with this
Indenture. The Trustee hereby acknowledges such Grant, accepts the trusts under
this Indenture in accordance with the provisions of this Indenture and agrees to
perform its duties as required in this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in Annex A to the Sale and Servicing
Agreement dated as of November 15, 2005 among the Issuer, the Seller, the
Servicer, the Purchaser, the Backup Servicer and the Trustee, as the same may be
amended or supplemented from time to time (the "SALE AND SERVICING AGREEMENT").
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SECTION 1.2 [RESERVED].
SECTION 1.3 OTHER DEFINITIONAL PROVISIONS.
(i) All terms defined in this Indenture shall have the defined meanings
when used in any instrument governed hereby and in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein.
(ii) Accounting terms used but not defined or partly defined in this
Indenture, in any instrument governed hereby or in any certificate or other
document made or delivered pursuant hereto, to the extent not defined, shall
have the respective meanings given to them under GAAP or any such instrument,
certificate or other document, as applicable. To the extent that the definitions
of accounting terms in this Indenture or in any such instrument, certificate or
other document are inconsistent with the meanings of such terms under GAAP, the
definitions contained in this Indenture or in any such instrument, certificate
or other document shall control.
(iii) The words "HEREOF," "HEREIN," "HEREUNDER" and words of similar
import when used in this Indenture shall refer to this Indenture as a whole and
not to any particular provision of this Indenture.
(iv) Section, Schedule and Exhibit references contained in this
Indenture are references to Sections, Schedules and Exhibits in or to this
Indenture unless otherwise specified; and the term "INCLUDING" shall mean
"INCLUDING WITHOUT LIMITATION."
(v) The definitions contained in this Indenture are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(vi) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as the same may from time to time be amended,
modified or supplemented and includes (in the case of agreements or instruments)
references to all attachments and instruments associated therewith; all
references to a Person include its permitted successors and assigns.
(vii) The singular form of the terms "NOTE" and "NOTEHOLDER" shall not
preclude issuance of more than one Note or ownership of Notes by more than one
Noteholder. The singular forms of such terms shall also mean the plural forms of
such terms and the plural form of such terms shall also mean the singular form
thereof, in each case as the context requires.
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ARTICLE II
THE NOTES
SECTION 2.1 FORM. The Notes, together with the Trustee's certificate of
authentication, shall be in substantially the form set forth in EXHIBIT A, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may, consistently herewith, be determined by the officers executing the
Notes, as evidenced by their execution of the Notes. Any portion of the text of
the Notes may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Notes. The Notes will be issued on the Closing Date
which Notes shall be subject to Advances and prepayments from time to time in
accordance with SECTION 2.11 and ARTICLE X, respectively.
(a) The Notes shall be typewritten, printed, lithographed or engraved
or produced by any combination of these methods (with or without steel engraved
borders), all as determined by the officers executing the Notes, as evidenced by
their execution of the Notes.
(b) The terms of the Notes set forth in EXHIBIT A are part of the terms
of this Indenture.
SECTION 2.2 EXECUTION, AUTHENTICATION AND DELIVERY. The Notes shall be
executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
(a) A Note bearing the manual or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Note or did not hold
such offices at the date of such Note.
(b) The Trustee shall upon receipt of an Issuer Order for
authentication and delivery, authenticate and deliver the Notes for original
issue in an aggregate principal amount up to, but not in excess of, the Maximum
Invested Amount.
(c) Each Note shall be dated the date of its authentication.
(d) No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears attached to such Note
a certificate of authentication substantially in the form provided for herein,
executed by the Trustee by the manual signature of one of its authorized
signatories, and such certificate attached to such Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
SECTION 2.3 [RESERVED]
SECTION 2.4 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE. The
Issuer shall cause the Trustee to keep a register (the "NOTE REGISTER") in
which, subject to such reasonable regulations as it may prescribe and subject to
the provisions of Section 2.5, the Trustee shall provide for the registration of
the Notes, and the registration of transfers and exchanges of the Notes. The
Trustee shall be "NOTE REGISTRAR" for the purpose of registering the Notes and
transfers of the Notes as herein provided. Upon any resignation or removal of
any Note Registrar, the Issuer shall promptly appoint a successor.
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(a) If a Person other than the Trustee is appointed by the Issuer as
Note Registrar, such Person must be acceptable to the Note Purchaser and, in
addition, the Issuer will give the Trustee, the Note Purchaser and the
Noteholders prompt written notice of the appointment of such Note Registrar
(once approved by the Note Purchaser) and of the location, and any change in the
location, of the Note Register, and the Trustee shall have the right to inspect
the Note Register at all reasonable times and to obtain copies thereof. The
Trustee shall have the right to conclusively rely upon a certificate executed on
behalf of the Note Registrar by an Executive Officer thereof as to the name and
address of each Holder of the Note and the Percentage Interest and number of
each Note.
(b) Subject to SECTION 2.5 hereof, upon surrender for registration of
transfer of a Note at the office or agency of the Issuer to be maintained as
provided in SECTION 3.2, if the requirements of Section 8-401(a) of the UCC are
met, the Trustee shall have the Issuer execute and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes in the minimum Percentage Interest of 1%
representing in the aggregate the Percentage Interest on the face of the Note to
be transferred.
(c) At the option of a Holder, a Note may be exchanged for another Note
in any authorized Percentage Interest, of the same class and a like aggregate
Percentage Interest, upon surrender of the Note to be exchanged at such office
or agency. Whenever a Note is so surrendered for exchange, subject to SECTION
2.5 hereof, if the requirements of Section 8-401(a) of the UCC are met, the
Issuer shall execute, and upon request by the Issuer the Trustee shall
authenticate, and the Noteholder shall obtain from the Trustee, the Note which
the Noteholder making the exchange is entitled to receive.
(d) The Note or Notes issued upon any registration of transfer or
exchange of a Note shall be the valid obligation of the Issuer, evidencing, in
the aggregate, the same debt, and entitled to the same benefits under this
Indenture, as the Note surrendered upon such registration of transfer or
exchange.
(e) Every Note presented or surrendered for registration of transfer or
exchange shall be (i) duly endorsed by, or accompanied by a written assignment
in substantially the form attached to EXHIBIT A duly executed by, the Holder
thereof or such Holder's attorney, duly authorized in writing, with such
signature guaranteed by an "ELIGIBLE GUARANTOR INSTITUTION" meeting the
requirements of the Note Registrar which requirements include membership or
participation in Securities Transfer Agents Medallion Program ("STAMP") or such
other "SIGNATURE GUARANTEE PROGRAM" as may be determined by the Note Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and (ii) accompanied by such other
documents as the Trustee may require.
(f) No service charge shall be made to a Holder for any registration of
transfer or exchange of a Note, but the Note Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of a Note, other
than exchanges pursuant to SECTION 9.6 not involving any transfer.
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(g) The preceding provisions of this SECTION 2.4 notwithstanding, the
Issuer shall not be required to make and the Note Registrar shall not register
transfers or exchanges of a Note selected for redemption or of any Note for a
period of two (2) Business Days preceding the due date for any payment with
respect to such Note.
SECTION 2.5 RESTRICTIONS ON TRANSFER AND EXCHANGE.
(a) No transfer of a Note shall be made unless the transferor thereof
has provided a representation letter substantially in the form of EXHIBIT B that
such transfer is (i) to the Issuer or an Affiliate of the Issuer, or (ii) in
compliance with Section 2.5(b) hereof, to a qualified institutional buyer (as
defined in Rule 144A under the Securities Act) in a transaction meeting the
requirements of Rule 144A under the Securities Act, or (iii) in compliance with
Section 2.5(c) hereof, (A) to an institutional investor that is an "ACCREDITED
INVESTOR" as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D
promulgated under the Securities Act, or (iv) in a transaction complying with or
exempt from the registration requirements of the Securities Act and in
accordance with any applicable securities laws of any state of the United States
or any other jurisdiction; PROVIDED, that (except with respect to the transfer
of the Note or Advance made by the Noteholder), in the case of CLAUSES (IV) the
Trustee or the Issuer may require an Opinion of Counsel to the effect that such
transfer may be effected without registration under the Securities Act, which
Opinion of Counsel, if so required, shall be addressed to the Issuer and the
Trustee and shall be secured at the expense of the Holder. Each prospective
purchaser by its acquisition of a Note, acknowledges that such Note will contain
a legend substantially to the effect set forth in SECTION 2.5(E) (unless the
Issuer determines otherwise in accordance with applicable law).
Any transfer or exchange of a Note to a proposed transferee shall be
conducted in accordance with the provisions of Section 2.4, and shall be
contingent upon receipt by the Note Registrar of (A) such Note properly endorsed
for assignment or transfer, (B) written instruction from such transferring
Holder directing the Note Registrar to cause the transfer to such transferees,
in such Percentage Interests (not to exceed the Percentage Interest on the face
of the Note to be transferred) as the transferring Holder shall specify in such
instructions; and (C) such certificates or signatures as may be required under
such Note or this Section 2.5, in each case, in form and substance satisfactory
to the Note Registrar. The Note Registrar shall cause any such transfers and
related cancellations or increases and related reductions, as applicable, to be
properly recorded in its books in accordance with the requirements of Section
2.4.
(b) If a Note is sold to a "qualified institutional buyer" as defined
in Rule 144A of the Securities Act purchasing for its own account or for the
account of another "qualified institutional buyer," such Note shall be issued as
a certificated Note in definitive, fully registered form without interest
coupons with the applicable legends set forth in the form of the Note registered
in the name of the beneficial owner or a nominee thereof, duly executed by the
Issuer and authenticated by the Trustee as hereinafter provided. Any transfer to
an "qualified institutional buyer" is expressly conditioned upon the requirement
that such transferee shall deliver a representation letter in the form of
EXHIBIT C.
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(c) If the Note is sold in the United States to U.S. Persons under
Section 4(2) of the Securities Act to institutional "ACCREDITED INVESTORS" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act), it shall
be issued in the form of certificated Note in definitive, fully registered form
without interest coupons with the applicable legends set forth in the form of
the Note registered in the name of the beneficial owner or a nominee thereof,
duly executed by the Issuer and authenticated by the Trustee as hereinafter
provided. Any transfer to an institutional "ACCREDITED INVESTOR" is expressly
conditioned upon the requirement that such transferee shall deliver a
representation letter in the form of EXHIBIT D.
(d) The Note Registrar shall not register any transfer or exchange of
any Note to the extent that upon such transfer or exchange there would be more
than four (4) Noteholders then reflected on the Note Register.
(e) Unless the Issuer determines otherwise in accordance with
applicable law, each Note shall have the following legend:
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR "BLUE
SKY" LAWS AND MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY TO (I) THE ISSUER (UPON
REDEMPTION THEREOF OR OTHERWISE) OR AN AFFILIATE OF THE ISSUER (AS CERTIFIED BY
THE ISSUER) OR (2) AN INSTITUTIONAL INVESTOR THAT IS AN "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D PROMULGATED UNDER THE
SECURITIES ACT THAT EXECUTES A CERTIFICATE, SUBSTANTIALLY IN THE FORM SPECIFIED
IN THE INDENTURE, TO THE EFFECT THAT IT IS AN INSTITUTIONAL ACCREDITED INVESTOR
ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY
OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE INSTITUTIONAL ACCREDITED INVESTORS
UNLESS THE HOLDER IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) (3) SO LONG AS
THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT,
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A TO A PERSON THAT EXECUTES
A CERTIFICATE, SUBSTANTIALLY IN THE FORM SPECIFIED IN THE INDENTURE, TO THE
EFFECT THAT SUCH PERSON IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A), ACTING FOR ITS OWN ACCOUNT, OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH
OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE
SALE, PLEDGE, OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (4) IN A
TRANSACTION OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER JURISDICTION, IN EACH SUCH CASE, IN COMPLIANCE WITH THE INDENTURE AND
ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION: PROVIDED, THAT, IN THE CASE OF CLAUSE (4), THE TRUSTEE OR THE
ISSUER MAY REQUIRE AN OPINION OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER MAY BE
EFFECTED WITHOUT REGISTRATION UNDER THE SECURITIES ACT, WHICH OPINION OF
COUNSEL, IF SO REQUIRED, SHALL BE ADDRESSED TO THE ISSUER AND THE TRUSTEE AND
SHALL BE SECURED AT THE EXPENSE OF THE HOLDER. NO REPRESENTATION IS MADE AS TO
THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144A FOR RESALES OF THIS
NOTE.
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THE NOTE REGISTRAR SHALL NOT REGISTER ANY TRANSFER OR EXCHANGE OF THIS NOTE TO
THE EXTENT THAT UPON SUCH TRANSFER OR EXCHANGE THERE WOULD BE MORE THAN FOUR (4)
NOTEHOLDERS THEN REFLECTED ON THE NOTE REGISTER.
SECTION 2.6 MUTILATED, DESTROYED, LOST OR STOLEN NOTE. If (i) any
mutilated Note is surrendered to the Trustee, or the Trustee receives evidence
to its satisfaction of the destruction, loss or theft of any Note, and (ii)
there is delivered to the Trustee such security or indemnity as may be required
by it to hold the Issuer and the Trustee harmless, then, in the absence of
notice to the Issuer, the Note Registrar or the Trustee that such Note has been
acquired by a protected purchaser, and, provided that the requirements of
Section 8-405 and 8-406 of the UCC are met, the Issuer shall execute, and upon
request by the Issuer, the Trustee shall authenticate and deliver in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note; PROVIDED, HOWEVER, that if any such destroyed, lost or stolen
Note, but not a mutilated Note, shall have become, or within seven days shall
be, due and payable or shall have been called for redemption, instead of issuing
a replacement Note, the Issuer may direct the Trustee, in writing, to pay such
destroyed, lost or stolen Note when so due or payable without surrender thereof.
If, after the delivery of such replacement Note or payment of a destroyed, lost
or stolen Note pursuant to the preceding sentence, a protected purchaser of the
original Note in lieu of which such replacement Note was issued, presents for
payment such original Note, the Issuer and the Trustee shall be entitled to
recover such replacement Note (or such payment) from the Person to whom it was
delivered or any assignee of such Person, except a protected purchaser, and
shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by the Issuer or the
Trustee in connection therewith.
(a) Upon the issuance of any replacement Note under this Section, the
Issuer may require the payment by the Holder of such Note of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Trustee) connected therewith.
(b) Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with the Notes duly issued hereunder.
(c) The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of any mutilated, destroyed, lost or stolen Note.
SECTION 2.7 PERSONS DEEMED OWNER. Prior to due presentment for
registration of transfer of any Note, the Trustee and any agent of the Trustee
may treat the Person in whose name such Note is registered (as of the applicable
Record Date) as the owner of such Note for the purpose of receiving payments of
principal of and interest, if any, on such Note, for all other purposes
whatsoever and whether or not such Note be overdue, and none of the Trustee or
any agent of the Issuer or the Trustee shall be affected by notice to the
contrary.
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SECTION 2.8 PAYMENT OF PRINCIPAL AND INTEREST; DEFAULTED INTEREST.
(a) The Notes shall accrue interest as provided in the form of Note set
forth in EXHIBIT A, and such interest shall be due and payable on each
Settlement Date, as specified therein. Any installment of interest or principal,
if any, payable on any Note which is punctually paid or duly provided for by the
Issuer on the applicable Settlement Date shall be paid to the Person in whose
name such Note is registered on the Record Date, either (i) by wire transfer in
immediately available funds to such Person's account as it appears on the Note
Register on such Record Date if (A) such Noteholder has provided to the Note
Registrar appropriate written instructions at least five Business Days prior to
such Settlement Date and such Holder's Note in the aggregate evidence a
Percentage Interest of not less than 1% or (B) such Noteholder is the Seller, or
an Affiliate thereof, or if not, (ii) by check mailed to such Noteholder at the
address of such Noteholder appearing on the Note Register, except for the final
installment of principal payable with respect to such Note on a Settlement Date
or on the Facility Termination Date, which shall be payable as provided below.
(b) The outstanding principal balance of the Notes and all accrued and
unpaid interest thereon shall be payable in full by the Facility Termination
Date and otherwise as provided in Section 3.1, the form of Note attached hereto
as EXHIBIT A, and the Sale and Servicing Agreement. The principal amount
outstanding under any Note at any time shall be equal to the product of the
Percentage Interest represented by such Note and the then outstanding Invested
Amount. All principal payments on the Notes shall be made pro rata to the
Noteholders entitled thereto based on their respective Percentage Interests.
Upon written notice from the Issuer, the Trustee shall notify the Person in
whose name a Note is registered at the close of business on the Record Date
preceding the Settlement Date on which the Issuer expects that the final
installment of principal of and interest on such Note will be paid. Such notice
shall be transmitted by facsimile prior to such final Settlement Date and shall
specify that such final installment will be payable only upon presentation and
surrender of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such installment.
(c) If the Issuer defaults in any payment of interest on a Note, the
Issuer shall pay defaulted interest (plus interest on such defaulted interest to
the extent lawful) at the Note Interest Rate then in effect (calculated for this
purpose using the Default Applicable Margin) in any lawful manner. The Issuer
shall pay such defaulted interest to the Noteholders on the immediately
following Settlement Date. At least three (3) days before any such Settlement
Date, the Issuer shall mail to the Noteholders and the Trustee a notice that
states the Settlement Date and the amount of defaulted interest to be paid.
SECTION 2.9 CANCELLATION. Any Note surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by the Trustee. The Issuer may at any time deliver to the Trustee for
cancellation any Note previously authenticated and delivered hereunder which the
Issuer may have acquired in any manner whatsoever, and the Note so delivered
shall be promptly canceled by the Trustee. No Note shall be authenticated in
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lieu of or in exchange for any Note canceled as provided in this Section, except
as expressly permitted by this Indenture. A canceled Note may be held or
disposed of by the Trustee in accordance with its standard retention or disposal
policy as in effect at the time unless the Issuer shall direct by an Issuer
Order that they be destroyed or returned to it; PROVIDED that such Issuer Order
is timely and such Note has not been previously disposed of by the Trustee.
SECTION 2.10 RELEASE OF COLLATERAL. Subject to the terms of the other
Basic Documents and SECTIONS 10.1 and 11.1, the Trustee shall, on or after the
Termination Date, release any remaining portion of the Trust Estate from the
lien created by this Indenture and deposit in the Collection Account any funds
then on deposit in any other Pledged Account. In addition, the Trustee shall
release Ineligible Receivables from the lien created by this Indenture upon any
dividend of such Ineligible Receivables that is permitted under Section 5.10 of
the Sale and Servicing Agreement. The Trustee shall release property from the
lien created by this Indenture pursuant to this SECTION 2.10 only upon receipt
of an Issuer Request accompanied by an Officer's Certificate meeting the
applicable requirements of SECTION 11.1.
SECTION 2.11 AMOUNT LIMITED; ADVANCES.
The maximum aggregate principal amount of the Notes that may be
authenticated and delivered and Outstanding at any time under this Indenture
(except for Notes authenticated and delivered pursuant to SECTION 2.6 in
replacement for destroyed, lost or stolen Notes) is limited to the Maximum
Invested Amount.
On each Business Day prior to the Facility Termination Date that is a
Funding Date, and upon the satisfaction of all conditions precedent to (a) the
funding of an Advance and (b) the purchase of Receivables, in each case as set
forth in Section 2.1(b) of the Sale and Servicing Agreement, and Section 6.02
and Section 6.03 of the Note Purchase Agreement, the Issuer shall be entitled to
borrow additional funds pursuant to an Advance made by the Note Purchaser on
such Funding Date, in accordance with Section 2.02 and Section 2.03 of the Note
Purchase Agreement, in an aggregate principal amount equal to the Advance Amount
(subject to the Maximum Invested Amount) with respect to such Funding Date. Each
request by the Issuer for an Advance shall include a certification by the Issuer
as to the satisfaction of the conditions specified in the previous sentence.
The aggregate outstanding principal amount of the Notes may be
increased (subject to the Maximum Invested Amount) through the funding of the
Advances. Each Advance and corresponding Advance Amount shall be recorded by the
Note Purchaser, and the Note Purchaser's record (which may be in electronic or
other form in the Note Purchaser's reasonable discretion) shall show all Advance
Amounts and prepayments. Absent manifest error, such record of the Note
Purchaser shall be dispositive with respect to the determination of the
outstanding principal amount of the Notes. The Notes (i) can be funded by
Advances on any Funding Date in a minimum amount of $2,000,000 and any higher
amount (subject to the Maximum Invested Amount), and (ii) subject to subsequent
Advances pursuant to this SECTION 2.11, are subject to prepayment in whole or in
part, at the option of the Issuer as provided in ARTICLE X herein. In addition,
and independent of optional prepayments pursuant to ARTICLE X, in the event that
an Borrowing Base Deficiency exists on any date of determination as determined
by the Note Purchaser in its sole discretion, the Issuer shall on the same
Business Day of the receipt of notice from the Note Purchaser (or if notice is
received after 10:01 a.m. New York time, then on the next Business Day), prepay
the Invested Amount by an amount equal to such Borrowing Base Deficiency by
paying such amount to or at the direction of the Note Purchaser.
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ARTICLE III
COVENANTS
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer will duly and
punctually pay the principal of and interest on the Notes in accordance with the
terms of the Notes and this Indenture. Without limiting the foregoing, the
Issuer will cause to be distributed on each Settlement Date all amounts
deposited in the Note Distribution Account pursuant to the Sale and Servicing
Agreement to the Noteholders and the Note Purchaser. Amounts properly withheld
under the Code by the Trustee from a payment to the Noteholders of interest
and/or principal shall be considered as having been paid by the Issuer to the
Noteholders for all purposes of this Indenture.
SECTION 3.2 MAINTENANCE OF OFFICE OR AGENCY. The Issuer will maintain
in Minneapolis, Minnesota, an office or agency where the Notes may be
surrendered for registration of transfer or exchange, and where notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer hereby initially appoints the Trustee to serve as its agent
for the foregoing purposes. The Issuer will give prompt written notice to the
Trustee, the Note Purchaser and the Noteholders of the location, and of any
change in the location, of any such office or agency. If at any time the Issuer
shall fail to maintain any such office or agency or shall fail to furnish the
Trustee with the address thereof, such surrenders, notices and demands may be
made or served at the Corporate Trust Office, and the Issuer hereby appoints the
Trustee as its agent to receive all such surrenders, notices and demands.
SECTION 3.3 MONEY FOR PAYMENTS TO BE HELD IN TRUST. On or before each
Settlement Date, the Trustee shall deposit or cause to be deposited in the Note
Distribution Account from the Collection Account an aggregate sum sufficient to
pay the amounts then becoming due under the Note, such sum to be held in trust
for the benefit of the Persons entitled thereto. Except as provided in SECTION
3.3(C) hereof, all payments of amounts due and payable with respect to the Notes
that are to be made from amounts withdrawn from the Note Distribution Account
shall be made on behalf of the Issuer by the Trustee or by the Note Paying
Agent, and no amounts so withdrawn from the Note Distribution Account for
payment of the Notes shall be paid to the Issuer.
(a) The Issuer shall cause each Note Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Note
Paying Agent shall agree with the Trustee (and if the Trustee acts as Note
Paying Agent, it hereby so agrees), subject to the provisions of this Section,
that such Note Paying Agent shall:
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(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Trustee notice of any default by the Issuer (or
any other obligor upon the Note) of which it has actual knowledge in
the making of any payment required to be made with respect to the Note;
(iii) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Note Paying Agent;
(iv) immediately resign as a Note Paying Agent and forthwith
pay to the Trustee all sums held by it in trust for the payment of the
Notes if at any time it ceases to meet the standards required to be met
by a Note Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on the Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
(b) The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Note Paying Agent to pay to the Trustee all sums held in trust
by such Note Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which the sums were held by such Note Paying Agent; and
upon such a payment by any Note Paying Agent to the Trustee, such Note Paying
Agent shall be released from all further liability with respect to such money.
(c) Subject to applicable laws with respect to the escheat of funds,
any money held by the Trustee or any Note Paying Agent in trust for the payment
of any amount due with respect to the Notes and remaining unclaimed for two
years after such amount has become due and payable shall be discharged from such
trust and be paid to the Issuer on Issuer Request and shall be deposited by the
Trustee in the Collection Account; and the Noteholders shall thereafter, as
unsecured general creditors, look only to the Issuer for payment thereof (but
only to the extent of the amounts so paid to the Issuer), and all liability of
the Trustee or such Note Paying Agent with respect to such trust money shall
thereupon cease; provided, however, that the Trustee or such Note Paying Agent,
before being required to make any such repayment, shall at the expense of the
Issuer cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Issuer. The Trustee shall also adopt and employ, at the
expense of the Issuer, any other reasonable means of notification of such
repayment (including, but not limited to, mailing notice of such repayment to
the Holder whose Notes have been called but have not been surrendered for
redemption or whose right to or interest in moneys due and payable but not
claimed is determinable from the records of the Trustee or of any Note Paying
Agent, at the last address of record for each such Holder).
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SECTION 3.4 EXISTENCE. Except as otherwise permitted by the provisions
of SECTION 3.10, the Issuer will keep in full effect its existence, rights and
franchises as a limited liability company under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other state or of the United States of America,
in which case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Note, the Collateral and each other
instrument or agreement included in the Trust Estate.
SECTION 3.5 PROTECTION OF TRUST ESTATE. The Issuer intends the security
interest Granted pursuant to this Indenture in favor of the Trustee, for the
benefit of the Noteholders and the Note Purchaser, to be prior to all other
liens in respect of the Trust Estate, and the Issuer shall take all actions
necessary to obtain and maintain, in favor of the Trustee, for the benefit of
the Noteholders and the Note Purchaser, a first lien on and a first priority,
perfected security interest in the Trust Estate. The Issuer will from time to
time prepare (or shall cause to be prepared), execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and will take such other action necessary or advisable to:
(i) Grant more effectively all or any portion of the Trust
Estate;
(ii) maintain or preserve the lien and security interest (and
the priority thereof) in favor of the Trustee for the benefit of the
Noteholders and the Note Purchaser 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 any of the Collateral;
(v) preserve and defend title to the Trust Estate and the
rights of the Trustee, the Noteholders and the Note Purchaser in such
Trust Estate against the claims of all persons and parties; and
(vi) pay all taxes or assessments levied or assessed upon the
Trust Estate when due.
The Issuer hereby designates the Trustee its agent and attorney-in-fact
to execute any financing statement, continuation statement or other instrument
required by the Trustee pursuant to this Section.
Subject to Section 4.5 of the Sale and Servicing Agreement, the Issuer
hereby authorizes the Note Purchaser, the Trustee and their respective agents to
file such financing statements and continuation statements and take such other
actions as the Note Purchaser or the Trustee may deem advisable in connection
with the security interest granted by the Issuer under the Indenture to the
extent permitted by applicable law. Any such financing statements and
continuation statements shall be prepared by the Issuer.
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SECTION 3.6 OPINIONS AS TO TRUST ESTATE.
(a) On the Closing Date, the Issuer shall furnish to the Trustee an
Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording and filing of this
Indenture, any indentures supplemental hereto, and any other requisite
documents, and with respect to the execution and filing of any financing
statements and continuation statements, as are necessary to perfect and make
effective the first priority lien and security interest in favor of the Trustee,
for the benefit of the Noteholders and the Note Purchaser, created by this
Indenture in the Receivables and such other items of Collateral that the Note
Purchaser may reasonably request be the subject of such opinion (the "Opinion
Collateral") and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such lien and
security interest effective.
(b) Within 90 days after the beginning of each calendar year, beginning
in 2006, the Issuer shall furnish to the Trustee and the Note Purchaser an
Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording, filing, re-recording and
refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and with respect to the execution and filing of any
financing statements and continuation statements as are necessary to maintain
the lien and security interest created by this Indenture in the Receivables and
reciting the details of such action or stating that in the opinion of such
counsel no such action is necessary to maintain such lien and security interest.
Such Opinion of Counsel shall also describe any action necessary (as of the date
of such opinion) to be taken in the following year to maintain the lien and
security interest of this Indenture in the Receivables.
SECTION 3.7 PERFORMANCE OF OBLIGATIONS; SERVICING OF RECEIVABLES. 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 Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of or impair the validity
or effectiveness of, any such instrument or agreement, except as ordered by any
bankruptcy or other court or as expressly provided in this Indenture, the other
Basic Documents or such other instrument or agreement.
(a) 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 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 Servicer to assist the Issuer in performing its duties under
this Indenture.
(b) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the other Basic
Documents and in the instruments and agreements included in the Trust Estate,
including but not limited to preparing (or causing to be prepared) and filing
(or causing to be filed) all UCC financing statements and continuation
statements required to be filed by the terms of this Indenture and the Sale and
Servicing Agreement in accordance with and within the time periods provided for
herein and therein. Except as otherwise expressly provided therein, the Issuer
shall not waive, amend, modify, supplement or terminate any Basic Document or
any provision thereof without the prior written consent of the Note Purchaser
and the Majority Noteholders.
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(c) If a responsible officer of the Issuer shall have written notice or
actual knowledge of the occurrence of a Default, an Event of Default, a Servicer
Termination Event or Funding Termination Event under the Sale and Servicing
Agreement, the Issuer shall promptly notify the Trustee, the Note Purchaser and
the Noteholders thereof in accordance with SECTION 11.4, and shall specify in
such notice the action, if any, the Issuer is taking in respect of such default.
If a Servicer Termination Event or Funding Termination Event shall arise from
the failure of the Servicer to perform any of its duties or obligations under
the Sale and Servicing Agreement with respect to the Receivables, the Issuer
shall take all reasonable steps available to it to remedy such failure.
(d) The Issuer agrees that it shall not have any right to waive, and
shall not waive, timely performance or observance by the Servicer or the Seller
of their respective duties under the Basic Documents without the prior written
consent of the Note Purchaser and the Majority Noteholders.
SECTION 3.8 NEGATIVE COVENANTS. So long as any Note is Outstanding, the
Issuer shall not:
(i) except as expressly permitted by this Indenture or the
other Basic Documents, sell, transfer, exchange or otherwise dispose of
any of the properties or assets of the Issuer, including those included
in the Trust Estate, unless directed to do so by the Majority
Noteholders and the Note Purchaser or the Majority Noteholders and the
Note Purchaser have approved such disposition;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code) or assert
any claim against the Note Purchaser or any present or former
Noteholders by reason of the payment of the taxes levied or assessed
upon any part of the Trust Estate; or
(iii) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien in favor of the Trustee
for the benefit of the Noteholders and the Note Purchaser created by
this Indenture to be amended, hypothecated, subordinated, terminated or
discharged, or permit any Person to be released from any covenants or
obligations under this Indenture or any other Basic Document except as
may be expressly permitted hereby or thereby, (B) permit any lien,
charge, excise, claim, security interest, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or extend to
or otherwise arise upon or burden the Trust Estate, any Collateral or
any part thereof or any interest therein or the proceeds thereof (other
than tax liens, mechanics' liens and other liens that arise by
operation of law, in each case on a Financed Vehicle and arising solely
as a result of an action or omission of the related Obligor), (C)
permit the lien of this Indenture not to constitute a valid first
priority (other than with respect to any such tax, mechanics' or other
lien) perfected security interest in the Trust Estate or any Collateral
or (D) amend, modify or fail to comply with the provisions of any of
the Basic Documents without the prior written consent of the Note
Purchaser and the Majority Noteholders.
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SECTION 3.9 ANNUAL STATEMENT AS TO COMPLIANCE. The Issuer will deliver
to the Trustee, the Noteholders and the Note Purchaser on or before March 31 of
each year, beginning March 31, 2006 an Officer's Certificate, dated as of
December 31 of the preceding year, stating, as to the Authorized Officer signing
such Officer's Certificate, that:
(i) a review of the activities of the Issuer during the
preceding year (or portion of such year from the initial Funding Date
through December 31, 2005) and of performance under this Indenture has
been made under such Authorized Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge, based
on such review, the Issuer has complied with all conditions and
covenants under this Indenture throughout such year (or portion of such
year from the initial Funding Date through December 31, 2005) and no
event has occurred and is continuing which is, or after notice or lapse
of time or both would become, an Event of Default, or, if there has
been a default in the compliance of any such condition or covenant,
specifying each such default known to such Authorized Officer and the
nature and status thereof.
SECTION 3.10 ISSUER MAY CONSOLIDATE, ETC. ONLY WITH CONSENT. The Issuer
shall not consolidate or merge with or into any other Person, or convey or
transfer all or substantially all of its properties to any Person without the
prior written consent of the Note Purchaser and the Majority Noteholders.
SECTION 3.11 SUCCESSOR OR TRANSFEREE. Upon any consolidation or merger
of the Issuer with the prior written consent of the Note Purchaser and the
Majority Noteholders in accordance with SECTION 3.10, the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power of, and be
obligated to meet the requirements of the Issuer under this Indenture and the
other Basic Documents with the same effect as if such Person had been named as
the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and
properties of the Issuer with the prior written consent of the Note
Purchaser and the Majority Noteholders in accordance with SECTION 3.10,
the Issuer will be released from every covenant and agreement of this
Indenture to be observed or performed on the part of the Issuer with
respect to the Notes immediately upon the delivery of written notice to
the Trustee, the Note Purchaser and the Noteholders stating that the
Issuer is to be so released.
SECTION 3.12 NO OTHER BUSINESS. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the
Related Receivables in the manner contemplated by this Indenture and the other
Basic Documents and activities incidental thereto. After the Facility
Termination Date, the Issuer shall not purchase any additional Receivables.
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SECTION 3.13 NO BORROWING. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
Indebtedness except for (i) the Note, and (ii) any other Indebtedness permitted
by or arising under the Basic Documents. The proceeds of the Notes shall be used
solely to fund the Issuer's purchase of the Related Receivables and the other
assets specified in the Sale and Servicing Agreement and to pay the Issuer's
organizational, transactional and start-up expenses.
SECTION 3.14 SERVICER'S OBLIGATIONS. The Issuer shall cause the
Servicer to comply with Sections 4.9, 4.10, 4.11 and 5.9 of the Sale and
Servicing Agreement.
SECTION 3.15 GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Except
as contemplated by the Sale and Servicing Agreement, this Indenture or the other
Basic Documents, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.16 CAPITAL EXPENDITURES. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
SECTION 3.17 COMPLIANCE WITH LAWS. The Issuer shall comply with the
requirements of all applicable laws, including, without limitation, Consumer
Laws.
SECTION 3.18 RESTRICTED PAYMENTS. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to 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,
(ii) redeem, purchase, retire or otherwise acquire for value any such ownership
or equity interest or security or (iii) set aside or otherwise segregate any
amounts for any such purpose; provided, however, that the Issuer may make, or
cause to be made, distributions to the Trustee and to any owner of a beneficial
interest in the Issuer as permitted by, and to the extent funds are available
for such purpose from distributions under the Sale and Servicing Agreement. The
Issuer will not, directly or indirectly, make payments to or distributions from
the Collection Account and the other Pledged Accounts except in accordance with
this Indenture and the Basic Documents.
SECTION 3.19 NOTICE OF EVENTS OF DEFAULT AND FUNDING TERMINATION
EVENTS. Upon a responsible officer of the Issuer having notice or actual
knowledge thereof, the Issuer agrees to give each of the Trustee, the Note
Purchaser and the Noteholders prompt written notice of each Event of Default
hereunder and each Funding Termination Event, Servicer Termination Event or
other Default on the part of the Issuer, the Servicer, the Purchaser or the
Seller of its obligations under any Basic Document.
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SECTION 3.20 FURTHER INSTRUMENTS AND ACTS. Upon request of the Trustee,
the Note Purchaser or the Majority Noteholders, 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 3.21 AMENDMENTS OF SALE AND SERVICING AGREEMENT. The Issuer
shall not agree to any amendment to Section 11.1 of the Sale and Servicing
Agreement to eliminate the requirements thereunder that the Trustee, the Note
Purchaser and the Majority Noteholders consent to amendments thereto as provided
therein.
SECTION 3.22 INCOME TAX CHARACTERIZATION. It is the intent of the
Issuer and the Noteholders that, for Federal, state and local income and
franchise tax purposes, the Notes will evidence indebtedness of the Issuer
secured by the Collateral. Each Noteholder, by its acceptance of a Note, agrees
to treat such Note for Federal, state and local income and franchise tax
purposes as indebtedness of the Issuer.
SECTION 3.23 SEPARATE EXISTENCE OF THE ISSUER. During the term of the
Indenture, the Issuer shall observe and comply with the applicable legal
requirements for the recognition of the Issuer as a legal entity separate and
apart from its Affiliates, including without limitation, those requirements set
forth in Section 9(b) of the Issuer's Limited Liability Company Agreement.
SECTION 3.24 AMENDMENT OF ISSUER'S ORGANIZATIONAL DOCUMENTS. During the
term of the Indenture, the Issuer shall not amend its Limited Liability Company
Agreement except in accordance with the provisions thereof and with the prior
written consent of the Note Purchaser and the Majority Noteholders.
SECTION 3.25 OTHER AGREEMENTS. The Issuer shall not enter into any
agreement that does not contain non-petition or limited recourse language
acceptable to the Note Purchaser with respect to the Issuer.
SECTION 3.26 RULE 144A INFORMATION. At any time when the Issuer is not
subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, upon the request of a Noteholder, the Issuer shall promptly furnish to
such Noteholder or to a prospective purchaser of a Note designated by such
Noteholder, as the case may be, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act ("Rule 144A Information")
in order to permit compliance by such Noteholder with Rule 144A in connection
with the resale of a Note by such Noteholder; provided, however, that the Issuer
shall not be required to furnish Rule 144A Information in connection with any
request made on or after the date which is three years from the later of (i) the
most recent renewal of the term of the Commitment pursuant to Section 2.05 of
the Note Purchase Agreement, (ii) the date such Note (or any predecessor Note)
was acquired from the Issuer or (iii) the date such Note (or any predecessor
Note) was last acquired from an "affiliate" of the Issuer within the meaning of
Rule 144 under the Securities Act; and provided further that the Issuer shall
not be required to furnish such information at any time to a prospective
purchaser located outside of the United States who is not a "United States
Person" within the meaning of Regulation S under the Securities Act if such Note
may then be sold to such prospective purchaser in accordance with Rule 904 under
the Securities Act (or any successor provision thereto).
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SECTION 3.27 CHANGE OF CONTROL. CPS will and shall at all times be the
legal and beneficial owner of all of the issued and outstanding membership
interests of the Issuer.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of the Noteholders to receive
payments of principal thereof and interest thereon and rights of the Note
Purchaser to receive payments in respect of amounts owed by the Issuer to the
Note Purchaser under the Basic Documents, (iv) SECTIONS 3.3, 3.4, 3.5, 3.6, 3.8,
3.10, 3.11, 3.18, 3.19, 3.20, 3.21, 3.23, 3.24 and 11.17, (v) the rights,
obligations and immunities of the Trustee hereunder (including the rights of the
Trustee under SECTION 6.7 and the obligations of the Trustee under SECTION 4.2)
and (vi) the rights of the Noteholders and the Note Purchaser as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all
or any of them, and the Trustee, on demand of and at the expense of the Issuer,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to the Notes, when:
(a) the Notes theretofore authenticated and delivered (other than (i)
Notes that have been destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.6 and (ii) Notes for which payment money has
theretofore been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 3.3) have been delivered to the Trustee for cancellation;
(b) the Issuer has paid or caused to be paid all Secured Obligations;
and
(c) the Issuer has delivered to the Trustee, the Noteholders and the
Note Purchaser an Officer's Certificate meeting the applicable requirements of
Section 11.1(a) and stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been complied
with.
SECTION 4.2 APPLICATION OF TRUST MONEY. All moneys deposited with the
Trustee pursuant to SECTION 4.1 or SECTION 4.3 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through the Note Paying Agent, as
the Trustee may determine, to the Noteholders and the Note Purchaser for the
payment or redemption of which such moneys have been deposited with the Trustee,
of all sums due and to become due thereon for principal and interest (in the
case of the Noteholders) and all sums due and payable by the Issuer under the
Basic Documents (in the case of the Note Purchaser); but such moneys need not be
segregated from other funds except to the extent required herein, in the Sale
and Servicing Agreement or in the other Basic Documents or required by law. Any
funds remaining with the Trustee or on deposit in the Pledged Accounts following
the repayment in full of the Notes and the other Secured Obligations, the
termination of the Commitment, the payment in full of all other amounts owed to
the Noteholders and all amounts owed by the Issuer to the Note Purchaser,
Trustee and Backup Servicer under the Basic Documents, and the satisfaction and
discharge of this Indenture, shall be remitted to the Issuer.
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SECTION 4.3 REPAYMENT OF MONEYS HELD BY NOTE PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture with respect to
the Notes, all moneys then held by the Note Paying Agent other than the Trustee
under the provisions of this Indenture with respect to the Notes shall, upon
demand of the Issuer, be remitted to the Trustee to be held and applied
according to SECTION 4.2 and thereupon the Note Paying Agent shall be released
from all further liability with respect to such moneys.
ARTICLE V
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT.
(a) "EVENT OF DEFAULT", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) default in the payment of any interest or principal on the
Notes or any other amount due with respect to the Notes or any amount
due to the Note Purchaser under any Basic Document when the same
becomes due and payable, which default continues for a period of one
(1) Business Day;
(ii) failure by the Issuer, the Servicer or the Seller to
perform or observe any term, covenant, or agreement under this
Indenture or any other Basic Document (other than any term, covenant or
agreement referred to in another subparagraph hereof), which failure
materially and adversely affects the rights of the Note Purchaser
and/or the Noteholders (as determined by the Note Purchaser or the
Majority Noteholders in their sole discretion) and is not cured within
30 calendar days after written notice is received by the Issuer, the
Servicer or the Seller, as applicable, from the Trustee, the Note
Purchaser or a Noteholder or after discovery of such failure by a
Responsible Officer of the Issuer, the Servicer or the Seller, as
applicable;
(iii) any representation, warranty or statement of the Issuer,
the Servicer or the Seller made in this Indenture or any other Basic
Document or any certificate, report or other writing delivered pursuant
hereto or thereto shall prove to be incorrect as of the time when the
same shall have been made, and such incorrectness has a material and
adverse affect on the Note Purchaser or the Noteholders (as determined
by the Note Purchaser or the Majority Noteholders in their sole
discretion) and is not cured within 30 calendar days after written
notice is received by the Issuer, the Servicer or the Seller, as
applicable, from the Trustee, the Note Purchaser or a Noteholder or
after discovery of such failure by a Responsible Officer of the Issuer,
the Servicer or the Seller, as applicable;
(iv) failure of the Seller and/or the Issuer to pay money due
under any other agreement, note or other instrument relating to
Indebtedness, which failure constitutes a default that remains uncured
for more than the applicable grace period and such default results in
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acceleration of such Indebtedness; or a breach by the Seller and/or the
Issuer of any covenant or representation and warranty or any other
event shall occur under any other agreement, note or other instrument
evidencing Indebtedness, which event constitutes a default and such
default results in the acceleration of such Indebtedness; PROVIDED
THAT, in every case, such Indebtedness must be in an aggregate amount
of at least $1,000,000 in order for an event described in this clause
(iv) to constitute an Event of Default;
(v) an application is made by the Issuer, the Seller or the
Servicer for the appointment of a receiver, trustee or custodian for
all or any portion of the Collateral or any other material assets of
the Issuer, the Seller or the Servicer; a petition under any section or
chapter of the Bankruptcy Code or any similar Federal or state law or
regulation shall be filed by the Issuer, the Seller or the Servicer, or
the Issuer, the Seller or the Servicer shall make an assignment for the
benefit of its creditors, or any case or proceeding shall be filed by
the Issuer, the Seller or the Servicer for its dissolution,
liquidation, or termination; or the Issuer, the Seller or the Servicer
ceases to conduct its business;
(vi) the Collateral or any other assets of the Issuer, the
Seller or the Servicer are attached, seized, levied upon or subjected
to a writ or distress warrant, or come within the possesion of any
receiver, trustee, custodian, or assignee for the benefit of the
Issuer, the Seller or the Servicer and the same is not dissolved or
dismissed within sixty (60) days thereafter except where any such
actions or events would not either individually or in the aggregate
materially and adversely affect the financial condition, operations,
business or prospects of the Issuer, the Seller or the Servicer, as the
case may be; an application is made by any Person other than the
Issuer, the Seller or the Servicer for the appointment of a receiver,
trustee or custodian for the Collateral or a material portion of the
assets of the Issuer, the Seller or the Servicer and the same is not
dismissed within sixty (60) days after the application thereof, or the
Issuer, the Seller or the Servicer shall have concealed, removed or
permitted to be concealed or removed, in the case of the Issuer, any
part, and in the case of the Seller or the Servicer, any material
portion, of its property with intent to hinder, delay or defraud its
creditors or made or suffered a transfer of any of its property which
is fraudulent under any bankruptcy, fraudulent conveyance or other
similar law;
(vii) the Trustee shall for any reason cease to have a first
priority perfected security interest in the Collateral;
(viii) the Issuer, the Seller or the Servicer is enjoined,
restrained or prevented by court order from conducting all or any
material part of its business affairs, or a petition under any section
or chapter of the Bankruptcy Code or any similar federal or State law
or regulation is filed against the Issuer, the Seller or the Servicer,
or any case or proceeding is filed against the Issuer, the Seller or
the Servicer, for its dissolution or liquidation, and such injunction,
restraint, petition, case or proceeding is not dismissed within sixty
(60) days after the entry of filing thereof;
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(ix) a Borrowing Base Deficiency shall exist and not be cured
within one (1) Business Day;
(x) a Servicer Termination Event shall have occurred and is
continuing;
(xi) the Note Purchaser or the Majority Noteholders, in its or
their reasonable, good faith judgment, has or have determined that
there has been a Material Adverse Change with respect to the Issuer,
the Servicer, the Seller or the Receivables;
(xii) the occurrence of a Change of Control with respect to
the Seller or the Issuer;
(xiii) a final non-appealable judgment by any competent court
in the United States is entered against the Seller for the payment of
money in an amount in excess of $1,000,000 and remains unpaid and not
stayed for more than 45 days; and
(xiv) any Basic Document shall be terminated or cease to be in
full force or effect; PROVIDED, HOWEVER, in the case of a termination
of the Lockbox Agreement, an Event of Default shall occur only upon the
failure of the Seller or the Issuer to obtain a successor lockbox
arrangement reasonably acceptable to the Note Purchaser within thirty
(30) days of such termination.
(xv) Xxxxxxx Xxxxxxx, Xx. becomes an employee, officer,
director or controlling Person of CPS; and
(xvi) CPS fails to refinance for a term of greater than one
year or repay any of its senior or subordinated debt that is scheduled
to mature in 2005 (as reported in its quarterly report on Form 10-Q for
the period ended June 30, 2005).
(b) The Issuer shall deliver to the Trustee, the Note Purchaser and
each Noteholder, within two days after the occurrence thereof, written notice in
the form of an Officer's Certificate of any Event of Default which has occurred
or any event which either with the giving of notice or the lapse of time, or
both, would become an Event of Default, its status and what action the Issuer is
taking or proposes to take with respect thereto.
(c) After the earlier of the receipt of notice by the Trustee and the
date of actual knowledge by a Responsible Officer of the Trustee of the
occurrence of any Default or Event of Default hereunder, the Trustee shall give
prompt written notice to the Note Purchaser and each Noteholder of each such
Default or Event of Default hereunder so known to the Trustee.
SECTION 5.2 RIGHTS UPON EVENT OF DEFAULT. If an Event of Default shall
have occurred and be continuing, the Trustee may, and at the direction of the
Note Purchaser and the Majority Noteholders shall, and with respect to an Event
of Default pursuant to Section 5.1(a)(v) or (vi) hereof, the Trustee shall
declare the Notes to be immediately due and payable at par, together with
accrued interest thereon (calculated for these purposes using the Default
Applicable Margin). In addition, if an Event of Default shall have occurred and
be continuing, the Trustee may, and at the direction of the Note Purchaser and
the Majority Noteholders shall, exercise any of the remedies specified in
SECTION 5.4.
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At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article V provided, the Note
Purchaser and the Majority Noteholders may, by written notice to the Issuer and
the Trustee, rescind and annul such declaration and its consequences if the
Issuer has paid or deposited with the Trustee a sum sufficient to pay:
(i) all payments of principal of and interest (calculated for
these purposes using the Default Applicable Margin) on the Notes, all
amounts due the Note Purchaser from the Issuer under the Basic
Documents, and all other amounts that would then be due from the Issuer
hereunder, upon the Notes or under the Basic Documents if the Event of
Default giving rise to such acceleration had not occurred; and
(ii) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee and its agents and counsel; and
(iii) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
(a) The Issuer covenants that if (i) default is made in the payment of
any interest on, or principal of, the Notes, or any amount due from the Issuer
to the Note Purchaser under the Basic Documents, when the same becomes due and
payable, the Issuer will, upon demand of the Trustee, pay to it, for the benefit
of the Noteholders and the Note Purchaser, as applicable, the whole amount then
due and payable on the Notes for principal and interest, with interest upon the
overdue principal, and, to the extent payment at such rate of interest shall be
legally enforceable, upon overdue installments of interest, at the Note Interest
Rate, all amounts due and owing by the Issuer under the Basic Documents and, in
each case, in addition thereto such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee and its agents
and counsel.
(b) If an Event of Default occurs and is continuing, the Trustee may in
its discretion subject to the prior written consent of the Note Purchaser and
the Majority Noteholders and shall, at the direction of the Note Purchaser and
the Majority Noteholders, proceed to protect and enforce its rights and the
rights of the Note Purchaser and the Noteholders by such appropriate Proceedings
as the Trustee, the Note Purchaser and the Majority Noteholders shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture, any other Basic
Document or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy or legal or equitable right vested in the Trustee by
this Indenture, any other Basic Document or by law.
(c) [RESERVED].
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(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Trust Estate, proceedings under Title 11 of the United States Code or any
other applicable Federal or state bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Trustee, irrespective of whether the principal of the
Notes shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes and
the whole amount then due to the Note Purchaser by the Issuer under the
Basic Documents and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and
each predecessor Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee, except as a result of negligence, bad faith or willful
misconduct) and of the Note Purchaser and the Noteholders allowed in
such proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Noteholders and the Note Purchaser in any
election of a trustee, a standby trustee or person performing similar
functions in any such proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders, the Note
Purchaser and of the Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee, the Note Purchaser or the Noteholders allowed in any
judicial proceedings relative to the Issuer, its creditors and its
property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by the Noteholders and the Note
Purchaser to make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to the Noteholders or the Note
Purchaser, to pay to the Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of the
Noteholders or the Note Purchaser any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of the Noteholders
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or the Note Purchaser or to authorize the Trustee to vote in respect of the
claim of the Noteholders or the Note Purchaser in any such proceeding except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
person.
(f) All rights of action and of asserting claims under this Indenture,
any other Basic Document or under the Notes, may be enforced by the Trustee
without the possession of the Notes or the production thereof in any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the benefit of
the Noteholders and the Note Purchaser.
(g) In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture or any other
Basic Document), the Trustee shall be held to represent the Note Purchaser and
the Noteholders, and it shall not be necessary to make the Note Purchaser or the
Noteholders a party to any such proceedings. Notwithstanding the foregoing,
nothing contained in this Indenture shall be deemed to prohibit the Note
Purchaser from representing itself in any such action or proceeding.
SECTION 5.4 REMEDIES. If an Event of Default shall have occurred and be
continuing, the Note Purchaser and the Majority Noteholders may do one or more
of the following (subject to SECTION 5.5):
(i) institute or direct the Trustee to institute Proceedings
in its own name and as trustee of an express trust for the collection
of all amounts then payable by the Issuer under any Basic Document, on
the Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer and any other obligor upon the Notes moneys adjudged
due;
(ii) institute or direct the Trustee to institute Proceedings
from time to time for the complete or partial foreclosure of this
Indenture with respect to the Trust Estate;
(iii) exercise or direct the Trustee to exercise any remedies
of a secured party under the UCC and take any other appropriate action
to protect and enforce the rights and remedies of the Trustee and the
Secured Parties; and
(iv) sell or direct the Trustee to sell the Trust Estate or
any portion thereof or rights or interest therein, at one or more
public or private sales (including, without limitation, the sale of the
Collateral in connection with a securitization thereof) called and
conducted in any manner permitted by law.
SECTION 5.5 OPTIONAL PRESERVATION OF THE RECEIVABLES. If the Notes have
been declared to be due and payable under SECTION 5.2 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, the Trustee may, but need not, elect to maintain possession of the
Trust Estate with the prior written consent of the Note Purchaser and the
Majority Noteholders. It is the desire of the parties hereto and the Noteholders
that there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Trustee shall take such desire into account when
determining whether or not to maintain possession of the Trust Estate. In
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determining whether to maintain possession of the Trust Estate, the Trustee may,
but need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Trust Estate for such purpose.
SECTION 5.6 PRIORITIES. If the Trustee collects any money or property
pursuant to this Article V, it shall pay out the money or property in the
following order:
(i) FIRST: to the Trustee for amounts due under Section 6.7;
(ii) SECOND: to the Noteholders for amounts due and unpaid on
the Notes in respect of interest (including any premium), ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Notes in respect of interest (including any
premium);
(iii) THIRD: to the Noteholders for amounts due and unpaid on
the Notes in respect of principal, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Notes in respect of principal, until the outstanding principal amount
of the Notes is reduced to zero;
(iv) FOURTH: to the Note Purchaser for any amounts due and
owing thereto under the Basic Documents; and
(v) FIFTH: any excess amounts remaining after making the
payments described in clauses FIRST through FOURTH above, to be applied
pursuant to Section 5.7(a) of the Sale and Servicing Agreement to the
extent that any amounts payable thereunder have not been previously
paid pursuant to clauses FIRST through FOURTH above.
(b) The Trustee may fix a record date and Settlement Date for any
payment to the Note Purchaser and the Noteholders pursuant to this Section. At
least 15 days before such record date the Trustee shall mail to the Issuer, the
Note Purchaser and each Noteholder a notice that states such record date, the
Settlement Date and the amount to be paid.
SECTION 5.7 LIMITATION OF SUITS. Unless the Notes shall be held by the
Note Purchaser or an Affiliate thereof, no Holder of a Note shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(i) the Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(ii) the Majority Noteholders have made a written request to
the Trustee to institute such proceeding in respect of such Event of
Default in its own name as Trustee hereunder;
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(iii) the Majority Noteholders have offered to the Trustee
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in complying with such request; and
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute such
proceedings;
it being understood and intended that no Holder of a Note shall have any right
in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holder of the
Notes or to obtain or to seek to obtain priority or preference over any other
Holder or to enforce any right under this Indenture, except in the manner herein
provided and it being understood that if a Note is held by the Note Purchaser or
an Affiliate thereof, the Holder may directly 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.
SECTION 5.8 UNCONDITIONAL RIGHTS OF THE NOTEHOLDERS TO RECEIVE
PRINCIPAL AND INTEREST. Notwithstanding any other provisions of this Indenture,
(i) each Noteholder shall have the right, which is absolute and unconditional,
to receive payment of the applicable Percentage Interest of principal of and
interest, if any, on such Note on or after the respective due dates thereof
expressed in such Note or in this Indenture, (ii) the Note Purchaser shall have
the right, which is absolute and unconditional, to receive payment of all
amounts owed to it by the Issuer under the Basic Documents when the same shall
become due, and, in each case, to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of the Note
Purchaser or the Majority Noteholders, as applicable.
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES. If the Note Purchaser
or a Noteholder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason or has been determined adversely to the Trustee, the Note Purchaser
or to such Noteholder, then and in every such case the Issuer, the Trustee, the
Note Purchaser and the Noteholders shall, subject to any determination in such
Proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee, the Note
Purchaser and the Noteholder shall continue as though no such proceeding had
been instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE. No right or remedy herein
conferred upon or reserved to the Note Purchaser or the Noteholders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 DELAY OR OMISSION NOT A WAIVER. No delay or omission of
the Note Purchaser or the Noteholders to exercise any right or remedy accruing
upon any Default or Event of Default shall impair any such right or remedy or
constitute a waiver of any such Default or Event of Default or an acquiescence
therein. Every right and remedy given by this Article V or by law to the
Trustee, the Note Purchaser or the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee, the Note
Purchaser or the Noteholders, as the case may be.
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SECTION 5.12 [RESERVED].
SECTION 5.13 WAIVER OF PAST DEFAULTS. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in SECTION 5.2, the Note
Purchaser and the Majority Noteholders may waive any past Default or Event of
Default and its consequences except a Default or Event of Default (i) in payment
of principal of or interest on the Notes or (ii) in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of the
Note Purchaser and all of the Noteholders. In the case of any such waiver, the
Issuer, the Trustee, the Note Purchaser and the Noteholders shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereto.
Upon any such waiver, such Default or Event of Default shall cease to
exist and be deemed to have been cured and not to have occurred, and any Event
of Default arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 5.14 UNDERTAKING FOR COSTS. Each of the Issuer, the Trustee and
the Note Purchaser agrees, and each Noteholder by its acceptance of a Note shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by it as
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, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to (a) any suit instituted by the Trustee, (b) any suit
instituted by the Note Purchaser or Noteholders holding in the aggregate more
than 10% of Percentage Interests of the Note or (c) any suit instituted by the
Noteholders for the enforcement of the payment of principal of or interest on
the Notes on or after the respective due dates expressed in the Notes and in
this Indenture.
SECTION 5.15 WAIVER OF STAY OR EXTENSION LAWS. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power and any right of the Issuer to take
such action shall be suspended.
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SECTION 5.16 SALE OF TRUST ESTATE.
(a) To the extent permitted by applicable law, the Trustee shall not in
any private sale sell to a third party the Trust Estate, or any portion thereof
unless,
(i) the Note Purchaser and the Majority Noteholders consent to
or direct the Trustee in writing to make such sale; or
(ii) the proceeds of such sale would be not less than the sum
of (x) all amounts due on the entire unpaid principal amount of the
Notes and interest due or to become due thereon in accordance with
Section 5.6 hereof on the Settlement Date next succeeding the date of
such sale and (y) all amounts due the Note Purchaser from the Issuer
under the Basic Documents.
(b) For any public sale of the Trust Estate, the Trustee shall have
provided the Note Purchaser and the Noteholders with notice of such sale at
least two weeks in advance of such sale which notice shall specify the date,
time and location of such sale.
(c) In connection with a sale of all or any portion of the Trust
Estate:
(i) the Note Purchaser or the Noteholders may bid for and
purchase the property offered for sale, and may hold, retain, possess
and dispose of such property, without further accountability, and (x)
the Noteholders may, in paying the purchase money therefor, deliver in
lieu of cash any Outstanding Note or claims for interest thereon for
credit in the amount that shall, upon distribution of the net proceeds
of such sale, be payable thereon, and the Note so delivered shall be
cancelled and extinguished except that, in case the amounts so payable
thereon shall be less than the amount due thereon, such Notes shall be
returned to the Noteholders after being appropriately stamped to show
such partial payment and (y) the Note Purchaser may, in paying the
purchase money therefor, set-off against any amount owed to it by the
Issuer under the Basic Documents;
(ii) the Trustee shall execute and deliver an appropriate
instrument of conveyance transferring its interest in any portion of
the Trust Estate in connection with a sale thereof; and
(iii) the Trustee is hereby irrevocably appointed the agent
and attorney-in-fact of the Issuer to transfer and convey its interest
in any portion of the Trust Estate in connection with a sale thereof,
and to take all action necessary to effect such sale.
(d) The method, manner, time, place and terms of any sale of all or any
portion of the Trust Estate shall be commercially reasonable.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 DUTIES OF TRUSTEE. If an Event of Default has occurred and
is continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and the other Basic Documents and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
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(a) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and each of
the other Basic Documents to which it is a party and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; however, the Trustee shall examine the certificates and
opinions to determine whether or not they conform on their face to the
requirements of this Indenture.
(b) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section; and
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(c) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Issuer.
(d) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law or the terms of this Indenture
or the Sale and Servicing Agreement.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or
powers, if it shall have reasonable grounds to believe that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(f) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
(g) The Trustee shall permit any representative of the Note Purchaser
or the Noteholders, during the Trustee's normal business hours, to examine all
books of account, records, reports and other papers of the Trustee relating to
the Notes and the transactions contemplated by the Basic Documents, to make
copies and extracts therefrom and to discuss the Trustee's affairs and actions,
as such affairs and actions relate to the Trustee's duties with respect to the
Notes and the Note Purchaser, with the Trustee's officers and employees
responsible for carrying out the Trustee's duties with respect to the Notes and
the Note Purchaser.
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(h) The Trustee shall, and hereby agrees that it will, perform all of
the obligations and duties required of it under the other Basic Documents.
(i) Except for actions expressly authorized by this Indenture, the
Trustee shall take no action reasonably likely to impair the security interests
created or existing under any Receivable or Financed Vehicle or to impair the
value of any Receivable or Financed Vehicle.
(j) All information obtained by the Trustee regarding the Obligors and
the Receivables, whether upon the exercise of its rights under this Indenture or
otherwise, shall be maintained by the Trustee in confidence and shall not be
disclosed to any other Person, other than the Trustee's attorneys, accountants
and agents unless such disclosure is required by this Indenture or any
applicable law or regulation.
SECTION 6.2 RIGHTS OF TRUSTEE. Subject to Sections 6.1 and this Section
6.2, the Trustee shall be protected and shall incur no liability to the Issuer,
the Note Purchaser or the Noteholders in relying upon the accuracy, acting in
reliance upon the contents, and assuming the genuineness of any notice, demand,
certificate, signature, instrument or other document reasonably believed by the
Trustee to be genuine and to have been duly executed by the appropriate
signatory, and, except to the extent the Trustee has actual knowledge to the
contrary or as required pursuant to Section 6.1 the Trustee shall not be
required to make any independent investigation with respect thereto.
(a) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate. Subject to Section 6.1(c), the Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on the
Officer's Certificate.
(b) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee, and the Trustee shall not be responsible
for any misconduct or negligence on the part of, or for the supervision of the
Servicer, the Backup Servicer or any other such agent, attorney, custodian or
nominee appointed with due care by it hereunder.
(c) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute
willful misconduct, negligence or bad faith.
(d) The Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the Notes
shall be full and complete authorization and protection from liability in
respect to any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.
(e) The Trustee shall be under no obligation to institute, conduct or
defend any litigation under this Indenture or in relation to this Indenture, at
the request, order or direction of the Note Purchaser or the Noteholders,
pursuant to the provisions of this Indenture, unless the Note Purchaser and/or
the Noteholders, as applicable, shall have offered to the Trustee reasonable
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security or indemnity against the costs, expenses and liabilities that may be
incurred therein or thereby; provided, however, that the Trustee shall, upon the
occurrence of an Event of Default (that has not been cured), exercise the rights
and powers vested in it by this Indenture in accordance with Section 6.1.
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in writing to do so by the Note Purchaser or the
Majority Noteholders; provided, however, that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Indenture or the Sale and Servicing Agreement, the Trustee may require
reasonable indemnity against such cost, expense or liability as a condition to
so proceeding; the reasonable expense of every such examination shall be paid by
the Person making such request, or, if paid by the Trustee, shall be reimbursed
by the Person making such request upon demand.
SECTION 6.3 INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its individual
or any other capacity may become the owner or pledgee of a Note and may
otherwise deal with the Issuer or its Affiliates with the same rights it would
have if it were not the Trustee. Any Note Paying Agent, Note Registrar,
co-registrar or co-paying agent may do the same with like rights. However, the
Trustee must comply with Section 6.11.
SECTION 6.4 TRUSTEE'S DISCLAIMER. The Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Indenture, the
Trust Estate, the Collateral or the Notes, it shall not be accountable for the
Issuer's use of the proceeds from the Notes, and it shall not be responsible for
any statement of the Issuer in the Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Trustee's
certificate of authentication.
SECTION 6.5 NOTICE OF DEFAULTS. If an Event of Default occurs and is
continuing and if it is either known by, or written notice of the existence
thereof has been delivered to, a Responsible Officer of the Trustee, the Trustee
shall mail to the Note Purchaser and each Noteholder a notice of the Default
within three (3) Business Days after such knowledge or notice occurs.
SECTION 6.6 REPORTS BY TRUSTEE TO THE NOTEHOLDERS. The Trustee shall on
behalf of the Issuer deliver to the Noteholders and the Note Purchaser such
information as may be reasonably required to enable the Noteholders and the Note
Purchaser to prepare their respective Federal and State income tax returns.
SECTION 6.7 COMPENSATION AND INDEMNITY. Pursuant to Section 5.7 of the
Sale and Servicing Agreement, the Issuer shall pay to the Trustee from time to
time compensation for its services. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer
shall reimburse the Trustee, pursuant and subject to Section 5.7 of the Sale and
Servicing Agreement, for all reasonable out-of-pocket expenses incurred or made
by it, including costs of collection, in addition to the compensation for its
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services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Issuer shall or shall cause the Servicer to indemnify the Trustee
against any and all loss, liability or expense incurred by the Trustee without
willful misfeasance, negligence or bad faith on its part arising out of or in
connection with the acceptance or the administration of this trust and the
performance of its duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection therewith. The
Trustee shall notify the Issuer and the Servicer promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Issuer and the
Servicer shall not relieve the Issuer of its obligations hereunder or the
Servicer of its obligations under Article XII of the Sale and Servicing
Agreement. The Trustee may have separate counsel and the Issuer shall or shall
cause the Servicer to pay the reasonable fees and expenses of such counsel.
Neither the Issuer nor the Servicer need reimburse any expense or indemnify
against any loss, liability or expense incurred by the Trustee through the
Trustee's own willful misconduct, negligence or bad faith.
(b) The Issuer's payment obligations to the Trustee pursuant to this
Section shall survive the discharge of this Indenture. When the Trustee incurs
expenses after the occurrence of a Default specified in Section 5.1(a)(v) with
respect to the Issuer, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
Federal or State bankruptcy, insolvency or similar law. Notwithstanding anything
else set forth in this Indenture or the other Basic Documents, the recourse of
the Trustee hereunder and under the other Basic Documents specifically shall not
be recourse to the assets of the Noteholders or the Note Purchaser.
SECTION 6.8 REPLACEMENT OF TRUSTEE. The Issuer may, with the consent of
the Note Purchaser and the Majority Noteholders, and at the request of the Note
Purchaser and the Majority Noteholders shall, remove the Trustee if:
(i) the Trustee fails to comply with Section 6.11 or the
Trustee fails to perform any other material covenant or agreement of
the Trustee set forth in the Basic Documents to which the Trustee is a
party and such failure continues for 45 days after written notice of
such failure from the Note Purchaser or a Noteholder;
(ii) an Insolvency Event with respect to the Trustee occurs;
or
(iii) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Issuer shall promptly appoint a successor
Trustee acceptable to the Note Purchaser and the Majority Noteholders. If the
Issuer fails to appoint such a successor Trustee, the Note Purchaser and the
Majority Noteholders may appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee, the Note Purchaser, the Noteholders and the
Issuer, whereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the retiring Trustee under this Indenture. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee.
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If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, the
Note Purchaser or the Majority Noteholders may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor Trustee
pursuant to SECTION 6.8.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Issuer's and the Servicer's obligations under Section 6.7 shall
continue for the benefit of the retiring Trustee.
SECTION 6.9 SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee. The Trustee shall provide the
Noteholders and the Note Purchaser prior written notice of any such transaction.
(a) In case at the time such successor or successors to the Trustee by
merger, conversion or consolidation shall succeed to the trusts created by this
Indenture the Notes shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver the Notes so authenticated; and in case at that
time the Notes shall not have been authenticated, any successor to the Trustee
may authenticate the Notes either in the name of any predecessor hereunder or in
the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall have.
SECTION 6.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Indenture, at any time, for the
purpose of meeting any legal requirement of any jurisdiction in which any part
of the Trust Estate may at the time be located, the Trustee with the consent of
the Note Purchaser and the Majority Noteholders shall have the power and may
execute and deliver all instruments to appoint one or more Persons to act as a
co-trustee or co-trustees, or separate trustee or separate trustees, of all or
any part of the Trust Estate, and to vest in such Person or Persons, in such
capacity and for the benefit of the Noteholders and the Note Purchaser, such
title to the Trust Estate, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Trustee may consider necessary or desirable. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 6.11 and no notice to the Note Purchaser or the
Noteholders of the appointment of any co-trustee or separate trustee shall be
required under Section 6.8 hereof.
(a) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
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(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder, including acts
or omissions of predecessor or successor trustees; and
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(b) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Indenture and the conditions
of this Article VI. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(c) Any separate trustee or co-trustee may at any time constitute the
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Indenture on its behalf and in its name. If any separate trustee or co-trustee
shall die, dissolve, become insolvent, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall
invest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
SECTION 6.11 ELIGIBILITY: DISQUALIFICATION. The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition and subject to supervision or
examination by federal or state authorities; and having a rating, both with
respect to long-term and short-term unsecured obligations, of not less than
investment grade by Standard & Poor's or Xxxxx'x. The Trustee shall provide
copies of such reports to the Note Purchaser and the Noteholders upon request.
SECTION 6.12 [RESERVED].
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SECTION 6.13 APPOINTMENT AND POWERS. Subject to the terms and
conditions hereof, the initial Noteholder and the Note Purchaser hereby appoint
Xxxxx Fargo Bank, National Association as the Trustee with respect to the
Collateral, and Xxxxx Fargo Bank, National Association hereby accepts such
appointment and agrees to act as Trustee with respect to the Collateral for the
benefit of the Noteholders and the Note Purchaser, to maintain custody and
possession of such Collateral (except as otherwise provided hereunder) and to
perform the other duties of the Trustee in accordance with the provisions of
this Indenture and the other Basic Documents. Each Noteholder, by its acceptance
of a Note, hereby authorizes the Trustee to take such action on its behalf, and
to exercise such rights, remedies, powers and privileges hereunder, as such
Noteholder may direct and as are specifically authorized to be exercised by the
Trustee by the terms hereof, together with such actions, rights, remedies,
powers and privileges as are reasonably incidental thereto. The Trustee shall
act upon and in compliance with the written instructions of the Note Purchaser
or the Majority Noteholders delivered pursuant to this Indenture promptly
following receipt of such written instructions; provided that the Trustee shall
not act in accordance with any instructions (i) which are not authorized by, or
in violation of the provisions of, this Indenture, (ii) which are in violation
of any applicable law, rule or regulation or (iii) for which the Trustee has not
received reasonable indemnity. Receipt of such instructions shall not be a
condition to the exercise by the Trustee of its express duties hereunder, except
where this Indenture provides that the Trustee is permitted to act only
following and in accordance with such instructions.
SECTION 6.14 PERFORMANCE OF DUTIES. The Trustee shall have no duties or
responsibilities except those expressly set forth in this Indenture and the
other Basic Documents to which the Trustee is a party or as directed by the
Noteholders or the Note Purchaser in accordance with this Indenture. The Trustee
shall not be required to take any discretionary actions hereunder except at the
written direction of the Note Purchaser or the Majority Noteholders. The Trustee
shall, and hereby agrees that it will, perform all of the duties and obligations
required of it under the Basic Documents.
SECTION 6.15 LIMITATION ON LIABILITY. Neither the Trustee nor any of
its directors, officers or employees shall be liable for any action taken or
omitted to be taken by it or them in good faith hereunder, or in connection
herewith, except that the Trustee shall be liable for its negligence, bad faith
or willful misconduct. Notwithstanding any term or provision of this Indenture,
the Trustee shall incur no liability to the Issuer, the Note Purchaser or the
Noteholders for any action taken or omitted by the Trustee in connection with
the Collateral, except for the negligence, bad faith or willful misconduct on
the part of the Trustee, and, further, shall incur no liability to the Note
Purchaser or the Noteholders except for negligence, bad faith or willful
misconduct in carrying out its duties to the Note Purchaser and the Noteholders.
The Trustee shall at all times be free independently to establish to its
reasonable satisfaction, but shall have no duty to independently verify, the
existence or nonexistence of facts that are a condition to the exercise or
enforcement of any right or remedy hereunder or under any of the Basic
Documents. The Trustee may consult with counsel, and shall not be liable for any
action taken or omitted to be taken by it hereunder in good faith and in
accordance with the written advice of such counsel. The Trustee shall not be
under any obligation to exercise any of the remedial rights or powers vested in
it by this Indenture or to follow any direction from the Note Purchaser or the
Noteholders unless it shall have received reasonable security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities which
might be incurred by it.
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SECTION 6.16 [RESERVED].
SECTION 6.17 SUCCESSOR TRUSTEE.
(a) MERGER. Any Person into which the Trustee may be converted or
merged, or with which it may be consolidated, or to which it may sell or
transfer its trust business and assets as a whole or substantially as a whole,
or any Person resulting from any such conversion, merger, consolidation, sale or
transfer to which the Trustee is a party, shall (provided it is otherwise
qualified to serve as the Trustee hereunder) be and become a successor Trustee
hereunder and be vested with all of the title to and interest in the Collateral
and all of the trusts, powers, descriptions, immunities, privileges and other
matters and have all of the obligations as its predecessor without the execution
or filing of any instrument or any further act, deed or conveyance on the part
of any of the parties hereto, anything herein to the contrary notwithstanding,
except to the extent, if any, that any such action is necessary to perfect, or
continue the perfection of, the security interest of the Trustee for the benefit
of the Note Purchaser and the Noteholders in the Collateral; provided that any
such successor shall also be the successor Trustee under SECTION 6.9.
(b) REMOVAL. The Trustee may be removed by the Note Purchaser or the
Majority Noteholders at any time, with or without cause, by an instrument or
concurrent instruments in writing delivered to the Trustee and the Issuer. A
temporary successor may be removed at any time to allow a successor Trustee to
be appointed pursuant to subsection (c) below. Any removal pursuant to the
provisions of this subsection (b) shall take effect only upon the date which is
the latest of (i) the effective date of the appointment of a successor Trustee
and the acceptance in writing by such successor Trustee of such appointment and
of its obligation to perform its duties hereunder in accordance with the
provisions hereof, and (ii) receipt by the Note Purchaser and the Noteholders of
an Opinion of Counsel to the effect described in Section 3.4.
(c) ACCEPTANCE BY SUCCESSOR. The Majority Noteholders and the Note
Purchaser shall have the sole right to appoint each successor Trustee. Every
temporary or permanent successor Trustee appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Trustee, the Note
Purchaser, the Noteholders and the Issuer an instrument in writing accepting
such appointment hereunder and the relevant predecessor shall execute,
acknowledge and deliver such other documents and instruments as will effectuate
the delivery of all Collateral to the successor Trustee, whereupon such
successor, without any further act, deed or conveyance, shall become fully
vested with all the estates, properties, rights, powers, duties and obligations
of its predecessor. Such predecessor shall, nevertheless, on the written request
of the Majority Noteholders and the Note Purchaser or the Issuer, execute and
deliver an instrument transferring to such successor all the estates,
properties, rights and powers of such predecessor hereunder. In the event that
any instrument in writing from the Issuer or the Note Purchaser and the Majority
Noteholders is reasonably required by a successor Trustee to more fully and
certainly vest in such successor the estates, properties, rights, powers, duties
and obligations vested or intended to be vested hereunder in the Trustee, any
and all such written instruments shall at the request of the temporary or
permanent successor Trustee, be forthwith executed, acknowledged and delivered
by the Trustee or the Issuer, as the case may be. The designation of any
successor Trustee and the instrument or instruments removing any Trustee and
appointing a successor hereunder, together with all other instruments provided
for herein, shall be maintained with the records relating to the Collateral and,
to the extent required by applicable law, filed or recorded by the successor
Trustee in each place where such filing or recording is necessary to effect the
transfer of the Collateral to the successor Trustee or to protect or continue
the perfection of the security interests granted hereunder.
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SECTION 6.18 [RESERVED].
SECTION 6.19 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE. The Trustee
represents and warrants to the Issuer, the Note Purchaser and the Majority
Noteholders as follows:
(a) The Trustee is a national banking association, duly organized,
validly existing and in good standing under the laws of the United States and is
duly authorized and licensed under applicable law to conduct its business as
presently conducted.
(b) The Trustee has all requisite right, power and authority to execute
and deliver this Indenture and to perform all of its duties as Trustee
hereunder.
(c) The execution and delivery by the Trustee of this Indenture and the
other Basic Documents to which it is a party, and the performance by the Trustee
of its duties hereunder and thereunder, have been duly authorized by all
necessary corporate proceedings and no further approvals or filings, including
any governmental approvals, are required for the valid execution and delivery by
the Trustee, or the performance by the Trustee, of this Indenture and such other
Basic Documents.
(d) The Trustee has duly executed and delivered this Indenture and each
other Basic Document to which it is a party, and each of this Indenture and each
such other Basic Document constitutes the legal, valid and binding obligation of
the Trustee, enforceable against the Trustee in accordance with its terms,
except as (i) such enforceability may be limited by bankruptcy, insolvency,
reorganization and similar laws relating to or affecting the enforcement of
creditors' rights generally and (ii) the availability of equitable remedies may
be limited by equitable principles of general applicability.
SECTION 6.20 WAIVER OF SETOFFS. The Trustee hereby expressly waives any
and all rights of setoff that the Trustee may otherwise at any time have under
applicable law with respect to any Pledged Account and agrees that amounts in
the Pledged Accounts shall at all times be held and applied solely in accordance
with the provisions hereof.
SECTION 6.21 CONTROL BY THE NOTE PURCHASER AND THE MAJORITY
NOTEHOLDERS. The Trustee shall comply with notices and instructions given by the
Issuer only if accompanied by the written consent of the Note Purchaser and the
Majority Noteholders, except that if any Event of Default shall have occurred
and be continuing, the Trustee shall act upon and comply with notices and
instructions given by the Note Purchaser or the Majority Noteholders alone in
the place and stead of the Issuer.
ARTICLE VII
[RESERVED]
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ARTICLE VIII
COLLECTION OF MONEY AND RELEASES OF TRUST ESTATE
SECTION 8.1 COLLECTION OF MONEY. Except as otherwise expressly provided
herein, the Trustee may demand payment or delivery of, and shall receive and
collect, directly and without intervention or assistance of any fiscal agent or
other intermediary, all money and other property payable to or receivable by the
Trustee pursuant to this Indenture and the other Basic Documents. The Trustee
shall apply all such money received by it as provided in this Indenture and the
Sale and Servicing Agreement. Except as otherwise expressly provided in this
Indenture or in the other Basic Documents, if any default occurs in the making
of any payment or performance under any agreement or instrument that is part of
the Trust Estate, the Trustee may take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate proceedings. Any such action shall be without prejudice to any
right to claim a Default or Event of Default under this Indenture and any right
to proceed thereafter as provided in Article V.
SECTION 8.2 RELEASE OF TRUST ESTATE. Subject to the payment of its fees
and expenses pursuant to Section 6.7, the Trustee may, and when required by the
provisions of this Indenture shall, execute instruments to release property from
the lien of this Indenture, in a manner and under circumstances that are not
inconsistent with the provisions of this Indenture. No party relying upon an
instrument executed by the Trustee as provided in this Article VIII shall be
bound to ascertain the Trustee's authority, inquire into the satisfaction of any
conditions precedent or see to the application of any moneys.
(a) The Trustee shall, at such time as there is no Note Outstanding,
all amounts due and owing to the Note Purchaser and the Noteholders under any of
the Basic Documents have been paid in full, all sums due the Trustee pursuant to
Section 6.7 have been paid and the term of the Commitment shall have expired,
release any remaining portion of the Trust Estate that secured the Notes and the
other obligations of the Issuer, the Purchaser and the Seller to the Note
Purchaser and the Noteholders pursuant to the Basic Documents from the lien of
this Indenture and release to the Issuer or any other Person entitled thereto
any funds then on deposit in the Pledged Accounts. The Trustee shall release
property from the lien of this Indenture pursuant to this Section 8.2(b) only
upon receipt of an Issuer Request accompanied by an Officer's Certificate, a
copy of each of which shall also be delivered to the Note Purchaser and the
Noteholders.
(b) OPINION OF COUNSEL. The Trustee shall receive at least seven days'
notice when requested by the Issuer to take any action pursuant to Section
8.2(a), accompanied by copies of any instruments involved, and the Trustee shall
also require as a condition to such action, an Opinion of Counsel in form and
substance satisfactory to the Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding that
all conditions precedent to the taking of such action have been complied with
and such action will not materially and adversely affect the security for the
Notes or the rights of the Note Purchaser and/or the Noteholders in
contravention of the provisions of this Indenture or any of the other Basic
Documents; provided, however, that such Opinion of Counsel shall not be required
to express an opinion as to the fair value of the Trust Estate. Counsel
rendering any such opinion may rely, without independent investigation, on the
accuracy and validity of any certificate or other instrument delivered to the
Trustee in connection with any such action.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
With the prior written consent of the Note Purchaser and the Majority
Noteholders, the Issuer and the Trustee, when authorized by an Issuer Order, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Trustee any property subject or required to
be subjected to the lien of this Indenture, or to subject to the lien
of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein
and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit
of the Noteholders and the Note Purchaser, or to surrender any right or
power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; provided that such action shall not adversely affect the
interests of the Note Purchaser or the Noteholders; or
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes
and to add to or change any of the provisions of this Indenture as
shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of
Article VI.
The Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Trustee, when authorized by an Issuer Order,
may, also with the consent of the Note Purchaser and the Majority Noteholders,
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Note Purchaser or the Noteholders under this Indenture; provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interests of the Note Purchaser or the Noteholders.
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SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF THE NOTE PURCHASER
AND THE MAJORITY NOTEHOLDERS. The Issuer and the Trustee, when authorized by an
Issuer Order, also may, with the prior written consent of the Note Purchaser and
the Majority Noteholders, enter into an indenture or indentures supplemental
hereto for any purpose; provided, however, that, no such supplemental indenture
shall, without the prior written consent of the Note Purchaser and all of the
Noteholders:
(i) change the date of payment of any installment of principal
of or interest on the Notes or any other amount owed by the Issuer
under the Basic Documents, or reduce the Percentage Interest thereof,
the interest rate thereon, change the provision of this Indenture
relating to the application of collections on, or the proceeds of the
sale of, the Trust Estate to payment of principal of or interest on the
Notes or any other amount owed by the Issuer under the Basic Documents,
or change any place of payment where, or the coin or currency in which,
the Notes or the interest thereon or any other amount owed by the
Issuer under the Basic Documents is payable;
(ii) impair the right to institute suit for the enforcement of
the provisions of this Indenture requiring the application of funds
available therefor, as provided in ARTICLE V, to the payment of any
such amount due on the Notes or any other amount owed by the Issuer
under the Basic Documents on or after the respective due dates thereof;
(iii) reduce the Percentage Interest, the consent of the
Holders of which is required for any such supplemental indenture, or
eliminate the requirement that the Note Purchaser consent thereto, or
the consent of the Holders of which or the Note Purchaser is required
for any waiver of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences provided for in
this Indenture;
(iv) modify or alter the provisions of the proviso to the
definition of the term "OUTSTANDING";
(v) reduce the Percentage Interest required to direct the
Trustee to direct the Issuer to sell or liquidate the Trust Estate or
eliminate the requirement that the Note Purchaser so direct pursuant to
Section 5.4;
(vi) modify any provision of this Section except to increase
any percentage specified herein or to provide that certain additional
provisions of this Indenture or the other Basic Documents cannot be
modified or waived without the consent of the Note Purchaser and the
Majority Noteholders;
(vii) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount or timing of any
payment of (x) interest or principal due on the Notes on any Settlement
Date (including the calculation of any of the individual components of
such calculation) or to affect the rights of the Noteholders to the
benefit of any provisions for the mandatory redemption of the Notes
contained herein or (y) any amount due to the Note Purchaser from the
Issuer under the Basic Documents, or affect the rights of the Note
Purchaser under the Basic Documents; or
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(viii) permit the creation of any Lien ranking prior to or on
a parity with the Lien of this Indenture with respect to any part of
the Trust Estate or, except as otherwise permitted or contemplated
herein or in any of the Basic Documents, terminate the Lien of this
Indenture on any property at any time subject hereto or deprive the
Noteholders or the Note Purchaser of the security provided by the Lien
of this Indenture.
(b) Unless otherwise specified by the Note Purchaser or the
Noteholders, it shall be necessary for any Act of the Note Purchaser or the
Noteholders under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
(c) Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to this Section, the Trustee shall mail to the
Note Purchaser and each Noteholder a copy of such supplemental indenture. Any
failure of the Trustee to mail such copy shall not, however, in any way impair
or affect the validity of any such supplemental indenture.
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, and subject to
Sections 6.1 and 6.2, shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture that affects the Trustee's own
rights, duties, liabilities or immunities under this Indenture or otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith, and the
respective rights, limitations of rights, obligations, duties, liabilities and
immunities under this Indenture of the Trustee, the Issuer, the Note Purchaser
and the Noteholders shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
ARTICLE X
REPAYMENT AND PREPAYMENT OF NOTES
SECTION 10.1 REPAYMENT OF THE NOTES; OPTIONAL PREPAYMENT OF THE NOTES.
The outstanding principal balance of the Notes and all accrued and unpaid
interest thereon shall be payable in full by the Facility Termination Date and
otherwise as provided in Section 3.1, the form of Note attached as EXHIBIT A and
the Sale and Servicing Agreement. The Issuer may, at its option, prepay the
Invested Amount of the Notes, in whole or in part, at any time on any Business
Day (such day the "PREPAYMENT DATE") in accordance with this SECTION 10.1 and
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SECTION 10.2; provided that no such prepayment may occur (i) unless and until
all amounts due and payable in respect of clauses (i) through (vii) of Section
5.7(a) of the Sale and Servicing Agreement have been paid in full irrespective
of whether Available Funds are sufficient for this purpose or (ii) if, after
giving effect to such prepayment and the release of any related Collateral, a
Borrowing Base Deficiency shall exist. Simultaneous with any such prepayment,
the Issuer shall pay all accrued and unpaid interest on the Invested Amount to
be prepaid and all other amounts then due and owing under the Basic Documents.
Upon the deposit of any prepayment and all such other amounts then due and owing
under the Basic Documents into the Collection Account, the Trustee shall release
the Collateral that is the subject of such prepayment from the lien of this
Indenture. In connection with such prepayment, the Trustee shall be entitled to
conclusively rely upon the direction of the Issuer to the Trustee (a form of
which is attached hereto as EXHIBIT E) to release such Collateral as may be
identified by the Issuer in writing and consented to in writing by the Note
Purchaser as being the subject of such prepayment upon the conditions specified
in such writing. All prepayments in part shall be in principal amounts of at
least $100,000.
SECTION 10.2 NOTICE OF PREPAYMENT. Notice of the prepayment of the Note
shall be given, upon the direction of the Issuer, by the Trustee by facsimile
transmission, courier or first class mail, postage prepaid, mailed, faxed or
couriered not less than five (5) days prior to the related Prepayment Date, to
the Note Purchaser and each Noteholder. All notices of prepayment shall state
(i) the Prepayment Date, (ii) the Invested Amount to be prepaid, (iii) the
estimated accrued and unpaid interest on the Invested Amount to be prepaid and
(iv) any other amounts due and owing to the Note Purchaser under the Basic
Documents. Failure to give notice of prepayment, or any defect therein, to a
Noteholder or the Note Purchaser shall not impair or affect the validity of such
prepayment.
SECTION 10.3 GENERAL PROCEDURES. The Invested Amount of the Notes and
amounts due to the Note Purchaser by the Issuer under the Basic Documents shall
not be considered reduced by any allocation, setting aside or distribution of
any portion of the Available Funds unless such Available Funds shall have been
actually paid to the Noteholders or the Note Purchaser, as applicable. The
Invested Amount of the Notes and amounts due to the Note Purchaser by the Issuer
under the Basic Documents shall not be considered repaid by any distribution of
any portion of the Available Funds if at any time such distribution is rescinded
or must otherwise be returned for any reason, in which event, if such amount has
been returned by the Noteholders or the Note Purchaser, as applicable, such
principal, interest and/or other amount shall be reinstated in an amount equal
to the amount returned by the Noteholders or the Note Purchaser, as applicable.
No provision of this Indenture shall require the payment or permit the
collection of interest in excess of the maximum permitted by applicable law.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 COMPLIANCE CERTIFICATES AND OPINIONS, ETC. Except as set
forth herein, upon any application or request by the Issuer to the Trustee to
take any action under any provision of this Indenture (other than any request
hereunder by the Issuer for an Advance), the Issuer shall furnish to the
Trustee, with a copy of each to the Note Purchaser and the Noteholders, (i) an
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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, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied with.
(b) Other than with respect to Dollars, prior to the deposit of any
Collateral or other property or securities with the Trustee that is to be made
the basis for the release of any property or securities subject to the lien of
this Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.1(a) or elsewhere in this Indenture, furnish to the Trustee, with a
copy thereof to the Note Purchaser and the Noteholders, an Officer's Certificate
certifying or stating the opinion of each person signing such certificate as to
the fair value (on the date of such deposit) to the Issuer of the Collateral or
other property or securities to be so deposited.
(c) Other than with respect to the release of any Purchased Receivables
or Liquidated Receivables or the release, if any, of any Receivables upon a
mandatory or partial prepayment of the Notes and other amounts due to the Note
Purchaser from the Issuer under the Basic Documents pursuant to Section 10.1,
whenever any property or securities are to be released from the lien of this
Indenture, the Issuer shall also furnish, prior to or contemporaneous with such
release, to the Trustee, with a copy thereof to the Note Purchaser and the
Noteholders, an Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (such fair value to be as
of a date within 90 days of such release) of the property or securities proposed
to be released and stating that in the opinion of such person the proposed
release will not impair the security under this Indenture in contravention of
the provisions hereof.
(d) Notwithstanding Section 2.10 or any provision of this Section, the
Issuer may (A) collect, liquidate, sell or otherwise dispose of Receivables as
and to the extent permitted or required by the Basic Documents and (B) make cash
payments out of the Pledged Accounts as and to the extent permitted or required
by the Basic Documents.
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SECTION 11.2 FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
(a) Any certificate or opinion of an Authorized Officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Servicer, the Seller, the Purchaser or the Issuer, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Seller, the Purchaser or the Issuer, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
(b) 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.
(c) Whenever in this Indenture, in connection with any application or
certificate or report to the Trustee, it is provided that the Issuer shall
deliver any document as a condition of the granting of such application, or as
evidence of the Issuer's compliance with any term hereof, it is intended that
the truth and accuracy, at the time of the granting of such application or at
the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Trustee's right to rely upon the truth and accuracy of
any statement or opinion contained in any such document as provided in Article
VI.
SECTION 11.3 ACTS OF THE NOTEHOLDERS OR THE NOTE PURCHASER. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a Noteholder or the
Note Purchaser may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholder or the Note Purchaser in
person or by agents duly appointed in writing; and except as herein otherwise
expressly provided such action shall become effective when such instrument or
instruments are delivered to the 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 or the Note Purchaser signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Trustee and the Issuer, if made in the
manner provided in this Section.
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(a) The fact and date of the execution by any person of any such
instrument or writing may be proved in any customary manner of the Trustee.
(b) The ownership of the Notes shall be proved by the Note Register.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other action by a Holder of a Note shall bind each Holder of such Note
issued upon the registration thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Trustee or
the Issuer in reliance thereon, whether or not notation of such action is made
upon such Note.
SECTION 11.4 NOTICES, ETC., TO TRUSTEE, ISSUER, THE NOTE PURCHASER AND
NOTEHOLDERS. Any request, demand, authorization, direction, notice, consent,
waiver or Act of the Noteholders or the Note Purchaser or other documents
provided or permitted by this Indenture to be made upon, given or furnished to
or filed with:
(i) the Trustee by the Note Purchaser, the Noteholders or by
the Issuer shall be sufficient for every purpose hereunder if
personally delivered, delivered by overnight courier or mailed
certified mail, return receipt requested and shall be deemed to have
been duly given upon receipt of the Trustee at its Corporate Trust
Office;
(ii) the Issuer by the Trustee or by the Note Purchaser or the
Noteholders shall be sufficient for every purpose hereunder if
personally delivered, delivered by overnight courier or mailed
certified mail, return receipt requested and shall deemed to have been
duly given upon receipt by the Issuer at the Corporate Trust Office of
the Owner Trustee, with a copy to Consumer Portfolio Services, Inc.
00000 Xxxxxx Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx 00000 Attention: Xxxx
Xxxxxxxx, Esq. Confirmation: (000) 000-0000, Telecopy No. (949)
753-6897 or at such other address previously furnished in writing to
the Trustee by the Issuer. The Issuer shall promptly transmit any
notice received by it from the Noteholders or the Note Purchaser to the
Trustee; or
(iii) the Note Purchaser shall be sufficient for any purpose
hereunder if in writing and delivered by overnight courier or mailed
certified mail, return receipt requested, or personally delivered or
telexed or telecopied to the recipient as follows (or such other
address previously furnished in writing to the Trustee):
To the Note Purchaser:
Bear, Xxxxxxx & Co. Inc.,
as agent for Bear, Xxxxxxx International Limited
000 Xxxxxxx Xxx., 00xx Xxxxx
Attention: Xxxxx XxxXxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
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w/ a copy to:
Bear, Xxxxxxx & Co. Inc.,
as agent for Bear, Xxxxxxx International Limited
000 Xxxxxxx Xxx., 00xx Xxxxx
Attention: Xxxxxxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-00000
Telecopy: 212-272-2053
(iv) the Noteholders shall be sufficient for any purpose
hereunder if in writing and delivered by overnight courier or mailed
certified mail, return receipt requested, or personally delivered or
telexed or telecopied to the recipient's contact information reflected
in the Note Register.
(v) The Note Purchaser may deliver to the Noteholders any
notices, reports, Servicer's Certificates or any other documentation
delivered to the Note Purchaser hereunder or under any Basic Document,
but is under no obligation to so deliver such documentation and shall
not be liable for the content thereof.
SECTION 11.5 WAIVER. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by any Person entitled to receive
such notice with respect to itself only, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by the
Note Purchaser or a Noteholder shall be filed with the Trustee but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such a waiver. In case, by reason of the suspension of regular
mail service as a result of a strike, work stoppage or similar activity, it
shall be impractical to mail notice of any event to the Note Purchaser or a
Noteholder when such notice is required to be given pursuant to any provision of
this Indenture, then any manner of giving such notice as shall be satisfactory
to the Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 11.6 ALTERNATE PAYMENT AND NOTICE PROVISIONS. Notwithstanding
any provision of this Indenture or the Notes to the contrary, the Issuer may
enter into any agreement with a Holder of a Note or the Note Purchaser providing
for a method of payment, or notice by the Trustee or the Note Paying Agent to
such Holder or the Note Purchaser, that is different from the methods provided
for in this Indenture for such payments or notices, provided that such methods
are reasonable and consented to by the Trustee (which consent shall not be
unreasonably withheld). The Issuer will furnish to the Trustee a copy of each
such agreement and the Trustee will cause payments to be made and notices to be
given in accordance with such agreements.
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SECTION 11.7 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.8 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture and the Note by the Issuer shall bind its successors and assigns,
whether so expressed or not. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 11.9 BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Note Purchaser (which shall be a
third-party beneficiary of this Indenture) and its successors and assigns, and
the Noteholders, and any other party secured hereunder, and any other Person
with an ownership interest in any part of the Trust Estate, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 11.10 SEVERABILITY. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 11.11 LEGAL HOLIDAYS. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes, this Indenture or any other Basic Document) payment need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the date on which nominally due,
and no interest shall accrue for the period from and after any such nominal
date.
SECTION 11.12 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.13 COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument. Any signature page to this Indenture containing a manual
signature may be delivered by facsimile transmission or other electronic
communication device capable of transmitting or creating a printable written
record, and when so delivered shall have the effect of delivery of an original
manually signed signature page.
SECTION 11.14 RECORDING OF INDENTURE. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Trustee or any other counsel reasonably acceptable
to the Trustee) to the effect that such recording is necessary either for the
protection of the Noteholders, the Note Purchaser or any other Person secured
hereunder or for the enforcement of any right or remedy granted to the Trustee
under this Indenture.
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SECTION 11.15 ISSUER OBLIGATION. The obligations of the Issuer under
this Indenture and the other Basic Documents shall be full recourse obligations
of the Issuer. Notwithstanding the foregoing, no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer or the Trustee on
the Notes, under this Indenture, any other Basic Document or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
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 Issuer or the Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer or the Trustee or of any successor
or assign of the Trustee in its individual capacity, except as any such Person
may have expressly agreed (it being understood that the Trustee has no such
obligations in its individual capacity) and except that any such partner, owner
or beneficiary shall be fully liable, to the extent provided by applicable law,
for any unpaid consideration for stock, unpaid capital contribution or failure
to pay any installment or call owing to such entity. Nothing contained in this
Section shall limit or be deemed to limit any obligations of the Issuer, the
Purchaser, the Seller or the Servicer hereunder or under any other Basic
Document, as applicable, which obligations are full recourse obligations of the
Issuer, the Purchaser, the Seller and the Servicer.
SECTION 11.16 NO PETITION. The Trustee, by entering into this
Indenture, hereby covenants and agrees that it will not at any time institute
against the Issuer, or join in any institution against 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 of the Basic Documents.
SECTION 11.17 INSPECTION. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Note Purchaser, a Noteholder or
the Trustee, during the Issuer's normal business hours, to examine all the books
of account, records, reports, and other papers of the Issuer, to make copies and
extracts therefrom, to cause such books to be audited by independent certified
public accountants, and to discuss the Issuer's affairs, finances and accounts
with the Issuer's officers, employees, and independent certified public
accountants, all at such reasonable times and as often as may be reasonably
requested. Each of the Trustee, the Note Purchaser and the Noteholders shall and
shall cause their respective representatives to hold in confidence all such
information except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing) and except to
the extent that the Trustee may reasonably determine that such disclosure is
consistent with its Obligations hereunder.
SECTION 11.18 ENTIRE AGREEMENT. This Agreement, together with the other
Basic Documents, including the exhibits and schedules thereto, contains a final
and complete integration of all prior expressions by the parties hereto with
respect to the subject matter hereof and shall constitute the entire agreement
among the parties hereto with respect to the subject matter hereof, superseding
all previous oral statements and other writings with respect thereto.
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IN WITNESS WHEREOF, the Issuer and the Trustee have caused this
Indenture to be duly executed by their respective officers, hereunto duly
authorized, all as of the day and year first above written.
PAGE THREE FUNDING LLC, as Issuer
By:______________________________________
Name:____________________________________
Title:___________________________________
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:______________________________________
Name:____________________________________
Title:___________________________________
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EXHIBIT A
VARIABLE FUNDING NOTE
REGISTERED Maximum Invested Amount: $150,000,000
No. A-1 _________ Percentage Interest:_____________%
SEE REVERSE FOR CERTAIN CONDITIONS
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR "BLUE
SKY" LAWS AND MAY BE RESOLD, PLEDGED OR TRANSFERRED ONLY TO (I) THE ISSUER (UPON
REDEMPTION THEREOF OR OTHERWISE) OR AN AFFILIATE OF THE ISSUER (AS CERTIFIED BY
THE ISSUER) OR (2) AN INSTITUTIONAL INVESTOR THAT IS AN "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D PROMULGATED UNDER THE
SECURITIES ACT THAT EXECUTES A CERTIFICATE, SUBSTANTIALLY IN THE FORM SPECIFIED
IN THE INDENTURE, TO THE EFFECT THAT IT IS AN INSTITUTIONAL ACCREDITED INVESTOR
ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY
OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE INSTITUTIONAL ACCREDITED INVESTORS
UNLESS THE HOLDER IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) (3) SO LONG AS
THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT,
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A TO A PERSON THAT EXECUTES
A CERTIFICATE, SUBSTANTIALLY IN THE FORM SPECIFIED IN THE INDENTURE, TO THE
EFFECT THAT SUCH PERSON IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A), ACTING FOR ITS OWN ACCOUNT, OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH
OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE
SALE, PLEDGE, OR TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, , OR (4) IN A
TRANSACTION OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER JURISDICTION, IN EACH SUCH CASE, IN COMPLIANCE WITH THE INDENTURE AND
ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION: PROVIDED, THAT, IN THE CASE OF CLAUSE (4), THE TRUSTEE OR THE
ISSUER MAY REQUIRE AN OPINION OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER MAY BE
EFFECTED WITHOUT REGISTRATION UNDER THE SECURITIES ACT, WHICH OPINION OF
COUNSEL, IF SO REQUIRED, SHALL BE ADDRESSED TO THE ISSUER AND THE TRUSTEE AND
SHALL BE SECURED AT THE EXPENSE OF THE HOLDER. NO REPRESENTATION IS MADE AS TO
THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144A FOR RESALES OF THIS
NOTE.
A-1
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AND SUBJECT TO INCREASES
AND DECREASES AS SET FORTH HEREIN AND IN THE INDENTURE. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
THE NOTE REGISTRAR SHALL NOT REGISTER ANY TRANSFER OR EXCHANGE OF THIS NOTE TO
THE EXTENT THAT UPON SUCH TRANSFER OR EXCHANGE THERE WOULD BE MORE THAN FOUR (4)
PERSONS REFLECTED ON THE NOTE REGISTER AS NOTEHOLDERS.
PAGE THREE FUNDING LLC
VARIABLE FUNDING NOTE
PAGE THREE FUNDING LLC, a Delaware limited liability company (herein referred to
as the "ISSUER"), for value received, hereby promises to pay to
[________________] (the "NOTEHOLDER"), or its registered assigns, such
Noteholder's pro rata portion (based on the Percentage Interest reflected on the
face of this Note) of the principal sum of ONE HUNDRED FIFTY MILLION DOLLARS
($150,000,000.00) or, if less, the Holders pro rata portion (based on the
Percentage Interest reflected on the face of this Note) of the aggregate unpaid
principal amount outstanding under all of the Notes (whether or not shown on the
schedule attached hereto (or such electronic counterpart maintained by the
Trustee)), which amount shall be payable in the amounts and at the times set
forth in Section 2.8(b) of the Indenture. The Issuer will pay interest on the
Holder's pro rata portion of Advances under all of the Notes at the Note
Interest Rate. Such interest on Advances shall be due and payable on each
Settlement Date until the principal of this Note is paid or made available for
payment, to the extent funds will be available from the Collection Account
processed from and including the preceding Settlement Date to but excluding each
such Settlement Date in respect of (a) an amount equal to interest accrued for
the related Interest Period, which will be equal to the sum of the products, for
each day during the related Interest Period, of (i) the Note Interest Rate for
such date during the Interest Period, (ii) the Aggregate Principal Balance as of
the close of business on such date divided by 360 and (iii) the applicable
Percentage Interest, plus (b) an amount equal to a pro rata portion of any
accrued and unpaid Noteholders' Interest Carryover Shortfall with respect to
prior Interest Periods, with interest on the amount of such Noteholders'
Interest Carryover Shortfall at the Note Interest Rate from the first Business
Day of the related Interest Period. Prior to the Facility Termination Date and
unless an Event of Default shall have occurred, the Issuer shall only be
required to make interest payments on the Invested Amount of the Note to the
holder hereof; provided that the Issuer may, at its option, prepay the Invested
Amount of the Notes, in whole or in part, at any time pursuant to Section 10.1
of the Indenture. Following the occurrence of an Event of Default, the Note
Purchaser and the Majority Noteholders may declare the Invested Amount of the
Notes to be immediately due and payable at par, together with accrued interest
thereon, in accordance with Section 5.2 of the Indenture. Principal of and
interest on this Note shall be paid in the manner specified on the reverse
hereof.
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The principal of and interest on this Note are payable in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts. This Note does not represent an interest
in, or an obligation of, the Servicer or any affiliate of the Servicer other
than the Issuer.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note. Although a summary of certain provisions of the Indenture
are set forth below and on the reverse hereof and made a part hereof, this Note
does not purport to summarize the Indenture and reference is made to the
Indenture for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of the Servicer and the Trustee. A copy of the Indenture may be
requested from the Trustee by writing to the Trustee at: Xxxxx Fargo Bank,
National Association, 0xx & Xxxxxxxxx, XXX X0000-000, Xxxxxxxxxxx, Xxxxxxxxx
00000, Attention: Corporate Trust Services, -- Asset Backed Administration. To
the extent not defined herein, the capitalized terms used herein have the
meanings ascribed to them in the Indenture.
Unless the certificate of authentication hereon has been executed by the Trustee
whose name appears below by manual signature, this Note shall not be entitled to
any benefit under the Indenture referred to on the reverse hereof, or be valid
or obligatory for any purpose.
[Signature page follows.]
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: November __, 2005 PAGE THREE FUNDING LLC
By:______________________________________
Name:____________________________________
Title:___________________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Note issued under the within-mentioned Indenture.
XXXXX FARGO BANK, NATIONAL ASSOCIATION, not
in its individual capacity, but solely as
Trustee
By:______________________________________
Authorized Signature
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REVERSE OF THE NOTE
This Note is the duly authorized Note of the Issuer, designated as its Variable
Funding Note (herein called the "NOTE"), issued under (i) the Indenture, dated
as of November 15, 2005 (such Indenture, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof, is herein called the "INDENTURE"), between the Issuer and Xxxxx
Fargo Bank, National Association, a national banking association, as trustee
(the "TRUSTEE", which term includes any successor Trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights and obligations thereunder of the
Issuer, the Trustee, the Note Purchaser and the Noteholders. The Note is subject
to all terms of the Indenture. All terms used in this Note that are defined in
the Indenture, as amended, supplemented or otherwise modified from time to time
in accordance with the terms thereof, shall have the meanings assigned to them
in or pursuant to the Indenture, as so amended, supplemented or otherwise
modified.
"SETTLEMENT DATE" means, with respect to each Accrual Period, the 15th day of
the following calendar month, or if such day is not a Business Day, the
immediately following Business Day, commencing on December 15, 2005.
As described above, the entire unpaid principal amount of this Note shall be due
and payable on the Facility Termination Date. Notwithstanding the foregoing, if
an Event of Default or shall have occurred and be continuing then, in certain
circumstances, principal on the Note may be paid earlier, as described in the
Indenture.
Payments of interest on this Note due and payable on each Settlement Date,
together with the installment of principal then due, if any, and any payments of
principal made on any Business Day in respect of any prepayments, to the extent
not in full payment of this Note, shall be made by wire transfer to the Holder
of record of this Note (or any predecessor Note) on the Note Register as of the
close of business on each Record Date. Any reduction in the principal amount of
this Note (or any predecessor Note) effected by any payments made on any date
shall be binding upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted thereon. Final payment of principal (together with
any accrued and unpaid interest) on this Note will be paid to the Noteholders
only upon presentation and surrender of this Note at the Corporate Trust Office
for cancellation by the Trustee.
The Issuer shall pay interest on overdue installments of interest at the Note
Interest Rate (calculated for this purpose using the Default Applicable Margin)
to the extent lawful.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of authorized
Percentage Interest and in the same aggregate Percentage Interest will be issued
to the designated transferee or transferees. No service charge will be charged
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for any registration of transfer or exchange of this Note, but the transferor
may be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of transfer
or exchange. Other than exchanges pursuant to Section 9.6 of the Indenture not
involving a transfer.
The obligations of the Issuer under the Indenture, this Note and the other Basic
Documents shall be full recourse obligations of the Issuer. Notwithstanding the
foregoing, the Noteholder, by its acceptance of this Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer or the Trustee on the Notes, under the Indenture or
any other Basic Document or any certificate or other writing delivered in
connection herewith or therewith, against (i) the 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
Issuer or the Trustee in its individual capacity, any holder of a beneficial
interest in the Issuer or the Trustee or of any successor or assign of the
Trustee in its individual capacity, except as any such Person may have expressly
agreed (it being understood that the Trustee has no such obligations in its
individual capacity) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity. Nothing contained in this Section
shall limit or be deemed to limit any obligations of the Issuer, the Purchaser,
the Seller or the Servicer hereunder or under any other Basic Document, as
applicable, which obligations are full recourse obligations of the Issuer, the
Purchaser, the Seller and the Servicer.
Each Noteholder, by its acceptance of this Note, covenants and agrees that by
accepting the benefits of the Indenture that such Noteholder will not institute
against the Issuer, or join in any institution against the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any United States Federal or state bankruptcy or similar law in connection
with any obligations relating to the Note, the Indenture or the Basic Documents.
Prior to the due presentment for registration of transfer of this Note, the
Trustee and any agent of the Trustee may treat the Person in whose name the Note
(as of the applicable Record Date) is registered as the owner hereof for all
purposes, whether or not the Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
It is the intent of the Issuer and the Noteholders that, for Federal, State and
local income and franchise tax purposes, this Note will evidence indebtedness of
the Issuer secured by the Collateral. Each Noteholder, by its acceptance of the
Note, agrees to treat the Note for Federal, State and local income and franchise
tax purposes as indebtedness of the Issuer.
The Indenture permits in certain circumstances, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Note Purchaser and the
Noteholders under the Indenture at any time by the Issuer with the consent of
the Note Purchaser and the Majority Noteholders. The Indenture also contains
provisions permitting the Note Purchaser and/or the Majority Noteholders to
waive compliance by the Issuer with certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Note Purchaser and the
Majority Noteholders (or the Holders of any predecessor Note) shall be
conclusive and binding upon the Note Purchaser, the current Noteholders and all
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future Noteholders and of this Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note.
The Indenture also permits the Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of the Note Purchaser
and the Majority Noteholders.
The term "ISSUER" as used in this Note includes any successor to the Issuer
under the Indenture.
This Note is issuable only in registered form in denominations as provided in
the Indenture, subject to certain limitations set forth therein.
This Note and the Indenture shall be construed in accordance with the law of the
State of New York, without reference to its conflict of law provisions (other
than Section 5-1401 of the General Obligations Law), and the obligations, rights
and remedies of the parties hereunder and thereunder shall be determined in
accordance with such law.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
times, place, and rate, and in the coin or currency herein prescribed, subject
to any duty of the Issuer to deduct or withhold any amounts as required by law,
including any applicable U.S. withholding taxes.
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