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CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
AS OWNER TRUSTEE
Class A-1 4.29% Asset Backed Notes
Class A-2 4.47% Asset Backed Notes
Class A-3 4.99% Asset Backed Notes
Class A-4 5.42% Asset Backed Notes
Class B 5.59% Asset Backed Notes
______________________________
INDENTURE
Dated as of April 27, 2001
______________________________
The Bank of New York,
a New York banking corporation,
Indenture Trustee
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE.............................................. 2
SECTION 1.1 Definitions........................................................ 2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.................. 3
ARTICLE II
THE NOTES............................................................................... 3
SECTION 2.1 Form............................................................... 3
SECTION 2.2 Execution, Authentication and Delivery............................. 4
SECTION 2.3 Temporary Notes.................................................... 5
SECTION 2.4 Registration; Registration of Transfer and Exchange of Notes....... 5
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes......................... 6
SECTION 2.6 Persons Deemed Noteholders......................................... 7
SECTION 2.7 Payment of Principal and Interest.................................. 7
SECTION 2.8 Cancellation of Notes.............................................. 9
SECTION 2.9 Release of Collateral.............................................. 9
SECTION 2.10 Book-Entry Notes................................................... 9
SECTION 2.11 Notices to Clearing Agency......................................... 10
SECTION 2.12 Definitive Notes................................................... 10
SECTION 2.13 Seller as Noteholder............................................... 11
SECTION 2.14 Tax Treatment...................................................... 11
ARTICLE III
COVENANTS............................................................................... 11
SECTION 3.1 Payment of Principal and Interest.................................. 11
SECTION 3.2 Maintenance of Agency Office....................................... 11
SECTION 3.3 Money for Payments To Be Held in Trust............................. 12
SECTION 3.4 Existence.......................................................... 13
SECTION 3.5 Protection of Trust Estate; Acknowledgment of Pledge............... 13
SECTION 3.6 Opinions as to Trust Estate........................................ 14
SECTION 3.7 Performance of Obligations; Servicing of Receivables............... 15
SECTION 3.8 Negative Covenants................................................. 16
SECTION 3.9 Annual Statement as to Compliance.................................. 16
SECTION 3.10 Consolidation, Merger, etc., of Owner Trustee;
Disposition of Trust Assets........................................ 17
SECTION 3.11 Successor or Transferee............................................ 17
SECTION 3.12 No Other Business.................................................. 17
SECTION 3.13 No Borrowing....................................................... 17
SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities.................. 18
SECTION 3.15 Servicer's Obligations............................................. 18
SECTION 3.16 Capital Expenditures............................................... 18
SECTION 3.17 Removal of Administrator........................................... 18
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SECTION 3.18 Restricted Payments.................................................. 18
SECTION 3.19 Notice of Events of Default.......................................... 19
SECTION 3.20 Further Instruments and Acts......................................... 19
SECTION 3.21 Indenture Trustee's Assignment of Administrative
Receivables and Warranty Receivables................................. 19
SECTION 3.22 Representations and Warranties by the Owner Trustee
to the Indenture Trustee............................................. 19
ARTICLE IV
SATISFACTION AND DISCHARGE................................................................. 20
SECTION 4.1 Satisfaction and Discharge of Indenture.............................. 20
SECTION 4.2 Application of Trust Money........................................... 21
SECTION 4.3 Repayment of Monies Held by Paying Agent............................. 21
SECTION 4.4 Duration of Position of Indenture Trustee for
Benefit of Certificateholders........................................ 21
ARTICLE V
DEFAULT AND REMEDIES....................................................................... 22
SECTION 5.1 Events of Default.................................................... 22
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment................... 23
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee................................................. 24
SECTION 5.4 Remedies; Priorities................................................. 26
SECTION 5.5 Optional Preservation of the Trust Estate............................ 27
SECTION 5.6 Limitation of Suits.................................................. 27
SECTION 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest............................................... 28
SECTION 5.8 Restoration of Rights and Remedies................................... 28
SECTION 5.9 Rights and Remedies Cumulative....................................... 28
SECTION 5.10 Delay or Omission Not a Waiver....................................... 28
SECTION 5.11 Control by Noteholders............................................... 29
SECTION 5.12 Waiver of Past Defaults.............................................. 29
SECTION 5.13 Undertaking for Costs................................................ 30
SECTION 5.14 Waiver of Stay or Extension Laws..................................... 30
SECTION 5.15 Action on Notes...................................................... 30
SECTION 5.16 Performance and Enforcement of Certain Obligations................... 30
ARTICLE VI
THE INDENTURE TRUSTEE...................................................................... 32
SECTION 6.1 Duties of Indenture Trustee.......................................... 32
SECTION 6.2 Rights of Indenture Trustee.......................................... 33
SECTION 6.3 Indenture Trustee May Own Notes...................................... 34
SECTION 6.4 Indenture Trustee's Disclaimer....................................... 34
SECTION 6.5 Notice of Defaults................................................... 34
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SECTION 6.6 Reports by Indenture Trustee to Holders................................ 34
SECTION 6.7 Compensation; Indemnity................................................ 34
SECTION 6.8 Replacement of Indenture Trustee....................................... 35
SECTION 6.9 Merger or Consolidation of Indenture Trustee........................... 36
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee...... 36
SECTION 6.11 Eligibility; Disqualification.......................................... 37
SECTION 6.12 Preferential Collection of Claims Against Owner Trustee................ 38
SECTION 6.13 Representations and Warranties of Indenture Trustee.................... 39
SECTION 6.14 Indenture Trustee May Enforce Claims Without Possession of Notes....... 39
SECTION 6.15 Suit for Enforcement................................................... 39
SECTION 6.16 Rights of Noteholders to Direct Indenture Trustee...................... 40
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS............................................................. 40
SECTION 7.1 Owner Trustee To Furnish Indenture Trustee Names
and Addresses of Noteholders........................................... 40
SECTION 7.2 Preservation of Information, Communications to Noteholders............. 40
SECTION 7.3 Reports by Owner Trustee............................................... 41
SECTION 7.4 Reports by Indenture Trustee........................................... 41
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES....................................................... 42
SECTION 8.1 Collection of Money.................................................... 42
SECTION 8.2 Designated Accounts; Payments.......................................... 42
SECTION 8.3 General Provisions Regarding Accounts.................................. 45
SECTION 8.4 Release of Trust Estate................................................ 45
SECTION 8.5 Opinion of Counsel..................................................... 46
ARTICLE IX
SUPPLEMENTAL INDENTURES.................................................................... 46
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders................. 46
SECTION 9.2 Supplemental Indentures With Consent of Noteholders.................... 47
SECTION 9.3 Execution of Supplemental Indentures................................... 49
SECTION 9.4 Effect of Supplemental Indenture....................................... 49
SECTION 9.5 Conformity with Trust Indenture Act.................................... 49
SECTION 9.6 Reference in Notes to Supplemental Indentures.......................... 49
ARTICLE X
REDEMPTION OF NOTES........................................................................ 50
SECTION 10.1 Redemption............................................................. 50
SECTION 10.2 Form of Redemption Notice.............................................. 50
SECTION 10.3 Notes Payable on Redemption Date....................................... 51
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ARTICLE XI
MISCELLANEOUS.................................................................... 51
SECTION 11.1 Compliance Certificates and Opinions, etc................... 51
SECTION 11.2 Form of Documents Delivered to Indenture Trustee............ 53
SECTION 11.3 Acts of Noteholders......................................... 54
SECTION 11.4 Notices, etc., to Indenture Trustee, Owner Trustee
and Rating Agencies......................................... 54
SECTION 11.5 Notices to Noteholders; Waiver.............................. 54
SECTION 11.6 Alternate Payment and Notice Provisions..................... 55
SECTION 11.7 Conflict with Trust Indenture Act........................... 55
SECTION 11.8 Effect of Headings and Table of Contents.................... 55
SECTION 11.9 Successors and Assigns...................................... 55
SECTION 11.10 Separability................................................ 56
SECTION 11.11 Benefits of Indenture....................................... 56
SECTION 11.12 Legal Holidays.............................................. 56
SECTION 11.13 Governing Law............................................... 56
SECTION 11.14 Counterparts................................................ 56
SECTION 11.15 Recording of Indenture...................................... 56
SECTION 11.16 No Recourse................................................. 57
SECTION 11.17 No Petition................................................. 57
SECTION 11.18 Inspection.................................................. 57
Exhibit A - Locations of Schedule of Receivables
Exhibit B - Form of Class A-1 Asset Backed Note
Exhibit C - Form of Class X-0, Xxxxx X-0, Class A-4 and Class B Asset
Backed Note
Exhibit D - Form of Note Depository Agreement
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INDENTURE, dated as of April 27, 2001 between CHASE MANHATTAN BANK
USA, NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity but solely as trustee under the Trust Agreement (the "Owner Trustee"),
and THE BANK OF NEW YORK, a New York banking corporation, as trustee and not in
its individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Notes and (only to the
extent expressly provided herein) the Certificateholders:
GRANTING CLAUSE
Chase Manhattan Bank USA, National Association, not in its individual
capacity, but solely as Owner Trustee under the Trust Agreement, hereby grants
to the Indenture Trustee on the Closing Date, as trustee for the benefit of the
Noteholders and (only to the extent expressly provided herein) the
Certificateholders, all of the Owner Trustee's right, title and interest in, to
and under (a) the Receivables listed on the Schedule of Receivables which is on
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file at the locations listed on Exhibit A hereto and all monies paid thereon
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(including Liquidation Proceeds) and due thereunder on and after the applicable
Cutoff Date, whether now existing or hereafter acquired and including, without
limitation, Subsequent Receivables acquired by the Owner Trustee pursuant to the
Pooling and Servicing Agreement listed on the schedules to the Subsequent
Transfer Assignments with respect to such Subsequent Receivables and all monies
due thereon on and after the applicable Cutoff Dates; (b) the security interests
in the Financed Vehicles granted by Obligors pursuant to the Receivables and,
where permitted by law, any accessions thereto which are financed by NFC; (c)
the benefits of any lease assignments with respect to the Financed Vehicles; (d)
any proceeds from any Insurance Policies with respect to the Receivables; (e)
any proceeds from Dealer Liability with respect to the Receivables, proceeds
from any International Purchase Obligations with respect to the Receivables
(subject to the limitations set forth in Section 2.04 of the Pooling and
Servicing Agreement) and proceeds of any Guaranties with respect to the
Receivables; (f) all funds on deposit from time to time in the Collection
Account and the Note Distribution Account; (g) the Pooling and Servicing
Agreement (including all rights of NFRRC under the Purchase Agreement, the
Initial PA Assignment and any Subsequent Transfer PA Assignments assigned to the
Owner Trustee pursuant to the Pooling and Servicing Agreement); (h) the Reserve
Account and all proceeds thereof (other than the Investment Earnings thereon),
including all other amounts, investments and investment property held from time
to time in the Reserve Account (whether in the form of deposit accounts,
Physical Property, book-entry securities, uncertificated securities, or
otherwise); (i) the Reserve Account Initial Deposit with respect to the Closing
Date and the Reserve Account Subsequent Transfer Deposit with respect to each
Subsequent Transfer Date and all proceeds thereof (other than the Investment
Earnings thereon) ((h) and (i), collectively, the "Reserve Account Property");
(j) all funds on deposit from time to time in the Pre-Funding Account and all
proceeds thereof, including all other amounts and investments held from time to
time in the Pre-Funding Account (whether in the form of deposit accounts,
Physical Property, book-entry securities, uncertificated securities or
otherwise) (collectively, the "Pre-Funding Account Property"); (k) all
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funds on deposit from time to time in the Negative Carry Account and all
proceeds thereof (other than the Investment Earnings thereon), including all
other amounts, investments and investment property held from time to time in the
Negative Carry Account (whether in the form of deposit accounts, Physical
Property, book-entry securities, uncertificated securities or otherwise); and
(l) 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 "Collateral").
The foregoing Grant is made in trust to secure (a) first, the payment
of principal of and interest on, and any other amounts owing in respect of, the
Class A Notes, equally and ratably without prejudice, priority or distinction,
and (b) second, the payment of principal of and interest on, and any other
amounts owing in respect of, the Class B Notes, equally and ratably without
prejudice, priority or distinction, and to secure compliance with the provisions
of this Indenture, all as provided in this Indenture. This Indenture
constitutes a security agreement under the UCC.
The foregoing Grant includes all rights, powers and options (but none
of the obligations, if any) of the Owner Trustee under any agreement or
instrument included in the Collateral, including the immediate and continuing
right to claim for, collect, receive and give receipt for principal and interest
payments in respect of the Receivables included in the Collateral and all other
monies payable under the Collateral, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights and
options, to bring Proceedings in the name of the Owner Trustee or on behalf of
the Owner Trust Estate or otherwise and generally to do and receive anything
that the Owner Trustee is or may be entitled to do or receive under or with
respect to the Collateral.
The Indenture Trustee, as trustee on behalf of the Noteholders and
(only to the extent expressly provided herein) the Certificateholders,
acknowledges such Grant and accepts the trusts under this Indenture in
accordance with the provisions of this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Certain capitalized terms used in this
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Indenture shall have the respective meanings assigned them in Part I of Appendix
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A to the Pooling and Servicing Agreement of even date herewith among Chase
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Manhattan Bank USA, National Association, acting as Owner Trustee of the
Navistar Financial 2001-A Owner Trust, NFRRC and NFC (as it may be amended,
supplemented or modified from time to time, the "Pooling and Servicing
Agreement"). All references herein to "the Indenture" or "this Indenture" are to
this
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Indenture as it may be amended, supplemented or modified from time to time, the
exhibits hereto and the capitalized terms used herein which are defined in such
Appendix A. All references herein to Articles, Sections, subsections and
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exhibits are to Articles, Sections, subsections and exhibits contained in or
attached to this Indenture unless otherwise specified. All terms defined in this
Indenture shall have the defined meanings when used in any certificate, notice,
Note or other document made or delivered pursuant hereto unless otherwise
defined therein. The rules of construction set forth in Part II of such Appendix
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A shall be applicable to this Indenture.
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SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
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Whenever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" means the Indenture Trustee.
"obligor" on the indenture securities means the Owner Trustee and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by a Commission rule
have the respective meanings assigned to them by such definitions.
ARTICLE II
THE NOTES
SECTION 2.1 Form.
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(a) The Class A-1 Notes and each of the Class A-2 Notes, Class A-3
Notes, Class A-4 Notes and Class B Notes, with the Indenture Trustee's
certificate of authentication, shall be substantially in the form set forth in
Exhibit B and Exhibit C, respectively, with such appropriate insertions,
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omissions, substitutions and other variations as are required or permitted by
this Indenture, and each such class may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note.
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(b) The Definitive Notes shall be typewritten, printed, lithographed
or engraved or produced by any combination of these methods (with or without
steel engraved borders), all as determined by the officers executing such Notes,
as evidenced by their execution of such Notes.
(c) Each Note shall be dated the date of its authentication. The
terms of each class of Notes as provided for in Exhibit B and Exhibit C hereto
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are part of the terms of this Indenture.
SECTION 2.2 Execution, Authentication and Delivery.
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(a) Each Note shall be dated the date of its authentication, and
shall be issuable as a registered Note in the minimum denomination of $1,000 and
in integral multiples thereof (except, if applicable, for one Note representing
a residual portion of each class which may be issued in a different
denomination).
(b) The Notes shall be executed on behalf of the Owner Trustee by any
of its Authorized Officers. The signature of any such Authorized Officer on the
Notes may be manual or facsimile.
(c) Notes bearing the manual or facsimile signature of individuals
who were at any time Authorized Officers of the Owner Trustee shall bind the
Owner Trustee, notwithstanding that such individuals or any of them have ceased
to hold such office prior to the authentication and delivery of such Notes or
did not hold such office at the date of such Notes.
(d) The Indenture Trustee shall upon Issuer Order authenticate and
deliver to or upon the order of the Owner Trustee, the Notes for original issue
in aggregate principal amount of $400,000,000, comprised of (i) Class A-1 Notes
in the aggregate principal amount of $72,500,000, (ii) Class A-2 Notes in the
aggregate principal amount of $118,000,000, (iii) Class A-3 Notes in the
aggregate principal amount of $100,000,000 and (iv) Class A-4 Notes in the
aggregate principal amount of $92,500,000, and (v) Class B Notes in the
aggregate principal amount of $17,000,000. The aggregate principal amount of all
Notes outstanding at any time may not exceed $400,000,000 except as provided in
Section 2.5.
(e) No Notes shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form set forth, in the case
of the Class A-1 Notes, in Exhibit B, and in the case of the Class A-2 Notes,
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the Class A-3 Notes, the Class A-4 Notes and the Class B Notes, in Exhibit C,
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executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
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SECTION 2.3 Temporary Notes.
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(a) Pending the preparation of Definitive Notes, if any, the Owner
Trustee may execute, and upon receipt of an Issuer Order the Indenture Trustee
shall authenticate and deliver, such Temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
as are consistent with the terms of this Indenture as the officers executing
such Notes may determine, as evidenced by their execution of such Notes.
(b) If Temporary Notes are issued, the Owner Trustee shall cause
Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the Temporary Notes shall be exchangeable for
Definitive Notes upon surrender of the Temporary Notes at the Agency Office of
the Owner Trustee to be maintained as provided in Section 3.2, without charge to
the Noteholder. Upon surrender for cancellation of any one or more Temporary
Notes, the Owner Trustee shall execute and the Indenture Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
Definitive Notes of authorized denominations. Until so delivered in exchange,
the Temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as Definitive Notes.
SECTION 2.4 Registration; Registration of Transfer and Exchange of
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Notes.
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(a) The Owner Trustee shall cause to be kept the Note Register,
comprising separate registers for each class of Notes, in which, subject to such
reasonable regulations as the Owner Trustee may prescribe, the Owner Trustee
shall provide for the registration of the Notes and the registration of
transfers and exchanges of the Notes. The Indenture Trustee shall initially be
the Note Registrar for the purpose of registering the Notes and transfers of the
Notes as herein provided. Upon any resignation of any Note Registrar, the Owner
Trustee shall promptly appoint a successor Note Registrar or, if it elects not
to make such an appointment, assume the duties of the Note Registrar.
(b) If a Person other than the Indenture Trustee is appointed by the
Owner Trustee as Note Registrar, the Owner Trustee will give the Indenture
Trustee prompt written notice of the appointment of such Note Registrar and of
the location, and any change in the location, of the Note Register. The
Indenture Trustee shall have the right to inspect the Note Register at all
reasonable times and to obtain copies thereof. The Indenture Trustee shall have
the right to rely upon a certificate executed on behalf of the Note Registrar by
an Executive Officer thereof as to the names and addresses of the Noteholders
and the principal amounts and number of such Notes.
(c) Upon surrender for registration of transfer of any Note at the
Corporate Trust Office of the Indenture Trustee or the Agency Office of the
Owner Trustee (and following the delivery, in the former case, of such Notes to
the Owner Trustee by the Indenture Trustee), the Owner Trustee shall execute,
the Indenture Trustee shall authenticate and the Noteholder shall obtain from
the Indenture Trustee, in the name of the designated transferee or transferees,
one or more new Notes in any authorized denominations, of a like aggregate
principal amount.
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(d) At the option of the Noteholder, Notes may be exchanged for other
Notes of the same class in any authorized denominations, of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at the Corporate
Trust Office of the Indenture Trustee or the Agency Office of the Owner Trustee
(and following the delivery, in the former case, of such Notes to the Owner
Trustee by the Indenture Trustee), the Owner Trustee shall execute, and the
Indenture Trustee shall authenticate and the Noteholder shall obtain from the
Indenture Trustee, the Notes which the Noteholder making the exchange is
entitled to receive.
(e) All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Owner Trustee, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed by, or be accompanied by a written instrument
of transfer in form satisfactory to the Indenture Trustee and the Note
Registrar, duly executed by the Holder thereof or such Holder's attorney duly
authorized in writing, with such signature guaranteed by a commercial bank or
trust company located, or having a correspondent located, in the City of New
York or the city in which the Corporate Trust Office of the Indenture Trustee is
located, or by a member firm of a national securities exchange, and such other
documents as the Indenture Trustee may require.
(g) No service charge shall be made to a Holder for any registration
of transfer or exchange of Notes, but the Owner Trustee or Indenture Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Sections 2.3 or 9.6 not
involving any transfer.
(h) The preceding provisions of this Section 2.4 notwithstanding, the
Owner Trustee shall not be required to transfer or make exchanges, and the Note
Registrar need not register transfers or exchanges, of Notes that: (i) have
been selected for redemption pursuant to Article X, if applicable; or (ii) are
due for repayment in full within 15 days of surrender to the Corporate Trust
Office or the Agency Office.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes.
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(a) If (i) any mutilated Note is surrendered to the Indenture
Trustee, or the Indenture Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered to the
Indenture Trustee such security or indemnity as may be required by it to hold
the Owner Trustee and the Indenture Trustee harmless, then, in the absence of
notice to the Owner Trustee, the Note Registrar or the Indenture Trustee that
such Note has been acquired by a bona fide purchaser, the Owner Trustee shall
execute and upon the Owner Trustee's request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note of a like class and aggregate
principal amount; provided, however, that if any such destroyed, lost or stolen
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Note, but not a mutilated Note, shall
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have become or within seven days shall be due and payable in full, or shall have
been called for redemption, instead of issuing a replacement Note, the Owner
Trustee may make payment to the Holder of such destroyed, lost or stolen Note
when so due or payable or upon the Redemption Date, if applicable, without
surrender thereof.
(b) If, after the delivery of a replacement Note or payment in
respect of a destroyed, lost or stolen Note pursuant to subsection (a), any bona
fide purchaser of the original Note in lieu of which such replacement Note was
issued presents for payment such original Note, the Owner Trustee and the
Indenture Trustee shall be entitled to recover such replacement Note (or such
payment) from (i) any Person to whom it was delivered, (ii) the Person taking
such replacement Note from the Person to whom such replacement Note was
delivered or (iii) any assignee of such Person, except any bona fide purchaser,
and the Owner Trustee and the Indenture Trustee shall be entitled to recover
upon the security or indemnity provided therefor to the extent of any loss,
damage, cost or expense incurred by the Owner Trustee or the Indenture Trustee
in connection therewith.
(c) In connection with the issuance of any replacement Note under
this Section 2.5, the Owner Trustee may require the payment by the Holder of
such Note of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other reasonable expenses (including
all fees and expenses of the Indenture Trustee) connected therewith.
(d) Any duplicate Note issued pursuant to this Section 2.5 in
replacement for any mutilated, destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Owner Trustee, whether or
not the mutilated, destroyed, lost or stolen Note shall be found at any time or
be enforced by any Person, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.
(e) The provisions of this Section 2.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 Persons Deemed Noteholders. Prior to due presentment
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for registration of transfer of any Note, the Owner Trustee, the Indenture
Trustee and any of their agents may treat the Person in whose name any Note is
registered (as of the day of determination) as the Noteholder for the purpose of
receiving payments of principal of and interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and neither the Owner
Trustee, the Indenture Trustee nor any agent of the Owner Trustee or the
Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.7 Payment of Principal and Interest.
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(a) Interest on the Class A-1 Notes shall accrue in the manner set
forth in Exhibit B at the applicable Interest Rate for such class, and such
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interest shall be payable on each Distribution Date, in accordance with the
priorities set forth in Section 8.2(c), as specified in the form of Note set
forth in Exhibit B. Interest on the Class A-2 Notes, the Class A-3 Notes, the
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Class
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A-4 Notes and the Class B Notes shall accrue in the manner set forth in Exhibit
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C at the applicable Interest Rate for such class, and shall be payable on each
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Distribution Date, in accordance with the priorities set forth in Section
8.2(c), as specified in the form of Note set forth in Exhibit C. Any instalment
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of interest payable on any Note shall be punctually paid or duly provided for by
a deposit by or at the direction of the Owner Trustee or the Servicer into the
Note Distribution Account before each Distribution Date for payment to
Noteholders on the related Distribution Date and shall be paid to the Person in
whose name such Note (or one or more Predecessor Notes) is registered on the
applicable Record Date, by check mailed first-class, postage prepaid to such
Person's address as it appears on the Note Register on such Record Date;
provided, however, that, unless and until Definitive Notes have been issued
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pursuant to Section 2.12, with respect to Notes registered on the applicable
Record Date in the name of the Note Depository (initially, Cede & Co.), payment
shall be made by wire transfer in immediately available funds to the account
designated by the Note Depository.
(b) Prior to the occurrence of an Event of Default and a declaration
in accordance with Section 5.2(a) that the Notes have become immediately due and
payable, the principal of each class of Notes shall be payable in full on the
Final Scheduled Distribution Date for such class and, to the extent of funds
available therefor, in instalments on the Distribution Dates (if any) preceding
the Final Scheduled Distribution Date for such class, in the amounts and in
accordance with the priorities set forth in Section 8.2(c)(ii) or (iii), as
applicable, and, if applicable, Section 8.2(d). All principal payments on each
class of Notes shall be made pro rata to the Noteholders of such class entitled
thereto. Any instalment of principal payable on any Note shall be punctually
paid or duly provided for by a deposit by the Indenture Trustee in accordance
with the provisions of the Pooling and Servicing Agreement into the Note
Distribution Account prior to the applicable Distribution Date and shall be paid
to the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the applicable Record Date, by check mailed first-class, postage
prepaid to such Person's address as it appears on the Note Register on such
Record Date; provided, however, that, unless and until Definitive Notes have
-------- -------
been issued pursuant to Section 2.12, with respect to Notes registered on the
Record Date in the name of the Note Depository, payment shall be made by wire
transfer in immediately available funds to the account designated by the Note
Depository, except for: (i) the final instalment of principal on any Note; and
(ii) the Redemption Price for the Notes redeemed pursuant to Section 10.1,
which, in each case, shall be payable as provided herein. The funds represented
by any such checks in respect of interest or principal returned undelivered
shall be held in accordance with Section 3.3.
(c) [Reserved.]
(d) From and after the occurrence of an Event of Default and a
declaration in accordance with Section 5.2(a) that the Notes have become
immediately due and payable, principal on the Notes shall be payable as provided
in Section 8.2(c) (iv) or (v), as applicable and, if applicable, Section 8.2(d).
(e) With respect to any Distribution Date on which the final
instalment of principal and interest on a class of Notes is to be paid, the
Indenture Trustee shall notify each
8
Noteholder of such class of record as of the Record Date for such Distribution
Date of the fact that the final instalment of principal of and interest on such
Note is to be paid on such Distribution Date. Such notice shall be sent (i) on
such Record Date by facsimile, if Book-Entry Notes are outstanding; or (ii) not
later than three Business Days after such Record Date in accordance with Section
11.5(a) if Definitive Notes are outstanding, and shall specify that such final
instalment shall be payable only upon presentation and surrender of such Note
and shall specify the place where such Note may be presented and surrendered for
payment of such instalment and the manner in which such payment shall be made.
Notices in connection with redemptions of Notes shall be mailed to Noteholders
as provided in Section 10.2. Within sixty days of the surrender pursuant to this
Section 2.7(e) or cancellation pursuant to Section 2.8 of all of the Notes of a
particular class, the Indenture Trustee shall provide each of the Rating
Agencies with written notice stating that all Notes of such class have been
surrendered or canceled.
SECTION 2.8 Cancellation of Notes. All Notes surrendered for
---------------------
payment, redemption, exchange or registration of transfer shall, if surrendered
to any Person other than the Indenture Trustee, be delivered to the Indenture
Trustee and shall be promptly canceled by the Indenture Trustee. The Owner
Trustee may at any time deliver to the Indenture Trustee for cancellation any
Notes previously authenticated and delivered hereunder which the Owner Trustee
may have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly canceled by the Indenture Trustee. No Notes shall be authenticated in
lieu of or in exchange for any Notes canceled as provided in this Section 2.8,
except as expressly permitted by this Indenture. All canceled Notes may be held
or disposed of by the Indenture Trustee in accordance with its standard
retention or disposal policy as in effect at the time unless the Owner Trustee
shall direct by an Issuer Order that they be returned to it; provided, however,
-------- -------
that such Issuer Order is timely and the Notes have not been previously disposed
of by the Indenture Trustee. The Indenture Trustee shall certify to the Owner
Trustee that surrendered Notes have been duly canceled and retained or
destroyed, as the case may be.
SECTION 2.9 Release of Collateral. The Indenture Trustee shall
---------------------
release property from the lien of this Indenture, other than as permitted by
Sections 3.21, 8.2, 8.4 and 11.1, only upon receipt of an Issuer Request
accompanied by an Officers' Certificate, an Opinion of Counsel (to the extent
required by the TIA) and Independent Certificates in accordance with TIA
(S)(S)314(c) and 314(d)(1).
SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance,
----------------
shall be issued in the form of a typewritten Note or Notes representing the
Book-Entry Notes, to be delivered to The Depository Trust Company, the initial
Clearing Agency by or on behalf of the Owner Trustee. Such Note or Notes shall
be registered on the Note Register in the name of the Note Depository
(initially, Cede & Co.), and no Note Owner shall receive a Definitive Note
representing such Note Owner's interest in such Note, except as provided in
Section 2.12. Unless and until Definitive Notes have been issued to the Note
Owners pursuant to Section 2.12:
(a) the provisions of this Section 2.10 shall be in full force
and effect;
9
(b) the Note Registrar and the Indenture Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Indenture (including the payment of principal of and interest on the Notes
and the giving of instructions or directions hereunder) as the sole holder
of the Notes and shall have no obligation to the Note Owners;
(c) to the extent that the provisions of this Section 2.10
conflict with any other provisions of this Indenture, the provisions of
this Section 2.10 shall control;
(d) the rights of the Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Note Owners and the Clearing Agency and/or
the Clearing Agency Participants and unless and until Definitive Notes are
issued pursuant to Section 2.12, the initial Clearing Agency shall make
book-entry transfers between the Clearing Agency Participants and receive
and transmit payments of principal of and interest on the Notes to such
Clearing Agency Participants, pursuant to the Note Depository Agreement;
and
(e) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of Notes evidencing
a specified percentage of the Outstanding Amount of the Voting Notes, the
Clearing Agency shall be deemed to represent such percentage only to the
extent that it has (i) received written instructions to such effect from
Note Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the
Notes and (ii) has delivered such instructions to the Indenture Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
--------------------------
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Note Owners pursuant to Section
2.12, the Indenture Trustee shall give all such notices and communications
specified herein to be given to Noteholders to the Clearing Agency and shall
have no other obligation to the Note Owners.
SECTION 2.12 Definitive Notes.
----------------
If (i) the Administrator advises the Indenture Trustee in writing that
the Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Notes and the Owner Trustee is unable to
locate a qualified successor; (ii) the Administrator, at its option, advises the
Indenture Trustee in writing that it elects to terminate the book-entry system
through the Clearing Agency; or (iii) after the occurrence of an Event of
Default or a Servicer Default, Note Owners representing beneficial interests
aggregating at least a majority of the Outstanding Amount of the Voting Notes
advise the Clearing Agency in writing that the continuation of a book-entry
system through the Clearing Agency is no longer in the best interests of the
Note Owners, then the Clearing Agency shall notify all Note Owners and the
Indenture Trustee of the occurrence of any such event and of the availability of
Definitive Notes to Note Owners requesting the same. Upon surrender to the
Indenture Trustee of the typewritten Note or Notes representing the Book-Entry
Notes by the Clearing Agency, accompanied by registration instructions, the
Owner Trustee shall
10
execute and the Indenture Trustee shall authenticate the Definitive Notes in
accordance with the instructions of the Clearing Agency. None of the Owner
Trustee, the Note Registrar or the Indenture Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Notes, the Indenture Trustee shall recognize the Holders of the Definitive Notes
as Noteholders.
SECTION 2.13 Seller as Noteholder. The Seller in its individual or
--------------------
any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Owner Trustee or its affiliates with the same rights it would have
if it were not the Seller.
SECTION 2.14 Tax Treatment. The Owner Trustee in entering into this
-------------
Indenture, and the Noteholders and the Note Owners, by acquiring any Note or
interest therein, (i) express their intention that the Notes qualify under
applicable tax law as indebtedness secured by the Collateral, and (ii) unless
otherwise required by appropriate taxing authorities, agree to treat the Notes
as indebtedness secured by the Collateral for the purpose of federal income
taxes, state and local income and franchise taxes, and any other taxes imposed
upon, measured by or based upon gross or net income.
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest. The Owner Trustee
---------------------------------
shall duly and punctually pay the principal of and interest on the Notes in
accordance with the terms of the Notes and this Indenture. On each Distribution
Date and on the Redemption Date (if applicable), the Indenture Trustee shall
distribute amounts on deposit in the Note Distribution Account to the
Noteholders in accordance with Sections 2.7 and 8.2, less amounts properly
withheld under the Code by any Person from a payment to any Noteholder of
interest and/or principal. Any amounts so withheld shall be considered as having
been paid by the Owner Trustee to such Noteholder for all purposes of this
Indenture.
SECTION 3.2 Maintenance of Agency Office. As long as any of the
----------------------------
Notes remains outstanding, the Owner Trustee shall maintain in the Borough of
Manhattan, the City of New York, an office (the "Agency Office"), being an
office or agency where Notes may be surrendered to the Owner Trustee for
registration of transfer or exchange, and where notices and demands to or upon
the Owner Trustee in respect of the Notes and this Indenture may be served. The
Owner Trustee hereby initially appoints the Indenture Trustee to serve as its
agent for the foregoing purposes. The Owner Trustee shall give prompt written
notice to the Indenture Trustee of the location, and of any change in the
location, of the Agency Office. If at any time the Owner Trustee shall fail to
maintain any such office or agency or shall fail to furnish the Indenture
Trustee with the address thereof, such surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Indenture Trustee, and the
Owner Trustee hereby appoints the Indenture Trustee as its agent to receive all
such surrenders, notices and demands.
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SECTION 3.3 Money for Payments To Be Held in Trust.
--------------------------------------
(a) As provided in Section 8.2, all payments of amounts due and
payable with respect to any Notes that are to be made from amounts withdrawn
from the Note Distribution Account pursuant to Section 8.2(c), (d) or (e) shall
be made on behalf of the Owner Trustee by the Indenture Trustee or by another
Paying Agent, and no amounts so withdrawn from the Note Distribution Account for
payments of Notes shall be paid over to the Owner Trustee except as provided in
this Section 3.3.
(b) Before each Distribution Date or the Redemption Date (if
applicable), the Indenture Trustee shall deposit in the Note Distribution
Account an aggregate sum sufficient to pay the amounts then becoming due with
respect to the Notes, such sum to be held in trust for the benefit of the
Persons entitled thereto.
(c) The Owner Trustee shall cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an instrument
in which such Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the
provisions of this Section 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and pay such sums
to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the Owner
Trustee (or any other obligor upon the Notes) of which it has
actual knowledge in the making of any payment required to be
made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon
the written request of the Indenture Trustee, forthwith pay to
the Indenture Trustee all sums so held in trust by such Paying
Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment
of Notes if at any time it ceases to meet the standards
required to be met by a Paying Agent in effect at the time of
determination; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect
to any applicable reporting requirements in connection
therewith.
(d) The Owner Trustee 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
12
Paying Agent to pay to the Indenture Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts
as those upon which the sums were held by such Paying Agent; and upon such
payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
(e) Subject to applicable laws with respect to escheat of funds, any
money held by the Indenture Trustee or any Paying Agent in trust for the payment
of any amount due with respect to any Note and remaining unclaimed for one year
after such amount has become due and payable shall be discharged from such trust
and be paid by the Indenture Trustee to the Owner Trustee on Issuer Request; and
the Holder of such Note shall thereafter, as an unsecured general creditor, look
only to the Owner Trustee for payment thereof (but only to the extent of the
amounts so paid to the Owner Trustee), and all liability of the Indenture
Trustee or such Paying Agent with respect to such trust money shall thereupon
cease; provided, however, that the Indenture Trustee or such Paying Agent,
-------- -------
before being required to make any such payment, may at the expense of the Owner
Trustee cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
shall be paid to the Owner Trustee. The Indenture Trustee may also adopt and
employ, at the expense of the Owner Trustee, any other reasonable means of
notification of such payment (including, but not limited to, mailing notice of
such payment to Holders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in monies due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
SECTION 3.4 Existence. The Owner Trustee shall keep in full effect
---------
its existence, rights and franchises as a national bank (unless it becomes, or
any successor Owner Trustee hereunder is or becomes, organized under the laws of
any other State or of the United States of America, in which case it shall keep
in full effect its existence, rights and franchises under the laws of such other
jurisdiction) and shall obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Notes, the
Collateral and each other instrument or agreement included in the Trust Estate.
SECTION 3.5 Protection of Trust Estate; Acknowledgment of Pledge.
----------------------------------------------------
The Owner Trustee shall from time to time execute and deliver all such
supplements and amendments hereto and all such financing statements, amendments
thereto, continuation statements, assignments, certificates, instruments of
further assurance and other instruments, and shall take such other action as may
be determined to be necessary or advisable in an Opinion of Counsel to the Owner
Trustee delivered to the Indenture Trustee to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the purposes
hereof including by making the necessary filings of financing statements or
amendments thereto within sixty days after the occurrence of any of the
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following: (A) any change in the Owner Trustee's (or its successor's) name, (B)
any change in the location of the Owner Trustee's (or its successor's) principal
place of business and (C) any merger or consolidation or other change in the
Owner Trustee's identity or organizational structure and by promptly notifying
the Indenture Trustee of any such filings;
(ii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(iii) enforce the rights of the Indenture Trustee and the Noteholders
in any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and the rights of
the Indenture Trustee and the Noteholders in such Trust Estate against the
claims of all Persons and parties, and the Owner Trustee hereby designates the
Indenture Trustee its agent and attorney-in-fact to execute any financing
statement, continuation statement or other instrument required by the Indenture
Trustee pursuant to this Section 3.5.
SECTION 3.6 Opinions as to Trust Estate.
---------------------------
(a) On the Closing Date, the Owner Trustee shall furnish to the
Indenture Trustee an Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the recording and
filing of this Indenture, any indentures supplemental hereto and any other
requisite documents, and with respect to the execution and filing of any
financing statements and continuation statements as are necessary to perfect and
make effective the lien and security interest of this Indenture and reciting the
details of such action, or stating that, in the opinion of such counsel, no such
action is necessary to make such lien and security interest effective.
(b) On or before April 15 in each calendar year, beginning April 15,
2002, the Owner Trustee shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, re-recording and refiling of
this Indenture, any indentures supplemental hereto and any other requisite
documents and with respect to the execution and filing of any financing
statements and continuation statements as is necessary to maintain the lien and
security interest created by this Indenture and reciting the details of such
action or stating that in the opinion of such counsel no such action is
necessary to maintain the lien and security interest created by this Indenture.
Such Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and the execution and filing of any financing statements and
continuation statements that will, in the opinion of such counsel, be required
to maintain the lien and security interest of this Indenture until April 15 in
the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Receivables.
----------------------------------------------------
(a) The Owner Trustee shall not take any action and shall use its
reasonable efforts not to permit any action to be taken by others that would
release any Person from any of such
14
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
otherwise expressly provided in this Indenture, the Pooling and Servicing
Agreement, the Purchase Agreement, the Administration Agreement or such other
instrument or agreement.
(b) The Owner Trustee may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in the Basic Documents or an
Officers' Certificate of the Owner Trustee shall be deemed to be action taken by
the Owner Trustee. Initially, the Owner Trustee has contracted with the
Servicer and the Administrator to assist the Owner Trustee in performing its
duties under this Indenture.
(c) The Owner Trustee shall punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents and
in the instruments and agreements included in the Trust Estate, including but
not limited to filing or causing to be filed all UCC financing statements and
continuation statements required to be filed under the terms of this Indenture,
the Pooling and Servicing Agreement and the Purchase Agreement in accordance
with and within the time periods provided for herein and therein.
(d) If the Owner Trustee shall have knowledge of the occurrence of a
Servicer Default under the Pooling and Servicing Agreement, the Owner Trustee
shall promptly notify the Indenture Trustee and the Rating Agencies thereof, and
shall specify in such notice the response or action, if any, the Owner Trustee
has taken or is taking with respect of such default. If a Servicer Default
shall arise from the failure of the Servicer to perform any of its duties or
obligations under the Pooling and Servicing Agreement with respect to the
Receivables, the Owner Trustee and the Indenture Trustee shall take all
reasonable steps available to them pursuant to the Pooling and Servicing
Agreement to remedy such failure.
(e) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Owner Trustee agrees that it shall not, without
the prior written consent of the Indenture Trustee or the Holders of at least a
majority in Outstanding Amount of the Voting Notes, as applicable in accordance
with the terms thereof, amend, modify, waive, supplement, terminate or
surrender, or agree to any amendment, modification, supplement, termination,
waiver or surrender of, the terms of any Collateral or any of the Basic
Documents, or waive timely performance or observance by the Servicer or the
Seller under the Pooling and Servicing Agreement or the Purchase Agreement, the
Administrator under the Administration Agreement or NFC under the Purchase
Agreement; provided, however, that, notwithstanding the foregoing, no action
-------- -------
specified in the proviso to Section 9.2(a) shall be taken except in compliance
-------
with Section 9.2. If any such amendment, modification, supplement or waiver
shall be so consented to by the Indenture Trustee or such Holders, as
applicable, the Owner Trustee agrees, promptly following a request by the
Indenture Trustee to do so, to execute and deliver, in its own name and at its
own expense, such agreements, instruments,
15
consents and other documents as the Indenture Trustee may deem necessary or
appropriate in the circumstances.
SECTION 3.8 Negative Covenants. So long as any Notes are
------------------
Outstanding, the Owner Trustee shall not:
(a) sell, transfer, exchange or otherwise dispose of any of the
properties or assets of the Owner Trust Estate, except the Owner Trustee may (i)
collect, liquidate, sell or otherwise dispose of Receivables (including Warranty
Receivables, Administrative Receivables and Liquidating Receivables), (ii) make
cash payments out of the Designated Accounts and the Certificate Distribution
Account and (iii) take other actions, in each case as contemplated by the Basic
Documents;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of the Notes (other than amounts properly withheld
from such payments under the Code or applicable state law) or assert any claim
against any present or former Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Trust Estate;
(c) voluntarily commence any insolvency, readjustment of debt,
marshaling of assets and liabilities or other proceeding, or apply for an order
by a court or agency or supervisory authority for the winding-up or liquidation
of its affairs or any other event specified in Section 5.1(f); or
(d) either (i) permit the validity or effectiveness of this Indenture
to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (ii) permit any lien,
charge, excise, claim, security interest, mortgage or other encumbrance (other
than the lien of this Indenture) to be created on or extend to or otherwise
arise upon or burden the Trust Estate or any part thereof or any interest
therein or the proceeds thereof (other than tax liens, mechanics' liens and
other liens that arise by operation of law, in each case on a Financed Vehicle
and arising solely as a result of an action or omission of the related Obligor),
or (iii) permit the lien of this Indenture not to constitute a valid first
priority security interest in the Trust Estate (other than with respect to any
such tax, mechanics' or other lien).
SECTION 3.9 Annual Statement as to Compliance. The Owner Trustee
---------------------------------
shall deliver to the Indenture Trustee, with a copy to each of the Rating
Agencies, on or before February 1 of each year, beginning February 1, 2002, an
Officer's Certificate signed by an Authorized Officer, dated as of the
immediately preceding October 31, stating that:
(a) a review of the activities of the Trust during such fiscal year
and of performance by the Owner Trustee under this Indenture has been made under
such Authorized Officer's supervision; and
16
(b) to the best of such Authorized Officer's knowledge, based on such
review, the Owner Trustee has fulfilled in all material respects all of its
obligations under this Indenture throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such Authorized Officer and the nature and status thereof. A copy of
such certificate may be obtained by any Noteholder by a request in writing to
the Owner Trustee addressed to the Corporate Trust Office of the Indenture
Trustee.
SECTION 3.10 Consolidation, Merger, etc., of Owner Trustee;
----------------------------------------------
Disposition of Trust Assets. The Owner Trustee may be merged with or into or
---------------------------
consolidated with another Person provided that such merger or consolidation
complies with the requirements of Section 6.11 of the Trust Agreement and the
surviving entity is eligible as the Owner Trustee under Section 6.13 of the
Trust Agreement.
SECTION 3.11 Successor or Transferee.
-----------------------
(a) Upon any consolidation or merger of the Owner Trustee in
accordance with Section 3.10, the Person formed by or surviving such
consolidation or merger (if other than the Owner Trustee) shall succeed to, and
be substituted for, and may exercise every right and power of, the Owner Trustee
under this Indenture with the same effect as if such Person had been named as
the Owner Trustee herein.
(b) Upon the appointment of a successor trustee as Owner Trustee
under the Trust Agreement, such successor Owner Trustee shall succeed to, and be
substituted for, and may exercise every right and power of, the Owner Trustee
under this Indenture with the same effect as if such Person had been named as
the Owner Trustee herein.
SECTION 3.12 No Other Business. The Owner Trustee shall not engage
-----------------
in any business or activity other than acquiring, holding and managing the
Collateral and the proceeds therefrom in the manner contemplated by the Basic
Documents, issuing the Securities, making payments on the Securities and such
other activities that are necessary, suitable, desirable or convenient to
accomplish the foregoing or are incidental thereto, as set forth in Section 2.3
of the Trust Agreement. After the end of the Funding Period, the Owner Trustee
shall not fund the purchase of any new Retail Notes.
SECTION 3.13 No Borrowing. The Owner Trustee shall not issue,
------------
incur, assume, guarantee or otherwise become liable, directly or indirectly, for
any indebtedness for money borrowed other than indebtedness for money borrowed
in respect of the Notes or in accordance with the Basic Documents.
SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities.
-------------------------------------------------
Except as contemplated by this Indenture or the other Basic Documents, the Owner
Trustee 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
17
with the obligations, stocks or dividends of, or own, purchase, repurchase or
acquire (or agree contingently to do so) any stock, obligations, assets or
securities of, or any other interest in, or make any capital contribution to,
any other Person.
SECTION 3.15 Servicer's Obligations. The Owner Trustee shall use
----------------------
its best efforts to cause the Servicer to comply with its obligations under
Sections 3.10, 4.01 and 4.02 of the Pooling and Servicing Agreement.
SECTION 3.16 Capital Expenditures. The Owner Trustee shall not make
--------------------
any expenditure of the funds of the Owner Trust Estate (whether by long-term or
operating lease or otherwise) for capital assets (either real, personal or
intangible property) other than the purchase of the Receivables and other
property and rights from the Seller pursuant to the Pooling and Servicing
Agreement.
SECTION 3.17 Removal of Administrator. So long as any Notes are
------------------------
Outstanding, the Owner Trustee shall not remove the Administrator without cause
unless the Rating Agency Condition for each class of Notes then outstanding
shall have been satisfied in connection with such removal.
SECTION 3.18 Restricted Payments. Except for payments of principal
-------------------
or interest on or redemption of the Notes, so long as any Notes are Outstanding,
the Owner Trustee shall not, directly or indirectly:
(a) pay any dividend or make any distribution (by reduction of
capital or other wise), whether in cash, property, securities or a combination
thereof, to any owner of a beneficial interest in the Trust or otherwise, in
each case with respect to any ownership or equity interest or similar security
in or of the Trust or to the Servicer;
(b) redeem, purchase, retire or otherwise acquire for value any such
ownership or equity interest or similar security; or
(c) set aside or otherwise segregate any amounts for any such
purpose;
provided, however, that the Owner Trustee may make, or cause to be made,
-------- -------
distributions to the Servicer, the Seller, the Indenture Trustee, the Owner
Trustee and the Certificateholders as permitted by, and to the extent funds are
available for such purpose under, the Pooling and Servicing Agreement, the Trust
Agreement or the other Basic Documents. The Owner Trustee shall not, directly
or indirectly, make payments to or distributions from the Collection Account
except in accordance with the Basic Documents.
SECTION 3.19 Notice of Events of Default. The Owner Trustee agrees
---------------------------
to give the Indenture Trustee and the Rating Agencies prompt written notice of
each Event of Default hereunder, each Servicer Default, each default on the part
of the Seller of its obligations under the
18
Pooling and Servicing Agreement and each default on the part of NFC of its
obligations under the Purchase Agreement.
SECTION 3.20 Further Instruments and Acts. Upon request of the
----------------------------
Indenture Trustee, the Owner Trustee shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Indenture.
SECTION 3.21 Indenture Trustee's Assignment of Administrative
------------------------------------------------
Receivables and Warranty Receivables. Upon receipt of the Administrative
------------------------------------
Purchase Payment or the Warranty Payment with respect to an Administrative
Receivable or a Warranty Receivable, as the case may be, the Indenture Trustee
shall release to the Servicer or the Warranty Purchaser, as applicable, all of
the Indenture Trustee's right, title and interest in and to such repurchased
Receivable, all monies due thereon, the security interest in the related
Financed Vehicle or Financed Vehicles and any accessions thereto, the benefit of
any lease assignment with respect to the related Financed Vehicle or Financed
Vehicles, proceeds arising thereafter from any Insurance Policies with respect
to such Receivable, proceeds arising thereafter from any Dealer Liability on
such Receivable, proceeds arising thereafter of International Purchase
Obligations with respect to such Receivable, proceeds arising thereafter of any
Guaranties with respect to such Receivable and the interests of the Indenture
Trustee in certain rebates of premiums and other amounts relating to the
Insurance Policies and any documents relating thereto, and the Servicer or the
Warranty Purchaser, as applicable, shall thereupon own such Receivable, and all
such security and documents, free of any further obligation to the Indenture
Trustee or the Noteholders with respect thereto. If in any enforcement suit or
legal proceeding it is held that the Servicer may not enforce a Receivable on
the ground that it is not a real party in interest or a holder entitled to
enforce such Receivable, the Indenture Trustee shall, at the Servicer's expense,
take such steps as the Servicer deems necessary to enforce the Receivable,
including bringing suit in the Indenture Trustee's name or the names of the
Securityholders.
SECTION 3.22 Representations and Warranties by the Owner Trustee to
------------------------------------------------------
the Indenture Trustee. The Owner Trustee (not in its individual capacity, but
---------------------
solely as trustee under the Trust Agreement) hereby represents and warrants to
the Indenture Trustee as follows:
(a) Good Title. No Receivable has been sold, transferred, assigned or
----------
pledged by the Owner Trustee to any Person other than the Indenture Trustee;
immediately prior to the conveyance of the Receivables pursuant to this
Indenture, the Owner Trustee had good and marketable title thereto, free of any
Lien (except for any Lien which may exist in accessions to the Financed Vehicles
not financed by NFC); and, upon execution and delivery of this Indenture by the
Owner Trustee, the Indenture Trustee shall have all of the right, title and
interest of the Owner Trustee in, to and under the Collateral, free of any Lien
(except for any Lien which may exist in accessions to the Financed Vehicles not
financed by NFC); and
(b) All Filings Made. All filings necessary under the UCC in any
----------------
jurisdiction to give the Indenture Trustee a first priority perfected security
interest in the Receivables and, to the
19
extent constituting Code Collateral, the other Collateral shall have been made.
The Receivables constitute Code Collateral.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall cease to be of further effect with respect to the Notes except as to: (i)
rights of registration of transfer and exchange; (ii) substitution of mutilated,
destroyed, lost or stolen Notes; (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon; (iv) Sections 3.2, 3.3, 3.4, 3.5,
3.8, 3.10, 3.11, 3.12, 3.13, 3.14, 3.16, 3.19 and 3.21; (v) the rights,
obligations and immunities of the Indenture Trustee hereunder (including the
rights of the Indenture Trustee under Section 6.7 and the obligations of the
Indenture Trustee under Sections 4.2 and 4.4); and (vi) the rights of
Noteholders as beneficiaries hereof with respect to the property so deposited
with the Indenture Trustee payable to all or any of them, and the Indenture
Trustee, on demand of and at the expense of the Owner Trustee from the Owner
Trust Estate, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes, if:
(a) either:
(1) all Notes theretofore authenticated and delivered
(other than (A) Notes that have been destroyed, lost or stolen and
that have been replaced or paid as provided in Section 2.5 and (B)
Notes for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Owner Trustee and thereafter
repaid to the Owner Trustee or discharged from such trust, as provided
in Section 3.3) have been delivered to the Indenture Trustee for
cancellation; or
(2) all Notes not theretofore delivered to the Indenture
Trustee for cancellation:
(A) have become due and payable,
(B) will be due and payable on their respective Final
Scheduled Distribution Dates within one year, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Indenture Trustee for the
giving of notice of redemption by the Indenture Trustee in the
name, and at the expense, of the Owner Trustee from the Owner
Trust Estate,
and the Owner Trustee, in the case of (A), (B) or (C) of subsection 4.1(a)(2)
above, has irrevocably deposited or caused to be irrevocably deposited with the
Indenture Trustee cash or direct obligations of or obligations guaranteed by the
United States of America (which will mature prior to the date
20
such amounts are payable), in trust for such purpose, in an amount sufficient to
pay and discharge the entire unpaid principal and accrued interest on such Notes
not theretofore delivered to the Indenture Trustee for cancellation when due on
the Final Scheduled Distribution Date for such Notes or the Redemption Date for
such Notes (if such Notes are to be called for redemption pursuant to Section
10.1(a)), as the case may be;
(b) the Owner Trustee has paid or caused to be paid all other sums
payable hereunder by the Owner Trustee; and
(c) the Owner Trustee has delivered to the Indenture Trustee an
Officer's Certificate of the Owner Trustee, an Opinion of Counsel and (if
required by the TIA or the Indenture Trustee) an Independent Certificate from a
firm of certified public accountants, each meeting the applicable requirements
of Section 11.1(a) and each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
SECTION 4.2 Application of Trust Money. All monies deposited with
--------------------------
the Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied
by it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Holders of the particular Notes for the payment or
redemption of which such monies have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest; but such
monies need not be segregated from other funds except to the extent required
herein or in the Pooling and Servicing Agreement or by applicable law.
SECTION 4.3 Repayment of Monies Held by Paying Agent. In connection
----------------------------------------
with the satisfaction and discharge of this Indenture with respect to each class
of Notes, all monies then held by any Paying Agent other than the Indenture
Trustee under the provisions of this Indenture with respect to each such class
of Notes shall, upon demand of the Owner Trustee, be paid to the Indenture
Trustee to be held and applied according to Section 3.3 and thereupon such
Paying Agent shall be released from all further liability with respect to such
monies.
SECTION 4.4 Duration of Position of Indenture Trustee for Benefit
-----------------------------------------------------
of Certificateholders. Notwithstanding (i) the earlier payment in full of all
---------------------
principal and interest due to the Noteholders under the terms of Notes of each
class, (ii) the cancellation of such Notes pursuant to Section 2.8 and (iii) the
discharge of the Indenture Trustee's duties hereunder with respect to such
Notes, the Indenture Trustee shall continue to act in the capacity as Indenture
Trustee hereunder for the benefit of the Certificateholders and the Indenture
Trustee, for the benefit of the Certificateholders, shall comply with its
obligations under Sections 5.01, 8.02 and 8.03 of the Pooling and Servicing
Agreement, as appropriate, until such time as all distributions in respect of
the Certificates have been paid in full.
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ARTICLE V
DEFAULT AND REMEDIES
SECTION 5.1 Events of Default. For the purposes of this Indenture,
-----------------
"Event of Default" wherever used herein, means any one of the following events:
(a) failure to pay any interest on any Note as and when the same
becomes due and payable, and such default shall continue unremedied for a period
of five (5) days; or
(b) except as set forth in Section 5.1(c), failure to pay any
instalment of the principal of any Note as and when the same becomes due and
payable, and such default shall continue unremedied for a period of thirty (30)
days after there shall have been given, by registered or certified mail, to the
Owner Trustee and the Seller (or the Servicer, as applicable) by the Indenture
Trustee or to the Owner Trustee and the Seller (or the Servicer, as applicable)
and the Indenture Trustee by the Holders of at least 25% of the Outstanding
Amount of the Voting Notes, a written notice specifying such default, demanding
that it be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(c) failure to pay in full the outstanding principal balance of any
class of Notes by the Final Scheduled Distribution Date for such class; or
(d) default in the observance or performance in any material respect
of any covenant or agreement of the Owner Trustee made in this Indenture (other
than a covenant or agreement, a default in the observance or performance of
which is specifically dealt with elsewhere in this Section 5.1) which failure
materially and adversely affects the rights of the Noteholders, and such default
shall continue or not be cured for a period of thirty (30) days after there
shall have been given, by registered or certified mail, to the Owner Trustee and
the Seller (or the Servicer, as applicable) by the Indenture Trustee or to the
Owner Trustee and the Seller (or the Servicer, as applicable) and the Indenture
Trustee by the Holders of at least 25% of the Outstanding Amount of the Voting
Notes, a written notice specifying such default, demanding that it be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(e) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Trust or the Owner Trust Estate
or any substantial part of the Owner Trust Estate in an involuntary case under
any applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Trust or the Owner
Trust Estate (other than as Owner Trustee) or for any substantial part of the
Trust Estate, or ordering the winding-up or liquidation of the Trust's affairs,
and such decree or order shall remain unstayed and in effect for a period of
sixty (60) consecutive days; or
(f) the commencement by the Owner Trustee, on behalf of the Trust, of
a voluntary case under any applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by the Owner
Trustee, on behalf of the Trust, to the entry of an
22
order for relief in an involuntary case under any such law, or the consent by
the Owner Trustee, on behalf of the Trust, to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of the Trust or Owner Trust Estate or for any substantial
part of the Owner Trust Estate, or the making by the Owner Trustee, on behalf of
the Trust, of any general assignment of the Owner Trust Estate for the benefit
of creditors, or the failure by the Owner Trustee generally to pay the debts of
the Trust from the Owner Trust Estate as such debts become due, or the taking of
action by the Owner Trustee in furtherance of any of the foregoing.
The Owner Trustee shall deliver to the Indenture Trustee, within five (5)
Business Days after learning of the occurrence thereof, written notice in the
form of an Officer's Certificate of any Default under Section 5.1(d), its status
and what action the Owner Trustee is taking or proposes to take with respect
thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
(a) If an Event of Default should occur and be continuing, then and
in every such case, unless the principal amount of the Notes shall have already
become due and payable, either the Indenture Trustee or the Holders of Notes
representing not less than a majority of the Outstanding Amount of the Voting
Notes may declare all the Notes to be immediately due and payable, by a notice
in writing to the Owner Trustee (and to the Indenture Trustee if given by the
Noteholders) setting forth the Event or Events of Default, and upon any such
declaration the unpaid principal amount of the Notes together with accrued and
unpaid interest thereon through the date of acceleration, shall become
immediately due and payable.
(b) At any time after such declaration of acceleration of maturity of
the Notes has been made and before a judgment or decree for payment of the money
due thereunder has been obtained by the Indenture Trustee as hereinafter
provided in this Article V, the Holders of Notes representing not less than a
majority of the Outstanding Amount of the Voting Notes, by written notice to the
Owner Trustee and the Indenture Trustee, may rescind and annul such declaration
and its consequences with respect to the Notes; provided, that no such
--------
rescission and annulment shall extend to or affect any subsequent or other
Default or impair any right consequent thereto; and provided further, that if
----------------
the Indenture Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission and annulment or for any other reason, or such proceedings
shall have been determined adversely to the Indenture Trustee, then and in every
such case, the Indenture Trustee, the Owner Trustee and the Noteholders, as the
case may be, shall be restored to their respective former positions and rights
hereunder, and all rights, remedies and powers of the Indenture Trustee, the
Owner Trustee and the Noteholders, as the case may be, shall continue as though
no such proceedings had been commenced.
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SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Indenture Trustee.
-----------------
(a) The Owner Trustee covenants that if there shall occur an Event of
Default under Sections 5.1(a), (b) or (c), the Owner Trustee shall, upon demand
of the Indenture Trustee, pay to the Indenture Trustee, for the benefit of the
Noteholders from the Owner Trust Estate in accordance with their respective
outstanding principal amounts, the entire amount then due and payable on the
Notes for principal and interest, with interest through the date of such payment
on the overdue principal amount of each class of Notes, at the rate applicable
to such class of Notes, and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel.
(b) If the Owner Trustee shall fail forthwith to pay such amounts
from the Owner Trust Estate upon such demand, the Indenture Trustee, in its own
name and as trustee of an express trust, may institute a Proceeding for the
collection of the sums so due and unpaid, and may prosecute such Proceeding to
judgment or final decree, and may enforce the same against the Owner Trustee and
the Owner Trust Estate or other obligor upon such Notes and collect in the
manner provided by law out of the property of the Owner Trust Estate, wherever
situated, the monies adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.4, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders, by
such appropriate Proceedings as the Indenture Trustee shall deem most effective
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy or legal or
equitable right vested in the Indenture Trustee by this Indenture or by
applicable law.
(d) If there shall be pending, relative to the Owner Trustee or the
Owner Trust Estate 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 if a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Trust or the Owner Trust
Estate or such other Person, or in case of any other comparable judicial
Proceedings relative to the Owner Trustee or the Owner Trust Estate, or to the
creditors or property of the Owner Trust Estate, the Indenture Trustee,
irrespective of whether the principal of any Notes shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the provisions of
this Section 5.3, shall be entitled and empowered, by intervention in such
Proceedings or otherwise:
24
(i) to file and prove a claim or claims for the entire amount
of the unpaid principal and interest owing in respect of the Notes and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each predecessor
trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances
made, by the Indenture Trustee and each predecessor trustee, except as a
result of negligence or bad faith) and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of Notes in any election of a trustee, a
standby trustee or Person performing similar functions in any such
Proceedings;
(iii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of the Indenture
Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Indenture Trustee or the Holders of Notes allowed in any judicial
proceedings relative to the Owner Trustee or the Owner Trust Estate, its
creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, if the Indenture Trustee shall consent
to the making of payments directly to such Noteholders, to pay to the Indenture
Trustee such amounts as shall be sufficient to cover reasonable compensation to
the Indenture Trustee, each predecessor trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor trustee, except as
a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such Proceedings instituted
by the Indenture Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Indenture Trustee, each
predecessor trustee and their respective agents and attorneys, shall be applied
in accordance with Section 5.4(b).
25
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
SECTION 5.4 Remedies; Priorities.
--------------------
(a) If an Event of Default shall have occurred and be continuing and
the Notes have been accelerated under Section 5.2(a), the Indenture Trustee may
do one or more of the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then due and payable on the
Notes or under this Indenture with respect thereto, whether by declaration
of acceleration or otherwise, enforce any judgment obtained, and collect
from the Owner Trustee or the Owner Trust Estate and any other obligor upon
such Notes monies adjudged due;
(ii) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC and
take any other appropriate action to protect and enforce the rights and
remedies of the Indenture Trustee and the Noteholders; and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law or elect to have the Owner Trustee
maintain possession of the Receivables and continue to apply collections on
such Receivables as if there had been no declaration of acceleration;
provided, however, that the Indenture Trustee may not sell or otherwise
-------- -------
liquidate the Trust Estate following an Event of Default and acceleration
of the Notes, unless (A) the Holders of all of the aggregate Outstanding
Amount of the Notes consent thereto, (B) the proceeds of such sale or
liquidation distributable to the Noteholders are sufficient to discharge in
full the principal of and the accrued interest on the Notes, in each case
as of the date of such sale or liquidation or (C) (i) there has been an
Event of Default under Section 5.1(a), (b) or (c) or otherwise arising from
a failure to make a required payment of principal on any Notes, (ii) the
Indenture Trustee determines that the Trust Estate will not continue to
provide sufficient funds for the payment of principal of and interest on
the Notes as and when they would have become due if the Notes had not been
declared due and payable and (iii) the Indenture Trustee obtains the
consent of Holders of a majority of the aggregate Outstanding Amount of the
Voting Notes. In determining such sufficiency or insufficiency with
respect to clauses (B) and (C), the Indenture Trustee may, but need not,
obtain and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Trust Estate for such
purpose.
26
(b) If the Indenture Trustee collects any money or property pursuant
to this Article V, it shall pay out or deposit such money or property in the
following order:
FIRST: to the Indenture Trustee for amounts due under Section
6.7; and
SECOND: to the Collection Account, for distribution pursuant to
Section 9.02 of the Pooling and Servicing Agreement and Section 8.2(c).
SECTION 5.5 Optional Preservation of the Trust Estate. If the Notes
-----------------------------------------
have been declared to be due and payable under Section 5.2(a) following an Event
of Default and such declaration and its consequences have not been rescinded and
annulled in accordance with Section 5.2(b), the Indenture Trustee may, but need
not, elect to take and maintain possession of the Trust Estate. It is the desire
of the parties hereto and the Noteholders that there be at all times sufficient
funds for the payment of principal of and interest on the Notes, and the
Indenture Trustee shall take such desire into account when determining whether
or not to take and maintain possession of the Trust Estate. In determining
whether to take and maintain possession of the Trust Estate, the Indenture
Trustee may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note shall have
-------------------
any right to institute any Proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(i) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the Outstanding Amount
of the Voting Notes have made written request to the Indenture Trustee to
institute such Proceeding in respect of such Event of Default in its own
name as Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the Indenture
Trustee reasonable indemnity against the costs, expenses and liabilities to
be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute such
Proceedings; and
(v) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the
Holders of a majority of the Outstanding Amount of the Voting Notes;
it being understood and intended that no Holder or Holders of Notes shall have
any right in any manner whatsoever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb
27
or prejudice the rights of any other Holders of Notes or to obtain or to seek to
obtain priority or preference over any other Holders of Notes or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable (on the basis of the respective aggregate amount of principal and
interest, respectively, due and unpaid on the Notes held by each Noteholder) and
common benefit of all Noteholders. For the protection and enforcement of the
provisions of this Section 5.6, each and every Noteholder shall be entitled to
such relief as can be given either at law or in equity.
If the Indenture Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Holders of Notes, each
representing less than a majority of the Outstanding Amount of the Voting Notes,
the Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive
----------------------------------------------
Principal and Interest. Notwithstanding any other provisions in this Indenture,
----------------------
the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest on such Note
on or after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, if applicable, on or after the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent of such Holder.
SECTION 5.8 Restoration of Rights and Remedies. If the Indenture
----------------------------------
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Owner Trustee,
the Owner Trust Estate, the Indenture Trustee and the Noteholders shall, subject
to any determination in such Proceeding, be restored severally to their
respective former positions hereunder, and thereafter all rights and remedies of
the Indenture Trustee and the Noteholders shall continue as though no such
Proceeding had been instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy
------------------------------
herein conferred upon or reserved to the Indenture Trustee or to the Noteholders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission
------------------------------
of the Indenture Trustee or any Holder of any Note to exercise any right or
remedy accruing upon any Default shall impair any such right or remedy or
constitute a waiver of any such Default or an acquiescence therein. Every right
and remedy given by this Article V or by law to the Indenture Trustee or to the
Noteholders may be exercised from time to time, and as often as may be deemed
expedient, by the Indenture Trustee or by the Noteholders, as the case may be.
28
SECTION 5.11 Control by Noteholders. The Holders of a majority of
----------------------
the Outstanding Amount of the Voting Notes shall, subject to provision being
made for indemnification against costs, expenses and liabilities in a form
satisfactory to the Indenture Trustee, have the right to direct the time, method
and place of conducting any Proceeding for any remedy available to the Indenture
Trustee with respect to the Notes or exercising any trust or power conferred on
the Indenture Trustee; provided, however, that:
-------- -------
(i) such direction shall not be in conflict with any rule of
law or with this Indenture;
(ii) subject to the express terms of Section 5.4, any direction
to the Indenture Trustee to sell or liquidate the Trust Estate shall be by
the Holders of Notes representing 100% of the Outstanding Amount of the
Notes;
(iii) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Trust Estate
pursuant to Section 5.5, then any direction to the Indenture Trustee by
Holders of Notes representing less than 100% of the Outstanding Amount of
the Notes to sell or liquidate the Trust Estate shall be of no force and
effect; and
(iv) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction;
provided, however, that, subject to Section 6.1, the Indenture Trustee need not
-------- -------
take any action that it determines might cause it to incur any liability (a)
with respect to which the Indenture Trustee shall have reasonable grounds to
believe that adequate indemnity against such liability in not assured to it and
(b) which might materially adversely affect the rights of any Noteholders not
consenting to such action.
SECTION 5.12 Waiver of Past Defaults.
-----------------------
(a) Prior to the declaration of the acceleration of the maturity of
the Notes as provided in Section 5.2(a), the Holders of not less than a majority
of the Outstanding Amount of the Voting Notes may waive any past Default and its
consequences except a Default (i) in the payment of principal of or interest on
any of the Notes or (ii) in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of the Holder of each Note.
In the case of any such waiver, the Owner Trustee, the Owner Trust Estate, the
Indenture Trustee and the Noteholders shall be restored to their respective
former positions and rights hereunder; but no such waiver shall extend to or
affect any subsequent or other Default or impair any right consequent thereto.
(b) Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred,
for every purpose of this Indenture and for
29
purposes of Section 8.01(b) of the Pooling and Servicing Agreement; but no such
waiver shall extend to or affect any subsequent or other Default or impair any
right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture
---------------------
agree, and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
Proceeding for the enforcement of any right or remedy under this Indenture, or
in any Proceeding against the Indenture Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such Proceeding
of an undertaking to pay the costs of such Proceeding, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such Proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to:
(a) any Proceeding instituted by the Indenture Trustee;
(b) any Proceeding instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Voting Notes; or
(c) any Proceeding instituted by any Noteholder for the enforcement
of the payment of principal of or interest on any Note on or after the
respective due dates expressed in such Note and in this Indenture (or, in the
case of redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Owner Trustee
--------------------------------
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may adversely affect the covenants or the
performance of this Indenture. The Owner Trustee (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not hinder, delay or impede the execution of
any power herein granted to the Indenture Trustee, but shall suffer and permit
the execution of every such power as though no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek
---------------
and recover judgment on the Notes or under this Indenture shall not be affected
by the seeking, obtaining or application of any other relief under or with
respect to this Indenture. Neither the lien of this Indenture nor any rights or
remedies of the Indenture Trustee or the Noteholders shall be impaired by the
recovery of any judgment by the Indenture Trustee against the Owner Trustee or
the Owner Trust Estate or by the levy of any execution under such judgment upon
any portion of the Trust Estate or upon any of the assets of the Owner Trust
Estate. Any money or property collected by the Indenture Trustee shall be
applied in accordance with Section 5.4(b).
SECTION 5.16 Performance and Enforcement of Certain Obligations.
--------------------------------------------------
(a) Promptly following a request from the Indenture Trustee to do so
and at the Administrator's expense, the Owner Trustee agrees to take all such
lawful action as the Indenture
30
Trustee may request to compel or secure the performance and observance by the
Seller and the Servicer of their respective obligations to the Owner Trustee
under or in connection with the Pooling and Servicing Agreement and the Purchase
Agreement or by NFC of its obligations under or in connection with the Purchase
Agreement in accordance with the terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Owner Trustee
under or in connection with the Pooling and Servicing Agreement and the Purchase
Agreement to the extent and in the manner directed by the Indenture Trustee,
including the transmission of notices of default on the part of the Seller, the
Servicer or NFC thereunder and the institution of legal or administrative
actions or proceedings to compel or secure performance by the Seller, the
Servicer or NFC of each of their respective obligations under the Pooling and
Servicing Agreement and the Purchase Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the Voting Notes shall, exercise
all rights, remedies, powers, privileges and claims of the Owner Trustee against
the Seller or the Servicer under or in connection with the Pooling and Servicing
Agreement and the Purchase Agreement, including the right or power to take any
action to compel or secure performance or observance by the Seller or the
Servicer of each of their obligations to the Owner Trustee thereunder and to
give any consent, request, notice, direction, approval, extension or waiver
under the Pooling and Servicing Agreement and the Purchase Agreement, and any
right of the Owner Trustee to take such action shall be suspended.
(c) [Reserved.]
(d) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the Voting Notes shall, exercise
all rights, remedies, powers, privileges and claims of the Seller against NFC
under or in connection with the Purchase Agreement, including the right or power
to take any action to compel or secure performance or observance by NFC of each
of its obligations to the Seller thereunder and to give any consent, request,
notice, direction, approval, extension or waiver under the Purchase Agreement,
and any right of the Seller to take such action shall be suspended.
31
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee.
---------------------------
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and the
Pooling and Servicing Agreement and no implied covenants or obligations
shall be read into this Indenture, the Pooling and Servicing Agreement or
any other Basic Document against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions ex pressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; provided, however, that the Indenture
-------- -------
Trustee shall examine the certificates and opinions to determine whether or
not they conform to any applicable requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(i) this Section 6.1(c) does not limit the effect of Section
6.1(b);
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Indenture Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Indenture Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.11.
(d) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing with
the Owner Trustee.
(e) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms of
this Indenture or the Pooling and Servicing Agreement.
32
(f) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayments of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(g) The Indenture Trustee shall reimburse the Seller and any
director, officer, employee or agent of the Seller for any contractual damages,
liability or expense incurred by reason of the Indenture Trustee's willful
misfeasance, bad faith or gross negligence (except errors in judgment) in the
performance of its duties under any of the Further Transfer and Servicing
Agreements, or by reason of reckless disregard of its obligations and duties
under any of the Further Transfer and Servicing Agreements.
(h) Every provision of this Indenture relating to the Indenture
Trustee shall be subject to the provisions of this Section 6.1 and to the
provisions of the TIA.
SECTION 6.2 Rights of Indenture Trustee.
---------------------------
(a) The Indenture Trustee may rely on any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
Indenture Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Indenture Trustee acts or refrains from acting,
it may require an Officer's Certificate from the Owner Trustee or an Opinion of
Counsel that such action or omission is required or permissible hereunder. The
Indenture Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of, or for
the supervision of, any such agent, attorney, custodian or nominee appointed
with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the Indenture Trustee's
-------- -------
conduct does not constitute wilful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
33
SECTION 6.3 Indenture Trustee May Own Notes. The Indenture
-------------------------------
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Owner Trustee, the Servicer or any of
their respective Affiliates with the same rights it would have if it were not
Indenture Trustee; provided, however, that the Indenture Trustee shall comply
-------- -------
with Sections 6.10 and 6.11. Any Paying Agent, Note Registrar, co-registrar or
co-paying agent may do the same with like rights.
SECTION 6.4 Indenture Trustee's Disclaimer. The Indenture
------------------------------
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be accountable
for the Owner Trustee's use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Owner Trustee in the Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Indenture Trustee's certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is
------------------
continuing and if it is known to a Responsible Officer of the Indenture Trustee,
the Indenture Trustee shall mail to each Noteholder notice of the Default within
30 days after such Responsible Officer obtained knowledge of such Default.
Except in the case of a Default in payment of principal of or interest on any
Note, the Indenture Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Noteholders.
SECTION 6.6 Reports by Indenture Trustee to Holders. The
---------------------------------------
Indenture Trustee shall deliver to each Noteholder the information and documents
set forth in Article VII, and, in addition, all such information with respect to
the Notes as may be required, as specified by the Servicer, to enable such
Holder to prepare its federal and state income tax returns.
SECTION 6.7 Compensation; Indemnity.
-----------------------
(a) The Owner Trustee shall cause the Servicer pursuant to the
Pooling and Servicing Agreement to pay to the Indenture Trustee from time to
time such compensation for its services as shall be agreed upon in writing. The
Indenture Trustee's compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Owner Trustee shall cause the Servicer
pursuant to the Pooling and Servicing Agreement to reimburse the Indenture
Trustee for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Indenture Trustee's agents, counsel,
accountants and experts. The Owner Trustee shall cause the Servicer pursuant to
the Pooling and Servicing Agreement to indemnify the Indenture Trustee in
accordance with Section 7.01 of the Pooling and Servicing Agreement.
(b) The Owner Trustee's obligations to the Indenture Trustee
pursuant to this Section 6.7 shall survive the discharge of this Indenture.
When the Indenture Trustee incurs expenses after the occurrence of a Default
specified in Section 5.1(e) or (f) the expenses are intended
34
to constitute expenses of administration under Title 11 of the United States
Code or any other applicable federal or state bankruptcy, insolvency or similar
law.
SECTION 6.8 Replacement of Indenture Trustee.
--------------------------------
(a) The Indenture Trustee may at any time give notice of its intent
to resign by so notifying the Owner Trustee; provided, however, that no such
-------- -------
resignation shall become effective and the Indenture Trustee shall not resign
prior to the time set forth in Section 6.8(c). The Holders of a majority in
Outstanding Amount of the Voting Notes may remove the Indenture Trustee by so
notifying the Indenture Trustee and may appoint a successor Indenture Trustee.
Such resignation or removal shall become effective in accordance with Section
6.8(c). The Owner Trustee shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section
6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge of
the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
(b) If the Indenture Trustee gives notice of its intent to resign
or is removed or if a vacancy exists in the office of the Indenture Trustee for
any reason (the Indenture Trustee in such event being referred to herein as the
retiring Indenture Trustee), the Owner Trustee shall promptly appoint and
designate a successor Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written
acceptance of its appointment and designation to the retiring Indenture Trustee
and to the Owner Trustee. Thereupon the resignation or removal of the retiring
Indenture Trustee shall become effective, and the successor Indenture Trustee
shall have all the rights, powers and duties of the Indenture Trustee under this
Indenture. The successor Indenture Trustee shall mail a notice of its succession
to Noteholders and to each of the Rating Agencies. The retiring Indenture
Trustee shall promptly transfer all property held by it as Indenture Trustee to
the successor Indenture Trustee.
(d) If a successor Indenture Trustee does not take office within 60
days after the retiring Indenture Trustee gives notice of its intent to resign
or is removed, the retiring Trustee, the Owner Trustee or the Holders of a
majority of the Outstanding Amount of the Voting Notes may petition any court of
competent jurisdiction for the appointment and designation of a successor
Indenture Trustee.
(e) If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
35
(f) Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section 6.8, the Owner Trustee's obligations under Section 6.7
and the Servicer's corresponding obligations under the Pooling and Servicing
Agreement shall continue for the benefit of the retiring Indenture Trustee.
SECTION 6.9 Merger or Consolidation of Indenture Trustee.
--------------------------------------------
(a) Any Person into which the Indenture Trustee may be merged or
with which it may be consolidated, or any Person resulting from any merger or
consolidation to which the Indenture Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Indenture Trustee,
shall be the successor of the Indenture Trustee under this Indenture; provided,
--------
however, that such Person shall be eligible under the provisions of Section
-------
6.11, without the execution or filing of any instrument or any further act on
the part of any of the parties to this Indenture, anything in this Indenture to
the contrary notwithstanding. Following such merger or consolidation, the
successor Indenture Trustee shall mail a notice of such merger or consolidation
to each of the Rating Agencies.
(b) If at the time such successor or successors by merger or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture, any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee. In all such cases such certificate of
authentication shall have the same full force as is provided anywhere in the
Notes or herein with respect to the certificate of authentication of the
Indenture Trustee.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate
-----------------------------------------------
Indenture Trustee.
-----------------
(a) Notwithstanding any other provisions of this Indenture, at
any time, for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the Trust Estate or any Financed Vehicle may at the time be
located, the Indenture Trustee shall have the power and may execute and deliver
all instruments to appoint one or more Persons 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 (only to the extent expressly provided
herein) the Certificateholders, such title to the Trust Estate, or any part
hereof, and, subject to the other provisions of this Section 6.10, such powers,
duties, obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.11 and no notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.8.
36
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Indenture
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed
the Indenture Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Estate or any portion thereof
in any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture 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, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification.
-----------------------------
(a) The Indenture Trustee shall at all times satisfy the requirements
of TIA (S) 310(a). The Indenture Trustee shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition and (unless waived by Moody's) it shall have a long term
unsecured debt rating of Baa3 or better by Xxxxx'x Investors Service, Inc. The
Indenture Trustee shall comply with TIA (S) 310(b); provided, however, that
-------- -------
there shall be
37
excluded from the operation of TIA (S) 310(b)(1) any indenture or indentures
under which other securities of the Owner Trustee are outstanding if the
requirements for such exclusion set forth in TIA (S) 310(b)(1) are met.
(b) If a Default occurs and is continuing, and the Indenture Trustee
is deemed to have a conflicting interest as a result of acting as trustee for
both the Class A Notes and the Class B Notes, the Owner Trustee shall appoint a
successor Indenture Trustee for one or both of such classes, so that there will
be separate Indenture Trustees for the Class A Notes and the Class B Notes. No
such event shall alter the voting rights of the Class A Noteholders or Class B
Noteholders under this Indenture or any other Basic Document. However, so long
as any amounts remain unpaid with respect to the Class A Notes, only the
Indenture Trustee for the Class A Noteholders will have the right to exercise
remedies under this Indenture (but subject to the express provisions of Section
5.4 and to the right of the Class B Noteholders to receive their share of any
proceeds of enforcement, subject to the subordination of the Class B Notes to
the Class A Notes as described herein) to make deposits to and withdrawals from
the Designated Accounts, hold Designated Account Property and to make
distributions to Noteholders from the Note Distribution Account. Upon repayment
of the Class A Notes in full, all rights to exercise remedies under the
Indenture will transfer to the Indenture Trustee for the Class B Notes.
(c) In the case of the appointment hereunder of a successor Indenture
Trustee with respect to any class of Notes, the Owner Trustee, the retiring
Indenture Trustee and the successor Indenture Trustee with respect to such class
of Notes shall execute and deliver an indenture supplemental hereto wherein the
successor Indenture Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, the successor Indenture Trustee all the rights,
powers, trusts and duties of the retiring Indenture Trustee with respect to the
Notes of the class to which the appointment of such successor Indenture Trustee
relates, (ii) if the retiring Indenture Trustee is not retiring with respect to
all classes of Notes, shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties of the
retiring Indenture Trustee with respect to the Notes of each class as to which
the retiring Indenture Trustee is not retiring shall continue to be vested in
the retiring Indenture Trustee, and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Indenture Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that each
such Indenture Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other such
Indenture Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Indenture Trustee shall
become effective to the extent provided therein.
SECTION 6.12 Preferential Collection of Claims Against Owner
-----------------------------------------------
Trustee. The Indenture Trustee shall comply with TIA (S) 311(a), excluding any
-------
creditor relationship listed in TIA (S) 311(b). A trustee who has resigned or
been removed shall be subject to TIA (S) 311(a) to the extent indicated.
38
SECTION 6.13 Representations and Warranties of Indenture Trustee.
---------------------------------------------------
The Indenture Trustee represents and warrants as of the Closing Date that:
(a) the Indenture Trustee is a New York banking corporation duly
organized, validly existing and in good standing under the laws of the State of
New York and the eligibility requirements set forth in Section 6.11 are
satisfied with respect to the Indenture Trustee;
(b) the Indenture Trustee has full power, authority and legal right
to execute, deliver and perform this Indenture, and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Indenture;
(c) the execution, delivery and performance by the Indenture Trustee
of this Indenture (i) shall not violate any provision of any law or regulation
governing the banking and trust powers of the Indenture Trustee or any order,
writ, judgment or decree of any court, arbitrator, or governmental authority
applicable to the Indenture Trustee or any of its assets, (ii) shall not violate
any provision of the corporate charter or by-laws of the Indenture Trustee or
(iii) shall not violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or imposition of
any lien on any properties included in the Trust Estate pursuant to the
provisions of any mortgage, indenture, contract, agreement or other undertaking
to which it is a party, which violation, default or lien could reasonably be
expected to have a materially adverse effect on the Indenture Trustee's
performance or ability to perform its duties under this Indenture or on the
transactions contemplated in this Indenture;
(d) the execution, delivery and performance by the Indenture Trustee
of this Indenture shall not require the authorization, consent or approval of,
the giving of notice to, the filing or registration with, or the taking of any
other action in respect of, any governmental authority or agency regulating the
banking and corporate trust activities of the Indenture Trustee; and
(e) this Indenture has been duly executed and delivered by the
Indenture Trustee and constitutes the legal, valid and binding agreement of the
Indenture Trustee, enforceable in accordance with its terms.
SECTION 6.14 Indenture Trustee May Enforce Claims Without Possession
-------------------------------------------------------
of Notes. All rights of action and claims under this Indenture or the Notes may
--------
be prosecuted and enforced by the Indenture Trustee without the possession of
any of the Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Indenture Trustee shall be brought in
its own name as Indenture Trustee. Any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee, its agents and counsel, be
for the ratable benefit of the Noteholders and (only to the extent expressly
provided herein) the Certificateholders in respect of which such judgment has
been obtained.
SECTION 6.1 Suit for Enforcement. If an Event of Default shall
--------------------
occur and be continuing, the Indenture Trustee in its discretion may, subject to
the provisions of Section 6.1,
39
proceed to protect and enforce its rights and the rights of the Noteholders
under this Indenture by a Proceeding whether for the specific performance of any
covenant or agreement contained in this Indenture or in aid of the execution of
any power granted in this Indenture or for the enforcement of any other legal,
equitable or other remedy as the Indenture Trustee, being advised by counsel,
shall deem most effectual to protect and enforce any of the rights of the
Indenture Trustee or the Noteholders.
SECTION 6.16 Rights of Noteholders to Direct Indenture Trustee.
-------------------------------------------------
Holders of Notes evidencing not less than a majority of the Outstanding Amount
of the Voting Notes shall have the right to direct in writing the time, method
and place of conducting any Proceeding for any remedy available to the Indenture
Trustee or exercising any trust or power conferred on the Indenture Trustee;
provided, however, that subject to Section 6.1, the Indenture Trustee shall have
-------- -------
the right to decline to follow any such direction if the Indenture Trustee being
advised by counsel determines that the action so directed may not lawfully be
taken, or if the Indenture Trustee in good faith shall, by a Responsible
Officer, determine that the proceedings so directed would be illegal or subject
it to personal liability or be unduly prejudicial to the rights of Noteholders
not parties to such direction; and provided, further, that nothing in this
-------- -------
Indenture shall impair the right of the Indenture Trustee to take any action
deemed proper by the Indenture Trustee and which is not inconsistent with such
direction by the Noteholders.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 Owner Trustee To Furnish Indenture Trustee Names and
------------------------------------------------
Addresses of Noteholders. The Owner Trustee shall furnish or cause to be
------------------------
furnished by the Servicer to the Indenture Trustee (a) not more than five days
before each Distribution Date, a list, in such form as the Indenture Trustee may
reasonably require, of the names and addresses of the Holders of Notes as of the
close of business on the Record Date, and (b) at such other times as the
Indenture Trustee may request in writing, within 14 days after receipt by the
Owner Trustee of any such request, a list of similar form and content as of a
date not more than 10 days prior to the time such list is furnished; provided,
--------
however, that so long as the Indenture Trustee is the Note Registrar, no such
-------
list shall be required to be furnished.
SECTION 7.2 Preservation of Information, Communications to
----------------------------------------------
Noteholders.
-----------
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.1 and the names and addresses of Holders of Notes received by the
Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in such Section 7.1 upon receipt of
a new list so furnished.
40
(b) Noteholders may communicate pursuant to TIA (S) 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Owner Trustee, the Indenture Trustee and the Note Registrar
shall have the protection of TIA (S) 312(c).
SECTION 7.3 Reports by Owner Trustee.
------------------------
(a) The Owner Trustee shall:
(i) file with the Indenture Trustee, within 15 days after
the Owner Trustee is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the Owner
Trustee may be required to file with the Commission pursuant to Section 13
or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports with respect
to compliance by the Owner Trustee with the conditions and covenants of
this Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA (S)
313(c)) such summaries of any information, documents and reports required
to be filed by the Owner Trustee pursuant to clauses (i) and (ii) of this
Section 7.3(a) as may be required by rules and regulations prescribed from
time to time by the Commission.
(b) Unless the Owner Trustee otherwise determines, the fiscal year of
the Trust shall end on October 31 of each year.
SECTION 7.4 Reports by Indenture Trustee.
----------------------------
(a) If required by TIA (S) 313(a), within 60 days after each February
1, beginning with February 1, 2002, the Indenture Trustee shall mail to each
Noteholder as required by TIA (S) 313(c) a brief report dated as of such date
that complies with TIA (S) 313(a). The Indenture Trustee also shall comply with
TIA (S) 313(b). A copy of any report delivered pursuant to this Section 7.4(a)
shall, at the time of its mailing to Noteholders, be filed by the Indenture
Trustee with the Commission and each stock exchange, if any, on which the Notes
are listed. The Owner Trustee shall notify the Indenture Trustee if and when
the Notes are listed on any stock exchange.
41
(b) On each Distribution Date, the Indenture Trustee shall include
with each payment to each Noteholder a copy of the statement for the related
Monthly Period as required pursuant to Section 4.09 of the Pooling and Servicing
Agreement.
ARTICLE VII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise
-------------------
expressly provided herein, the Indenture Trustee may demand payment or delivery
of, and shall receive and collect, directly and without intervention or
assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall apply all such money received by it as
provided in this Indenture and the Pooling and Servicing Agreement. Except as
otherwise expressly provided in this Indenture or in Article III of the Pooling
and Servicing Agreement, if any default occurs in the making of any payment or
performance under any agreement or instrument that is part of the Trust Estate,
the Indenture Trustee may take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim
an Event of Default under this Indenture and any right to proceed thereafter as
provided in Article V.
SECTION 8.2 Designated Accounts; Payments.
-----------------------------
(a) On or prior to the Closing Date, the Owner Trustee shall cause
the Servicer to establish and maintain, in the name of the Indenture Trustee,
for the benefit of the Securityholders, the Designated Accounts as provided in
Articles IV and V of the Pooling and Servicing Agreement.
(b) Before each Distribution Date, the Indenture Trustee shall cause
all withdrawals, deposits, transfers and distributions provided for in Section
4.06(b) and Section 5.02(b) of the Pooling and Servicing Agreement to be made.
Before each Distribution Date, the Indenture Trustee shall make the
distributions from the Collection Account provided for in Section 4.06(c) of the
Pooling and Servicing Agreement. Notwithstanding the preceding sentence, to the
extent permitted and as provided by Section 4.08 of the Pooling and Servicing
Agreement, deposits may be netted against amounts owing to the depositor.
(c) On each Distribution Date, the Indenture Trustee shall distribute
all amounts on deposit in the Note Distribution Account, other than amounts
deposited in the Note Distribution Account pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement and subject to the Certificateholder's rights
under Section 5.05 of the Pooling and Servicing Agreement to Investment
Earnings, to the Noteholders to the extent of amounts due and unpaid on the
Notes for principal and interest, in the following amounts, and in the following
order of priority:
(i) (A) first, to accrued and unpaid interest on the Class
A Notes; provided, however, that if there are not sufficient funds in the
-------- -------
Note Distribution Account to
42
pay the entire amount of accrued and unpaid interest then due on the Class
A Notes, the amount in the Note Distribution Account shall be applied to
the payment of such interest on each Note of each class of the Class A
Notes pro rata on the basis of the respective aggregate amount of interest
due on each such class of Class A Notes; and (B) second, unless otherwise
provided in clause (iv) below, to accrued and unpaid interest on the Class
B Notes; provided, however, that if there are not sufficient funds in the
-------- -------
Note Distribution Account (after the payment of all accrued and unpaid
interest on the Class A Notes) to pay the entire amount of accrued and
unpaid interest then due on the Class B Notes, the amount in the Note
Distribution Account shall be applied to the payment of such interest on
each of the Class B Notes pro rata on the basis of the aggregate amount of
interest due on each such Class B Note;
(ii) unless otherwise provided in clause (iii), (iv) or (v)
below, the Principal Payment Amount shall be applied on each Distribution
Date, as follows:
(A) first, 100% of the Principal Payment Amount shall be
applied to pay the principal of the Class A-1 Notes until the Class X-
0 Notes are paid in full;
(B) thereafter, 95.75% of the Principal Payment Amount
(in the case of the Distribution Date on which the Class A-1 Notes are
paid in full, 95.75% of the remaining Principal Payment Amount) shall
be applied to pay the principal of the other Class A Notes (all of
which shall be applied to pay the principal of the Class A-2 Notes
until paid in full, then shall be applied to pay the principal of the
Class A-3 Notes until paid in full, and then shall be applied to pay
the principal of the Class A-4 Notes until paid in full) and 4.25% of
the Principal Payment Amount (in the case of the Distribution Date on
which the Class A-1 Notes are paid full, 4.25% of the remaining
Principal Payment Amount) shall be applied to pay the principal of the
Class B Notes until the Class A Notes are paid in full; and
(C) thereafter, 100% of the Principal Payment Amount (in
the case of the Distribution Date on which the Class A Notes are paid
in full, the remaining Principal Payment Amount) to the Class B Notes
until the Class B Notes are paid in full;
(iii) if the amount on deposit in the Reserve Account on any
Distribution Date would be, after giving effect to the application of the
Principal Payment Amount in accordance with the foregoing priorities, less
than 1.0% of the Initial Aggregate Receivables Balance, then on each
Distribution Date thereafter until either the Class A Notes are paid in
full or the amount on deposit in the Reserve Account equals or exceeds the
Specified Reserve Account Balance, 100% of the Principal Payment Amount
shall be applied on each Distribution Date to pay the principal of the
Class A Notes (all of which shall be applied to pay the principal of the
Class A-1 Notes until paid in full, then shall be applied to pay the
principal of the Class A-2 Notes until paid in full, then shall be applied
to pay the principal of Class A-3 Notes until paid in full, and then shall
be applied to pay the principal of the
43
Class A-4 Notes until paid in full). When principal payments on the Class B
Notes resume in accordance with the preceding sentence, the Principal
Payment Amount for such Distribution Date shall be applied in accordance
with Section 8.2(c)(ii) hereof until the Class A Notes have been paid in
full, and thereafter 100% of the Principal Payment Amount for such
Distribution Date shall be applied to pay the principal of the Class B
Notes until the Class B Notes are paid in full;
(iv) if the Notes have been declared immediately due and payable
as provided in Section 5.2(a) following the occurrence of an Event of
Default specified in Section 5.1(a), (b) or (c) until such time as the
Class A Notes have been paid in full and this Indenture has been discharged
with respect to the Class A Notes any amounts remaining in the Note
Distribution Account after the application described in Section
8.2(c)(i)(A) shall be applied in the following priority: (1) to the
repayment of principal of each of the Class A-1 Notes pro rata on the basis
of the respective unpaid principal amount of each such Class A-1 Note; (2)
to the repayment of principal of each of the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes pro rata on the basis of the respective
unpaid principal amount of each such Class A Note; (3) to the repayment of
interest on each of the Class B Notes pro rata on the basis of the amount
of interest due and unpaid on each such Class B Note and (4) to the
repayment of principal on each of the Class B Notes pro rata on the basis
of the respective unpaid principal amount of each such Class B Note; and
(v) if the Notes have been declared immediately due and payable
as provided in Section 5.2(a) following the occurrence of an Event of
Default specified in Section 5.1(d), (e) or (f), 100% of the Principal
Payment Amount shall be applied on each Distribution Date to the payment of
principal of the Class A-1 Notes on the basis of the respective unpaid
principal balance of each such Class A-1 Note, thereafter 100% of the
Principal Payment Amount shall be applied on each Distribution Date to the
payment of principal of the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes pro rata on the basis of the respective unpaid principal
amount of each such Class A Note, and, thereafter, 100% of the Principal
Payment Amount shall be applied on each Distribution Date to the payment of
principal of the Class B Notes pro rata on the basis of the respective
unpaid principal amount of each such Class B Note.
(d) Subject to Sections 8.2(c)(iii), (iv) and (v), on the
Distribution Date on which the Funding Period ends (or, if the Funding Period
does not end on a Distribution Date, on the Distribution Date following the end
of the Funding Period), the Indenture Trustee shall apply any and all amounts
deposited into the Note Distribution Account pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement (other than Noteholders' Prepayment Premium) to
the repayment of principal on the Notes in accordance with the priorities set
forth in Section 8.2(c)(ii); provided, however, that if the Pre-Funded Amount as
of the end of the Funding Period is greater than $100,000, the Indenture Trustee
shall apply such amounts to the repayment of principal of each Class of Notes
pro rata on the basis of the respective initial principal amount of each such
Class of Notes, as instructed by Servicer in writing.
44
(e) On the Distribution Date on which the Funding Period ends
(or, if the Funding Period does not end on a Distribution Date, on the first
Distribution Date following the end of the Funding Period), the Indenture
Trustee shall distribute to the Noteholders the Noteholders' Prepayment Premiums
deposited in the Note Distribution Account, as instructed by Servicer in writing
pursuant to Section 5.02(b) of the Pooling and Servicing Agreement; provided,
however, if less than the required Noteholders' Prepayment Premium for all
classes of Notes has been deposited into the Note Distribution Account, the
amount distributable to the holders of each class of Notes shall be their
ratable share of the amount so deposited into the Note Distribution Account
based upon the amount of Noteholders' Prepayment Premium due with respect to
each class of Notes. In either case, the Indenture Trustee shall distribute the
Noteholders' Prepayment Premium allocated to each class of Notes to the
Noteholders of such class of Notes pro rata on the basis of the unpaid principal
amount of such Noteholder's Notes of such class, as instructed by Servicer in
writing.
SECTION 8.3 General Provisions Regarding Accounts.
-------------------------------------
(a) Subject to Section 6.1(c), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in any of the Designated
Accounts resulting from any loss on any Eligible Investment included therein
except for losses attributable to the Indenture Trustee's failure to make
payments on such Eligible Investments issued by the Indenture Trustee, in its
commercial capacity as principal obligor and not as trustee, in accordance with
their terms.
(b) If (i) the Servicer shall have failed to give investment
directions for any funds on deposit in the Designated Accounts to the Indenture
Trustee by 11:00 a.m., New York City time (or such other time as may be agreed
by the Servicer and the Indenture Trustee) on any Business Day; or (ii) a
Default shall have occurred and be continuing with respect to the Notes but the
Notes shall not have been declared due and payable pursuant to Section 5.2(a),
or, if such Notes shall have been declared due and payable following an Event of
Default, but amounts collected or receivable from the Trust Estate are being
applied in accordance with Section 5.5 as if there had not been such a
declaration; then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Designated Accounts in one or more
Eligible Investments selected by the Indenture Trustee.
SECTION 8.4 Release of Trust Estate.
-----------------------
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.7, the Indenture Trustee may, and when required by the provisions of
this Indenture shall, execute instruments to release property in the Trust
Estate from the lien of this Indenture, or convey the Indenture Trustee's
interest in the same, in a manner and under circumstances that are consistent
with the provisions of this Indenture. No party relying upon an instrument
executed by the Indenture Trustee as provided in this Article VIII shall be
bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
monies.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due to the Indenture Trustee pursuant to Section 6.7
have been paid, notify the Owner
45
Trustee thereof in writing and upon receipt of an Issuer Request, release any
remaining portion of the Trust Estate that secured the Notes from the lien of
this Indenture and release to the Owner Trustee or any other Person entitled
thereto any funds then on deposit in the Note Distribution Account. The
Indenture Trustee shall (i) release any remaining portion of the Trust Estate
that secured the Certificates from the lien of this Indenture and (ii) deposit
in the Certificate Distribution Account any funds then on deposit in the Reserve
Account or the Collection Account only at such time as (y) there are no Notes
Outstanding and (z) all sums due to the Indenture Trustee pursuant to Section
6.7 have been paid.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall
------------------
receive at least seven days' notice when requested by the Owner Trustee to take
any action pursuant to Section 8.4(a), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require as a condition to such
action, an Opinion of Counsel, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
shall not materially and adversely impair the security for the Notes or the
rights of the Noteholders in contravention of the provisions of this Indenture;
provided, however, that such Opinion of Counsel shall not be required to express
-------- -------
an opinion as to the fair value of the Trust Estate. Counsel rendering any such
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of
------------------------------------------
Noteholders.
-----------
(a) Without the consent of the Holders of any Notes but with prior
notice to the Rating Agencies, the Owner Trustee and the Indenture Trustee, when
authorized by an Issuer Order, at any time and from time to time, may enter into
one or more indentures supplemental hereto (which shall conform to the
provisions of the TIA as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure, convey
and confirm unto the Indenture Trustee any property subject or required to
be subjected to the lien of this Indenture, or to subject additional
property to the lien of this Indenture;
(ii) to evidence the succession, in compliance with Section 3.11
and the applicable provisions hereof, of another Person to the Owner
Trustee, and the assumption by any such successor of the covenants of the
Owner Trustee contained herein and in the Notes;
46
(iii) to add to the covenants of the Owner Trustee for the
benefit of the Securityholders, or to surrender any right or power herein
conferred upon the Owner Trustee;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity or to correct or supplement any
provision herein or in any supplemental indenture which may be inconsistent
with any other provision herein, in any supplemental indenture or in any
other Basic Document;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor or additional Indenture Trustee with
respect to the Notes or any class thereof and to add to or change any of
the provisions of this Indenture as shall be necessary to facilitate the
administration of the trusts hereunder by more than one trustee, pursuant
to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification
of this Indenture under the TIA or under any similar federal statute
hereafter enacted and to add to this Indenture such other provisions as may
be expressly required by the TIA, and the Indenture Trustee is hereby
authorized to join in the execution of any such supplemental indenture and
to make any further appropriate agreements and stipulations that may be
therein contained.
(b) The Owner Trustee and the Indenture Trustee, when authorized by
an Issuer Order, may, also without the consent of any of the Noteholders but
with prior notice to the Rating Agencies, at any time and from time to time
enter into one or more indentures supplemental hereto for the purpose of adding
any provisions to, changing in any manner, or eliminating any of the provisions
of, this Indenture or modifying in any manner the rights of the Noteholders
under this Indenture; provided, however, that such action shall not, as
-------- -------
evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of any Noteholder.
SECTION 9.2 Supplemental Indentures With Consent of
---------------------------------------
Noteholders.
-----------
(a) The Owner Trustee and the Indenture Trustee, when authorized by
an Issuer Order, also may, with prior notice to the Rating Agencies and with the
consent of the Holders of not less than a majority of the Outstanding Amount of
the Voting Notes, by Act of such Holders delivered to the Owner Trustee and the
Indenture Trustee, enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, changing in any manner, or eliminating
any of the provisions of, this Indenture or modifying in any manner the rights
of the Noteholders under this Indenture; provided, however, that no such
-------- -------
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(i) change the due date of any instalment of principal of or
interest on any Note, or reduce the principal amount thereof, the interest
rate applicable thereto, or the
47
Redemption Price with respect thereto, change any place of payment where,
or the coin or currency in which, any Note or any interest thereon is
payable, or impair the right to institute suit for the enforcement of the
provisions of this Indenture requiring the application of funds available
therefor, as provided in Article V, to the payment of any such amount due
on the Notes on or after the respective due dates thereof (or, in the case
of redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the
Voting Notes, the consent of the Holders of which is required for (a) any
such supplemental indenture, (b) any waiver of compliance with certain
provisions of this Indenture, certain defaults hereunder and their
consequences as provided for in this Indenture or (c) any action described
in Sections 2.12, 3.7(e), 5.2, 5.6, 5.11, 5.12(a), 6.8, or 6.16;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the
Notes required to direct the Indenture Trustee to sell or liquidate the
Trust Estate pursuant to Section 5.4 if the proceeds of such sale would be
insufficient to pay the principal amount of and accrued but unpaid interest
on the Outstanding Notes;
(v) modify any provision of this Section 9.2 to decrease the
required minimum percentage necessary to approve any amendments to any
provisions of this Indenture or any of the Basic Documents;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Distribution Date (including
the calculation of any of the individual components of such calculation),
or modify or alter the provisions of the Indenture regarding the voting of
Notes held by the Owner Trustee, the Seller or any Affiliate of either of
them; or
(vii) permit the creation of any Lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Trust Estate or, except as otherwise permitted or contemplated herein,
terminate the lien of this Indenture on any property at any time subject to
the lien of this Indenture or deprive the Holder of any Note of the
security afforded by the lien of this Indenture.
(b) The Indenture Trustee may in its discretion determine whether or
not any Notes would be affected (such that the consent of each Noteholder would
be required) by any supplemental indenture proposed pursuant to this Section 9.2
and any such determination shall be conclusive and binding upon all of the
Noteholders, whether authenticated and delivered thereunder before or after the
date upon which such supplemental indenture becomes effective. The Indenture
Trustee shall not be liable for any such determination made in good faith.
48
(c) It shall be sufficient if an Act of Noteholders approves the
substance, but not the form, of any proposed supplemental indenture.
(d) Promptly after the execution by the Owner Trustee and the
Indenture Trustee of any supplemental indenture pursuant to this Section 9.2,
the Indenture Trustee shall mail to the Noteholders to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 9.3 Execution of Supplemental Indentures. In
------------------------------------
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture, the Indenture Trustee shall be entitled to
receive, and subject to Sections 6.1 and 6.2, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and that all
conditions precedent to such execution have been satisfied. The Indenture
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture that affects the Indenture Trustee's own rights, duties, liabilities
or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the
--------------------------------
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to the Notes affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Owner Trustee and the Noteholders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every
-----------------------------------
amendment of this Indenture and every supplemental indenture executed pursuant
to this Article IX shall conform to the requirements of the TIA as then in
effect so long as this Indenture shall then be qualified under the TIA.
SECTION 9.6 Reference in Notes to Supplemental Indentures.
---------------------------------------------
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by the Indenture
Trustee shall, bear a notation in form approved by the Indenture Trustee as to
any matter provided for in such supplemental indenture. If the Owner Trustee or
the Indenture Trustee shall so determine, new Notes so modified as to conform,
in the opinion of the Indenture Trustee and the Owner Trustee, to any such
supplemental indenture may be prepared and executed by the Owner Trustee and
authenticated and delivered by the Indenture Trustee in exchange for Outstanding
Notes of the same class.
49
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption.
----------
(a) The Class A-4 Notes and Class B Notes are subject to redemption
in whole, but not in part, upon the exercise by the Servicer of its option to
purchase the Receivables pursuant to Section 9.01 of the Pooling and Servicing
Agreement. Such redemption shall occur on any Distribution Date after all Class
A-1 Notes, Class A-2 Notes and Class A-3 Notes have been paid in full. The
purchase price for the Class A-4 Notes and Class B Notes to be redeemed shall be
equal to the applicable Redemption Price, provided the Owner Trustee has
available funds in the Owner Trust Estate sufficient to pay such amount. The
Owner Trustee shall furnish the Rating Agencies notice of such redemption. If
the Class A-4 Notes and Class B Notes are to be redeemed pursuant to this
Section 10.1(a), the Owner Trustee shall furnish notice thereof to the Indenture
Trustee not later than 25 days prior to the Redemption Date and the Owner
Trustee shall deposit into the Note Distribution Account, before the Redemption
Date, the aggregate Redemption Price of the Class A-4 Notes and Class B Notes to
be redeemed, whereupon all such Notes shall be due and payable on the Redemption
Date.
(b) [Reserved.]
(c) Within sixty days after the redemption in full pursuant to this
Section 10.1 of any class of Notes, the Indenture Trustee shall provide each of
the Rating Agencies with written notice stating that all of such Notes have been
redeemed.
SECTION 10.2 Form of Redemption Notice.
-------------------------
(a) Notice of redemption of the Class A-4 Notes and Class B Notes
under Section 10.1(a) shall be given by the Indenture Trustee by first-class
mail, postage prepaid, mailed not less than five days prior to the applicable
Redemption Date to each Holder of the Class A-4 Notes and Class B Notes of
record, respectively, at such Noteholder's address appearing in the Note
Register.
(b) All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where Class A-4 Notes and Class B Notes are to be
surrendered for payment of the Redemption Price (which shall be the Agency
Office of the Indenture Trustee to be maintained as provided in Section 3.2);
and
(iv) CUSIP numbers.
50
(c) Notice of redemption of the Class A-4 Notes and Class B
Notes shall be given by the Indenture Trustee in the name and at the expense of
the Owner Trustee out of the Owner Trust Estate. Failure to give notice of
redemption, or any defect therein, to any Holder of any Class A-4 Note or Class
B Note to be redeemed shall not impair or affect the validity of the redemption
of any other Class A-4 Note or Class B Note to be redeemed.
(d) [Reserved.]
SECTION 10.3 Notes Payable on Redemption Date.
--------------------------------
The Class A-4 Notes or Class B Notes to be redeemed shall, following
notice of redemption as required by Section 10.2, on the Redemption Date cease
to be Outstanding for purposes of this Indenture and shall thereafter represent
only the right to receive the applicable Redemption Price and (unless the Owner
Trustee shall default in the payment of such Redemption Price) no interest shall
accrue on such Redemption Price for any period after the date to which accrued
interest is calculated for purposes of calculating such Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc.
------------------------------------------
(a) Upon any application or request by the Owner Trustee to the
Indenture Trustee to take any action under any provision of this Indenture, the
Owner Trustee shall furnish to the Indenture Trustee: (i) an Officer's
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with and (iii) (if required by
the TIA) an Independent Certificate from a firm of certified public accountants
meeting the applicable requirements of this Section 11.1, except that, in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture, no
additional certificate or opinion need be furnished. Every certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture shall include:
(i) a statement that each signatory of such certificate
or opinion has read or has caused to be read such covenant or condition and
the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
51
(iii) a statement that, in the judgment of each such
signatory, such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit with the Indenture Trustee of
any Collateral or other property or securities that is to be made the basis for
the release of any property or securities subject to the lien of this Indenture,
the Owner Trustee shall, in addition to any obligation imposed in Section
11.1(a) or elsewhere in this Indenture, furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each Person signing
such certificate as to the fair value (within 60 days of such deposit) to the
Owner Trustee of the Collateral or other property or securities to be so
deposited.
(ii) Whenever the Owner Trustee is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause (b)(i)
above, the Owner Trustee shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to the
Owner Trust Estate of the securities to be so deposited and of all other
such securities made on the basis of any such withdrawal or release since
the commencement of the then current fiscal year of the Trust, as set forth
in the certificates delivered pursuant to clause (b)(i) above and this
clause (b)(ii), is 10% or more of the Outstanding Amount of the Notes, but
such a certificate need not be furnished with respect to any securities so
deposited if the fair value thereof to the Owner Trust Estate as set forth
in the related Officer's Certificate is less than $25,000 or less than one
percent of the Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any
Warranty Receivables, Administrative Receivables or Liquidating
Receivables, whenever any property or securities are to be released from
the lien of this Indenture, the Owner Trustee shall also furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of each Person signing such certificate as to the fair value
(within 60 days of such release) of the property or securities proposed to
be released and stating that in the opinion of such Person the proposed
release will not impair the security under this Indenture in contravention
of the provisions hereof.
(iv) Whenever the Owner Trustee is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signatory thereof as to the matters described in clause
(b)(iii) above, the Owner Trustee shall also furnish to the Indenture
Trustee an Independent Certificate as to the same matters if the fair value
of the property or securities and of all other property, other than
Warranty Receivables, Administrative Receivables and Liquidating
Receivables, or securities released from the lien of this Indenture since
the commencement of the then current calendar year, as set forth in
52
the certificates required by clause (b)(iii) above and this clause (b)(iv),
equals 10% or more of the Outstanding Amount of the Notes, but such
certificate need not be furnished in the case of any release of property or
securities if the fair value thereof as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent of the then
Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section 11.1, the Owner Trustee may (A) collect, liquidate, sell or
otherwise dispose of Receivables as and to the extent permitted or required
by the Basic Documents, (B) make cash payments out of the Designated
Accounts and the Certificate Distribution Account as and to the extent
permitted or required by the Basic Documents and (C) take any other action
not inconsistent with the TIA.
SECTION 11.2 Form of Documents Delivered to Indenture Trustee.
------------------------------------------------
(a) In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an Authorized Officer of the Owner
Trustee may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Servicer, the Seller, the Owner Trustee or the Administrator, stating
that the information with respect to such factual matters is in the possession
of the Servicer, the Seller, the Owner Trustee or the Administrator, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Owner
Trustee shall deliver any document as a condition of the granting of such
application, or as evidence of the Owner Trustee'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 Owner
53
Trustee to have such application granted or to the sufficiency of such
certificate or report. The foregoing shall not, however, be construed to affect
the Indenture Trustee's right to rely upon the truth and accuracy of any
statement or opinion contained in any such document as provided in Article VI.
SECTION 11.3 Acts of Noteholders.
-------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders or a class of Noteholders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Noteholders in
person or by agents duly appointed in writing; and except as herein otherwise
expressly provided such action shall become effective when such instrument or
instruments are delivered to the Indenture Trustee, and, where it is hereby
expressly required, to the Owner Trustee. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Indenture Trustee and the Owner Trustee,
if made in the manner provided in this Section 11.3.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes (or any one or more
predecessor Notes) shall bind the Holder of every Note issued upon the
registration thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Indenture Trustee or the
Owner Trustee in reliance thereon, whether or not notation of such action is
made upon such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Owner Trustee and
------------------------------------------------------
Rating Agencies. Any request, demand, authorization, direction, notice,
---------------
consent, waiver or Act of Noteholders or other documents provided or permitted
by this Indenture to be made upon, given or furnished to or filed with the
Indenture Trustee, the Owner Trustee or the Rating Agencies under this Indenture
shall be made upon, given or furnished to or filed with such party as specified
in Appendix B to the Pooling and Servicing Agreement.
----------
SECTION 11.5 Notices to Noteholders; Waiver.
------------------------------
(a) Where this Indenture provides for notice to Noteholders of any
condition or event, such notice shall be given as specified in Appendix B to the
----------
Pooling and Servicing Agreement.
54
(b) Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event of Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute an Event of
Default.
SECTION 11. 6 Alternate Payment and Notice Provisions.
---------------------------------------
Notwithstanding any provision of this Indenture or any of the Notes to
the contrary, the Owner Trustee may enter into any agreement with any Holder of
a Note providing for a method of payment, or notice by the Indenture Trustee or
any Paying Agent to such Holder, that is different from the methods provided for
in this Indenture for such payments or notices. The Owner Trustee shall furnish
to the Indenture Trustee a copy of each such agreement and the Indenture Trustee
shall cause payments to be made and notices to be given in accordance with such
agreements.
SECTION 11.7 Conflict with Trust Indenture Act.
---------------------------------
(a) If any provision hereof limits, qualifies or conflicts with
another provision hereof that is required to be included in this Indenture by
any of the provisions of the TIA, such required provision shall control.
(b) The provisions of TIA (S)(S) 310 through 317 that impose duties
on any Person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns.
----------------------
(a) All covenants and agreements in this Indenture and the Notes by
the Owner Trustee shall bind its successors and assigns, whether so expressed or
not.
55
(b) All covenants and agreements of the Indenture Trustee in this
Indenture shall bind its successors and assigns, whether so expressed or not.
SECTION 11.10 Separability.
------------
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality, and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.11 Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the Noteholders and the Note Owners and (only to the extent expressly
provided herein) the Certificateholders, any other party secured hereunder and
any other Person with an ownership interest in any part of the Trust Estate, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 11.12 Legal Holidays.
--------------
If the date on which any payment is due shall not be a Business Day,
then (notwithstanding any other provision of the Notes or this Indenture)
payment need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date on which
nominally due, and no interest shall accrue for the period from and after any
such nominal date.
SECTION 11.13 Governing Law.
-------------
This Indenture shall be construed in accordance with the laws of the
State of Illinois, without reference to its conflict of law provisions, except
that the obligations, rights and remedies of the Indenture Trustee hereunder
shall be determined in accordance with the internal laws of the State of New
York, without reference to its conflict of law provisions.
SECTION 11.14 Counterparts.
------------
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 11.15 Recording of Indenture.
----------------------
If this Indenture is subject to recording in any appropriate public
recording offices, such recording is to be effected by the Owner Trustee and at
its expense accompanied by an Opinion of Counsel (which may be counsel to the
Indenture Trustee or any other counsel reasonably acceptable to the Indenture
Trustee) to the effect that such recording is necessary either for the
56
protection of the Noteholders or any other Person secured hereunder or for the
enforcement of any right or remedy granted to the Indenture Trustee under this
Indenture.
SECTION 11.16 No Recourse. No recourse may be taken, directly or
-----------
indirectly, with respect to the obligations of the Owner Trustee or the
Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against:
(i) the Indenture Trustee or the Owner Trustee in its individual
capacity;
(ii) any owner of a beneficial interest in the trust created by the
Trust Agreement; or
(iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee in their
individual capacities, any holder of a beneficial interest in the Trust,
the Owner Trustee or the Indenture Trustee or of any successor or assign of
the Indenture Trustee or the Owner Trustee in their individual capacities
(or any of their successors or assigns), except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the
Owner Trustee have no such obligations in their individual capacities) and
except that any such partner, owner or beneficiary shall be fully liable,
to the extent provided by applicable law, for any unpaid consideration for
stock, unpaid capital contribution or failure to pay any instalment or call
owing to such entity. For all purposes of this Indenture, in the
performance of any duties or obligations of the Owner Trustee hereunder,
the Owner Trustee shall be subject to, and entitled to the benefits of, the
terms and provisions of Articles VI, VII and VIII of the Trust Agreement.
SECTION 11.17 No Petition.
-----------
The Indenture Trustee, by entering into this Indenture, and each
Noteholder and Note Owner, by accepting a Note (or interest therein) issued
hereunder, hereby covenant and agree that they shall not, prior to the date
which is one year and one day after the termination of this Indenture with
respect to the Owner Trustee pursuant to Section 4.1, acquiesce, petition or
otherwise invoke or cause the Seller or the Owner Trustee to invoke the process
of any court or government authority for the purpose of commencing or sustaining
a case against the Seller or the Owner Trustee or the Owner Trust Estate under
any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Seller, the Owner Trust Estate or the Owner Trustee or
any substantial part of its property, or ordering the winding up or liquidation
of the affairs of the Seller, the Owner Trust Estate or the Owner Trustee.
SECTION 11.18 Inspection.
----------
57
The Owner Trustee agrees that, on reasonable prior notice, it shall
permit any representative of the Indenture Trustee, during the Owner Trustee's
normal business hours, to examine all the books of account, records, reports and
other papers of the Owner Trustee (not in its individual capacity, but solely as
trustee under the Trust Agreement), to make copies and extracts therefrom, to
cause such books to be audited by Independent certified public accountants, and
to discuss the Owner Trustee's (not in its individual capacity, but solely as
trustee under the Trust Agreement) affairs, finances and accounts with the Owner
Trustee's officers, employees and Independent certified public accountants, all
at such reasonable times and as often as may be reasonably requested. The
Indenture Trustee shall and shall cause its representatives to hold in
confidence all such information except to the extent disclosure may be required
by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent that the Indenture Trustee may reasonably
determine that such disclosure is consistent with its obligations hereunder.
58
IN WITNESS WHEREOF, the Owner Trustee and the Indenture Trustee have
caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized, all as of the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION
not in its individual capacity but solely as
Owner Trustee
By: /s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK,
as Indenture Trustee
By: /s/ Xxxxx Xxxxxxx
------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Treasurer
STATE OF ILLINOIS)
) ss.:
COUNTY OF XXXX)
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared Xxxx X. Xxxxxx, known to me to
be the person and officer whose name is subscribed to the foregoing instrument
and acknowledged to me that the same was the act of Chase Manhattan Bank USA,
National Association, a national banking association, not in its individual
capacity, but solely as trustee under the Trust Agreement and that he executed
the same as the act of said national banking association for the purpose and
consideration therein expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 27th day of April,
2001.
________________________________________________
Notary Public in and for the State of Illinois.
My commission expires:
_____________________________
STATE OF ILLINOIS)
) ss.:
COUNTY OF XXXX)
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared Xxxxx Xxxxxxx, known to me to
be the person and officer whose name is subscribed to the foregoing instrument
and acknowledged to me that the same was the act of the said The Bank of New
York, a New York banking corporation, and that he executed the same as the act
of said New York banking corporation for the purpose and consideration therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 27th day of April,
2001.
Notary Public in and for the State of Illinois.
My Commission expires:
_________________________________
EXHIBIT A
LOCATIONS OF
SCHEDULE OF RECEIVABLES
The Schedule of Receivables is on file at the offices of:
-----------------------
1. The Indenture Trustee
2. The Owner Trustee
3. Navistar Financial Corporation
4. Navistar Financial Retail Receivables Corporation
EXHIBIT B
FORM OF CLASS A-1 ASSET BACKED NOTE
REGISTERED $____________/1/
No. R- _______
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO.00000XXX0
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Owner Trustee or its agent for
registration of transfer, exchange or payment, and any Note
issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity
as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
Not in its Individual Capacity but Solely as Owner
Trustee Under the Trust Agreement Dated as of
April 27, 2001
CLASS A-1 4.29% ASSET BACKED NOTES
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, not in its individual
capacity, but solely as trustee (the "Owner Trustee") under that certain Trust
Agreement, dated as of April 27, 2001, between Chase Manhattan Bank USA,
National Association (not in its individual capacity, but solely as trustee) and
Navistar Financial Retail Receivables Corporation creating the Navistar
Financial 2001-A Owner Trust (the "Trust"), for
________________
/1/ Denominations of $1,000 and integral multiples thereof.
1
value received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of _______________ DOLLARS ($_________) payable in accordance with
the Indenture, prior to the occurrence of an Event of Default and a declaration
that the Notes are due and payable, on each Distribution Date in an amount equal
to the result obtained by multiplying (i) a fraction, the numerator of which is
the initial principal amount hereof and the denominator of which is [aggregate
principal amount for class] by (ii) the aggregate amount, if any, payable from
the Note Distribution Account in respect of principal on such class of the Notes
pursuant to Sections 2.7, 3.1 and 8.2 of the Indenture; provided, however, that
-------- -------
the entire unpaid principal amount of this Note shall be due and payable on May
15, 2002 (the "Final Scheduled Distribution Date"). The Owner Trustee shall pay
interest on this Note at the rate per annum shown above on each Distribution
Date until the principal of this Note is paid or made available for payment, on
the principal amount of this Note outstanding on the preceding Distribution Date
(after giving effect to all payments of principal made on the preceding
Distribution Date). Interest on this Note will accrue for each Distribution Date
from and including the most recent Distribution Date on which interest has been
paid to but excluding the then current Distribution Date or, if no interest has
yet been paid, from April 27, 2001. Interest on this Note will be calculated on
the basis of the actual number of days elapsed since the Closing Date or the
preceding Distribution Date divided by 360. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America which, at the time of payment, is legal
tender for payment of public and private debts. All payments made by the Owner
Trustee with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
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.
Unless the certificate of authentication hereon has been executed by
the Indenture 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.
2
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
under the Trust Agreement
By: __________________________
Name: Xxxx X. Xxxxxx
Title: Vice President
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Indenture Trustee
By: __________________________
Name: Xxxxx Xxxxxxx
Title: Assistant Treasurer
3
REVERSE OF NOTE
This Note is one of a duly authorized issue of CHASE MANHATTAN BANK
USA, NATIONAL ASSOCIATION, not in its individual capacity, but solely as trustee
(the "Owner Trustee") under that certain Trust Agreement, dated as of April 27,
2001, between Chase Manhattan Bank USA, National Association, as Owner Trustee,
and Navistar Financial Retail Receivables Corporation creating the Navistar
Financial 2001-A Owner Trust (the "Trust") designated as its Class A-1 4.29%
Asset Backed Notes (herein called the "Class A-1 Notes"), all issued under an
Indenture, dated as of April 27, 2001 (such Indenture, as supplemented or
amended, is herein called the "Indenture"), between the Owner Trustee and The
Bank of New York, a New York banking corporation, as trustee (the "Indenture
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 Owner
Trustee, the Indenture Trustee and the Noteholders. The Notes are governed by
and subject to all terms of the Indenture (which terms are incorporated herein
and made a part hereof), to which Indenture the holder of this Note by virtue of
acceptance hereof assents and by which such holder is bound. All capitalized
terms used and not otherwise defined in this Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture.
The Indenture secures (a) first, the payment of principal and interest
on, and any other amounts owing in respect of the Class A Notes, equally and
ratably without prejudice, priority or distinction and (b) second, the payment
of principal of and interest on, and any other amounts owing in respect of the
Class B Notes, equally and ratably without prejudice, priority or distinction,
and to secure compliance with the provisions of the Indenture, as provided
therein.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Indenture Trustee or the Owner Trustee in their individual
capacities, (ii) any owner of a beneficial interest in the Trust or (iii) any
partner, owner, beneficiary, agent, officer, director or employee of the
Indenture Trustee or the Owner Trustee in their individual capacities, any
holder of a beneficial interest in the Trust, the Owner Trustee or the Indenture
Trustee or of any successor or assign of the Indenture Trustee or the Owner
Trustee in their individual capacities, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacities) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any instalment or call owing to such
entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the
4
Indenture such Noteholder will not, prior to the date which is one year and one
day after the termination of this Indenture with respect to the Owner Trustee,
acquiesce, petition or otherwise invoke or cause the Seller or the Owner Trustee
to invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Seller, the Owner Trust Estate or
the Owner Trustee under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller, the Owner Trust Estate or
the Owner Trustee or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Seller, the Owner Trust Estate
or the Owner Trustee.
Each Noteholder, by acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, unless otherwise required by appropriate
taxing authorities, agrees to treat the Notes as indebtedness secured by the
Receivables for the purpose of federal income taxes, state and local income and
franchise taxes, and any other taxes imposed upon, measured by or based upon
gross or net income.
Prior to the due presentment for registration of transfer of this
Note, the Owner Trustee, the Indenture Trustee and any agent of the Owner
Trustee or the Indenture Trustee may treat the Person in whose name this Note
(as of the day of determination or as of such other date as may be specified in
the Indenture) is registered as the owner hereof for all purposes, whether or
not this Note shall be overdue, and neither the Owner Trustee, the Indenture
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Owner Trustee and the rights of the Noteholders under the Indenture at any time
by the Owner Trustee with the consent of the Holders of Notes representing a
majority of the Outstanding Amount of all the Voting Notes. The Indenture also
contains provisions permitting the Holders of Notes representing specified
percentages of the Outstanding Amount of the Voting Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Owner Trustee with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note (or
any one of more Predecessor Notes) shall be conclusive and binding upon such
Holder and 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 notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of the Noteholders.
The term "Owner Trustee" as used in this Note includes any successor
to the Owner Trustee under the Indenture.
The Owner Trustee is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
5
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of Illinois, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws, except that the
obligations, rights and remedies of the Indenture Trustee hereunder shall be
determined in accordance with the internal laws of the State of New York.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Owner Trustee,
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.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither the Seller, the Servicer, the Indenture
Trustee nor the Owner Trustee in their respective individual capacities, any
owner of a beneficial interest in the Trust, nor any of their respective
partners, beneficiaries, agents, officers, directors, employees or successors or
assigns, shall be personally liable for, nor shall recourse be had to any of
them for, the payment of principal of or interest on, or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in this Note or the Indenture, it being expressly understood that said
covenants, obligations and indemnifications have been made by the Owner Trustee
solely as the Owner Trustee. The Holder of this Note by the acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Holder shall have no claim against
any of the foregoing for any deficiency, loss or claim therefrom; provided,
--------
however, that nothing contained herein shall be taken to prevent recourse to,
-------
and enforcement against, the Owner Trust Estate for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Note.
6
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________
_________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________, as attorney, to transfer said
Note on the books kept for registration thereof, with full power of substitution
in the premises.
Dated:__________________ __________________________________/1/
Signature Guaranteed:
________________________ __________________________________
___________________
/1/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
7
EXHIBIT C
FORM OF CLASS X-0, XXXXX X-0, CLASS A-4 AND
CLASS B ASSET BACKED NOTE
REGISTERED $______________/1/
No. R-____ CUSIP No. ___________
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Owner Trustee or its agent for
registration of transfer, exchange or payment, and any Note
issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity
as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
Not in its Individual Capacity but Solely as
Owner Trustee Under the Trust Agreement
Dated as of April 27, 2001
CLASS ____ _____% ASSET BACKED NOTES
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION not in its individual
capacity, but solely as trustee (the "Owner Trustee") under that certain Trust
Agreement, dated as of April 27, 2001 between Chase Manhattan Bank USA, National
Association, (not in its individual capacity, but solely as trustee) and
Navistar Financial Retail Receivables Corporation creating the Navistar
Financial 2001-A Owner Trust (the "Trust") for value received, hereby promises
to pay to Cede & Co., or registered assigns, the principal sum of
_________________________
/1/ Denominations of $1,000 and integral multiples thereof (except, if
applicable, for one Note representing a residual portion of such class which may
be issued in a different denomination).
8
_______________ DOLLARS ($_________) payable in accordance with the Indenture,
prior to the occurrence of an Event of Default and a declaration that the Notes
are due and payable, on each Distribution Date in an amount equal to the result
obtained by multiplying (i) a fraction, the numerator of which is the initial
principal amount hereof and the denominator of which is [aggregate principal
amount for class] by (ii) the aggregate amount, if any, payable from the Note
Distribution Account in respect of principal on such class of the Notes pursuant
to Sections 2.7, 3.1 and 8.2 of the Indenture; provided, however, that the
-------- -------
entire unpaid principal amount of this Note shall be due and payable on [the
earlier of] _______________ (the "Final Scheduled Distribution Date") [and the
Redemption Date, if any, pursuant to Section 10.1(a) of the Indenture]. The
Owner Trustee shall pay interest on this Note at the rate per annum shown above
on each Distribution Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Distribution Date (after giving effect to all payments of principal
made on the preceding Distribution Date). Interest on this Note will accrue for
each Distribution Date from and including the most recent Distribution Date on
which interest has been paid to but excluding the then current Distribution Date
or, if no interest has yet been paid, from April 27, 2001. Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months
(or, in the case of the initial Distribution Date, 18/30ths of a month). Such
principal of and interest on this Note shall be paid in the manner specified on
the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America which, at the time of payment, is legal
tender for payment of public and private debts. All payments made by the Owner
Trustee with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
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.
Unless the certificate of authentication hereon has been executed by
the Indenture 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.
9
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner Trustee
under the Trust Agreement
By: ______________________
Name: Xxxx X. Xxxxxx
Title: Vice President
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Indenture Trustee
By: _________________________
Name: Xxxxx Xxxxxxx
Title: Assistant Treasurer
10
REVERSE OF NOTE
This Note is one of a duly authorized issue of CHASE MANHATTAN BANK
USA, NATIONAL ASSOCIATION, not in its individual capacity, but solely as trustee
(the "Owner Trustee") under that certain Trust Agreement, dated as of April 27,
2001, between Chase Manhattan Bank USA, National Association, as Owner Trustee,
and Navistar Financial Retail Receivables Corporation creating the Navistar
Financial 2001-A Owner Trust (the "Trust") designated as its Class ________
% Asset Backed Notes (herein called the "Class______ Notes"), all issued under
--
an Indenture, dated as of April 27, 2001 (such Indenture, as supplemented or
amended, is herein called the "Indenture"), between the Owner Trustee and The
Bank of New York, a New York banking corporation, as trustee (the "Indenture
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 Owner
Trustee, the Indenture Trustee and the Noteholders. The Notes are governed by
and subject to all terms of the Indenture (which terms are incorporated herein
and made a part hereof), to which Indenture the holder of this Note by virtue of
acceptance hereof assents and by which such holder is bound. All capitalized
terms used and not otherwise defined in this Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture.
The Indenture secures (a) first, the payment of principal and interest
on, and any other amounts owing in respect of the Class A Notes, equally and
ratably without prejudice, priority or distinction and (b) second, the payment
of principal of and interest on, and any other amounts owing in respect of the
Class B Notes, equally and ratably without prejudice, priority or distinction,
and to secure compliance with the provisions of the Indenture, as provided
therein.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Indenture Trustee or the Owner Trustee in their individual
capacities, (ii) any owner of a beneficial interest in the Trust or (iii) any
partner, owner, beneficiary, agent, officer, director or employee of the
Indenture Trustee or the Owner Trustee in their individual capacities, any
holder of a beneficial interest in the Trust, the Owner Trustee or the Indenture
Trustee or of any successor or assign of the Indenture Trustee or the Owner
Trustee in their individual capacities, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacities) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any instalment or call owing to such
entity.
11
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder will not, prior to the
date which is one year and one day after the termination of this Indenture with
respect to the Owner Trustee, acquiesce, petition or otherwise invoke or cause
the Seller or the Owner Trustee to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Seller,
the Owner Trust Estate or the Owner Trustee under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Seller, the Owner Trust Estate or the Owner Trustee or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller, the Owner Trust Estate or the Owner Trustee.
Each Noteholder, by acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, unless otherwise required by appropriate
taxing authorities, agrees to treat the Notes as indebtedness secured by the
Receivables for the purpose of federal income taxes, state and local income and
franchise taxes, and any other taxes imposed upon, measured by or based upon
gross or net income.
Prior to the due presentment for registration of transfer of this
Note, the Owner Trustee, the Indenture Trustee and any agent of the Owner
Trustee or the Indenture Trustee may treat the Person in whose name this Note
(as of the day of determination or as of such other date as may be specified in
the Indenture) is registered as the owner hereof for all purposes, whether or
not this Note shall be overdue, and neither the Owner Trustee, the Indenture
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Owner Trustee and the rights of the Noteholders under the Indenture at any time
by the Owner Trustee with the consent of the Holders of Notes representing a
majority of the Outstanding Amount of all the Voting Notes. The Indenture also
contains provisions permitting the Holders of Notes representing specified
percentages of the Outstanding Amount of the Voting Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Owner Trustee with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note (or
any one of more Predecessor Notes) shall be conclusive and binding upon such
Holder and 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 notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of the Noteholders.
The term "Owner Trustee" as used in this Note includes any successor
to the Owner Trustee under the Indenture.
12
The Owner Trustee is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of Illinois, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws, except that the
obligations, rights and remedies of the Indenture Trustee hereunder shall be
determined in accordance with the internal laws of the State of New York.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Owner Trustee,
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.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither the Seller, the Servicer, the Indenture
Trustee nor the Owner Trustee in their respective individual capacities, any
owner of a beneficial interest in the Trust, nor any of their respective
partners, beneficiaries, agents, officers, directors, employees or successors or
assigns, shall be personally liable for, nor shall recourse be had to any of
them for, the payment of principal of or interest on, or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in this Note or the Indenture, it being expressly understood that said
covenants, obligations and indemnifications have been made by the Owner Trustee
solely as Owner Trustee. The Holder of this Note by the acceptance hereof agrees
that, except as expressly provided in the Basic Documents, in the case of an
Event of Default under the Indenture, the Holder shall have no claim against any
of the foregoing for any deficiency, loss or claim therefrom; provided,
--------
however, that nothing contained herein shall be taken to prevent recourse to,
-------
and enforcement against, the Owner Trust Estate for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Note.
13
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________
_________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________, as attorney, to transfer said
Note on the books kept for registration thereof, with full power of substitution
in the premises.
Dated:__________________ __________________________________/1/
Signature Guaranteed:
_________________________ __________________________________
/1/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
14
EXHIBIT D
FORM OF NOTE DEPOSITORY AGREEMENT
15
Net Sales Detail - First Quarter
2001 % of Total 2000 % of Total % Change
Long-run Magazines, Catalogs and Inserts 442,603 34.0% 451,008 33.6% -1.9%
Book Publishing Services 163,653 12.6% 182,032 13.6% -10.1%
Financial Services 100,839 7.7% 133,310 9.9% -24.4%
Telecommunications 190,494 14.6% 207,323 15.4% -8.1%
International (1) 77,599 6.0% 82,093 6.1% -5.5%
Specialized Publishing Services 64,958 5.0% 62,987 4.7% 3.1%
RRD Direct 46,134 3.5% 48,161 3.6% -4.2%
Premedia 27,750 2.1% 21,761 1.6% 27.5%
Other (2) (0) 0.0% 1 0.0% -115.4%
Commerical Print 1,114,030 85.5% 1,188,675 88.5% -6.3%
Logistics Services 186,218 14.3% 149,251 11.1% 24.8%
Other (2) 2,402 0.2% 5,044 0.4% -54.4%
-----------------------------------------------------------
Total Net Sales 1,302,650 100.0% 1,342,970 100.0% -3.0%
(1) Includes South America, Poland and Mexico
(2) Includes Red Rover, Housenet, Louisville Distribution and Other
Consolidated Summary of Expense Trends - First Quarter
2001 % of Sales 2000 % of Sales % Change
Cost of materials (excluding cost of transp.) 425,105 32.6% 463,384 34.5% -8.3%
Cost of transportation 149,263 11.5% 122.078 9.1% 22.3%
Cost of manufacturing 430,997 33.1% 423,186 31.5% 1.8%
Depreciation 81,702 6.3% 80,509 6.0% 1.5%
Amortization 16,210 1.2% 14,378 1.1% 12.7%
Selling and admin 137,781 10.6% 144,294 10.7% -4.5%
Restructuring and impairment 21,742 1.7% 0 0.0% n/a
--------------------------------------------------------
Net interest expense 17,624 1.4% 22,141 1.6% -20.4%
