EXHIBIT 4.2
Execution Copy
NAVISTAR FINANCIAL 2003-A OWNER TRUST
Class A-1 1.25% Asset Backed Notes
Class A-2 1.31% Asset Backed Notes
Class A-3 1.73% Asset Backed Notes
Class A-4 2.24% Asset Backed Notes
Class B 3.08% Asset Backed Notes
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INDENTURE
Dated as of June 5, 2003
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The Bank of New York,
a New York banking corporation,
Indenture Trustee
TABLE OF CONTENTS
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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..............................................................................4
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........................................................................8
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.......................................................................10
Section 2.14 Tax Treatment..............................................................................10
ARTICLE III COVENANTS............................................................................................10
Section 3.1 Payment of Principal and Interest...........................................................10
Section 3.2 Maintenance of Agency Office................................................................11
Section 3.3 Money for Payments To Be Held in Trust......................................................11
Section 3.4 Existence...................................................................................12
Section 3.5 Protection of Collateral; Acknowledgment of Pledge..........................................13
Section 3.6 Opinions as to Collateral...................................................................13
Section 3.7 Performance of Obligations; Servicing of Receivables........................................14
Section 3.8 Negative Covenants..........................................................................15
Section 3.9 Annual Statement as to Compliance...........................................................15
Section 3.10 Consolidation, Merger, etc., of the Issuer; Disposition of Trust Assets....................16
Section 3.11 Successor or Transferee....................................................................18
Section 3.12 No Other Business..........................................................................18
Section 3.13 No Borrowing...............................................................................18
Section 3.14 Guarantees, Loans, Advances and Other Liabilities..........................................18
Section 3.15 Servicer's Obligations.....................................................................18
Section 3.16 Capital Expenditures.......................................................................19
Section 3.17 Removal of Administrator...................................................................19
Section 3.18 Restricted Payments........................................................................19
Section 3.19 Notice of Events of Default................................................................19
Section 3.20 Further Instruments and Acts...............................................................19
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Section 3.21 Indenture Trustee's Assignment of Administrative Receivables and Warranty Receivables......19
Section 3.22 Representations and Warranties by the Issuer to the Indenture Trustee......................20
ARTICLE IV SATISFACTION AND DISCHARGE............................................................................20
Section 4.1 Satisfaction and Discharge of Indenture.....................................................20
Section 4.2 Application of Trust Money..................................................................22
Section 4.3 Repayment of Monies Held by Paying Agent....................................................22
Section 4.4 Duration of Position of Indenture Trustee for Benefit of Certificateholders.................22
ARTICLE V DEFAULT AND REMEDIES...................................................................................22
Section 5.1 Events of Default...........................................................................22
Section 5.2 Acceleration of Maturity; Rescission and Xxxxxxxxx..........................................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 Collateral.....................................................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.................................................................................31
Section 6.1 Duties of Indenture Trustee.................................................................31
Section 6.2 Rights of Indenture Trustee.................................................................32
Section 6.3 Indenture Trustee May Own Notes.............................................................33
Section 6.4 Indenture Trustee's Disclaimer..............................................................33
Section 6.5 Notice of Defaults..........................................................................33
Section 6.6 Reports by Indenture Trustee to Holders.....................................................33
Section 6.7 Compensation; Indemnity.....................................................................34
Section 6.8 Replacement of Indenture Trustee............................................................34
Section 6.9 Merger or Consolidation of Indenture Trustee................................................35
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee..........................35
Section 6.11 Eligibility; Disqualification..............................................................37
Section 6.12 Preferential Collection of Claims Against Issuer...........................................38
Section 6.13 Representations and Warranties of Indenture Trustee........................................38
Section 6.14 Indenture Trustee May Enforce Claims Without Possession of Notes...........................38
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Section 6.15 Suit for Enforcement.......................................................................39
Section 6.16 Rights of Noteholders to Direct Indenture Trustee..........................................39
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS.......................................................................39
Section 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders......................39
Section 7.2 Preservation of Information, Communications to Noteholders..................................39
Section 7.3 Reports by Issuer...........................................................................40
Section 7.4 Reports by Indenture Trustee................................................................40
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES................................................................41
Section 8.1 Collection of Money.........................................................................41
Section 8.2 Designated Accounts; Payments...............................................................41
Section 8.3 General Provisions Regarding Accounts.......................................................45
Section 8.4 Release of Collateral.......................................................................45
Section 8.5 Opinion of Counsel..........................................................................46
Section 8.6 Investment Earnings and Supplemental Servicing Fees.........................................46
Section 8.7 Net Deposits................................................................................46
Section 8.8 Statements to Securityholders...............................................................47
Section 8.9 Designated Accounts.........................................................................48
Section 8.10 Reserve Account............................................................................49
Section 8.11 Pre-Funding Account........................................................................49
Section 8.12 Negative Carry Account.....................................................................50
Section 8.13 Sale of Assets; Termination................................................................50
ARTICLE IX SUPPLEMENTAL INDENTURES...............................................................................51
Section 9.1 Supplemental Indentures Without Consent of Noteholders......................................51
Section 9.2 Supplemental Indentures With Consent of Noteholders.........................................52
Section 9.3 Execution of Supplemental Indentures........................................................54
Section 9.4 Effect of Supplemental Indenture............................................................54
Section 9.5 Conformity with Trust Indenture Act.........................................................54
Section 9.6 Reference in Notes to Supplemental Indentures...............................................54
ARTICLE X REDEMPTION OF NOTES....................................................................................55
Section 10.1 Redemption.................................................................................55
Section 10.2 Form of Redemption Notice..................................................................55
Section 10.3 Notes Payable on Redemption Date...........................................................56
ARTICLE XI MISCELLANEOUS.........................................................................................56
Section 11.1 Compliance Certificates and Opinions, etc..................................................56
Section 11.2 Form of Documents Delivered to Indenture Trustee...........................................58
Section 11.3 Acts of Noteholders........................................................................58
Section 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies............................59
Section 11.5 Notices to Noteholders; Waiver.............................................................59
Section 11.6 Alternate Payment and Notice Provisions....................................................59
Section 11.7 Conflict with Trust Indenture Act..........................................................60
Section 11.8 Effect of Headings and Table of Contents...................................................60
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Section 11.9 Successors and Assigns.....................................................................60
Section 11.10 Separability..............................................................................60
Section 11.11 Benefits of Indenture.....................................................................60
Section 11.12 Legal Holidays............................................................................60
Section 11.13 Governing Law.............................................................................60
Section 11.14 Counterparts..............................................................................61
Section 11.15 Recording of Indenture....................................................................61
Section 11.16 No Recourse...............................................................................61
Section 11.17 No Petition...............................................................................61
Section 11.18 Inspection................................................................................62
Exhibit A- Locations of Composite Schedule of Receivables
Exhibit B- Form of Class A-1 Asset Backed Note
Exhibit C- Form of Class A-2, Class A-3, Class A-4 and Class B Asset Backed
Note
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INDENTURE, dated as of June 5, 2003 between NAVISTAR FINANCIAL
2003-A OWNER TRUST, a Delaware statutory trust (the "Issuer"), 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
The Issuer 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 Issuer's right,
title and interest in, to and under (a) the Receivables listed on the Composite
Schedule of Receivables which is on file at the locations listed on Exhibit A
hereto, whether now existing or hereafter acquired and including, without
limitation, Subsequent Receivables acquired by the Issuer pursuant to the
Pooling Agreement listed on the schedules to the Subsequent Transfer PSA
Assignments with respect to such Subsequent Receivables and all Related
Security; (b) the Collection Account and the Note Distribution Account and all
funds on deposit from time to time in the Collection Account and the Note
Distribution Account; (c) 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); (d) 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) (c) and (d), collectively,
the "Reserve Account Property"); (e) the Pre-Funding Account and 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"); (f) the Negative Carry Account and all
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); (g)
the Pooling Agreement (including all rights of NFRRC under the Purchase
Agreement, the Initial PA Assignment and any Subsequent Transfer PA Assignments
assigned to the Issuer pursuant to the Pooling Agreement); (h) the Servicing
Agreement; (i) the rights of NFC under the Lease Purchase Agreement, the Initial
LPA Assignment and any Subsequent Transfer LPA Assignment assigned to NFRRC
pursuant to the Purchase Agreement and then to the Issuer pursuant to the
Pooling Agreement; (j) the Titling Trust Documents, including the Series 2003-A
Portfolio Certificate, the Series 2003-A Portfolio Interest and the beneficial
interest in the Series 2003-A Portfolio Assets; (k) all Collections; 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, subject to the priority set forth in Section 8.2(d) of this
Indenture, 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 Issuer under any agreement or instrument
included in the Collateral, including the immediate and continuing right to
claim for, collect, receive and give receipt for principal, interest and lease
payments and other Scheduled Payments in respect of the Receivables included in
the Collateral and all other monies payable under the Collateral, to give and
receive notices and other communications, to make waivers or other agreements,
to exercise all rights and options, to bring Proceedings in the name of the
Issuer or otherwise and generally to do and receive anything that the Issuer is
or may be entitled to do or receive under or with respect to the Collateral.
The Indenture Trustee, as trustee on behalf of the Noteholders
and (only to the extent expressly provided herein) the Certificateholders,
acknowledges such Grant and accepts the trusts under this Indenture in
accordance with the provisions of this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions. Certain capitalized terms used in this
Indenture shall have the respective meanings assigned them in Part I of Appendix
A to the Pooling Agreement of even date herewith between the Issuer and NFRRC
(as it may be amended, supplemented or modified from time to time, the "Pooling
Agreement"). All references herein to "the Indenture" or "this Indenture" are to
this 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
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
A shall be applicable to this Indenture.
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Section 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture 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 Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by a Commission
rule have the respective meanings assigned to them by such definitions.
ARTICLE II
THE NOTES
Section 2.1 Form.
(a) The Class A-1 Notes, with the Indenture
Trustee's certificate of authentication, shall be substantially in the form set
forth in Exhibit B and each of the Class A-2 Notes, Class A-3 Notes, Class A-4
Notes and Class B Notes, each with the Indenture Trustee's certificate of
authentication, shall be substantially in the form set forth in Exhibit C, with
such appropriate insertions, 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.
(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 are part of the terms of this Indenture.
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Section 2.2 Execution, Authentication and Delivery.
(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
Issuer 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 Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such office prior to the authentication and delivery of such Notes or did
not hold such office at the date of such Notes.
(d) The Indenture Trustee shall upon Issuer Order
authenticate and deliver to or upon the order of the Issuer, the Notes for
original issue in aggregate principal amount of $500,000,000, comprised of (i)
Class A-1 Notes in the aggregate principal amount of $85,000,000, (ii) Class A-2
Notes in the aggregate principal amount of $175,000,000, (iii) Class A-3 Notes
in the aggregate principal amount of $113,000,000, (iv) Class A-4 Notes in the
aggregate principal amount of $108,250,000, and (v) Class B Notes in the
aggregate principal amount of $18,750,000. The aggregate principal amount of all
Notes outstanding at any time may not exceed $500,000,000 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, the Class A-3 Notes, the Class A-4 Notes and the Class B Notes,
in Exhibit C, 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.
Section 2.3 Temporary Notes.
(a) Pending the preparation of Definitive Notes, if
any, the Issuer may execute, and upon receipt of an Issuer Order the Indenture
Trustee shall authenticate and deliver, such Temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
as are consistent with the terms of this Indenture as the officers executing
such Notes may determine, as evidenced by their execution of such Notes.
(b) If Temporary Notes are issued, the Issuer shall
cause Definitive 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 Issuer to be maintained as provided in Section 3.2, without charge to the
Noteholder. Upon surrender for cancellation of any one or more Temporary Notes,
the Issuer shall execute and the Indenture Trustee shall authenticate and
deliver in exchange
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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 Notes.
(a) The Issuer 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 Issuer may prescribe, the Issuer
shall provide for the registration of the Notes and the registration of
transfers and exchanges of the Notes. The Indenture Trustee shall initially be
the Note Registrar for the purpose of registering the Notes and transfers of the
Notes as herein provided. Upon any resignation of any Note Registrar, the Issuer
shall promptly appoint a successor Note Registrar or, if it elects not to make
such an appointment, assume the duties of the Note Registrar.
(b) If a Person other than the Indenture Trustee is
appointed by the Issuer as Note Registrar, the Issuer 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 Issuer (and following the delivery, in the former case, of such
Notes to the Issuer by the Indenture Trustee), the Issuer shall execute, the
Indenture Trustee shall authenticate and the Noteholder shall obtain from the
Indenture Trustee, in the name of the designated transferee or transferees, one
or more new Notes in any authorized denominations, of a like aggregate principal
amount.
(d) At the option of the Noteholder, Notes may be
exchanged for other Notes of the same 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 Issuer (and following the delivery, in the former case, of such Notes to the
Issuer by the Indenture Trustee), the Issuer shall execute, and the Indenture
Trustee shall authenticate and the Noteholder shall obtain from the Indenture
Trustee, 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 Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Notes surrendered upon such registration of transfer or
exchange.
(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
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thereof or such Xxxxxx's attorney duly authorized in writing, with such
signature guaranteed by a commercial bank or trust company located, or having a
correspondent located, in the City of New York or the city in which the
Corporate Trust Office of the Indenture Trustee is located, or by a member firm
of a national securities exchange, and such other documents as the Indenture
Trustee may require.
(g) No service charge shall be made to a Holder for
any registration of transfer or exchange of Notes, but the Issuer or Indenture
Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Notes, other than exchanges pursuant to Section 2.3 or
Section 9.6 not involving any transfer.
(h) The preceding provisions of this Section 2.4
notwithstanding, the Issuer shall not be required to transfer or make exchanges,
and the Note Registrar need not register transfers or exchanges, 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.
(a) If (i) any mutilated Note is surrendered to the
Indenture Trustee, or the Indenture Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Note, and (ii) there is
delivered to the Indenture Trustee such security or indemnity as may be required
by it to hold the Issuer and the Indenture Trustee harmless, then, in the
absence of notice to the Issuer, the Note Registrar or the Indenture Trustee
that such Note has been acquired by a protected purchaser, the Issuer shall
execute and upon the Issuer's request the Indenture Trustee shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Note, a replacement Note of a like class and aggregate principal
amount; provided, however, that if any such destroyed, lost or stolen Note, but
not a mutilated Note, shall have become or within seven days shall be due and
payable in full, or shall have been called for redemption, instead of issuing a
replacement Note, the Issuer may make payment to the Holder of such destroyed,
lost or stolen Note when so due or payable or upon the Redemption Date, if
applicable, without surrender thereof.
(b) If, after the delivery of a replacement Note or
payment in respect of a destroyed, lost or stolen Note pursuant to subsection
(a), any protected purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Issuer
and the 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 protected purchaser,
and the Issuer and the Indenture Trustee shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Issuer or the Indenture Trustee in connection
therewith.
(c) In connection with the issuance of any
replacement Note under this Section 2.5, the Issuer may require the payment by
the Holder of such Note of a sum sufficient to
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cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including all fees and expenses of
the Indenture Trustee) connected therewith.
(d) Any duplicate Note issued pursuant to this
Section 2.5 in replacement for any mutilated, destroyed, lost or stolen Note
shall constitute an original additional contractual obligation of the Issuer,
whether or not the mutilated, destroyed, lost or stolen Note shall be found at
any time or be enforced by any Person, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Notes duly
issued hereunder.
(e) The provisions of this Section 2.5 are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Notes.
Section 2.6 Persons Deemed Noteholders. Prior to due presentment
for registration of transfer of any Note, the Issuer, the Indenture Trustee and
any 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 Issuer, the
Indenture Trustee nor any agent of the Issuer or the Indenture Trustee shall be
affected by notice to the contrary.
Section 2.7 Payment of Principal and Interest.
(a) Interest on 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 interest shall be payable on each Distribution Date, in
accordance with the priorities set forth in Section 8.2(d), 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 Class A-4 Notes and the Class B Notes shall accrue in the manner
set forth in Exhibit C at the applicable Interest Rate for such class, and shall
be payable on each Distribution Date, in accordance with the priorities set
forth in Section 8.2(d), as specified in the form of Note set forth in Exhibit
C. Any installment of interest payable on any Note shall be punctually paid or
duly provided for by a deposit by or at the direction of the Issuer 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
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
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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(d)(ii) or (iii), as applicable, and, if applicable, Section 8.2(e). 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 Section 8.2 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(d)(iv) or (v), as applicable and, if applicable, Section
8.2(e).
(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 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 Issuer may
at any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered 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
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canceled Notes may be held or disposed of by the Indenture Trustee in accordance
with its standard retention or disposal policy as in effect at the time unless
the Issuer shall direct by an Issuer Order that they be returned to it;
provided, however, that such Issuer Order is timely and the Notes have not been
previously disposed of by the Indenture Trustee. The Indenture Trustee shall
certify to the Issuer that surrendered Notes have been duly 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
Sections314(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 Issuer. 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;
(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 Controlling
Class, 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.
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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 Issuer 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
Controlling Class 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 Issuer shall execute and the Indenture Trustee shall
authenticate the Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the 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 Issuer or its affiliates with the same rights it would have if it
were not the Seller.
Section 2.14 Tax Treatment. The Issuer 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 Issuer shall
duly and punctually pay the principal of and interest on the Notes in accordance
with the terms of the Notes and this Indenture. On each 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
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Code by any Person from a payment to any Noteholder of interest and/or
principal. Any amounts so withheld shall be considered as having been paid by
the Issuer to such Noteholder for all purposes of this Indenture.
Section 3.2 Maintenance of Agency Office. As long as any of the
Notes remains outstanding, the Issuer shall maintain in the Borough of
Manhattan, the City of New York, an office (the "Agency Office"), being an
office or agency where Notes may be surrendered to the Issuer for registration
of transfer or exchange, and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer hereby
initially appoints the Indenture Trustee to serve as its agent for the foregoing
purposes. The Issuer shall give prompt written notice to the Indenture Trustee
of the location, and of any change in the location, of the Agency Office. If at
any time the Issuer shall fail to maintain any such office or agency or shall
fail to furnish the Indenture Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Indenture Trustee, and the Issuer hereby appoints the Indenture Trustee as its
agent to receive all such surrenders, notices and demands.
Section 3.3 Money for Payments To Be Held in Trust
(a) As provided in Section 8.2, all payments of
amounts due and payable with respect to any Notes that are to be made from
amounts withdrawn from the Note Distribution Account pursuant to Section 8.2(d),
(e) or (f) shall be made on behalf of the Issuer by the Indenture Trustee or by
another Paying Agent, and no amounts so withdrawn from the Note Distribution
Account for payments of Notes shall be paid over to the Issuer 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 Issuer shall cause each Paying Agent other
than the Indenture Trustee to execute and deliver to the Indenture Trustee an
instrument in which such Paying Agent shall agree with the Indenture Trustee
(and if the Indenture Trustee acts as Paying Agent, it hereby so agrees),
subject to the provisions of this Section 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment
of amounts due with respect to the Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any
default by the Issuer (or any other obligor upon the Notes) of which it
has actual knowledge in the making of any payment required to be made
with respect to the Notes;
(iii) at any time during the continuance of
any such default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in trust by such
Paying Agent;
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(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 Issuer may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, by Issuer Order direct any Paying Agent to pay to the Indenture Trustee
all sums held in trust by such Paying Agent, such sums to be held by the
Indenture Trustee upon the same trusts as those upon which the sums were held by
such Paying Agent; and upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
(e) Subject to applicable laws with respect to
escheat of funds, any money held by the Indenture Trustee or any Paying Agent in
trust for the payment of any amount due with respect to any Note and remaining
unclaimed for one year after such amount has become due and payable shall be
discharged from such trust and be paid by the Indenture Trustee to the Issuer on
Issuer Request; and the Holder of such Note shall thereafter, as an unsecured
general creditor, look only to the Issuer for payment thereof (but only to the
extent of the amounts so paid to the Issuer), and all liability of the Indenture
Trustee or such Paying Agent with respect to such trust money shall thereupon
cease; provided, however, that the Indenture Trustee or such Paying Agent,
before being required to make any such payment, may at the expense of the Issuer
cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in the
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining shall be
paid to the Issuer. The Indenture Trustee may also adopt and employ, at the
expense of the Issuer, any other reasonable means of notification of such
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 Issuer shall keep in full effect its
existence, rights and franchises as a statutory trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States of
America, in which case the Issuer shall keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Collateral.
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Section 3.5 Protection of Collateral; Acknowledgment of Pledge.
The Issuer shall from time to time execute and deliver all such supplements and
amendments hereto and all such financing statements, amendments thereto,
continuation statements, assignments, certificates, instruments of further
assurance and other instruments, and shall take such other action 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 following: (A) any change in the name
of the Issuer (or its successor), (B) any change in the jurisdiction of
formation of the Issuer (or its successor) and (C) any merger or
consolidation or other change in the identity or organizational
structure of the Issuer 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 Collateral and
the rights of the Indenture Trustee and the Noteholders in such
Collateral against the claims of all Persons and parties, and the Issuer
hereby authorizes the Indenture Trustee to execute and file 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 Collateral.
(a) On the Closing Date, the Issuer shall furnish to
the Indenture Trustee an Opinion of Counsel either stating that, in the opinion
of such counsel, such action has been taken with respect to the recording and
filing of this Indenture, any indentures supplemental hereto and any other
requisite documents, and with respect to the execution and filing of any
financing statements and continuation statements as are necessary to perfect and
make effective the lien and security interest of this Indenture and reciting the
details of such action, or stating that, in the opinion of such counsel, no such
action is necessary to make such lien and security interest effective.
(b) On or before April 15 in each calendar year,
beginning April 15, 2004, the Issuer shall furnish to the Indenture Trustee an
Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording, filing, re-recording and
refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and with respect to the execution and filing of any
financing statements and continuation statements as is necessary to maintain the
lien and security interest created by this Indenture and reciting the details of
such action or stating that in the opinion of such counsel no such action is
necessary to maintain the lien and security interest created by this Indenture.
Such
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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 Issuer shall not take any action and shall
use its reasonable efforts not to permit any action to be taken by others that
would release any Person from any of such Person's material covenants or
obligations under any instrument or agreement included in the Collateral or that
would result in the amendment, hypothecation, subordination, termination or
discharge of, or impair the validity or effectiveness of, any such instrument or
agreement, except as otherwise expressly provided in this Indenture, the Pooling
Agreement, the Servicing Agreement, the Purchase Agreement, the Administration
Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons to
assist it in performing its duties under this Indenture, and any performance of
such duties by a Person identified to the Indenture Trustee in the Basic
Documents or an Officers' Certificate of the Issuer shall be deemed to be action
taken by the Issuer. Initially, the Issuer has contracted with the Servicer and
the Administrator to assist the Issuer in performing its duties under this
Indenture.
(c) The Issuer shall punctually perform and observe
all of its obligations and agreements contained in this Indenture, the Basic
Documents and in the instruments and agreements included in the Collateral,
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 Agreement and the Purchase Agreement in accordance
with and within the time periods provided for herein and therein.
(d) If the Issuer shall have knowledge of the
occurrence of a Servicer Default under the Servicing Agreement, the Issuer shall
promptly notify the Indenture Trustee and the Rating Agencies thereof, and shall
specify in such notice the response or action, if any, the Issuer has taken or
is taking with respect of such default. If a Servicer Default shall arise from
the failure of the Servicer to perform any of its duties or obligations under
the Servicing Agreement with respect to the Receivables, the Issuer and the
Indenture Trustee shall take all reasonable steps available to them pursuant to
the 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 Issuer agrees that it shall not
consent so as to permit NFRRC, NFC, or Harco Leasing to, without the prior
written consent of the Indenture Trustee or the Holders of at least a majority
in Outstanding Amount of the Controlling Class, as required in accordance with
the terms thereof, amend, xxxxxx, 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
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Seller under the Pooling Agreement or the Purchase Agreement, the Servicer under
the Servicing Agreement, the Administrator under the Administration Agreement,
NFC under the Purchase Agreement or Harco Leasing under the Lease Purchase
Agreement, except as specifically permitted under these documents; 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 Issuer agrees,
promptly following a request by the Indenture Trustee to do so, to execute and
deliver, in its own name and at its own expense, such agreements, instruments,
consents and other documents as the Indenture Trustee may deem necessary or
appropriate in the circumstances.
Section 3.8 Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of
any of the properties or assets of the Issuer, except the Issuer may (i)
collect, liquidate, sell or otherwise dispose of 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 Collateral;
(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 Collateral or any part thereof or any
interest therein or the proceeds thereof (other than tax liens, mechanics' liens
and other liens that arise by operation of law, in each case on a Financed
Vehicle and arising solely as a result of an action or omission of the related
Obligor), or (iii) permit the lien of this Indenture not to constitute a valid
first priority security interest in the Collateral (other than with respect to
any such tax, mechanics' or other lien).
Section 3.9 Annual Statement as to Compliance. The Issuer shall deliver
to the Indenture Trustee, with a copy to each of the Rating Agencies, on or
before February 1 of each
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year, beginning February 1, 2004, 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 Issuer during
such fiscal year and of performance by the Issuer under this Indenture has been
made under such Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's
knowledge, based on such review, the Issuer has fulfilled in all material
respects all of its obligations under this Indenture throughout such year, or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such Authorized Officer and the nature and
status thereof. A copy of such certificate may be obtained by any Noteholder by
a request in writing to the Issuer addressed to the Corporate Trust Office of
the Indenture Trustee.
Section 3.10 Consolidation, Merger, etc., of the Issuer;
Disposition of Trust Assets.
(a) The Issuer shall not consolidate or merge with
or into any other Person, unless:
(i) the Person (if other than the Issuer)
formed by or surviving such consolidation or merger shall be a Person
organized and existing under the laws of the United States of America or
any State and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and timely payment of the
principal of and interest on all Notes and the performance or observance
of every agreement and covenant of this Indenture on the part of the
Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such
merger or consolidation, no Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have
been satisfied with respect to such transaction and such Person for each
then outstanding class of Notes;
(iv) any action as is necessary to maintain
the lien and security interest created by this Indenture shall have been
completed; and
(v) the Issuer shall have delivered to the
Indenture Trustee an Officers' Certificate and an Opinion of Counsel
addressed to the Issuer, each stating:
(A) that such consolidation or
merger and such supplemental indenture comply with this Section
3.10;
(B) that such consolidation or
merger and such supplemental indenture shall have no material
adverse tax consequence to the Issuer or any Securityholder; and
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(C) that all conditions precedent
herein provided for in this Section 3.10 have been complied
with, which shall include any filing required by the Exchange
Act.
(b) Except as otherwise expressly permitted by this
Indenture or the other Basic Documents, the Issuer shall not sell, convey,
exchange, transfer or otherwise dispose of any of its properties or assets,
including those included in the Collateral, to any Person, unless:
(i) the Person that acquires such properties
or assets of the Issuer (A) shall be a United States citizen or a Person
organized and existing under the laws of the United States of America or
any State and (B) by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee:
(A) expressly assumes the due and
punctual payment of the principal of and interest on all Notes
and the performance or observance of every agreement and
covenant of this Indenture on the part of the Issuer to be
performed or observed, all as provided herein;
(B) expressly agrees that all right,
title and interest so sold, conveyed, exchanged, transferred or
otherwise disposed of shall be subject and subordinate to the
rights of Noteholders;
(C) unless otherwise provided in
such supplemental indenture, expressly agrees to indemnify,
defend and hold harmless the Issuer against and from any loss,
liability or expense arising under or related to this Indenture
and the Notes; and
(D) expressly agrees that such
Person (or if a group of Persons, then one specified Person)
shall make all filings with the Commission (and any other
appropriate Person) required by the Exchange Act in connection
with the Notes;
(ii) immediately after giving effect to such
transaction, no Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have
been satisfied with respect to such transaction and such Person for each
then outstanding class of Notes;
(iv) any action as is necessary to maintain
the lien and security interest created by this Indenture shall have been
taken; and
(v) the Issuer shall have delivered to the
Indenture Trustee an Officers' Certificate and an Opinion of Counsel
addressed to the Issuer, each stating that:
(A) such sale, conveyance, exchange,
transfer or disposition and such supplemental indenture comply
with this Section 3.10;
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(B) such sale, conveyance, exchange,
transfer or disposition and such supplemental indenture have no
material adverse tax consequence to the Issuer or to any
Noteholders or Certificateholders; and
(C) that all conditions precedent
herein provided for in this Section 3.10 have been complied
with, which shall include any filing required by the Exchange
Act.
Section 3.11 Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer
in accordance with Section 3.10(a), the Person formed by or surviving such
consolidation or merger (if other than the Issuer) shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such Person had been named as the
Issuer herein.
(b) Upon a conveyance or transfer of all the assets
and properties of the Issuer pursuant to Section 3.10(b), the Issuer shall be
released from every covenant and agreement of this Indenture to be observed or
performed on the part of the Issuer with respect to the Securityholders
immediately upon the delivery of written notice to the Indenture Trustee from
the Person acquiring such assets and properties stating that the Issuer is to be
so released.
Section 3.12 No Other Business. The Issuer shall not engage in
any business or activity other than acquiring, holding and managing the
Collateral and the proceeds therefrom in the manner contemplated by the Basic
Documents, issuing the 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 Issuer shall
not fund the purchase of any new Receivables.
Section 3.13 No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness for money borrowed other than indebtedness for money borrowed in
respect of the Notes or in accordance with the Basic Documents.
Section 3.14 Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by this Indenture or the other Basic Documents, the
Issuer shall not make any loan or advance or credit to, or guarantee (directly
or indirectly or by an instrument having the effect of assuring another's
payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or own,
purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
Section 3.15 Servicer's Obligations. The Issuer shall use its
best efforts to cause the Servicer to comply with its obligations under Sections
2.17, 3.01 and 3.02 of the Servicing Agreement.
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Section 3.16 Capital Expenditures. The Issuer shall not make any
expenditure (whether by long-term or operating lease or otherwise) for capital
assets (either real, personal or intangible property) other than the purchase of
the Receivables and other property and rights from the Seller pursuant to the
Pooling Agreement.
Section 3.17 Removal of Administrator. So long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause unless
the Rating Agency Condition for each 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 Issuer shall not, directly or indirectly:
(a) pay any dividend or make any distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, to the Owner Trustee or any owner of a beneficial interest
in the Issuer or otherwise, in each case with respect to any ownership or equity
interest or similar security in or of the Issuer or to the Servicer;
(b) redeem, purchase, retire or otherwise acquire
for value any such ownership or equity interest or similar security; or
(c) set aside or otherwise segregate any amounts for
any such purpose;
provided, however, that the Issuer may make, or cause to be made, distributions
to the Servicer, the Seller, the Indenture Trustee, the Owner Trustee and the
Certificateholders as permitted by, and to the extent funds are available for
such purpose hereunder or under, the Pooling Agreement, the Servicing Agreement,
the Trust Agreement or the other Basic Documents. The Issuer 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 Issuer agrees to
give the Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder, each Servicer Default under the Servicing Agreement,
each default on the part of the Seller of its obligations under the Pooling
Agreement, each default on the part of NFC of its obligations under the Purchase
Agreement and each default on the part of Harco Leasing under the Lease Purchase
Agreement.
Section 3.20 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer shall execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
Section 3.21 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
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Receivable and the Related Security with respect thereto and any documents
relating thereto, and the Servicer or the Warranty Purchaser, as applicable,
shall thereupon own such Receivable and the Related Security with respect
thereto 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 Issuer to the
Indenture Trustee. The Issuer hereby represents and warrants to the Indenture
Trustee as follows:
(a) Good Title. No Receivable has been sold,
transferred, assigned or pledged by the Issuer to any Person other than the
Indenture Trustee; immediately prior to the grant of a security interest in the
Receivable pursuant to this Indenture, the Issuer had good and marketable title
thereto, free of any Lien (except for Permitted Liens); and, upon execution and
delivery of this Indenture by the Issuer, the Indenture Trustee shall have all
of the right, title and interest of the Issuer in, to and under 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 extent constituting
Code Collateral, the other Collateral shall have been made. The Receivables
constitute Code Collateral.
(c) Series 2003-A_ Portfolio Certificate. The Series
2003-A Portfolio Certificate has been duly registered in the name of the
Indenture Trustee and all other action necessary (including the filing of UCC-1
financing statements) to protect and perfect the Indenture Trustee's security
interest in the Collateral now in existence and hereafter acquired or created
has been duly and effectively taken.
(d) Lien of Indenture. This Indenture constitutes a
valid and continuing Lien on the Collateral in favor of the Indenture Trustee on
behalf of the Noteholders, which Lien will be prior to all other Liens (other
than Permitted Liens), will be enforceable as such as against creditors of and
purchasers from the Issuer in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights in general and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law, and all
action necessary to perfect such prior security interest has been duly taken.
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
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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, 3.17, 3.19
and 3.21; (v) the rights, obligations and immunities of the Indenture Trustee
hereunder (including the rights of the Indenture Trustee under Section 6.7 and
the obligations of the Indenture Trustee under Sections 4.2 and 4.4); and (vi)
the rights of Noteholders as beneficiaries hereof with respect to the property
so deposited with the Indenture Trustee payable to all or any of them, and the
Indenture Trustee, on demand of and at the expense of the Issuer shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to the Notes, if:
(a) either:
(i) all Notes theretofore authenticated and
delivered (other than (A) Notes that have been destroyed, lost or stolen
and that have been replaced or paid as provided in Section 2.5 and (B)
Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust, as provided in Section 3.3) have
been delivered to the Indenture Trustee for cancellation; or
(ii) all Notes not theretofore delivered to
the Indenture Trustee for cancellation:
(A) have become due and payable,
(B) will be due and payable on their
respective 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 Issuer.
and the Issuer, 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 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 Issuer has paid or caused to be paid all
other sums payable hereunder by the Issuer; and
(c) the Issuer has delivered to the Indenture
Trustee an Officer's Certificate of the Issuer, an Opinion of Counsel and (if
required by the TIA or the Indenture Trustee) an Independent Certificate from a
firm of certified public accountants, each meeting the applicable requirements
of Section 11.1(a) and each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
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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 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 Issuer, be paid to the Indenture
Trustee to be held and applied according to Section 3.3 and thereupon such
Paying Agent shall be released from all further liability with respect to such
monies.
Section 4.4 Duration of Position of Indenture Trustee 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 2.02, 7.02 and 7.03 of the Servicing Agreement,
as appropriate, until such time as all distributions in respect of the
Certificates have been paid in full.
ARTICLE V
DEFAULT AND REMEDIES
Section 5.1 Events of Default. For the purposes of this
Indenture, "Event of Default" wherever used herein, means any one of the
following events:
(a) failure to pay any interest on any Note as and
when the same becomes due and payable, and such default shall continue
unremedied for a period of five (5) days; or
(b) except as set forth in Section 5.1(c), failure
to pay any instalment of the principal of any Note as and when the same becomes
due and payable, and such default shall continue unremedied for a period of
thirty (30) days after there shall have been given, by registered or certified
mail, to the Issuer and the Seller (or the Servicer, as applicable) by the
Indenture Trustee or to the Issuer and the Seller (or the Servicer, as
applicable) and the Indenture Trustee by the Holders of at least 25% of the
Outstanding Amount of the Controlling Class, 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
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(d) default in the observance or performance in any
material respect of any covenant or agreement of the Issuer made in this
Indenture (other than a covenant or agreement, a default in the observance or
performance of which is specifically dealt with elsewhere in this Section 5.1)
which failure materially and adversely affects the rights of the Noteholders,
and such default shall continue or not be cured for a period of thirty (30) days
after there shall have been given, by registered or certified mail, to the
Issuer and the Seller (or the Servicer, as applicable) by the Indenture Trustee
or to the Issuer and the Seller (or the Servicer, as applicable) and the
Indenture Trustee by the Holders of at least 25% of the Outstanding Amount of
the Controlling Class, 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 Issuer 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 Issuer (other than as Owner
Trustee) or for any substantial part of the Collateral, or ordering the
winding-up or liquidation of the Issuer's affairs, and such decree or order
shall remain unstayed and in effect for a period of sixty (60) consecutive days;
or
(f) the commencement by the Issuer of a voluntary
case under any applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or the consent by the Issuer to the
entry of an order for relief in an involuntary case under any such law, or the
consent by the Issuer to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Issuer or for any substantial part of the Owner Trust Estate, or the making
by the Issuer of any general assignment for the benefit of creditors, or the
failure by the Issuer generally to pay its debts as such debts become due, or
the taking of action by the Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five (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 Issuer 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 Controlling Class may declare all the Notes to be immediately due
and payable, by a notice in writing to the Issuer (and to the Indenture Trustee
if given by the Noteholders) setting forth the Event or Events of Default, and
upon any such declaration the unpaid principal amount of 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
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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 Controlling Class, by written notice to the Issuer
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 Issuer and the Noteholders, as the case may be, shall be
restored to their respective former positions and rights hereunder, and all
rights, remedies and powers of the Indenture Trustee, the Issuer and the
Noteholders, as the case may be, shall continue as though no such proceedings
had been commenced.
Section 5.3 Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee.
(a) The Issuer covenants that if there shall occur
an Event of Default under Sections 5.1(a), (b) or (c), the Issuer shall, upon
demand of the Indenture Trustee, pay to the Indenture Trustee, for the benefit
of the Noteholders 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 Issuer shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee, in its own name and as trustee
of an express trust, may institute a Proceeding for the collection of the sums
so due and unpaid, and may prosecute such Proceeding to judgment or final
decree, and may enforce the same against the Issuer or other obligor upon such
Notes and collect in the manner provided by law out of the property of the
Issuer or other obligor upon the Notes, 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
Issuer or any other obligor upon the Notes or any Person having or claiming an
ownership interest in the Collateral, 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
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possession of the Issuer or its property or such other obligor or Person, or in
case of any other comparable judicial Proceedings relative to the Issuer or
other obligor upon the Notes, or to the creditors or property of the Issuer or
such other obligor, the Indenture Trustee, irrespective of whether the principal
of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section 5.3, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for
the 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 Issuer, its creditors and its
property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, if the Indenture Trustee shall consent
to the making of payments directly to such Noteholders, to pay to the Indenture
Trustee such amounts as shall be sufficient to cover reasonable compensation to
the Indenture Trustee, each predecessor trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and 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
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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).
(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 Issuer and any other obligor
upon such Notes monies adjudged due;
(ii) institute Proceedings from time to time
for the complete or partial foreclosure of this Indenture with respect
to the Collateral;
(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 Collateral or any portion
thereof or rights or interest therein, at one or more public or private
sales called and conducted in any manner permitted by law or elect to
have the Issuer maintain possession of the Collateral, including the
Receivables included therein and continue to apply collections on such
Receivables as if there had been no declaration of acceleration;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Collateral 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 Collateral 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
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Outstanding Amount of the Controlling Class. In determining such
sufficiency or insufficiency with respect to clauses (B) and (C), the
Indenture Trustee may, but need not, obtain and rely upon an opinion of
an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Collateral for such purpose.
(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
4.02 of the Pooling Agreement and Section 8.2(c) of this Indenture.
Section 5.5 Optional Preservation of the Collateral. 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 Collateral. 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 Collateral. In
determining whether to take and maintain possession of the Collateral, the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the
Collateral 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 Controlling Class 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 Controlling Class;
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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 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
Controlling Class, the Indenture Trustee in its sole discretion may determine
what action, if any, shall be taken, notwithstanding any other provisions of
this Indenture.
Section 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this Indenture,
the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest on such Note
on or after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, if applicable, on or after the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent of such Holder.
Section 5.8 Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
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.
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Section 5.11 Control by Noteholders. The Holders of a majority
of the Outstanding Amount of the Controlling Class 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
Collateral 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
Collateral 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 Collateral
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 Controlling Class 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 Issuer, 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; but no such waiver shall
extend to or affect any subsequent or other Default or impair any right
consequent thereto.
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Section 5.13 Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Note by such Xxxxxx's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any Proceeding for the enforcement of any right or remedy under this Indenture,
or in any Proceeding against the Indenture Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
Proceeding of an undertaking to pay the costs of such Proceeding, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, 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 Controlling Class; or
(c) any Proceeding instituted by any Noteholder for
the enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture (or,
in the case of redemption, on or after the Redemption Date).
Section 5.14 Waiver of Stay or Extension Laws. The Issuer,
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may adversely affect the covenants or the
performance of this Indenture. The Issuer (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not hinder, delay or impede the execution of any power
herein granted to the Indenture Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
Section 5.15 Action on Notes. The Indenture Trustee's right to
seek and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture. Neither the lien of this Indenture nor any
rights or remedies of the Indenture Trustee or the Noteholders shall be impaired
by the recovery of any judgment by the Indenture Trustee against the Issuer or
by the levy of any execution under such judgment upon any portion of the
Collateral or upon any of the assets of the Issuer. Any money or property
collected by the Indenture Trustee shall be applied in accordance with Section
5.4(b).
Section 5.16 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture
Trustee to do so and at the Administrator's expense, the Issuer agrees to take
all such lawful action as the Indenture Trustee may request to compel or secure
the performance and observance by the Seller of its obligations to the Issuer
under or in connection with the Pooling Agreement and the Purchase Agreement, by
the Servicer of its obligations to the Issuer under or in connection with the
Servicing Agreement, by NFC of its obligations under or in connection with the
Lease
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Purchase Agreement and the Purchase Agreement, by Harco Leasing of its
obligation under or in connection with the Lease Purchase Agreement or by any
other party to a Titling Trust Document of its obligations under or in
connection with such Titling Trust Document in accordance with the terms
thereof, and to exercise any and all rights, remedies, powers and privileges
lawfully available to the Issuer under or in connection with the Pooling
Agreement, the Servicing Agreement, the Purchase Agreement, the Lease Purchase
Agreement and the Titling Trust Documents 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, NFC, Harco Leasing or any other
party to a Titling Trust Document thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Seller, the Servicer, NFC, Harco Leasing or any other party to a Titling Trust
Document of each of their respective obligations under the Pooling Agreement,
the Servicing Agreement, the Purchase Agreement, the Lease Purchase Agreement
and the Titling Trust Documents.
(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 Controlling Class
shall, exercise all rights, remedies, powers, privileges and claims of the
Issuer against the Seller under or in connection with the Pooling Agreement and
the Purchase Agreement, the Servicer under or in connection with the Servicing
Agreement, NFC under or in connection with the Lease Purchase Agreement and the
Purchase Agreement, Harco Leasing under or in connection with the Lease Purchase
Agreement or any party to a Titling Trust Document under or in connection with
such Titling Trust Document, including the right or power to take any action to
compel or secure performance or observance by the Seller, the Servicer, NFC,
Harco Leasing or such party of each of their obligations to the Issuer
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Pooling Agreement, the Servicing Agreement, the
Purchase Agreement, the Lease Purchase Agreement and the Titling Trust
Documents, and any right of the Issuer to take such action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.1 Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is
continuing, the Indenture Trustee shall exercise the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
(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, the Pooling Agreement and the Servicing Agreement and
no implied covenants or obligations shall be read into this Indenture,
the Pooling Agreement, the Servicing Agreement or any other Basic
Document against the Indenture Trustee; and
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(ii) in the absence of bad faith on its part,
the Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; provided, however,
that the Indenture Trustee shall examine the certificates and opinions
to determine whether or not they conform to 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 Issuer.
(e) Money held in trust by the Indenture Trustee
need not be segregated from other funds except to the extent required by law or
the terms of this Indenture or the Servicing Agreement.
(f) No provision of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers, if it shall have reasonable grounds to believe
that repayments of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(g) 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.
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(b) Before the Indenture Trustee acts or refrains
from acting, it may require an Officer's Certificate from the Issuer or an
Opinion of Counsel that such action or omission is required or 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.
Section 6.3 Indenture Trustee May Own Notes. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer, the Servicer or any of their
respective Affiliates with the same rights it would have if it were not
Indenture Trustee; provided, however, that the Indenture Trustee shall comply
with Sections 6.10 and 6.11. Any Paying Agent, Note Registrar, co-registrar or
co-paying agent may do the same with like rights.
Section 6.4 Indenture Trustee's Disclaimer. The Indenture
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be accountable
for the Issuer's use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Issuer in the Indenture or in any document
issued in connection with the sale of the Notes or in the Notes other than the
Indenture Trustee's certificate of authentication.
Section 6.5 Notice of Defaults. If a Default occurs and is
continuing and if it is known to a Responsible Officer of the Indenture Trustee,
the Indenture Trustee shall mail to each Noteholder notice of the Default within
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
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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 Issuer shall cause the Servicer pursuant to
the Servicing Agreement to pay to the Indenture Trustee from time to time such
compensation for its services as shall be agreed upon in writing. The Indenture
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall cause the Servicer pursuant to the
Servicing Agreement to reimburse the Indenture Trustee for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Indenture Trustee's agents, counsel, accountants and experts. The Issuer shall
cause the Servicer pursuant to the Servicing Agreement to indemnify the
Indenture Trustee in accordance with Section 6.05 of the Servicing Agreement.
(b) The Issuer'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 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 Issuer; 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 Controlling Class may remove the Indenture
Trustee by so notifying the Indenture Trustee and may appoint a successor
Indenture Trustee. Such resignation or removal shall become effective in
accordance with Section 6.8(c). The Issuer shall remove the Indenture Trustee
if:
(i) the Indenture Trustee fails to comply
with Section 6.11;
(ii) the Indenture Trustee is adjudged 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 Issuer shall promptly
appoint and designate a successor Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a
written acceptance of its appointment and designation to the retiring Indenture
Trustee and to the Issuer. Thereupon
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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 Issuer or the Holders
of a majority of the Outstanding Amount of the Controlling Class 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.
(f) Notwithstanding the replacement of the Indenture
Trustee pursuant to this Section 6.8, the Issuer's obligations under Section 6.7
and the Servicer's corresponding obligations under the 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.
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(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 Collateral 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 Collateral, 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 Collateral,
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.
(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 Collateral 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
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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 Section 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 Xxxxx'x) it
shall have a long term unsecured debt rating of Baa3 or better by Xxxxx'x. The
Indenture Trustee shall comply with TIA Section 310(b); provided, however, that
there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in TIA Section
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 Issuer 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 Issuer, 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
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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 Issuer.
The Indenture Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
Section 6.13 Representations and Warranties of Indenture
Trustee. The Indenture Trustee represents and warrants as of the Closing Date
that:
(a) the Indenture Trustee is a New York banking
corporation 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 Collateral
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
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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 6.15 Suit for Enforcement. If an Event of Default shall
occur and be continuing, the Indenture Trustee in its discretion may, subject to
the provisions of Section 6.1, proceed to protect and enforce its rights and the
rights of the Noteholders under this Indenture by a Proceeding whether for the
specific performance of any covenant or agreement contained in this Indenture or
in aid of the execution of any power granted in this Indenture or for the
enforcement of any other legal, equitable or other remedy as the Indenture
Trustee, being advised by counsel, shall deem 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 Controlling Class shall have the right to direct in writing the time,
method and place of conducting any Proceeding for any remedy available to the
Indenture Trustee or exercising any trust or power conferred on the Indenture
Trustee; provided, however, that subject to Section 6.1, the Indenture Trustee
shall have the right to decline to follow any such direction if the Indenture
Trustee being advised by counsel determines that the action so directed may not
lawfully be taken, or if the Indenture Trustee in good faith shall, by a
Responsible Officer, determine that the proceedings so directed would be illegal
or subject it to personal liability or be unduly prejudicial to the rights of
Noteholders not parties to such direction; and provided, further, that nothing
in this Indenture shall impair the right of the Indenture Trustee to take any
action deemed proper by the Indenture Trustee and which is not inconsistent with
such direction by the Noteholders.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.1 Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuer shall furnish or cause to be furnished by
the Servicer to the Indenture Trustee (a) not more than five days before each
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 Issuer of
any such request, a list of similar form and content as of a date not more than
10 days prior to the time such list is furnished; provided, however, that so
long as the Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.
Section 7.2 Preservation of Information, Communications to
Noteholders.
(a) The Indenture Trustee shall preserve, in as
current a form as is reasonably practicable, the names and addresses of the
Holders of Notes contained in the most
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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.
(b) Noteholders may communicate pursuant to TIA
Section 312(b) with other Noteholders with respect to their rights under this
Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee and the Note
Registrar shall have the protection of TIA Section 312(c).
Section 7.3 Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within
15 days after the Issuer is required to file the same with the
Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Issuer may be required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the
Commission in accordance with rules and regulations prescribed from time
to time by the Commission such additional information, documents and
reports with respect to compliance by the Issuer with the conditions and
covenants of this Indenture as may be required from time to time by such
rules and regulations; and
(iii) supply to the Indenture Trustee (and the
Indenture Trustee shall transmit by mail to all Noteholders described in
TIA Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i) and
(ii) of this Section 7.3(a) as may be required by rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the
fiscal year of the Issuer shall end on October 31 of each year.
Section 7.4 Reports by Indenture Trustee. If required by TIA
Section 313(a), within 60 days after each February 1, beginning with February 1,
2004, with respect to the 12-month period immediately preceding such February 1
or, in the case of the first such reporting period, the period from the Closing
Date through January 31, 2004, the Indenture Trustee shall mail to each
Noteholder as required by TIA Section 313(c) a brief report dated as of such
date that complies with TIA Section 313(a). The Indenture Trustee also shall
comply with TIA Section 313(b). A copy of any report delivered pursuant to this
Section 7.4(a) shall, at the time of its mailing to Noteholders, be filed by the
Indenture Trustee with the Commission and each stock exchange, if any, on which
the Notes are listed. The Issuer shall notify the Indenture Trustee if and when
the Notes are listed on any stock exchange.
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ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.1 Collection of Money. Except as otherwise expressly
provided herein or in the other Basic Documents, 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 Servicing Agreement. Except
as otherwise expressly provided in this Indenture or in Article II of the
Servicing Agreement, if any default occurs in the making of any payment or
performance under any agreement or instrument that is part of the Collateral,
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 before each Determination Date, with
respect to the preceding Monthly Period and the related Distribution Date, the
Servicer shall calculate the Total Available Amount, Collected Amount, the Total
Servicing Fee, the Aggregate Class A Noteholders' Interest Distributable Amount,
the Class B Noteholders' Interest Distributable Amount, the Principal Payment
Amount, the Noteholders' Principal Distributable Amount, and all other amounts
required to determine the amounts to be deposited in or paid from each of the
Collection Account, the Pre-Funding Account, the Negative Carry Account, the
Note Distribution Account, the Certificate Distribution Account and the Reserve
Account on the next succeeding Distribution Date and supply such information to
the Issuer and the Indenture Trustee.
(b) On or before each Transfer Date, the Indenture
Trustee shall cause to be made the following withdrawals, deposits, transfers
and distributions in the amounts set forth in the Servicer's Certificate
delivered to the Indenture Trustee pursuant to Section 2.17 of the Servicing
Agreement:
(i) from the Collection Account to the
Servicer, in immediately available funds, reimbursement of Outstanding
Monthly Advances pursuant to Section 2.14 of the Servicing Agreement,
payments of Liquidation Expenses with respect to Receivables which
became Liquidating Receivables during the related Monthly Period
pursuant to Section 2.04 of the Servicing Agreement and any unpaid
Liquidation Expenses from prior periods;
(ii) from the Pre-Funding Account to the
Collection Account, the Investment Earnings on the Pre-Funding Account
for the related Monthly Period;
(iii) from the Negative Carry Account to the
Collection Account, the Negative Carry Amount for such Distribution
Date; and
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(iv) from the Reserve Account to the
Collection Account, the lesser of (A) the amount of cash or other
immediately available funds therein on the day preceding such
Distribution Date and (B) the amount, if any, by which (I) the sum of
the Total Servicing Fee, the Aggregate Class A Noteholders' Interest
Distributable Amount, the Class B Noteholders' Interest Distributable
Amount and the Noteholders' Principal Distributable Amount exceeds (II)
the sum of the Collected Amount for such Distribution Date plus the
amounts deposited to the Collection Account on such date pursuant to
Sections 8.2(b)(ii) and 8.2(b)(iii).
(c) Before 12:00 noon, New York City time, on each
Transfer Date, the Indenture Trustee (based on the information contained in the
Servicer's Certificate delivered to the Indenture Trustee pursuant to Section
2.17 of the Servicing Agreement) shall make the following distributions from the
Collection Account (after the withdrawals, deposits and transfers specified in
Section 8.2(b) have been made) in the following order of priority:
(i) first, to the Servicer, to the extent of
the Total Available Amount, the Total Servicing Fee;
(ii) second, to the Note Distribution
Account, to the extent of the Total Available Amount (as such amount has
been reduced by the distributions described in clause (c)(i) above), the
Aggregate Class A Noteholders' Interest Distributable Amount;
(iii) third, to the Note Distribution Account,
to the extent of the Total Available Amount (as such amount has been
reduced by the distributions described in clauses (c)(i) and (ii)
above), the Class B Noteholders' Interest Distributable Amount;
(iv) fourth, to the Note Distribution
Account, to the extent of the Total Available Amount (as such amount has
been reduced by the distributions described in clauses (c)(i) through
(iii) above), the Noteholders' Principal Distributable Amount;
(v) fifth, to the Reserve Account, to the
extent of the Total Available Amount (as such amount has been reduced by
the distributions described in clauses (c)(i) through (iv) above), the
amount by which the Specified Reserve Account Balance for the next
succeeding Distribution Date exceeds the amount on deposit in the
Reserve Account on such Transfer Date; and
(vi) sixth, to the Certificateholders, any
portion of the Total Available Amount remaining after the distributions
described in clauses (c)(i) through (v) above.
(d) 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
8.11(b) and subject to the Certificateholder's rights under Section 8.6 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:
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(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 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 A-1 Notes are paid in full;
(B) thereafter, 96.25% of the
Principal Payment Amount (in the case of the Distribution Date
on which the Class A-1 Notes are paid in full, 96.25% 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
3.75% of the Principal Payment Amount (in the case of the
Distribution Date on which the Class A-1 Notes are paid full,
3.75% 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 Aggregate Starting
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
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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). 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(d)(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(d)(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.
(e) Subject to Sections 8.2(d)(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 8.11(b)
(other than Noteholders' Prepayment Premium) to the repayment of principal on
the Notes in accordance with the priorities set forth in Section 8.2(d)(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 the Servicer in writing.
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(f) 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 8.11(b); 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 such 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 the 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 Collateral 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 Collateral.
(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 Collateral 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,
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notify the Issuer thereof in writing and upon receipt of an Issuer Request,
release any remaining portion of the Collateral that secured the Notes from the
lien of this Indenture and release to the Issuer or any other Person entitled
thereto any funds then on deposit in the Note Distribution Account. The
Indenture Trustee shall (i) release any remaining portion of the Collateral 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 Issuer to take any
action pursuant to Section 8.4(a), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require as a condition to such
action, an Opinion of Counsel, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
shall not materially and adversely impair the security for the Notes or the
rights of the Noteholders in contravention of the provisions of this Indenture;
provided, however, that such Opinion of Counsel shall not be required to express
an opinion as to the fair value of the Collateral. Counsel rendering any such
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
Section 8.6 Investment Earnings and Supplemental Servicing Fees.
The Servicer shall be entitled to retain all Supplemental Servicing Fees. Except
as otherwise provided in Section 2.02(b)(i) of the Servicing Agreement, the
Certificateholders (via the Certificate Distribution Account or such other
account as shall be designated in writing by the Certificateholders to the
Servicer) shall be entitled to receive all Investment Earnings (other than
Investment Earnings from amounts on deposit in the Pre-Funding Account), when
and as paid without any obligation to (a) either Trustee, (b) with respect to
the Supplemental Servicing Fees, the Certificateholders or (c) with respect to
the Investment Earnings, the Servicer, in respect thereof. The Servicer will not
have any obligation to deposit any such amount in any account established
hereunder. To the extent that any such amount shall be held in any account
(other than, with respect to amounts to be distributed to the
Certificateholders, the Certificate Distribution Account) held by either
Trustee, or otherwise established hereunder, such amount will be withdrawn
therefrom and paid to the Servicer or deposited in the Certificate Distribution
Account for distribution to the Certificateholders, as applicable, upon
presentation of a certificate signed by a Responsible Officer of such Person
setting forth, in reasonable detail, the amount of such Supplemental Servicing
Fees or such Investment Earnings, respectively.
Section 8.7 Net Deposits. At any time that (i) NFC shall be the
Servicer and (ii) the Servicer shall be permitted by Section 2.12 of the
Servicing Agreement to remit collections on a basis other than a daily basis,
the Indenture Trustee at the written request of the Servicer may make any
remittances pursuant to this Article VIII net of amounts to be distributed by
the Indenture Trustee to such remitting party. Nonetheless, the Indenture
Trustee shall account for all of the above described remittances and
distributions as if the amounts were deposited and/or transferred separately.
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Section 8.8 Statements to Securityholders.
(a) On each Distribution Date, the Issuer shall
include with each distribution to each Certificateholder, and the Indenture
Trustee shall include with each distribution to each Noteholder, a statement
(which statement shall also be provided to the Rating Agencies) based on
(subject to the last sentence of this paragraph (a)) information in the
Servicer's Certificate furnished pursuant to Section 2.17 of the Servicing
Agreement. Each such statement shall set forth the following information as to
the Notes with respect to such Distribution Date or the preceding Monthly
Period, as applicable:
(i) the amount of the distribution allocable
to interest on or with respect to each class of Notes;
(ii) the Aggregate Receivables Balance as of
the close of business on the last day of such Monthly Period;
(iii) the amount of Outstanding Monthly
Advances with respect to all Receivables on such Distribution Date;
(iv) the amount of the Total Servicing Fee
paid or payable to the Servicer with respect to the related Monthly
Period;
(v) the amount of Aggregate Losses for the
related Monthly Period;
(vi) the Delinquency Percentage for the
related Monthly Period;
(vii) the sum of all Administrative Purchase
Payments and all Warranty Payments made for the related Monthly Period;
(viii) the amount of the distribution allocable
to principal of each class of Notes;
(ix) the Note Principal Balance and the Note
Pool Factor for each class of Notes, each after giving effect to all
payments reported under (viii) above on such date;
(x) the amounts, if any, paid to the
Servicer or distributed to Noteholders from amounts on deposit in the
Reserve Account plus amounts in respect thereof to be distributed to
each class of Noteholders as a prepayment of principal (expressed as a
dollar amount per $1,000 of the face amount of the Notes);
(xi) the amount of the Class A Noteholders'
Interest Carryover Shortfall, the Noteholders' Principal Carryover
Shortfall and the Class B Noteholders' Interest Carryover Shortfall if
any, and the change in such amounts from the preceding Distribution
Date;
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(xii) the balance (if any) of the Reserve
Account, the Specified Reserve Account Balance, the Specified Yield
Supplement Amount and the Backup Servicer Account on such date, after
giving effect to distributions, withdrawals, transfers and deposits made
on such date, and the change in such balance from that of the prior
Distribution Date;
(xiii) the Negative Carry Amount and the
balance, if any, of the Negative Carry Account on such date, after
giving effect to the withdrawals made on such date;
(xiv) for Distribution Dates during the
Funding Period, the Starting Receivables Balance of all Subsequent
Receivables transferred to the Issuer since the preceding Distribution
Date, the remaining Pre-Funded Amount and the Investment Earnings on
amounts on deposit in the Pre-Funding Account (if any) for the related
Monthly Period; and
(xv) for the first Distribution Date
occurring on or after the last day of the Funding Period, the amount of
any remaining Pre-Funded Amount that has not been used to fund the
purchase of Subsequent Receivables.
Each amount set forth pursuant to clauses (i), (iv), (viii), (x) and (xi) above
shall be expressed as a dollar amount per $1,000 of initial Note Principal
Balance. In lieu of preparing and delivering a separate statement to
Securityholders pursuant to this Section, a Trustee may deliver a copy of the
Servicer's Certificate furnished pursuant to Section 2.17 of the Servicing
Agreement.
(b) Within the prescribed period of time for tax
reporting purposes after the end of each calendar year during the term of this
Agreement, the Servicer shall prepare and execute and the Indenture Trustee and
the Owner Trustee shall mail to each Person who at any time during such calendar
year shall have been a holder of Notes or Certificates, respectively, and
received any payments thereon, a statement prepared and supplied by the Servicer
containing the amounts set forth in each of clauses (i), (iv), (viii), (x) and
(xi) in paragraph (a) above, for such calendar year or, if such Person shall
have been a Securityholder during a portion of such calendar year and received
any payments thereon, for the applicable portion of such year, for the purposes
of such Securityholder's preparation of federal income tax returns.
Section 8.9 Designated Accounts. On or prior to the Closing
Date, the Issuer shall cause the Servicer to establish and maintain, in the name
of the Indenture Trustee, for the benefit of the Securityholders, the Designated
Accounts as provided in Section 2.02 of the Servicing Agreement.
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Section 8.10 Reserve Account.
(a) On the Closing Date, the Seller shall deposit
the Reserve Account Initial Deposit into the Reserve Account. The Reserve
Account shall be the property of the Issuer, subject to the rights of the
Indenture Trustee in the Reserve Account Property.
(b) If the amount on deposit in the Reserve Account
on any Distribution Date (after giving effect to all deposits therein or
withdrawals therefrom on such Distribution Date) exceeds the Specified Reserve
Account Balance for such Distribution Date, the Indenture Trustee shall, upon
receipt of instruction from the Servicer, deposit into the Certificate
Distribution Account an amount equal to any such excess for distribution to the
Certificateholders or upon the order of the Certificateholders in an account
designated in writing by the Certificateholders to the Servicer.
(c) If the Servicer, pursuant to Section 2.14 of the
Servicing Agreement, determines on any Determination Date that it is required to
make a Monthly Advance and does not do so from its own funds, the Indenture
Trustee shall, upon receipt of instructions from the Servicer, withdraw funds
from the Reserve Account and deposit them in the Collection Account to cover any
shortfall. Such payment shall be deemed to have been made by the Servicer
pursuant to Section 2.14 of the Servicing Agreement for purposes of making
distributions pursuant to this Agreement, but shall not otherwise satisfy the
Servicer's obligation to deliver the amount of the Monthly Advances to the
Collection Account, and the Servicer shall within two Business Days replace any
funds in the Reserve Account so used. The Servicer shall not be entitled to
reimbursement for any such deemed Monthly Advances unless and until the Servicer
shall have replaced such funds in the Reserve Account.
Section 8.11 Pre-Funding Account.
(a) On the Closing Date, the Seller shall deposit
into the Pre-Funding Account $173,683,116.95 the Pre-Funding Account Initial
Deposit Amount from the net proceeds of the sale of the Notes. On each
Subsequent Transfer Date, the Indenture Trustee shall, upon receipt of
instructions from the Servicer, withdraw from the Pre-Funding Account an amount
equal to (i) the aggregate Starting Receivables Balance of the Subsequent
Receivables transferred to the Issuer on such Subsequent Transfer Date less the
Reserve Account Subsequent Transfer Deposit with respect to such Subsequent
Transfer Date and distribute such amount to or upon the order of the Seller upon
satisfaction of the conditions set forth in Section 2.02(b) of the Pooling
Agreement with respect to such transfer, and (ii) the Reserve Account Subsequent
Transfer Deposit with respect to such Subsequent Transfer Date and, on behalf of
the Seller, deposit such amount in the Reserve Account.
(b) If the Pre-Funded Amount has not been reduced to
zero on or prior to 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, upon receipt of instructions from the Servicer, transfer from the
Pre-Funding Account on such Distribution Date any amount then remaining in the
Pre-Funding Account to the Note Distribution Account and, if such amount is
greater than $100,000 the Issuer will deposit into the Note Distribution Account
an amount equal to the aggregate of
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Noteholders' Prepayment Premiums for all classes of Notes; provided, however,
that the Issuer's obligation to pay the Noteholders' Prepayment Premiums shall
be limited to funds which are received by the Issuer from the Seller pursuant to
Section 2.02(c) of the Pooling Agreement as liquidated damages for the failure
to deliver the Subsequent Receivables, and no other assets of the Issuer will be
available for making such payments. If the amount of funds available for payment
of the Noteholders' Prepayment Premiums is less than the sum of the Noteholders'
Prepayment Premium for each class of Notes, then the available funds will be
allocated among each class of Notes in accordance with the Pre-Funded Percentage
for such class of Notes.
Section 8.12 Negative Carry Account.
(a) On the Closing Date, the Seller shall deposit in
to the Negative Carry Account the Negative Carry Account Initial Deposit from
the net proceeds of the sale of the Notes. On or before the Transfer Date
preceding each Distribution Date occurring on or prior to the first Distribution
Date that occurs on or after the end of the Funding Period, the Indenture
Trustee shall, upon receipt of instructions from the Servicer, withdraw from the
Negative Carry Account and deposit into the Collection Account an amount equal
to the Negative Carry Amount for such Distribution Date.
(b) On each Distribution Date during the Funding
Period, the Indenture Trustee shall, upon receipt of instructions from the
Servicer, withdraw from the Negative Carry Account an amount equal to the
excess, if any, of the amount on deposit in the Negative Carry Account over the
Required Negative Carry Account Balance and deposit it (i) in the Certificate
Distribution Account for distribution to the Certificateholders or (ii) upon the
order of the Certificateholders in an account designated in writing by the
Certificateholders to the Servicer, and on the Distribution Date on or
immediately following the last day of the Funding Period, the Indenture Trustee
shall, upon receipt of instructions from the Servicer, withdraw from the
Negative Carry Account the amount remaining on deposit in the Negative Carry
Account and deposit it in the Certificate Distribution Account for distribution
to the Certificateholders or upon the order of the Certificateholders in an
account designated in writing by the Certificateholders to the Servicer.
Section 8.13 Sale of Assets; Termination.
(a) Upon any sale or other disposition of the
Collateral pursuant to Article V of the Indenture (an "Event of Default Sale"),
the Indenture Trustee, based on information supplied by the Servicer, shall
deposit the proceeds from such disposition after all payments and reserves
therefrom have been made or the amount specified in clause SECOND of Section
5.4(b) (the "Event of Default Proceeds") in the Collection Account. On the
Transfer Date on which the Event of Default Proceeds are deposited in the
Collection Account (or, if such proceeds are not so deposited on that Transfer
Date, on the Transfer Date immediately following such deposit), the Indenture
Trustee, based on information supplied by the Servicer, shall make the following
deposits (after the application on the Transfer Date of the Collected Amount and
funds on deposit in the Reserve Account pursuant to Sections 8.2 and 8.10) from
the Event of Default Proceeds and any funds remaining on deposit in the Reserve
Account (including the proceeds of any sale of investments therein as described
in the following sentence) in the following priority:
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(i) to the Note Distribution Account, any
portion of the Aggregate Class A Noteholders' Interest Distributable
Amount not otherwise deposited into the Note Distribution Account on the
Transfer Date;
(ii) if such Event of Default Sale results
from the occurrence of an Event of Default specified in Section 5.1(a),
(b) or (c), to the Note Distribution Account, an amount equal to the
Note Principal Balance of the Class A Notes (after giving effect to the
reduction in the Aggregate Note Principal Balance to result from the
deposits made in the Note Distribution Account on the Transfer Date and
on each prior Transfer Date);
(iii) to the Note Distribution Account, any
portion of the Class B Noteholders' Interest Distributable Amount not
otherwise deposited into the Note Distribution Account on the Transfer
Date;
(iv) if such Event of Default Sale does not
result from the circumstances specified in Section 8.13(a)(ii), to the
Note Distribution Account, an amount equal to the Note Principal Balance
of the Class A Notes (after giving effect to the reduction in the
Aggregate Note Principal Balance to result from the deposits made in the
Note Distribution Account on the Transfer Date and on each prior
Transfer Date); and
(v) to the Note Distribution Account, an
amount equal to the Note Principal Balance of the Class B Notes (after
giving effect to the reduction therein to result from the deposits made
in the Note Distribution Account on the day preceding such Distribution
Date and on the Transfer Date and on each prior Transfer Date).
Subject to the Section 2.02(b) of the Servicing Agreement, any investments on
deposit in the Reserve Account which shall not mature on or before the day
preceding such Distribution Date shall be sold by the Indenture Trustee at such
time as shall result in the Indenture Trustee receiving the proceeds from such
sale not later than the Transfer Date. Any Event of Default Proceeds remaining
after the deposits described above shall be deposited into the Certificate
Distribution Account for distribution to the Certificateholders.
(b) Notice of any termination of the Trust shall be
given by the Servicer to each Trustee as soon as practicable after the Servicer
has received notice thereof.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of
Noteholders.
(a) Without the consent of the Holders of any Notes
but with prior notice to the Rating Agencies, the Issuer and the Indenture
Trustee, when authorized by an Issuer Order, at any time and from time to time,
may enter into one or more indentures supplemental hereto (which shall conform
to the provisions of the 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
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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 Issuer, and the assumption by any such successor
of the covenants of the Issuer contained herein and in the Notes;
(iii) to add to the covenants of the Issuer
for the benefit of the Securityholders, or to surrender any right or
power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or
pledge any property to or with the Indenture Trustee;
(v) to 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 Issuer and the Indenture Trustee, when
authorized by an Issuer Order, may, also without the consent of any of the
Noteholders but with prior notice to the Rating Agencies, at any time and from
time to time enter into one or more indentures supplemental hereto for the
purpose of adding any provisions to, changing in any manner, or eliminating any
of the provisions of, this Indenture or modifying in any manner the rights of
the Noteholders under this Indenture; provided, however, that such action shall
not, as evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any Noteholder.
Section 9.2 Supplemental Indentures With Consent of Noteholders.
(a) The Issuer and the Indenture Trustee, when
authorized by an Issuer Order, also may, with prior notice to the Rating
Agencies and with the consent of the Holders of not less than a majority of the
Outstanding Amount of the Controlling Class, by Act of such Holders delivered to
the Issuer and the Indenture Trustee, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, changing in any
manner, or eliminating any of the provisions of, this Indenture or modifying in
any manner the rights of the
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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 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 Controlling Class, 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 Collateral 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 Issuer, the Seller or any
Affiliate of either of them; or
(vii) permit the creation of any Lien ranking
prior to or on a parity with the lien of this Indenture with respect to
any part of the Collateral 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
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thereunder before or after the date upon which such supplemental indenture
becomes effective. The Indenture Trustee shall not be liable for any such
determination made in good faith.
(c) It shall be sufficient if an Act of Noteholders
approves the substance, but not the form, of any proposed supplemental
indenture.
(d) Promptly after the execution by the Issuer and
the Indenture Trustee of any supplemental indenture pursuant to this Section
9.2, the Indenture Trustee shall mail to the Noteholders to which such amendment
or supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
Section 9.3 Execution of Supplemental Indentures. In executing,
or permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent to
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 Issuer and the Noteholders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 9.5 Conformity with Trust Indenture Act. Every amendment
of this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the TIA as then in effect so
long as this Indenture shall then be qualified under the TIA.
Section 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes of the same class.
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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 4.01 of
the Pooling 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 Issuer
has available funds sufficient to pay such amount. The Issuer 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 Issuer shall
furnish notice thereof to the Indenture Trustee not later than 25 days prior to
the Redemption Date and the Issuer 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 to be maintained as provided in
Section 3.2); and
(iv) CUSIP numbers.
(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 Issuer. Failure to give notice of redemption, or any defect
therein, to any Holder of any Class A-4 Note or Class B
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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 Issuer shall default in
the payment of such Redemption Price) no interest shall accrue on such
Redemption Price for any period after the date to which accrued interest is
calculated for purposes of calculating such Redemption Price.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to
the Indenture Trustee to take any action under any provision of this Indenture,
the Issuer shall furnish to the Indenture Trustee: (i) an Officer's Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, (ii) an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with and (iii) (if required by the TIA) an
Independent Certificate from a firm of certified public accountants meeting the
applicable requirements of this Section 11.1, except that, in the case of any
such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished. Every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(i) a statement that each signatory of such
certificate or opinion has read or has caused to be read such covenant
or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of
each such signatory, such signatory has made such examination or
investigation as is necessary to enable such signatory to express an
informed opinion as to whether or not such covenant or condition has
been complied with; and
(iv) a statement as to whether, in the
opinion of each such signatory, such condition or covenant has been
complied with.
(b) (i) Prior to the deposit with the Indenture
Trustee of any Collateral or other property or securities that is to be made the
basis for the release of any
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property or securities subject to the lien of this Indenture, the Issuer shall,
in addition to any obligation imposed in Section 11.1(a) or elsewhere in this
Indenture, furnish to the Indenture Trustee an 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 Issuer of the Collateral or other
property or securities to be so deposited.
(ii) Whenever the Issuer is required to
furnish to the Indenture Trustee an Officer's Certificate certifying or
stating the opinion of any signer thereof as to the matters described in
clause (b)(i) above, the Issuer shall also deliver to the Indenture
Trustee an Independent Certificate as to the same matters, if the fair
value to the Issuer of the securities to be so deposited and of all
other such securities made on the basis of any such withdrawal or
release since the commencement of the then current fiscal year of the
Issuer, as set forth in the certificates delivered pursuant to clause
(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
Issuer 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 Issuer shall also furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of each Person signing such certificate as to the fair value
(within 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 Issuer is required to
furnish to the Indenture Trustee an Officer's Certificate certifying or
stating the opinion of any signatory thereof as to the matters described
in clause (b)(iii) above, the Issuer shall also furnish to the Indenture
Trustee an Independent Certificate as to the same matters if the fair
value of the property or securities and of all other property, other
than Warranty Receivables, Administrative Receivables 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 the certificates required by clause (b)(iii) above and this clause
(b)(iv), equals 10% or more of the Outstanding Amount of the Notes, but
such certificate need not be furnished in the case of any release of
property or securities if the fair value thereof as set forth in the
related Officer's Certificate is less than $25,000 or less than one
percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other
provision of this Section 11.1, the Issuer may (A) collect, liquidate,
sell or otherwise dispose of Receivables as and to the extent permitted
or required by the Basic Documents, (B) make cash payments out of the
Designated Accounts and the Certificate Distribution Account as and to
the extent permitted or required by the Basic Documents and (C) take any
other action not inconsistent with the TIA.
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Section 11.2 Form of Documents Delivered to Indenture Trustee.
(a) In any case where several matters are required
to be certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
(b) Any certificate or opinion of an Authorized
Officer of the Issuer may be based, insofar as it relates to legal matters, upon
a certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Servicer, the Seller, the Issuer or the
Administrator, stating that the information with respect to such factual matters
is in the possession of the Servicer, the Seller, the Issuer or the
Administrator, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
(c) Where any Person is required to make, give or
execute two or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
(d) Whenever in this Indenture, in connection with
any application or certificate or report to the Indenture Trustee, it is
provided that the Issuer shall deliver any document as a condition of the
granting of such application, or as evidence of the Issuer's compliance with any
term hereof, it is intended that the truth and accuracy, at the time of the
granting of such application or at the effective date of such certificate or
report (as the case may be), of the facts and opinions stated in such document
shall in such case be conditions precedent to the right of the Issuer to have
such application granted or to the sufficiency of such certificate or report.
The foregoing shall not, however, be construed to affect the Indenture Trustee's
right to rely upon the truth and accuracy of any statement or opinion contained
in any such document as provided in Article VI.
Section 11.3 Acts of Noteholders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Noteholders or a 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 Issuer. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a
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writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Indenture
Trustee and the Issuer, if made in the manner provided in this Section 11.3.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved in any manner that the Indenture
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the
Note Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any Notes (or any one
or more predecessor Notes) shall bind the Holder of every Note issued upon the
registration thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Indenture Trustee or the
Issuer in reliance thereon, whether or not notation of such action is made upon
such Note.
Section 11.4 Notices, etc., to Indenture Trustee, Issuer and
Rating Agencies. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to or filed with the Indenture
Trustee, the Issuer 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 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 Agreement.
(b) Where this Indenture provides for notice in any
manner, such notice may be waived in writing by any Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Noteholders shall be filed with
the Indenture Trustee but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular
mail service as a result of a strike, work stoppage or similar activity, it
shall be impractical to mail notice of any event of Noteholders when such notice
is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the
Rating Agencies, failure to give such notice shall not affect any other rights
or obligations created hereunder, and shall not under any circumstance
constitute an Event of Default.
Section 11.6 Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Indenture Trustee or any
Paying Agent to such Holder, that is different from the methods
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provided for in this Indenture for such payments or notices. The Issuer shall
furnish to the Indenture Trustee a copy of each such agreement and the Indenture
Trustee shall cause payments to be made and notices to be given in accordance
with such agreements.
Section 11.7 Conflict with Trust Indenture Act.
(a) If any provision hereof limits, qualifies or
conflicts with another provision hereof that is required to be included in this
Indenture by any of the provisions of the TIA, such required provision shall
control.
(b) The provisions of TIA Sections 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 Issuer shall bind its successors and assigns, whether so
expressed or not.
(b) All covenants and agreements of the Indenture
Trustee in this Indenture shall bind its successors and assigns, whether so
expressed or not.
Section 11.10 Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 11.11 Benefits of Indenture. Nothing in this Indenture
or in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the Noteholders and the Note
Owners and (only to the extent expressly provided herein) the
Certificateholders, any other party secured hereunder and any other Person with
an ownership interest in any part of the Collateral, 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
- 60 -
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 Issuer and at its expense accompanied by an Opinion of
Counsel (which may be counsel to the Indenture Trustee or any other counsel
reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Noteholders or any other
Person secured hereunder or for the enforcement of any right or remedy granted
to the Indenture Trustee under this Indenture.
Section 11.16 No Recourse. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against:
(i) the Indenture Trustee or the Owner
Trustee in its individual capacity;
(ii) any owner of a beneficial interest in
the Issuer; or
(iii) any partner, owner, beneficiary, agent,
officer, director, employee or agent of the Indenture Trustee or the
Owner Trustee in their individual capacities, any holder of a beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or of
any successor or assign of the Indenture Trustee or the Owner Trustee in
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 Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the
terms and provisions of Articles VI, VII and VIII of the Trust
Agreement.
Section 11.17 No Petition.
(a) 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 Issuer pursuant to Section 4.1, acquiesce,
petition or otherwise invoke or cause the Seller or the Issuer to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Seller or the Issuer under any federal or state
bankruptcy, insolvency or similar law or appointing a
- 61 -
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Seller or the Issuer or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Seller, or the Issuer.
(b) Notwithstanding any prior termination of the
Series 2003-A Portfolio Supplement, the Indenture Trustee (and each Noteholder
by its acceptance of a Note) covenants and agrees that it shall not, prior to
the date which is one year and a day after which all obligations under each
Permitted Financing have been paid in full, acquiesce, petition or otherwise
invoke, or join any other Person in acquiescing, petitioning or otherwise
invoking, against the Titling Trust or any Special Purpose Entity, any
proceeding in court or with any governmental authority for the purpose of (i)
commencing or sustaining a case against the Titling Trust or such Special
Purpose Entity under any federal or state bankruptcy, insolvency or similar law,
or (ii) appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of all or any substantial part of the
respective property of the Titling Trust or such Special Purpose Entity, or
(iii) ordering the winding up or liquidation of the affairs of the Titling Trust
or such Special Purpose Entity.
(c) Except as otherwise provided in the Titling
Trust Agreement, as may be amended, restated and supplemented from time to time,
the Indenture Trustee (and each Noteholder by its acceptance of a Note) hereby
releases all Claims to the Titling Trust Assets allocated to the General
Interest and to each Portfolio Interest other than the Series 2003-A Portfolio
Interest whether then or thereafter created and, in the event that such release
is not given effect, to fully subordinate all Claims it may be deemed to have
against the Titling Trust Assets allocated to the General Interest and each
Portfolio Interest other than the Series 2003-A Portfolio Interest whether then
or thereafter created.
Section 11.18 Inspection. The Issuer agrees that, on reasonable
prior notice, it shall permit any representative of the Indenture Trustee,
during the Issuer's normal business hours, to examine all the books of account,
records, reports and other papers of the Issuer to make copies and extracts
therefrom, to cause such books to be audited by Independent certified public
accountants, and to discuss the Issuer's affairs, finances and accounts with the
Issuer's officers, employees and Independent certified public accountants, all
at such reasonable times and as often as may be reasonably requested. The
Indenture Trustee shall and shall cause its representatives to hold in
confidence all such information except to the extent disclosure may be required
by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent that the Indenture Trustee may reasonably
determine that such disclosure is consistent with its obligations hereunder.
- 62 -
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have
caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized, all as of the day and year first above written.
NAVISTAR FINANCIAL 2003-A OWNER TRUST
By: Chase Manhattan Bank USA, National Association
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 Vice President
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
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 the Navistar
Financial 2003-A Owner Trust and that he executed the same as the act of said
statutory trust for the purpose and consideration therein expressed, and in the
capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 5th day of
June, 2003.
Notary Public in and for the State of Illinois.
My commission expires:
----------------------------
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
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 5th day of
June, 2003.
Notary Public in and for the State of Illinois.
My commission expires:
----------------------------
EXHIBIT A
LOCATIONS OF
COMPOSITE SCHEDULE OF RECEIVABLES
The Composite 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
A-1
EXHIBIT B
FORM OF CLASS A-1 ASSET BACKED NOTE
REGISTERED $____________/1/
No. R- _______ CUSIP NO.________
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the
Issuer or its agent for registration of transfer, exchange or payment,
and any Note issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
NAVISTAR FINANCIAL 2003-A OWNER TRUST
CLASS A-1 1.25% ASSET BACKED NOTES
NAVISTAR FINANCIAL 2003-A OWNER TRUST, a statutory trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to Cede & Co.,
or registered assigns, the principal sum of _______________ DOLLARS ($_________)
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 $85,000,000 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 Distribution Date in June 2004 (the "Final Scheduled Distribution
Date"). The Issuer 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
----------
/1/ Denominations of $1,000 and integral multiples thereof.
B-1
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 the Closing
Date. 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 Issuer 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.
B-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date: June 5, 2003 NAVISTAR FINANCIAL 2003-A OWNER TRUST
By: 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 Vice President
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer designated as its Class A-1 1.25% Asset Backed Notes (herein called the
"Class A-1 Notes"), all issued under an Indenture, dated as of June 5, 2003 (the
"Closing Date" and such Indenture, as supplemented or amended, is herein called
the "Indenture"), between the Issuer 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 Issuer, 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 Issuer, 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
Issuer 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 Issuer, 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 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 Issuer, acquiesce, petition or otherwise invoke or
cause the Seller or the Issuer to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Seller
or the Issuer under any federal or state bankruptcy, insolvency or similar law
or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Seller or the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller or the Issuer.
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 Issuer, the Indenture Trustee and any agent of the Issuer 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 Issuer, 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 Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with the consent of the Holders of Notes representing
a majority of the Outstanding Amount of all the Controlling Class. The Indenture
also contains provisions permitting the Holders of Notes representing specified
percentages of the Outstanding Amount of the Controlling Class, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer 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 "Issuer" as used in this Note includes any successor to
the Issuer under the Indenture.
The Issuer 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 Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
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 Issuer, 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 Issuer. 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 assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
--------------------------------
unto FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
-----------------------------------------------------------------
(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:__________________ _____________________________/2/
Signature Guaranteed:
----------------------- -----------------------------
----------
/2/ 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.
EXHIBIT C
FORM OF CLASS A-2, CLASS A-3, CLASS A-4 AND
CLASS B ASSET BACKED NOTE
REGISTERED $____________/3/
No. R- _______ CUSIP NO.________
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the
Issuer or its agent for registration of transfer, exchange or payment,
and any Note issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
NAVISTAR FINANCIAL 2003-A OWNER TRUST
CLASS ___ ___% ASSET BACKED NOTES
NAVISTAR FINANCIAL 2003-A OWNER TRUST, a statutory trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to Cede & Co.,
or registered assigns, the principal sum of _______________ DOLLARS ($_________)
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 [the earlier of] _______________ (the
"Final Scheduled Distribution Date") [and the Redemption Date, if any, pursuant
to Section 10.1(a) of the Indenture]. The Issuer shall pay interest on this Note
at the rate per annum shown above on each
----------
/3/ 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).
C-1
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 the Closing Date. 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, 10/30ths 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 Issuer 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.
C-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date: NAVISTAR FINANCIAL 2003-A OWNER TRUST
By: 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 Vice President
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer designated as its Class____ ____%_ Asset Backed Notes (herein called the
"Class Notes"), all issued under an Indenture, dated as of June 5, 2003 (the
"Closing Date" and such Indenture, as supplemented or amended, is herein called
the "Indenture"), between the Issuer 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 Issuer, 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 Issuer, 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
Issuer 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 Issuer, 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 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 Issuer, acquiesce, petition or otherwise invoke or
cause the Seller or the Issuer to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Seller
or the Issuer under any federal or state bankruptcy, insolvency or similar law
or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Seller or the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller, or the Issuer.
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 Issuer, the Indenture Trustee and any agent of the Issuer 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 Issuer, 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 Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with the consent of the Holders of Notes representing
a majority of the Outstanding Amount of all the Controlling Class. The Indenture
also contains provisions permitting the Holders of Notes representing specified
percentages of the Outstanding Amount of the Controlling Class, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer 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 "Issuer" as used in this Note includes any successor to
the Issuer under the Indenture.
The Issuer 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 Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
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 Issuer, 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 Issuer. 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 assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto __________________________________________________________
---------------------------------------------------------------
(name and address of assignee)
the within 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:__________________ _______________________________/4/
Signature Guaranteed:
------------------------ -------------------------------
----------
/4/ 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.
