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CASE EQUIPMENT RECEIVABLES TRUST 1998-C
INDENTURE
between
CASE EQUIPMENT RECEIVABLES TRUST 1998-C
and
XXXXXX TRUST AND SAVINGS BANK,
as Indenture Trustee.
Dated as of November 1, 1998
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions.........................................................................................3
SECTION 1.2. Incorporation by Reference of Trust Indenture Act...................................................3
SECTION 1.3. Rules of Construction...............................................................................3
ARTICLE II
The Notes
SECTION 2.1. Form................................................................................................4
SECTION 2.2. Execution, Authentication and Delivery..............................................................4
SECTION 2.3. Temporary Notes.....................................................................................5
SECTION 2.4. Registration; Registration of Transfer and Exchange.................................................5
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes..........................................................7
SECTION 2.6. Persons Deemed Owner................................................................................8
SECTION 2.7. Payment of Principal and Interest; Defaulted Interest...............................................8
SECTION 2.8. Cancellation........................................................................................9
SECTION 2.9. Release of Collateral..............................................................................10
SECTION 2.10. Book-Entry Notes..................................................................................10
SECTION 2.11. Notices to Clearing Agency........................................................................11
SECTION 2.12. Definitive Notes..................................................................................11
ARTICLE III
Covenants
SECTION 3.1. Payment of Principal and Interest..................................................................11
SECTION 3.2. Maintenance of Office or Agency....................................................................12
SECTION 3.3. Money for Payments To Be Held in Trust.............................................................12
SECTION 3.4. Existence..........................................................................................14
SECTION 3.5. Protection of the Trust Estate.....................................................................14
SECTION 3.6. Opinions as to the Trust Estate....................................................................15
SECTION 3.7. Performance of Obligations; Servicing of Receivables...............................................15
SECTION 3.8. Negative Covenants.................................................................................18
SECTION 3.9. Annual Statement as to Compliance..................................................................18
SECTION 3.10. Issuer May Consolidate, etc., Only on Certain Terms...............................................19
SECTION 3.11. Successor or Transferee...........................................................................20
SECTION 3.12. No Other Business.................................................................................21
SECTION 3.13. No Borrowing......................................................................................21
SECTION 3.14. Servicer's Obligations............................................................................21
SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities.................................................21
SECTION 3.16. Capital Expenditures..............................................................................21
SECTION 3.17. Removal of Administrator..........................................................................21
SECTION 3.18. Restricted Payments...............................................................................21
SECTION 3.19. Notice of Events of Default.......................................................................22
SECTION 3.20. Further Instruments and Acts......................................................................22
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1. Satisfaction and Discharge of Indenture............................................................22
SECTION 4.2. Application of Trust Money.........................................................................24
SECTION 4.3. Repayment of Moneys Held by Paying Agent...........................................................24
ARTICLE V
Remedies
SECTION 5.1. Events of Default..................................................................................24
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.................................................26
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.....................................................................26
SECTION 5.4. Remedies; Priorities...............................................................................29
SECTION 5.5. Optional Preservation of the Receivables...........................................................30
SECTION 5.6. Limitation of Suits................................................................................31
SECTION 5.7. Unconditional Rights of Noteholders To Receive Principal and Interest..............................32
SECTION 5.8. Restoration of Rights and Remedies.................................................................32
SECTION 5.9. Rights and Remedies Cumulative.....................................................................32
SECTION 5.10. Delay or Omission Not a Waiver....................................................................32
SECTION 5.11. Control by Noteholders............................................................................33
SECTION 5.12. Waiver of Past Defaults...........................................................................33
SECTION 5.13. Undertaking for Costs.............................................................................34
SECTION 5.14. Waiver of Stay or Extension Laws..................................................................34
SECTION 5.15. Action on Notes...................................................................................34
SECTION 5.16. Performance and Enforcement of Certain Obligations................................................35
ARTICLE VI
The Indenture Trustee
SECTION 6.1. Duties of the Indenture Trustee....................................................................36
SECTION 6.2. Rights of Indenture Trustee........................................................................37
SECTION 6.3. Individual Rights of the Indenture Trustee.........................................................38
SECTION 6.4. Indenture Trustee's Disclaimer.....................................................................39
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SECTION 6.5. Notice of Defaults.................................................................................39
SECTION 6.6. Reports by Indenture Trustee to the Holders........................................................39
SECTION 6.7. Compensation and Indemnity.........................................................................39
SECTION 6.8. Replacement of the Indenture Trustee...............................................................40
SECTION 6.9. Successor Indenture Trustee by Merger..............................................................41
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee.....................................................41
SECTION 6.11. Eligibility; Disqualification.....................................................................43
SECTION 6.12. Preferential Collection of Claims Against the Issuer..............................................44
ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and Addresses
of Noteholders........................................................................44
SECTION 7.2. Preservation of Information; Communications to Noteholders.........................................45
SECTION 7.3. Reports by Issuer..................................................................................45
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1. Collection of Money................................................................................46
SECTION 8.2. Trust Accounts.....................................................................................46
SECTION 8.3. General Provisions Regarding Accounts..............................................................47
SECTION 8.4. Release of Trust Estate............................................................................48
SECTION 8.5. Opinion of Counsel.................................................................................48
ARTICLE IX
Supplemental Indentures
SECTION 9.1. Supplemental Indentures Without Consent of Noteholders.............................................49
SECTION 9.2. Supplemental Indentures With Consent of Noteholders................................................50
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SECTION 9.3. Execution of Supplemental Indentures...............................................................52
SECTION 9.4. Effect of Supplemental Indenture...................................................................52
SECTION 9.5. Conformity with Trust Indenture Act................................................................53
SECTION 9.6. Reference in Notes to Supplemental Indentures......................................................53
ARTICLE X
Redemption of Notes
SECTION 10.1. Redemption........................................................................................53
SECTION 10.2. Form of Redemption Notice.........................................................................54
SECTION 10.3. Notes Payable on Redemption Date..................................................................54
ARTICLE XI
Miscellaneous
SECTION 11.1. Compliance Certificates and Opinions, etc.........................................................54
SECTION 11.2. Form of Documents Delivered to Indenture Trustee..................................................57
SECTION 11.3. Acts of Noteholders...............................................................................58
SECTION 11.4. Notices, etc., to the Indenture Trustee, Issuer and Rating Agencies...............................58
SECTION 11.5. Notices to Noteholders; Waiver....................................................................59
SECTION 11.6. Alternate Payment and Notice Provisions...........................................................60
SECTION 11.7. Conflict with Trust Indenture Act.................................................................60
SECTION 11.8. Effect of Headings and Table of Contents..........................................................60
SECTION 11.9. Successors and Assigns............................................................................60
SECTION 11.10. Severability.....................................................................................60
SECTION 11.11. Benefits of Indenture............................................................................60
SECTION 11.12. Legal Holidays...................................................................................61
SECTION 11.13. Governing Law....................................................................................61
iv
SECTION 11.14. Counterparts.....................................................................................61
SECTION 11.15. Recording of Indenture...........................................................................61
SECTION 11.16. Trust Obligation.................................................................................61
SECTION 11.17. No Petition......................................................................................62
SECTION 11.18. Inspection.......................................................................................63
EXHIBITS
EXHIBIT A-1 Form of A-1 Notes
EXHIBIT A-2 Form of A-2 Notes
EXHIBIT A-3 Form of A-3 Notes
EXHIBIT A-4 Form of A-4 Notes
EXHIBIT A-5 Form of Class B Notes
EXHIBIT B Form of Section 3.9 Officers' Certificate
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INDENTURE, dated as of November 1, 1998, between CASE EQUIPMENT
RECEIVABLES TRUST 1998-C, a Delaware business trust (the "Issuer"), and
XXXXXX TRUST AND SAVINGS BANK, an Illinois banking corporation ("Xxxxxx"),
as trustee and not in its individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party,
for the equal and ratable benefit of the Holders of the Issuer's 5.42%
Class A-1 Asset Backed Notes (each an "A-1 Note"), 5.49% Class A-2 Asset
Backed Notes (each an "A-2 Note"), 5.52% Class A-3 Asset Backed Notes (each
an "A-3 Note"), 5.61% Class A-4 Asset Backed Notes (each an "A-4 Note") and
6.20% Class B Notes (each a "Class B Note"; and together with the A-1
Notes, the A-2 Notes, the A-3 Notes, and the A-4 Notes, the "Notes").
GRANTING CLAUSE
The Issuer hereby Grants to Xxxxxx at the Closing Date, as
Indenture Trustee for the benefit of the Holders of the Notes, all of the
Issuer's right, title and interest in, to and under the following, whether
now existing or hereafter arising or acquired (collectively, the
"Collateral"):
(a) the Receivables, including all documents constituting
chattel paper included therewith, and all obligations of the
Obligors thereunder, including all moneys paid thereunder on or
after the Initial Cutoff Date or the applicable Subsequent Cutoff
Date;
(b) the security interests in the Financed Equipment
granted by Obligors pursuant to the Receivables and any other
interest of the Issuer in the Financed Equipment;
(c) any proceeds with respect to the Receivables from
claims on insurance policies covering Financed Equipment or
Obligors;
(d) the Liquidity Receivables Purchase Agreement (only
with respect to Contracts included in the Receivables) and the
Purchase Agreement, including the right of the Issuer to cause
Credit to repurchase Receivables from the Seller under the
circumstances described therein;
(e) any proceeds from recourse to Dealers with respect to
the Receivables other than any interest in the Dealers' reserve
accounts maintained with Credit;
(f) any Financed Equipment that shall have secured a
Receivable and that shall have been acquired by or on behalf of
the Trust;
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(g) all funds on deposit from time to time in the Trust
Accounts, including the Spread Account Initial Deposit, the Yield
Supplement Account Initial Deposit, the Negative Carry Account
Initial Deposit and the Pre-Funded Amount, and in all investments
and proceeds thereof (including all income thereon);
(h) the Sale and Servicing Agreement (including all
rights of the Seller under the Liquidity Receivables Purchase
Agreement and the Purchase Agreement assigned to the Issuer
pursuant to the Sale and Servicing Agreement);
(i) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing and all
payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including
all proceeds of the conversion, voluntary or involuntary, into
cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, insurance proceeds, condemnation awards,
rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property that
at any time constitute all or part of or are included in the
proceeds of any and all of the foregoing; and
(j) any True Lease Equipment that is subject to any
Receivable.
The foregoing Grant is made in trust to secure (x) first, the
payment of principal of and interest on, and any other amounts owing in
respect of, the Class A Notes, equally and ratably without prejudice,
priority or distinction, and (y) second, the payment of principal of and
interest on, and any other amounts owing in respect of, the Class B Notes,
equally and ratably without prejudice, priority or distinction, and to
secure compliance with this Indenture.
(1) Xxxxxx, as Indenture Trustee on behalf of the Noteholders,
acknowledges such Grant, and (2) as Indenture Trustee on behalf of the
Noteholders accepts the trusts under this Indenture in accordance with this
Indenture and agrees to perform its duties required in this Indenture to
the best of its ability to the end that the interests of the Noteholders
may be adequately and effectively protected.
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ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions. Capitalized terms used but not otherwise
defined herein are defined in Appendix A hereto.
SECTION 1.2. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following terms, where used in the TIA, shall have the following meanings
for the purposes hereof:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
SECTION 1.3. Rules of Construction. Unless the context otherwise
requires: (i) a term has the meaning assigned to it; (ii) an accounting
term not otherwise defined has the meaning assigned to it in accordance
with generally accepted accounting principles as in effect on the date
hereof; (iii) "or" is not exclusive; (iv) "including" means "including,
without limitation"; and (v) words in the singular include the plural and
words in the plural include the singular.
ARTICLE II
The Notes
SECTION 2.1. Form. The A-1 Notes, A-2 Notes, A-3 Notes, A-4 Notes
and Class B Notes, together with the Indenture Trustee's certificate of
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authentication, shall be in substantially the forms set forth in Exhibits
X-0, X-0, X-0, X-0 and A-5 respectively, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon, as may,
consistently herewith, be determined by the officers executing such 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.
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.
Each Note shall be dated the date of its authentication. The terms
of the Notes set forth in Exhibits X-0, X-0, X-0, X-0 and A-5 are part of
the terms of this Indenture.
SECTION 2.2. Execution, Authentication and Delivery. The Notes shall
be executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who
were at the time of signature Authorized Officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Notes or did not hold such offices at the date of such Notes.
The Indenture Trustee shall upon Issuer Order authenticate and
deliver A-1 Notes, X-0 Xxxxx, X-0 Xxxxx, X-0 Notes and Class B Notes for
original issue in an aggregate principal amount of $86,400,000,
$250,000,000, $110,000,000, $148,350,000 and $34,125,000, respectively. The
Outstanding Amount of X-0 Xxxxx, X-0 Notes, A-3 Notes, A-4 Notes and Class
B Notes at any time may not exceed such respective amounts except as
provided in Section 2.5.
Each Note shall be dated the date of its authentication. The Notes
shall be issuable as registered Notes in the minimum denomination of $1,000
and in integral multiples of $1,000 in excess thereof.
No Note 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 provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories,
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and such certificate of authentication shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder.
SECTION 2.3. Temporary Notes. Pending the preparation of
Definitive Notes, the Issuer may execute, and upon receipt of an Issuer
Order, the Indenture Trustee shall authenticate and deliver, temporary
Notes that are printed, lithographed, typewritten, mimeographed or
otherwise produced, of the tenor of the Definitive Notes in lieu of which
they are issued and with such variations not inconsistent with this
Indenture as the officers executing such Notes may determine, as evidenced
by their execution of such Notes.
If temporary Notes are issued, the Issuer will 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 office or agency of the
Issuer to be maintained as provided in Section 3.2, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes,
the Issuer shall execute and the Indenture Trustee shall authenticate and
deliver in exchange therefor a like principal amount of Definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in
all respects be entitled to the same benefits under this Indenture as if
they were Definitive Notes.
SECTION 2.4. Registration; Registration of Transfer and Exchange.
The Issuer shall cause to be kept a register (the "Note Register") in
which, subject to such reasonable regulations as it may prescribe, the
Issuer shall provide for the registration of Notes and the registration of
transfers of Notes. The Indenture Trustee shall be the "Note Registrar" for
the purpose of registering Notes and transfers of Notes as herein provided.
Upon any resignation of any Note Registrar, the Issuer shall promptly
appoint a successor or, if it elects not to make such an appointment,
assume the duties of the Note Registrar.
If a Person other than the Indenture Trustee is appointed by the
Issuer as the 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, and the
Indenture Trustee shall have the right to inspect the Note Register at all
reasonable times, to obtain copies thereof and 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 Holders of the Notes and the principal
amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the
office or agency of the Issuer to be maintained as provided in Section 3.2,
if the requirements of Section 8-401(1) of the UCC are met, the Issuer
shall execute, the Indenture Trustee shall authenticate and the Noteholder
shall obtain from the
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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.
At the option of the Holder, Notes may be exchanged for other new
Notes of the same Class in any authorized denominations of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such
office or agency. Whenever any Notes are so surrendered for exchange, if
the requirements of Section 8-401(1) of the UCC are met, the Issuer shall
execute, the Indenture Trustee shall authenticate and the Noteholder shall
obtain from the Indenture Trustee, the Notes that the Noteholder making the
exchange is entitled to receive.
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.
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 duly
executed by, the Holder thereof or such Holder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Note Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Exchange Act.
No service charge shall be made to a Holder for any registration
of transfer or exchange of Notes, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Notes, other than exchanges pursuant to Section 2.3 or 9.6 not involving
any transfer.
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes. 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 the Indenture
Trustee and the Issuer to hold the Indenture Trustee and the Issuer,
respectively, harmless, then, in the absence of notice to the Issuer, the
Note Registrar or the Indenture Trustee that such Note has been acquired by
a bona fide purchaser, and provided that the requirements of Section 8-405
of the UCC are met, the Issuer shall execute, and upon its request the
Indenture Trustee shall authenticate and deliver, in exchange for or in
lieu of any
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such mutilated, destroyed, lost or stolen Note, a replacement Note of the
same Class; provided, however, that if any such destroyed, lost or stolen
Note, but not a mutilated Note, shall have become, or within seven days
shall be, due and payable, or shall have been called for redemption,
instead of issuing a replacement Note, the Issuer may pay such destroyed,
lost or stolen Note when so due or payable or upon the Redemption Date
without surrender thereof. If, after the delivery of such replacement Note
(or payment of a destroyed, lost or stolen Note pursuant to the proviso to
the preceding sentence), a bona fide 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 the Person to whom it
was delivered or any Person taking such replacement Note from such Person
to whom such replacement Note was delivered (or payment made) or any
assignee of such Person, except a bona fide purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor to the
extent of any loss, damage, cost or expense incurred by the Issuer or the
Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other reasonable expenses (including
the fees and expenses of the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall
constitute an original additional contractual obligation of the Issuer,
whether or not the mutilated, destroyed, lost or stolen Note shall be at
any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Notes
duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6. Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and
any agent of the Issuer or the Indenture Trustee may treat the Person in
whose name any Note is registered (as of the day of determination) as the
owner of such Note for the purpose of receiving payments of principal of
and interest, if any, 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.
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SECTION 2.7. Payment of Principal and Interest; Defaulted
Interest. (a) The A-1 Notes, A-2 Notes, A-3 Notes, A-4 Notes and Class B
Notes shall accrue interest at the A-1 Note Rate, the A-2 Note Rate, the
A-3 Note Rate, the A-4 Note Rate and the Class B Note Rate, respectively,
and such interest shall be payable on each Payment Date, subject to Section
3.1. Any installment of interest or principal, if any, payable on any Note
that is punctually paid or duly provided for by the Issuer on the
applicable Payment Date shall be paid to the Person in whose name such Note
(or one or more Predecessor Notes) is registered on the 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. However, unless
Definitive Notes have been issued, with respect to Notes registered on the
Record Date in the name of the nominee of the Clearing Agency (initially,
such nominee to be Cede & Co.), payment will be made by wire transfer in
immediately available funds to the account designated by such nominee.
Notwithstanding the above, the final installment of principal payable with
respect to such Note (and except for the Redemption Price for any Note
called for redemption pursuant to Section 10.1(a)) shall be payable as
provided in clause (b)(ii). The funds represented by any such checks
returned undelivered shall be held in accordance with Section 3.3.
(b)(i) The principal of each Note shall be payable in installments
on each Payment Date as provided in this Indenture. Notwithstanding the
foregoing, the entire Outstanding Amount shall be due and payable, ratably
to all Noteholders, on: (A) the date on which an Event of Default shall
have occurred and be continuing if the Indenture Trustee or the Holders of
Notes representing not less than a majority of the Outstanding Amount of
the Notes have declared the Notes to be immediately due and payable in the
manner provided in Section 5.2, and (B) if any Notes remain Outstanding, on
and after the April 2005 Payment Date. In all other circumstances, all
principal payments on each Class of Notes shall be made pro rata to the
Noteholders of such Class entitled thereto.
(ii) The Indenture Trustee shall notify the Person in
whose name a Note is registered at the close of business on the
Record Date preceding the Payment Date on which the Issuer expects
that the final installment of principal of and interest on such
Note will be paid. Such notice shall be mailed no later than five
days prior to such final Payment Date and shall specify that such
final installment will be payable only upon presentation and
surrender of such Note and shall specify the place where such Note
may be presented and surrendered for payment of such installment.
Notices in connection with redemptions of Notes shall be mailed to
Noteholders as provided in Section 10.2.
(c) If the Issuer defaults in a payment of interest on the Notes,
the Issuer shall pay, in any lawful manner, defaulted interest (plus
interest on such defaulted
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interest to the extent lawful) at the applicable interest rate from the
Payment Date for which such payment is in default. The Issuer may pay such
defaulted interest to the Persons who are Noteholders on a subsequent
special record date, which date shall be at least five Business Days prior
to the special payment date. The Issuer shall fix or cause to be fixed any
such special record date and special payment date, and, at least 15 days
before any such special record date, shall mail to each Noteholder a notice
that states the special record date, the special payment date and the
amount of defaulted interest to be paid.
SECTION 2.8. Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to
any Person other than the Indenture Trustee, be delivered to the Indenture
Trustee and shall be promptly 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 that 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 except as expressly permitted by this Indenture. All canceled Notes
may be held or disposed of by the Indenture Trustee in accordance with its
standard retention or disposal policy as in effect at the time unless the
Issuer shall direct by an Issuer Order that they be returned to it;
provided, that such Issuer Order is timely and the Notes have not been
previously disposed of by the Indenture Trustee.
SECTION 2.9. Release of Collateral. Subject to Section 11.1 and
the Basic Documents, the Indenture Trustee shall release property from the
Lien of this Indenture only upon receipt of an Issuer Request accompanied
by an Officers' Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(l), or an
Opinion of Counsel in lieu of such Independent Certificates to the effect
that the TIA does not require any such Independent Certificates.
SECTION 2.10. Book-Entry Notes. The Notes, upon original issuance,
will be issued in the form of typewritten Notes representing the Book-Entry
Notes, to be delivered to The Depository Trust Company (the initial
Clearing Agency), or its custodian, by, or on behalf of, the Issuer. Such
Notes shall initially be registered on the Note Register in the name of
Cede & Co., the nominee of the initial Clearing Agency, and no Note Owner
of such Note will receive a Definitive Note representing such Note Owner's
interest in such Note, except as provided in Section 2.12. Unless and until
definitive, fully registered Notes (the "Definitive Notes") representing
Notes have been issued to Note Owners:
(i) this Section shall be in full force and effect;
9
(ii) the Note Registrar and the Indenture Trustee may
deal with the Clearing Agency for all purposes (including the
payment of principal of and interest on the Notes) as the
authorized representative of the Note Owners;
(iii) to the extent that this Section conflicts with any
other provisions of this Indenture, this Section shall control;
(iv) the rights of Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Note Owners and the
Clearing Agency and/or the Clearing Agency Participants pursuant
to the Note Depository Agreement. Unless and until Definitive
Notes are issued, the Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Notes to
such Clearing Agency Participants; and
(v) whenever this Indenture requires or permits actions
to be taken based upon instructions or directions of Holders of
Notes evidencing a specified percentage of the Outstanding Amount
of the Notes (or a Class of Notes), the Clearing Agency shall be
deemed to represent such percentage only to the extent that it has
received instructions to such effect from Note Owners and/or
Clearing Agency Participants owning or representing, respectively,
such required percentage of the beneficial interest in the Notes
(or Class of Notes) and has delivered such instructions to the
Indenture Trustee.
SECTION 2.11. Notices to Clearing Agency. Whenever a notice or
other communication to the Noteholders is required under this Indenture,
unless and until Definitive Notes have been issued to Note Owners, the
Indenture Trustee shall give all such notices and communications to the
Clearing Agency.
SECTION 2.12. Definitive Notes. 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 Administrator is unable to locate a qualified successor,
(ii) the Administrator at its option advises the Indenture Trustee in
writing that it elects to terminate the book- entry system through the
Clearing Agency or (iii) after the occurrence of an Event of Default or a
Servicer Default, Note Owners representing beneficial interests aggregating
at least a majority of the Outstanding Amount of the Notes advise the
Clearing Agency in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interests of the Note
Owners, then the Clearing Agency has undertaken to notify all Note Owners
and the Indenture Trustee of the occurrence of any such event and of the
availability of Definitive Notes to Note Owners requesting the same.
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Upon surrender to the Indenture Trustee of the typewritten 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.
ARTICLE III
Covenants
SECTION 3.1. Payment of Principal and Interest. The Issuer will
duly and punctually pay the principal and interest, if any, on the Notes in
accordance with the terms of the Notes and this Indenture. Without limiting
the foregoing, subject to Section 8.2(c), the Issuer will cause to be
distributed all amounts on deposit in the Note Distribution Account on a
Payment Date deposited therein for the benefit of the Notes pursuant to the
Sale and Servicing Agreement to Holders of the Notes. Amounts properly
withheld under the Code or any applicable State law by any Person from a
payment to any Noteholder of interest and/or principal shall be considered
as having been paid by the Issuer to such Noteholder for all purposes of
this Indenture.
SECTION 3.2. Maintenance of Office or Agency. The Issuer will
maintain in the Borough of Manhattan, The City of New York, an office or
agency where Notes may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Issuer in respect of
the Notes and this Indenture may be served. The Issuer hereby initially
appoints the Indenture Trustee to serve as its agent for the foregoing
purposes. The Issuer will give prompt written notice to the Indenture
Trustee of the location, and of any change in the location, of any such
office or agency. If at any time the Issuer shall fail to maintain any such
office or agency or shall fail to furnish the Indenture Trustee with the
address thereof, such surrenders, notices and demands may be made or served
at the Corporate Trust Office, and the Issuer hereby appoints the Indenture
Trustee as its agent to receive all such surrenders, notices and demands.
SECTION 3.3. Money for Payments To Be Held in Trust. As provided
in Section 8.2(a) and (b), all payments of amounts due and payable with
respect to any Notes that are to be made from amounts withdrawn from the
Collection Account and the Note Distribution Account pursuant to Section
8.2(c) shall be made on behalf of the Issuer by the Indenture Trustee or by
another Paying Agent,
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and no amounts so withdrawn from the Collection Account and the Note
Distribution Account for payments of Notes shall be paid over to the Issuer
except as provided in this Section.
On or before each Payment Date and Redemption Date, the Issuer
shall deposit or cause to be deposited in the Note Distribution Account an
aggregate sum sufficient to pay the amounts then becoming due under the
Notes, such sum to be held in trust for the benefit of the Persons entitled
thereto and (unless the Paying Agent is the Indenture Trustee) shall
promptly notify the Indenture Trustee of its action or failure so to act.
The Issuer will cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in
which such Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to
the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts
due with respect to the 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;
(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; and
(v) comply with all requirements of the Code and any
applicable State law with respect to the withholding from any
payments made by it on any Notes of any applicable withholding
taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order, direct any Paying Agent to pay to the Indenture Trustee all
sums held in trust by such
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Paying Agent, such sums to be held by the Indenture Trustee upon the same
trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
Subject to applicable laws with respect to escheat of funds, any
money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed
for two years after such amount has become due and payable shall be
discharged from such trust and be paid to the Issuer on Issuer Request; and
the Holder of such Note shall thereafter, as an unsecured general creditor,
look only to the Issuer for payment thereof (but only to the extent of the
amounts so paid to the Issuer), and all liability of the Indenture Trustee
or such Paying Agent with respect to such trust money shall thereupon
cease; provided, however, that the Indenture Trustee or such Paying Agent,
before being required to make any such repayment, shall at the expense and
direction of the Issuer cause to be published once, in a newspaper
published in the English language, customarily published on each Business
Day and of general circulation in The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the
Issuer. The Indenture Trustee shall also adopt and employ, at the expense
of the Issuer, any other reasonable means of notification of such repayment
(including mailing notice of such repayment to Holders whose Notes have
been called but have not been surrendered for redemption or whose right to
or interest in moneys due and payable but not claimed is determinable from
the records of the Indenture Trustee or of any Paying Agent, at the last
address of record for each such Holder).
SECTION 3.4. Existence. The Issuer will keep in full effect its
existence, rights and franchises as a business trust under the laws of the
jurisdiction of its organization and will obtain and preserve its
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
SECTION 3.5. Protection of the Trust Estate. The Issuer will from
time to time execute and deliver all such supplements and amendments hereto
and all such financing statements, continuation statements, instruments of
further assurance and other instruments, and will take such other action
necessary or advisable to:
(i) maintain or preserve the Lien and security interest
(and the priority thereof) of this Indenture or carry out more
effectively the purposes hereof;
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(ii) perfect, publish notice of or protect the validity
of any Grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and
the rights of the Indenture Trustee and the Noteholders in such
Trust Estate against the claims of all Persons.
The Issuer hereby designates the Indenture Trustee as its agent and
attorney-in-fact to execute any financing statement, continuation
statement, instrument of further assurance or other instrument required to
be executed to accomplish the foregoing.
SECTION 3.6. Opinions as to the Trust Estate. (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 created by this Indenture and reciting the
details of such action, or stating that, in the opinion of such counsel, no
such action is necessary to make such Lien and security interest effective.
(b) On or before April 30 in each calendar year, the Issuer shall
furnish to the Indenture Trustee an Opinion of Counsel either stating that,
in the opinion of such counsel, such action has been taken with respect to
the recording, filing, rerecording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents, and with
respect to the execution and filing of any financing statements and
continuation statements, as is necessary to maintain the Lien and security
interest of this Indenture and reciting the details of such action, or
stating that in the opinion of such counsel no such action is necessary to
maintain such Lien and security interest. Such Opinion of Counsel shall
also describe the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite
documents, and the execution and filing of any financing statements and
continuation statements, that will, in the opinion of such counsel, be
required to maintain the Lien and security interest of this Indenture until
April 30 in the following calendar year.
SECTION 3.7. Performance of Obligations; Servicing of Receivables.
(a) The Issuer will not take any action and will use its best efforts not
to permit any action to be taken by others that would release any Person
from any material covenants or obligations under any instrument or
agreement included in the Trust
14
Estate or that would result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of,
any such instrument or agreement, except as expressly provided in this
Indenture, the Sale and Servicing Agreement or such other instrument or
agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Indenture Trustee in an Officers'
Certificate of the Issuer shall be deemed to be action taken by the Issuer.
Initially, the Issuer has contracted with the Servicer and the
Administrator to assist the Issuer in performing its duties under this
Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents
and in the instruments and agreements included in the Trust Estate,
including filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by this Indenture and the Sale
and Servicing Agreement in accordance with and within the time periods
provided for herein and therein. Except as otherwise expressly provided
therein, the Issuer shall not waive, amend, modify, supplement or terminate
any Basic Document or any provision thereof without the consent of the
Indenture Trustee or the Holders of at least a majority of the Outstanding
Amount of the Notes.
(d) If the Issuer shall have knowledge of the occurrence of a
Servicer Default, the Issuer shall promptly notify the Indenture Trustee
and the Rating Agencies thereof, and shall specify in such notice the
action, if any, the Issuer is taking with respect to such default. If a
Servicer Default shall arise from the failure of the Servicer to perform
any of its duties or obligations under the Sale and Servicing Agreement
with respect to the Receivables, the Issuer shall take all reasonable steps
available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of
termination to the Servicer of the Servicer's rights and powers pursuant to
Section 8.1 of the Sale and Servicing Agreement, the Issuer shall appoint a
successor servicer (the "Successor Servicer"), and such Successor Servicer
shall accept its appointment by a written assumption in a form acceptable
to the Indenture Trustee. In the event that a Successor Servicer has not
been appointed and accepted its appointment at the time when the previous
Servicer ceases to act as Servicer, the Indenture Trustee without further
action shall automatically be appointed the Successor Servicer. The
Indenture Trustee may resign as the Servicer by giving written notice of
such resignation to the Issuer and in such event will be released from such
duties and obligations, such release not to be effective until the date a
Successor Servicer enters into a servicing agreement with the Issuer as
provided below. Upon delivery of any such notice to the Issuer, the Issuer
shall obtain a
15
new servicer as the Successor Servicer under the Sale and Servicing
Agreement. Any Successor Servicer other than the Indenture Trustee shall:
(i) be an established financial institution having a net worth of not less
than $50,000,000 and whose regular business includes the servicing of
receivables and (ii) enter into a servicing agreement with the Issuer
having substantially the same provisions as the provisions of the Sale and
Servicing Agreement applicable to the Servicer. If within 30 days after the
delivery of the notice referred to above, the Issuer shall not have
obtained such a Successor Servicer, the Indenture Trustee may appoint, or
may petition a court of competent jurisdiction to appoint, a Successor
Servicer. In connection with any such appointment, the Indenture Trustee
may make such arrangements for the compensation of such Successor Servicer
as it and such Successor Servicer shall agree, subject to the limitations
set forth below and in the Sale and Servicing Agreement, and in accordance
with Section 8.2 of the Sale and Servicing Agreement, the Issuer shall
enter into an agreement with such Successor Servicer for the servicing of
the Receivables (such agreement to be in form and substance satisfactory to
the Indenture Trustee). If the Indenture Trustee shall succeed to the
previous Servicer's duties as servicer of the Receivables as provided
herein, it shall do so in its individual capacity and not in its capacity
as Indenture Trustee and, accordingly, the provisions of Article VI shall
be inapplicable to the Indenture Trustee in its duties as the Successor
Servicer and the servicing of the Receivables. In case the Indenture
Trustee shall become the Successor Servicer under the Sale and Servicing
Agreement, the Indenture Trustee shall be entitled to appoint as Servicer
any one of its Affiliates; provided, that it shall be fully liable for the
actions and omissions of such Affiliate in its capacity as Successor
Servicer.
(f) Upon any termination of the Servicer's rights and powers
pursuant to the Sale and Servicing Agreement, the Issuer shall promptly
notify the Indenture Trustee. As soon as a Successor Servicer is appointed,
the Issuer shall notify the Indenture Trustee of such appointment,
specifying in such notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment
Granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees that it will not, without
the prior written consent of the Indenture Trustee or the Holders of at
least a majority of the Outstanding Amount, amend, modify, waive,
supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms of
any Collateral (except to the extent otherwise provided in the Sale and
Servicing Agreement) or the Basic Documents, or waive timely performance or
observance by the Servicer or the Seller under the Sale and Servicing
Agreement or Credit under the Purchase Agreement; provided, however, that
no such amendment shall: (i) increase or reduce in any manner the amount
of, or accelerate or delay the timing of, distributions that are required
to
16
be made for the benefit of the Noteholders, or (ii) reduce the aforesaid
percentage of the Notes that are required to consent to any such amendment,
in either case without the consent of the Holders of all the Outstanding
Notes. If any such amendment, modification, supplement or waiver shall be
so consented to by the Indenture Trustee or such Holders, the Issuer
agrees, promptly following a request by the Indenture Trustee to do so, to
execute and deliver, in its own name and at its own expense, such
agreements, instruments, consents and other documents as the Indenture
Trustee may deem necessary or appropriate in the circumstances.
SECTION 3.8. Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture, the
Purchase Agreement or the Sale and Servicing Agreement, sell,
transfer, exchange or otherwise dispose of any of the properties
or assets of the Issuer, including those included in the Trust
Estate, unless directed to do so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code or
applicable State law) or assert any claim against any present or
former Noteholder by reason of the payment of the taxes levied or
assessed upon any part of the Trust Estate; or
(iii)(A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the Lien of this Indenture to
be amended, hypothecated, subordinated, terminated or discharged,
or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture except
as may be expressly permitted hereby, (B) permit any Lien (other
than the Lien of this Indenture) to be created on or extend to or
otherwise arise upon or burden the Trust Estate or any part
thereof or any interest therein or the proceeds thereof or (C)
permit the Lien of this Indenture not to constitute a valid first
priority (other than with respect to any tax lien, mechanics' lien
or other lien not considered a Lien) security interest in the
Trust Estate.
SECTION 3.9. Annual Statement as to Compliance. The Issuer will
deliver to the Indenture Trustee, within 120 days after the end of each
fiscal year of the Issuer (commencing with the fiscal year 1998), an
Officers' Certificate, substantially in the form of Exhibit B, stating
that:
17
(i) a review of the activities of the Issuer during such
year and of performance under this Indenture has been made under
such Authorized Officers' supervision; and
(ii) to the best of such Authorized Officers' knowledge,
based on such review, the Issuer has complied with all conditions
and covenants under this Indenture throughout such year or, if
there has been a default in the compliance of any such condition
or covenant, specifying each such default known to such Authorized
Officers and the nature and status thereof.
SECTION 3.10. Issuer May Consolidate, etc., Only on Certain Terms. (a)
The Issuer shall not consolidate or merge with or into any other Person, unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized
and existing under the laws of the United States of America or any
State and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed,
all as provided herein;
(ii) immediately after giving effect to such transaction,
no Default or Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture Trustee)
to the effect that such transaction will not have any material
adverse tax consequence to the Issuer, any Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the Lien and
security interest created by this Indenture shall have been taken;
and
(vi) the Issuer shall have delivered to the Indenture
Trustee an Officers' Certificate and an Opinion of Counsel each
stating that such consolidation or merger and such supplemental
indenture comply with this Article III and that all conditions
precedent herein provided for relating to such transaction have
been complied with (including any filing required by the Exchange
Act).
18
(b) The Issuer shall not convey or transfer any of its properties
or assets, including those included in the Trust Estate, to any Person,
unless:
(i) the Person that acquires by conveyance or transfer
the properties and assets of the Issuer the conveyance or transfer
of which is hereby restricted shall: (A) be a United States
citizen or a Person organized and existing under the laws of the
United States of America or any State, (B) expressly assumes, by
an indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture Trustee,
the due and punctual payment of the principal of and interest on
all Notes and the performance or observance of every agreement and
covenant of this Indenture on the part of the Issuer to be
performed or observed, all as provided herein, (C) expressly
agrees by means of such supplemental indenture that all right,
title and interest so conveyed or transferred shall be subject and
subordinate to the rights of Holders of the Notes, (D) unless
otherwise provided in such supplemental indenture, expressly
agrees to indemnify, defend and hold harmless the Issuer against
and from any loss, liability or expense arising under or related
to this Indenture and the Notes and (E) expressly agrees by means
of such supplemental indenture that such Person (or if a group of
Persons, then one specified Person) shall make all filings with
the Commission (and any other appropriate Person) required by the
Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction,
no Default or Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture Trustee)
to the effect that such transaction will not have any material
adverse tax consequence to the Issuer, any Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the Lien and
security interest created by this Indenture shall have been taken;
and
(vi) the Issuer shall have delivered to the Indenture
Trustee an Officers' Certificate and an Opinion of Counsel each
stating that such conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have
been complied with (including any filing required by the Exchange
Act).
19
SECTION 3.11. Successor or Transferee. (a) Upon any consolidation
or merger of the Issuer in accordance with Section 3.10(a), the Person
formed by or surviving such consolidation or merger (if other than the
Issuer) shall succeed to, and be substituted for, and may exercise every
right and power of, the Issuer under this Indenture with the same effect as
if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties
of the Issuer pursuant to Section 3.10(b), the Issuer will be released from
every covenant and agreement of this Indenture to be observed or performed
on the part of the Issuer with respect to the Notes immediately upon the
delivery of written notice to the Indenture Trustee stating that the Issuer
is to be so released.
SECTION 3.12. No Other Business. The Issuer shall not engage in
any business other than financing, purchasing, owning, selling and managing
of the Receivables in the manner contemplated by this Indenture and the
Basic Documents and activities incidental thereto.
SECTION 3.13. No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
SECTION 3.14. Servicer's Obligations. The Issuer shall cause the
Servicer to comply with Sections 4.8, 4.9, 4.10, 4.11 and 5.9 of the Sale and
Servicing Agreement.
SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by the Sale and Servicing Agreement or this
Indenture, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability
of so doing or otherwise), endorse or otherwise become contingently liable,
directly or indirectly, in connection with the obligations, stocks or
dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any stock, obligations, assets or securities of, or
any other interest in, or make any capital contribution to, any other
Person.
SECTION 3.16. Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
SECTION 3.17. Removal of Administrator. So long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause
unless the Rating Agency Condition shall have been satisfied in connection
with such removal.
20
SECTION 3.18. Restricted Payments. The Issuer shall not, directly
or indirectly: (i) pay any dividend or make any distribution (by reduction
of capital or otherwise), whether in cash, property, securities or a
combination thereof, to the Trustee or any owner of a beneficial interest
in the Issuer or otherwise with respect to any ownership or equity interest
or security in or of the Issuer or to the Servicer or the Administrator,
(ii) redeem, purchase, retire or otherwise acquire for value any such
ownership or equity interest or security or (iii) set aside or otherwise
segregate any amounts for any such purpose; provided, however, that the
Issuer may make, or cause to be made, distributions to the Servicer, the
Trustee, the Certificateholders and the Administrator as contemplated by,
and to the extent funds are available for such purpose under, the Sale and
Servicing Agreement. The Issuer will not, directly or indirectly, make
payments to or distributions from the Collection Account except in
accordance with this Indenture and the Basic Documents.
SECTION 3.19. Notice of Events of Default. The Issuer shall give
the Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder, each default on the part of the Servicer or the
Seller of its obligations under the Sale and Servicing Agreement and each
default on the part of Credit of its obligations under the Purchase
Agreement.
SECTION 3.20. Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the Notes
except as to: (i) rights of registration of transfer and exchange, (ii)
substitution of mutilated, destroyed, lost or stolen Notes, (iii) rights of
Noteholders to receive payments of principal thereof and interest thereon,
(iv) Sections 3.3, 3.4, 3.5, 3.8, 3.10, 3.12 and 3.13, (v) the rights,
obligations and immunities of the Indenture Trustee hereunder (including
the rights of the Indenture Trustee under Section 6.7 and the obligations
of the Indenture Trustee under Section 4.2) and (vi) the rights of
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, when:
21
(A) either:
(1) all Notes theretofore authenticated and
delivered (other than: (i) Notes that have been
destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.5 and (ii) Notes for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as
provided in Section 3.3) have been delivered to the
Indenture Trustee for cancellation; or
(2) all Notes not theretofore delivered to the
Indenture Trustee for cancellation:
(i) have become due and payable,
(ii) will become due and payable on the
Final Scheduled Maturity Date within one year,
or
(iii) are to be called for redemption
within one year under arrangements satisfactory
to the Indenture Trustee for the giving of
notice of redemption by the Indenture Trustee in
the name, and at the expense, of the Issuer,
and the Issuer, in the case of clause (2)(i), (ii) or
(iii), has irrevocably deposited or caused to be
irrevocably deposited with the Indenture Trustee cash or
direct obligations of or obligations guaranteed by the
United States of America (which will mature prior to the
date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the
entire indebtedness on such Notes not theretofore
delivered to the Indenture Trustee for cancellation when
due to the Final Scheduled Maturity Date or Redemption
Date (if Notes shall have been called for redemption
pursuant to Section 10.1(a)), as the case may be;
(B) the Issuer has paid or caused to be paid all other
sums payable hereunder by the Issuer; and
(C) the Issuer has delivered to the Indenture Trustee an
Officers' Certificate, an Opinion of Counsel and (if required by
the TIA or the Indenture Trustee) an Independent Certificate from
a firm of certified public accountants, each meeting the
applicable requirements of Section 11.1(a) and, subject to Section
11.2, each stating that all conditions
22
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
SECTION 4.2. Application of Trust Money. All moneys deposited with
the 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 moneys have been deposited with
the Indenture Trustee, of all sums due and to become due thereon for
principal and interest; but such moneys need not be segregated from other
funds except to the extent required herein or in the Sale and Servicing
Agreement or as required by law.
SECTION 4.3. Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with
respect to the Notes, all moneys then held by any Paying Agent other than
the Indenture Trustee under this Indenture with respect to such Notes
shall, upon demand of the Issuer, be paid to the Indenture Trustee to be
held and applied according to Section 3.3, and thereupon such Paying Agent
shall be released from all further liability with respect to such moneys.
ARTICLE V
Remedies
SECTION 5.1. Events of Default. "Event of Default", wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body):
(i) default in the payment of any interest on any Note
when the same becomes due and payable, and such default shall
continue for a period of five days;
(ii) default in the payment of the principal of any Note
when the same becomes due and payable;
(iii) default in the observance or performance of any
covenant or agreement of the Issuer made in this Indenture (other
than a covenant or agreement a default in the observance or
performance of which is elsewhere in this Section specifically
dealt with), or any representation or warranty of the Issuer made
in this Indenture or in any certificate or other
23
writing delivered pursuant hereto or in connection herewith
proving to have been incorrect in any material respect as of the
time when the same shall have been made, and such default shall
continue or not be cured, or the circumstance or condition in
respect of which such misrepresentation or warranty was incorrect
shall not have been eliminated or otherwise cured, for a period of
30 days after there shall have been given, by registered or
certified mail, to the Issuer by the Indenture Trustee or to the
Issuer and the Indenture Trustee by the Holders of at least 25% of
the Outstanding Amount of the Notes, a written notice specifying
such default or incorrect representation or warranty and requiring
it to be remedied and stating that such notice is a notice of
Default hereunder;
(iv) the filing of a decree or order for relief by a
court having jurisdiction in the premises in respect of the Issuer
or any substantial part of the Trust Estate in an involuntary case
under any applicable Federal or State bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of the Issuer or for any substantial part of
the Trust Estate, or ordering the winding-up or liquidation of the
Issuer's affairs, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(v) the commencement by the Issuer of a voluntary case
under any applicable Federal or State bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by
the Issuer to the entry of an order for relief in an involuntary
case under any such law, or the consent by the Issuer to the
appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of
the Issuer or for any substantial part of the Trust Estate, or the
making by the Issuer of any general assignment for the benefit of
creditors, or the failure by the Issuer generally to pay its debts
as such debts become due, or the taking of action by the Issuer in
furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five
days after the Issuer or the Administrator obtains actual knowledge
thereof, written notice in the form of an Officers' Certificate of any
event that, with the giving of notice or the lapse of time or both, would
become an Event of Default under clause (iii), its status and what action
the Issuer is taking or proposes to take with respect thereto.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default should occur and be continuing, then and in every
such case the Indenture Trustee or the Holders of Notes representing not
less than a majority of the Outstanding Amount 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
24
by Noteholders), and upon any such declaration the Outstanding Amount,
together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity has
been made and before a judgment or decree for payment of the money due has
been obtained by the Indenture Trustee as hereinafter in this Article V
provided, the Holders of Notes representing not less than a majority of the
Outstanding Amount, by written notice to the Issuer and the Indenture
Trustee, may rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(A) all payments of principal of and interest on
all Notes and all other amounts that would then be due
hereunder or upon such Notes if the Event of Default
giving rise to such acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture
Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of
the principal of the Notes that has become due solely by such
acceleration, have been cured or waived as provided in Section
5.12.
No such rescission shall affect any subsequent default or impair
any right consequent thereto.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee. (a) The Issuer covenants that if an Event of Default
described in Section 5.1(i) or (ii) occurs, the Issuer will, upon demand of
the Indenture Trustee, pay to it, for the benefit of the Holders of Notes,
the whole amount then due and payable on such Notes for principal and
interest, with interest upon the overdue principal at the applicable
interest rate, and, to the extent payment at such rate of interest shall be
legally enforceable, upon overdue installments of interest, at the
applicable interest rate, and in addition thereto such further amount as
shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances
of the Indenture Trustee and its agents and counsel.
25
(b) In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Indenture Trustee, in its own name and as trustee of
an express trust, may institute a Proceeding for the collection of the sums
so due and unpaid, and may prosecute such Proceeding to judgment or final
decree, and may enforce the same against the Issuer or other obligor upon
such Notes and collect in the manner provided by law out of the property of
the Issuer or other obligor upon such Notes, wherever situated, the moneys
adjudged or decreed to be payable.
(c) In case an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders, by such appropriate Proceedings as the Indenture Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other
proper remedy or legal or equitable right vested in the Indenture Trustee
by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Trust Estate, Proceedings under Title 11 of the United
States Code or any other applicable Federal or State bankruptcy, insolvency
or other similar law, or in case a receiver, assignee, trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its
property or such other obligor or Person, or in case of any other
comparable judicial Proceedings relative to the Issuer or other obligor
upon the Notes, or to the creditors or property of the Issuer or such other
obligor, the 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 this Section, shall be entitled and
empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect of
the Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the
Indenture Trustee (including any claim for reasonable compensation
to the Indenture Trustee and each predecessor Indenture Trustee,
and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor
Indenture Trustee, except as a result of negligence or bad faith)
and of the Noteholders allowed in such Proceedings;
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(ii) unless prohibited by applicable law or regulations,
to vote on behalf of the Holders of the Notes in any election of a
trustee, a standby trustee or any Person performing similar
functions in any such Proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all
amounts received with respect to the claims of the 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, assignee, custodian, sequestrator or
other similar official in any such Proceeding is hereby authorized by each
of such Noteholders to make payments to the Indenture Trustee, and, in the
event that the Indenture Trustee shall consent to the making of payments
directly to such Noteholders, to pay to the Indenture Trustee such amounts
as shall be sufficient to cover reasonable compensation to the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and
all advances made, by the Indenture Trustee and each predecessor Indenture
Trustee except as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof or to authorize the Indenture Trustee to vote in respect of the
claim of any Noteholder in any such proceeding except, as aforesaid, to
vote for the election of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture
Trustee without the possession of any of the Notes or the production
thereof in any trial or other Proceedings relative thereto, and any such
action or Proceedings instituted by the Indenture Trustee shall be brought
in its own name and as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements and
compensation of the Indenture Trustee, each predecessor Indenture Trustee
and their respective agents and attorneys, shall be for the ratable benefit
of the Holders of the Notes.
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(g) In any Proceedings brought by the Indenture Trustee (and also
any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Holders of the Notes, 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, the Indenture Trustee may do one or more of
the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as trustee
of an express trust for the collection of all amounts then payable
on the Notes or under this Indenture with respect thereto, whether
by declaration or otherwise, enforce any judgment obtained, and
collect from the Issuer and any other obligor upon such Notes
moneys adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to
the Trust Estate;
(iii) exercise any remedies of a secured party under the
UCC and take any other appropriate action to protect and enforce
the rights and remedies of the Indenture Trustee and the Holders
of the Notes;
(iv) sell the Trust Estate, or any portion thereof or
rights or interest therein, at one or more public or private sales
called and conducted in any manner permitted by law; and
(v) make demand upon the Servicer, by written notice,
that the Servicer deliver to the Indenture Trustee all Receivable
Files;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Trust Estate following an Event of Default, other than an
Event of Default described in Section 5.1(i) or (ii), unless: (A) all the
Noteholders consent thereto, (B) the proceeds of such sale or liquidation
distributable to the Noteholders are sufficient to discharge in full all
amounts then due and unpaid upon such Notes for principal and interest or
(C) the Indenture Trustee determines that the Trust Estate will not
continue to provide sufficient funds for the payment of principal of and
interest on the Notes as they would have become due if the Notes had not
been declared due and payable, and the Indenture Trustee obtains the
consent of Holders of 66-2/3% of the Outstanding Amount. In determining
such sufficiency or insufficiency with respect to clauses (B) and (C), the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as
to the feasibility of such proposed action and as to the sufficiency of the
Trust Estate for such purpose.
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(b) If the Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out such money or property in the
following order:
FIRST: to the Indenture Trustee for amounts due under Section
6.7;
SECOND: to Class A Noteholders for amounts due and unpaid on
the Class A Notes for interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Class A Notes for interest;
THIRD: to Class B Noteholders for amounts due and unpaid on
the Class B Notes for interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on
the Class B Notes for interest;
FOURTH: to Class A Noteholders for amounts due and unpaid on
the Class A Notes for principal, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Class A Notes for principal;
FIFTH: to Class B Noteholders for amounts due and unpaid on
the Class B Notes for principal, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Class B Notes for principal; and
SIXTH: to the Issuer for distribution to the
Certificateholders.
The Indenture Trustee may fix a special record date and special
payment date for any payment to Noteholders pursuant to this Section. At
least 15 days before such special record date, the Issuer shall mail to
each Noteholder and the Indenture Trustee a notice that states the special
record date, the special payment date and the amount to be paid.
SECTION 5.5. Optional Preservation of the Receivables. If the
Notes have been declared to be due and payable under Section 5.2 following
an Event of Default, and such declaration and its consequences have not
been rescinded and annulled, the Indenture Trustee may, but need not, elect
to maintain possession of the Trust Estate. It is the desire of the parties
hereto and the Noteholders that there be at all times sufficient funds for
the payment of principal of and interest on the Notes, and the Indenture
Trustee shall take such desire into account when determining whether or not
to maintain possession of the Trust Estate. In determining whether to
maintain possession of the Trust Estate, the Indenture Trustee may, but
need not, obtain and rely upon an opinion of an Independent
29
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
SECTION 5.6. Limitation of Suits. No Holder of any Note shall have
any right to institute any Proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless:
(i) such Holder has previously given written notice to
the Indenture Trustee of a continuing Event of Default;
(ii) the Holder(s) of not less than 25% of the
Outstanding Amount of the Notes have made written request to the
Indenture Trustee to institute such Proceeding in respect of such
Event of Default in its own name as Indenture Trustee hereunder;
(iii) such Holder(s) have offered to the Indenture
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt
of such notice, request and offer of indemnity has failed to
institute such Proceeding; and
(v) no direction inconsistent with such written request
has been given to the Indenture Trustee during such 60-day period
by the Holders of a majority of the Outstanding Amount of the
Notes;
it being understood and intended that no one or more Holder(s) of Notes
shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holder(s) of Notes or to obtain or to seek to obtain
priority or preference over any other Holder(s) or to enforce any right
under this Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Noteholders,
each representing less than a majority of the Outstanding Amount of the
Notes, the Indenture Trustee in its sole discretion may determine what
action, if any, shall be taken, notwithstanding any other provisions of
this Indenture.
SECTION 5.7. Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this Indenture,
the Holder
30
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Note on
or after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the Redemption Date)
and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.
SECTION 5.8. Restoration of Rights and Remedies. If the Indenture
Trustee or any 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 and respectively to
their 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 Notes to exercise any right or
remedy accruing upon any Default or Event of Default shall impair any such
right or remedy or constitute a waiver of any such Default or Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Indenture Trustee or to the Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by
the Indenture Trustee or by the Noteholders, as the case may be.
SECTION 5.11. Control by Noteholders. The Holders of not less than
a majority of the Outstanding Amount of the Notes shall have the right to
direct the time, method and place of conducting any Proceeding for any
remedy available to the Indenture Trustee with respect to the Notes or
exercising any trust or power conferred on the Indenture Trustee; provided,
that:
(i) such direction shall not be in conflict with any rule of
law or with this Indenture;
31
(ii) subject to the express terms of Section 5.4, any
direction to the Indenture Trustee to sell or liquidate the Trust
Estate shall be by all the Noteholders;
(iii) if the conditions set forth in Section 5.5 have
been satisfied and the Indenture Trustee elects to retain the
Trust Estate pursuant to such Section, then any direction to the
Indenture Trustee by Holders of Notes representing less than 100%
of the Outstanding Amount of the Notes to sell or liquidate the
Trust Estate shall be of no force and effect; and
(iv) the Indenture Trustee may take any other action
deemed proper by the Indenture Trustee that is not inconsistent
with such direction;
provided, however, that, subject to Section 6.1, the Indenture Trustee need
not take any action that it determines might involve it in liability or
might materially adversely affect the rights of any Noteholder(s) not
consenting to such action.
SECTION 5.12. Waiver of Past Defaults. Prior to the time a
judgment or decree for payment of money due has been obtained as described
in Section 5.3, the Holders of Notes of not less than a majority of the
Outstanding Amount of the Notes may waive any past Default or Event of
Default and its consequences except a Default: (a) in payment of principal
of or interest on any of the Notes or (b) in respect of a covenant or
provision hereof that cannot be modified or amended without the consent of
the Holder of each Note. In the case of any such waiver, the Issuer, the
Indenture Trustee and the Holders of the Notes shall be restored to their
former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured and not to
have occurred, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or impair any right
consequent thereto.
SECTION 5.13. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Indenture Trustee for any action
taken, suffered or omitted by it as Indenture Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorney's fees, against any party litigant in such
suit,
32
having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not
apply to: (a) any suit instituted by the Indenture Trustee, (b) any suit
instituted by any Noteholder(s) holding in the aggregate more than 10% of
the Outstanding Amount of the Notes or (c) any suit 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 will not at
any time insist upon, or plead or in any manner whatsoever, claim or take
the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Indenture Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 5.15. Action on 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 Trust Estate or upon any of the assets of the Issuer. Any
money or property collected by the Indenture Trustee shall be applied in
accordance with Section 5.4(b).
SECTION 5.16. Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so and at
the Administrator's expense, the Issuer shall take all such lawful action
as the Indenture Trustee may request to compel or secure the performance
and observance by the Seller and the Servicer, as applicable, of each of
their obligations to the Issuer under or in connection with the Sale and
Servicing Agreement or to the Seller under or in connection with the
Purchase Agreement in accordance with the terms thereof, and to exercise
any and all rights, remedies, powers and privileges lawfully available to
the Issuer under or in connection with the Sale and Servicing Agreement (or
the Seller under or in connection with the Purchase Agreement) to the
extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Seller or the
Servicer thereunder and the institution of legal or administrative actions
or proceedings to compel or secure performance by the Seller or the
Servicer of each
33
of their obligations under the Sale and Servicing Agreement or the Purchase
Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing) of the Holders of not less than 66-2/3% of the Outstanding Amount
of the Notes shall, exercise all rights, remedies, powers, privileges and
claims of the Issuer against the Seller or the Servicer under or in
connection with the Sale and Servicing Agreement, including the right or
power to take any action to compel or secure performance or observance by
the Seller or the Servicer of each of their obligations to the Issuer
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Sale and Servicing Agreement, and any right
of the Issuer to take such action shall be suspended.
(c) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing) of the Holders of not less than 66-2/3% of the Outstanding Amount
of the Notes shall, exercise all rights, remedies, powers, privileges and
claims of the Seller against Credit under or in connection with the
Purchase Agreement, including the right or power to take any action to
compel or secure performance or observance by Credit of each of its
obligations to the Seller thereunder and to give any consent, request,
notice, direction, approval, extension or waiver under the Purchase
Agreement, and any right of the Seller to take such action shall be
suspended.
ARTICLE VI
The Indenture Trustee
SECTION 6.1. Duties of the Indenture Trustee. (a) If an Event of
Default has occurred and is continuing, the Indenture Trustee shall
exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default
actually known to a Responsible Officer:
(i) the Indenture Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be read
into this Indenture against the Indenture Trustee; and
34
(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Indenture Trustee
and conforming to the requirements of this Indenture; provided,
however, in the case of any such certificates or opinions that by
any provision hereof are specifically required to be furnished to
the Indenture Trustee, the Indenture Trustee shall examine the
certificates and opinions to determine whether or not they conform
to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own
wilful misconduct, except that:
(i) this clause (c) does not limit the effect of clause (b)
of this Section;
(ii) the Indenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer
unless it is proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to the
Indenture;
(iv) the Indenture Trustee shall not be charged with
knowledge of an Event of Default or Servicer Default unless a
Responsible Officer obtains actual knowledge of such event or the
Indenture Trustee receives written notice of such event from the
Seller, Servicer or Note Owners owning Notes aggregating not less
than 10% of the Outstanding Amount of the Notes; and
(v) the Indenture Trustee shall have no duty to monitor
the performance of the Issuer, the Trustee, the Seller or the
Servicer, nor shall it have any liability in connection with
malfeasance or nonfeasance by the Issuer, the Trustee, the Seller
or the Servicer. The Indenture Trustee shall have no liability in
connection with compliance of the Issuer, the Trustee, the Seller
or the Servicer with statutory or regulatory requirements related
to the Receivables. The Indenture Trustee shall not make or be
deemed to have made any representations or warranties with respect
to the Receivables or the validity or sufficiency of any
assignment of the Receivables to the Trust Estate or the Indenture
Trustee.
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(d) Every provision of this Indenture that in any way relates to
the Indenture Trustee is subject to clauses (a), (b), (c) and (g).
(e) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing
with the Issuer.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law, this
Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it shall have reasonable grounds
to believe that repayments of such funds or adequate indemnity satisfactory
to it against any loss, liability or expense is not reasonably assured to
it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to this Section and the TIA.
SECTION 6.2. Rights of Indenture Trustee. (a) The Indenture
Trustee may conclusively rely and shall be fully protected in acting on any
document believed by it to be genuine and to have been signed or presented
by the proper Person. The Indenture Trustee need not investigate any fact
or matter stated in any such document.
(b) Before the Indenture Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel. The
Indenture Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on the Officers' Certificate or Opinion of
Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, attorneys, a custodian or a nominee, and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of,
or for the supervision of, any such agent, attorney, custodian or nominee
appointed with due care by it.
(d) The Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be authorized or
within its rights or powers; provided, however, that the Indenture
Trustee's conduct does not constitute wilful misconduct, negligence or bad
faith.
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(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.
(f) The Indenture Trustee shall not be required to make any
initial or periodic examination of any files or records related to the
Receivables for the purpose of establishing the presence or absence of
defects, the compliance by the Issuer with its representations and
warranties or for any other purpose.
(g) In the event that the Indenture Trustee is also acting as
Paying Agent or Note Registrar hereunder, the rights and protections
afforded to the Indenture Trustee pursuant to this Article VI shall also be
afforded to the Indenture Trustee in its capacity as such Paying Agent or
Note Registrar.
SECTION 6.3. Individual Rights of the Indenture Trustee. The
Indenture Trustee shall not, in its individual capacity, but may in a
fiduciary capacity, become the owner of Notes or otherwise extend credit to
the Issuer. The Indenture Trustee may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not the Indenture
Trustee. Any Paying Agent, Note Registrar, co-registrar or co-paying agent
may do the same with like rights. However, the Indenture Trustee must
comply with Sections 6.11 and 6.12.
SECTION 6.4. Indenture Trustee's Disclaimer. The Indenture Trustee
shall not be responsible for, and makes no representation as to the
validity or adequacy of, this Indenture or the Notes; shall not be
accountable for the Issuer's use of the proceeds from the Notes; and shall
not be responsible for any statement of the Issuer in this Indenture or in
any document issued in connection with the sale of the 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 is known to a Responsible Officer, the Indenture Trustee
shall mail to each Noteholder notice of the Default within 90 days after it
occurs. Except in the case of a Default in payment of principal of or
interest on any Note (including payments pursuant to the mandatory
redemption provisions of such 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 the Holders. The
Indenture Trustee shall deliver to each Noteholder such information as may be
required to enable such Holder to prepare its Federal, State and other income
tax
37
returns. Within 60 days after each December 31, the Indenture Trustee shall
mail to each Noteholder a brief report as of such December 31 that complies
with TIA Section 313(a) (if required by said section).
SECTION 6.7. Compensation and Indemnity. The Issuer shall, or
shall cause the Servicer to, pay to the Indenture Trustee from time to time
reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee
of an express trust. The Issuer shall, or shall cause the Servicer to,
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture
Trustee's agents, counsel, accountants and experts. The Issuer shall or
shall cause the Servicer to indemnify the Indenture Trustee and its
officers, directors, employees and agents against any and all loss,
liability or expense (including attorneys' fees) incurred by them in
connection with the administration of this trust and the performance of its
duties hereunder. The Indenture Trustee shall notify the Issuer and the
Servicer promptly of any claim for which it may seek indemnity. Failure by
the Indenture Trustee to so notify the Issuer and the Servicer shall not
relieve the Issuer or the Servicer of its obligations hereunder. The Issuer
shall, or shall cause the Servicer to, defend the claim and the Indenture
Trustee may have separate counsel and the Issuer shall, or shall cause the
Servicer to, pay the fees and expenses of such counsel. Neither the Issuer
nor the Servicer need reimburse any expense or indemnify against any loss,
liability or expense incurred by the Indenture Trustee through the
Indenture Trustee's own willful misconduct, negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant
to this Section shall survive the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of a Default
specified in Section 5.1(iv) or (v), the expenses are intended to
constitute expenses of administration under Title 11 of the United States
Code or any other applicable Federal or State bankruptcy, insolvency or
similar law.
SECTION 6.8. Replacement of the Indenture Trustee. No resignation
or removal of the Indenture Trustee and no appointment of a successor
Indenture Trustee shall become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section
6.8. The Indenture Trustee may resign at any time by so notifying the
Issuer in writing. The Holders of not less than a majority of the
Outstanding Amount of the Notes may remove the Indenture Trustee by so
notifying the Indenture Trustee in writing and may
38
appoint a successor Indenture Trustee. The Issuer shall remove the Indenture
Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge of
the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
If the Indenture Trustee resigns or is removed or if a vacancy
exists in the office of Indenture Trustee for any reason (the Indenture
Trustee in such event being referred to herein as the retiring Indenture
Trustee), the Issuer shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance
of its appointment to the retiring Indenture Trustee and to the Issuer.
Thereupon the resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee shall have all
the rights, powers and duties of the Indenture Trustee under this
Indenture. The successor Indenture Trustee shall mail a notice of its
succession to Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as Indenture Trustee to the successor
Indenture Trustee.
If a successor Indenture Trustee does not take office within 60
days after the retiring Indenture Trustee resigns or is removed, the
retiring Indenture Trustee, the Issuer or the Holders of not less than a
majority of the Outstanding Amount of the Notes may petition any court of
competent jurisdiction for the appointment of a successor Indenture
Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal
of the Indenture Trustee and the appointment of a successor Indenture
Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant
to this Section, the Issuer's and the Administrator's obligations under
Section 6.7 shall continue for the benefit of the retiring Indenture
Trustee. The retiring Indenture Trustee shall have no liability for any act
or omission by any successor Trustee.
SECTION 6.9. Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation or banking
39
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Indenture Trustee. The Indenture Trustee
shall provide the Rating Agencies and the Issuer prior written notice of
any such transaction; provided, that such corporation or banking
association shall be otherwise qualified and eligible under Section 6.11.
In case at the time such successor(s) by merger, conversion or
consolidation to the Indenture Trustee shall succeed to the trusts created
by this Indenture any of the 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 trustee
hereunder or in the name of the successor to the Indenture Trustee; and in
all such cases such certificates of authentication shall have the full
force and effect to the same extent given to the certificate of
authentication of the Indenture Trustee anywhere in the Notes or in this
Indenture.
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Indenture, at any time, for
the purpose of meeting any legal requirement of any jurisdiction in which
any part of the Trust Estate may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Person(s) to act as co-trustee(s), or separate
trustee(s), of all or any part of the Trust Estate, and to vest in such
Person(s), in such capacity and for the benefit of the Noteholders, such
title to the Trust Estate, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and
trusts as the Indenture Trustee may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to meet the
terms of eligibility as a successor trustee under Section 6.11 and no
notice to Noteholders of the appointment of any co-trustee or separate
trustee shall be required under Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Indenture Trustee shall be conferred or
imposed upon and exercised or performed by the Indenture Trustee
and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not
authorized to act separately without the Indenture Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act(s) are to be performed,
the Indenture Trustee shall be incompetent or unqualified to
perform such
40
act(s), in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Estate or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove, in its sole discretion, any separate
trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article VI. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Indenture Trustee or separately, as
may be provided therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the
conduct of, affecting the liability of, or affording protection to, the
Indenture Trustee. Every such instrument shall be filed with the Indenture
Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
the Indenture Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Indenture Trustee, to the
extent permitted by law, without the appointment of a new or successor
trustee.
(e) The Indenture Trustee shall have no obligation to determine
whether a co-trustee or separate trustee is legally required in any
jurisdiction in which any part of the Trust Estate may be located.
SECTION 6.11. Eligibility; Disqualification. The Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a) and Section
26(a)(1) of the Investment Company Act of 1940, as amended. The Indenture
Trustee shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition and it shall
have a long term senior, unsecured debt rating of "Baa3" or better by Moody's
(or, if not rated by Moody's, a comparable rating by another statistical rating
agency). The Indenture Trustee
41
shall comply with TIA Section 310(b), including the optional provision
permitted by the second sentence of TIA Section 310(b)(9); provided, however,
that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture(s) under which other securities of the Issuer are outstanding if
the requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
If a default occurs under this Indenture, 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, a successor
Indenture Trustee shall be appointed 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). 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.
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 each successor Indenture Trustee shall accept such appointment
and which (i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, the successor
Indenture Trustee all the rights, powers, trusts and duties of the retiring
Indenture Trustee with respect to the Notes of the Class to which the
appointment of such successor Indenture Trustee relates, (ii) if the
retiring Indenture Trustee is not retiring with respect to all Classes of
Notes, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Indenture Trustee with respect to the Notes of each Class as to
which the retiring Indenture Trustee is not retiring shall continue to be
vested in the retiring Indenture Trustee, and (iii) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than
one Indenture Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Indenture Trustees co-trustees
of the same trust and that each such Indenture Trustee shall be trustee of
a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Indenture Trustee; and upon the
execution and delivery of such
42
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 the
Issuer. The Indenture Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). An Indenture Trustee
who has resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated.
ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuer will furnish or cause to be furnished
to the Indenture Trustee: (a) not more than five days after the earlier of:
(i) each Record Date and (ii) three months after the last Record Date, a
list, in such form as the Indenture Trustee may reasonably require, of the
names and addresses of the Holders of Notes as of such Record Date, and (b)
at such other times as the Indenture Trustee may request in writing, within
30 days after receipt by the Issuer of any such request, a list of similar
form and content as of a date not more than 10 days prior to the time such
list is furnished; provided, however, that so long as the Indenture Trustee
is the Note Registrar, no such list shall be required to be furnished.
SECTION 7.2. Preservation of Information; Communications to
Noteholders. (a) The Indenture Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of the Holders of
Notes contained in the most recent list furnished to the Indenture Trustee
as provided in Section 7.1 and the names and addresses of Holders of Notes
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) Three or more Noteholders, or one or more Holder(s) of Notes
evidencing at least 25% of the Outstanding Amount of the Notes, 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:
43
(i) file with the Indenture Trustee, within 15 days after
the Issuer is required to file the same with the Commission,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations
prescribe) that the Issuer may be required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Commission, in accordance with the
rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Issuer with the conditions and
covenants of this Indenture (with a copy of any such filings being
delivered promptly to the Indenture Trustee); and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all 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) as may be required by the rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1. Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of,
and shall receive and collect, directly and without intervention or
assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall apply all such money received by it
as provided in this Indenture. Except as otherwise expressly provided in
this Indenture, if any default occurs in the making of any payment or
performance under any agreement or instrument that is part of the
Collateral and the Trust Estate, the Indenture Trustee may take such action
as may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action
shall be without prejudice to any right to claim a Default or Event of
Default under this Indenture and any right to proceed thereafter as
provided in Article V.
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SECTION 8.2. Trust Accounts. (a) On or prior to the Closing Date,
the Issuer shall cause the Servicer to establish and maintain, in the name
of the Indenture Trustee, for the benefit of the Noteholders and the
Certificateholders, the Trust Accounts as provided in Section 5.1 of the
Sale and Servicing Agreement.
(b) On or before each Payment Date, the Total Distribution Amount
with respect to the preceding Collection Period will be deposited in the
Collection Account as provided in Section 5.2 of the Sale and Servicing
Agreement. On or before each Payment Date, the Noteholders' Distributable
Amount with respect to the preceding Collection Period will be transferred
to the Note Distribution Account as provided in Sections 5.5 and 5.6 of the
Sale and Servicing Agreement.
(c) On each Payment Date and Redemption Date, the Indenture
Trustee shall distribute all amounts on deposit in the Note Distribution
Account to 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 (except as otherwise provided in Section 5.4(b)):
(i) the Class A Interest Amount for each Class of Class A
Notes; provided, that if there are not sufficient funds in the
Note Distribution Account to pay the entire amount of accrued and
unpaid interest then due on such Notes, the amount in the Note
Distribution Account shall be applied to the payment of such
interest on such Notes pro rata on the basis of the total such
interest due on such Notes;
(ii) the Class B Noteholders' Interest Distributable
Amount;
(iii) the Class Principal Distributable Amount for each
Class of Class A Notes in the following priority: X-0 Xxxxx, X-0
Xxxxx, X-0 Notes and A-4 Notes (provided that after an Event of
Default and acceleration of the Notes (and, if any Notes remain
outstanding, on and after the Final Scheduled Maturity Date),
amounts available for distribution pursuant to this clause (iv)
shall be paid to all Holders of Class A Notes ratably according to
the amounts due and payable on the Class A Notes for principal
until paid in full);
(iv) the Class B Noteholders' Monthly Principal Distributable
Amount; and
(v) thereafter, any excess shall be deposited to the
Certificate Distribution Account.
45
SECTION 8.3. General Provisions Regarding Accounts. (a) So long as
no Default or Event of Default shall have occurred and be continuing, all
or a portion of the funds in the Trust Accounts shall be invested in
Eligible Investments and reinvested by the Indenture Trustee upon Issuer
Order, subject to the provisions of Section 5.1(b) of the Sale and
Servicing Agreement. All income or other gain from investments of moneys
deposited in the Trust Accounts shall be deposited by the Indenture Trustee
in the Collection Account, and any loss or expenses resulting from such
investments shall be charged to such account. The Issuer will not direct
the Indenture Trustee to make any investment of any funds or to sell any
investment held in any of the Trust Accounts unless the security interest
granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the
Indenture Trustee to make any such investment or sale, if requested by the
Indenture Trustee, the Issuer shall deliver to the Indenture Trustee an
Opinion of Counsel to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in
any way be held liable for the selection of Eligible Investments or by
reason of any insufficiency in any of the Trust Accounts resulting from any
loss on any Eligible Investment included therein, except for losses
attributable to the Indenture Trustee's failure to make payments on such
Eligible Investments issued by the Indenture Trustee, in its commercial
capacity as principal obligor and not as trustee, in accordance with their
terms.
(c) If: (i) the Issuer shall have failed to give investment
directions for any funds on deposit in the Trust Accounts to the Indenture
Trustee by 11:00 a.m. (New York City time) (or such other time as may be
agreed by the Issuer and the Indenture Trustee) on any Business Day; or
(ii) a Default or Event of Default shall have occurred and be continuing
with respect to the Notes but the Notes shall not have been declared due
and payable pursuant to Section 5.2, or, if such Notes shall have been
declared due and payable following an Event of Default, amounts collected
or receivable from the Trust Estate are being applied in accordance with
Section 5.4(b) as if there had not been such a declaration; then the
Indenture Trustee shall, to the fullest extent practicable, invest and
reinvest funds in the Trust Accounts in the Eligible Investments identified
in clause (d) of the definition of Eligible Investments.
SECTION 8.4. Release of Trust Estate. (a) Subject to the payment
of its fees and expenses pursuant to Section 6.7, the Indenture Trustee
may, and when required by this Indenture shall, execute instruments to
release property from the Lien of this Indenture, or convey the Indenture
Trustee's interest in the same, in a manner and under circumstances that
are not inconsistent with this Indenture. No party relying upon an
instrument executed by the Indenture Trustee as provided in this Article
shall be bound to ascertain the Indenture Trustee's authority, inquire
46
into the satisfaction of any conditions precedent or see to the application
of any moneys.
(b) The Indenture Trustee shall, at such time as there are no
Notes Outstanding and all sums due to the Indenture Trustee pursuant to
Section 6.7 have been paid, release any remaining portion of the Trust
Estate that secured the Notes from the Lien of this Indenture and release
to the Issuer or any other Person entitled thereto any funds then on
deposit in the Trust Accounts. The Indenture Trustee shall release property
from the Lien of this Indenture pursuant to this paragraph only upon
receipt of an Issuer Request accompanied by an Officers' Certificate, an
Opinion of Counsel and (if required by the TIA) Independent Certificates in
accordance with TIA Sections 314(c) and 314(d)(1) meeting the applicable
requirements of Section 11.1.
SECTION 8.5. Opinion of Counsel. The Indenture Trustee shall
receive at least seven days' notice when requested by the Issuer to take
any action pursuant to Section 8.4(a), accompanied by copies of any
instruments involved, and the Indenture Trustee shall also require, as a
condition to such action, an Opinion of Counsel stating the legal effect of
any such action, outlining the steps required to complete the same, and
concluding that all conditions precedent to the taking of such action have
been complied with and such action will not materially and adversely impair
the security for the Notes or the rights of the Noteholders in
contravention of this Indenture; provided, however, that such Opinion of
Counsel shall not be required to express an opinion as to the fair value of
the Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate
or other instrument delivered to the Indenture Trustee in connection with
any such action.
ARTICLE IX
Supplemental Indentures
SECTION 9.1. Supplemental Indentures Without Consent of
Noteholders. (a) Without the consent of the Holders of Notes but with prior
written notice to the Rating Agencies, the Issuer and the Indenture
Trustee, when authorized by an Issuer Order, at any time and from time to
time, may enter into one or more indentures supplemental hereto (which
shall conform to the Trust Indenture Act as in force at the date of the
execution thereof), in form satisfactory to the Indenture Trustee, for any
of the following purposes:
(i) to correct or amplify the description of any property
at any time subject to the Lien of this Indenture, or better to
assure, convey and confirm unto the Indenture Trustee any property
subject or required to be
47
subjected to the Lien of this Indenture, or to subject to the Lien
of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another Person to the Issuer, and
the assumption by any such successor of the covenants of the
Issuer herein and in the Notes;
(iii) to add to the covenants of the Issuer, for the
benefit of the Holders of Notes, or to surrender any right or
power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to replace the Spread Account with another form of
credit enhancement; provided, the Rating Agency Condition is
satisfied;
(vi) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any
supplemental indenture or to make any other provisions with
respect to matters or questions arising under this Indenture or in
any supplemental indenture; provided, that such action shall not
materially adversely affect the interests of the Holders of Notes;
(vii) to evidence and provide for the acceptance of the
appointment hereunder by a successor or additional 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
(viii) to modify, eliminate or add to the provisions of
this Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
Federal statute hereafter enacted and to add to this Indenture
such other provisions as may be expressly required by the TIA.
The Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an
Issuer Order, may, without the consent of the any of the Holders of Notes
but with prior written notice to the Rating Agencies, enter into an
indenture or indentures
48
supplemental hereto to cure any ambiguity, to correct or supplement any
provisions in this Indenture or for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of Notes
under this Indenture; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any Noteholder.
SECTION 9.2. Supplemental Indentures With Consent of Noteholders.
The Issuer and the Indenture Trustee, when authorized by an Issuer Order,
may, with prior written notice to the Rating Agencies and with the consent
of the Holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes, by Act of such Holders delivered to the
Issuer and the Indenture Trustee, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Notes 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 date of payment of any installment of
principal of or interest on any Note, or reduce the principal
amount thereof, the interest rate thereon or the Redemption Price
with respect thereto, change the provisions of this Indenture
relating to the application of collections on, or the proceeds of
the sale of, the Trust Estate to the payment of principal of or
interest on the Notes, or change any place of payment where, or
the coin or currency in which, any Note or the interest thereon is
payable, or impair the right to institute suit for the enforcement
of the provisions of this Indenture requiring the application of
funds available therefor, as provided in Article V, to the payment
of any such amount due on or after the respective due dates
thereof (or, in the case of redemption, on or after the Redemption
Date);
(ii) reduce the percentage of the Outstanding Amount, the
consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with certain provisions of
this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to
the definition of "Outstanding";
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(iv) reduce the percentage of the Outstanding Amount
required to direct the Indenture Trustee to direct the Issuer to
sell or liquidate the Trust Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to
increase any percentage specified herein or to provide that
certain additional provisions of this Indenture or the Basic
Documents cannot be modified or waived without the consent of the
Holder of each Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture in
such manner as to affect the calculation of the amount of any
payment of interest or principal due on any Note on any Payment
Date (including the calculation of any of the individual
components of such calculation) or to affect the rights of the
Holders of Notes to the benefit of any provisions for the
mandatory redemption of the Notes contained herein; or
(vii) permit the creation of any Lien ranking prior to or
on a parity with the Lien of this Indenture with respect to any
part of the Trust Estate or, except as otherwise permitted or
contemplated herein, terminate the Lien of this Indenture on any
property at any time subject hereto or deprive any Holder of Notes
of the security provided by the Lien of this Indenture.
It shall not be necessary for any Act of the Noteholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof. The manner of obtaining such consents (and any other
consents of Noteholders provided for in this Indenture or in any other
Basic Document) and of evidencing the authorization of the execution
thereof by Noteholders shall be subject to such reasonable requirements as
the Indenture Trustee may provide.
Promptly after the execution by the Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this Section, the
Indenture Trustee shall mail to the Holders of the Notes to which such
amendment or supplemental indenture relates a notice setting forth in
general terms the substance of such supplemental indenture. Any failure of
the Indenture Trustee to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 9.3. Execution of Supplemental Indentures. In executing,
or permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts
created by this Indenture, the Indenture Trustee shall be entitled to
receive, and, subject to
50
Sections 6.1 and 6.2, shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but
shall not be obligated to, enter into any such supplemental indenture that
affects the Indenture Trustee's own rights, duties, liabilities or
immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to the Notes affected thereby, and the respective
rights, limitations of rights, obligations, duties, liabilities and
immunities under this Indenture of the Indenture Trustee, the Issuer and
the Holders of the Notes shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
SECTION 9.5. Conformity with Trust Indenture Act. Every amendment
of this Indenture and every supplemental indenture executed pursuant to
this Article IX shall conform to the requirements of the Trust Indenture
Act as then in effect so long as this Indenture shall then be qualified
under the Trust Indenture Act.
SECTION 9.6. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and if required by the Indenture
Trustee shall, bear a notation in form approved by the Indenture Trustee as
to any matter provided for in such supplemental indenture. If the Issuer or
the Indenture Trustee shall so determine, new 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.
ARTICLE X
Redemption of Notes
SECTION 10.1. Redemption. (a) The Notes are subject to redemption
in whole, but not in part, at the direction of the Servicer pursuant to
Section 9.1(a) of the Sale and Servicing Agreement, on any Payment Date on
which the Servicer exercises its option to purchase the Trust Estate
pursuant to said Section 9.1(a), for a purchase price equal to the
Redemption Price; provided, however, that the Issuer has available funds
sufficient to pay the Redemption Price. The Servicer or the Issuer shall
furnish the Rating Agencies notice of such redemption. If such
51
Notes are to be redeemed pursuant to this Section 10.1(a), the Servicer or
the Issuer shall furnish notice of such election to the Indenture Trustee
not later than 25 days prior to the Redemption Date and the Issuer shall
deposit with the Indenture Trustee in the Note Distribution Account the
Redemption Price of the Notes to be redeemed.
(b) In the event that the assets of the Trust are sold pursuant to
Section 9.2 of the Trust Agreement, all amounts on deposit in the Note
Distribution Account shall be paid to the Noteholders up to the Outstanding
Amount and all accrued and unpaid interest thereon. If amounts are to be
paid to Noteholders pursuant to this Section 10.1(b), the Servicer or the
Issuer shall, to the extent practicable, furnish notice of such event to
the Indenture Trustee not later than 25 days prior to the Redemption Date
whereupon all such amounts shall be payable on the Redemption Date.
SECTION 10.2. Form of Redemption Notice. (a) Notice of redemption
under Section 10.1(a) shall be given by the Indenture Trustee by
first-class mail, postage prepaid, mailed not less than five days prior to
the applicable Redemption Date to each Holder of Notes, as of the close of
business on the Record Date preceding the applicable Redemption Date, at
such Holder's address appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such Notes are to be surrendered
for payment of the Redemption Price (which shall be the office or
agency of the Issuer to be maintained as provided in Section 3.2);
and
(iv) CUSIP numbers.
Notice of redemption of the 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 Note
shall not impair or affect the validity of the redemption of any other
Note.
(b) Prior notice of redemption under Section 10.1(b) is not required
to be given to Noteholders.
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SECTION 10.3. Notes Payable on Redemption Date. The Notes or
portions thereof to be redeemed shall, following notice of redemption
pursuant to this Article, become due and payable on the Redemption Date at
the Redemption Price and (unless the Issuer shall default in the payment of
the Redemption Price) no interest shall accrue on the Redemption Price for
any period after the date to which accrued interest is calculated for
purposes of calculating the Redemption Price.
ARTICLE XI
Miscellaneous
SECTION 11.1. Compliance Certificates and Opinions, etc. (a) Upon
any application or request by the Issuer to the Indenture Trustee to take
any action under this Indenture, the Issuer shall furnish to the Indenture
Trustee: (i) an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have
been complied with and (iii) (if required by the TIA) an Independent
Certificate from a firm of certified public accountants meeting the
applicable requirements of this Section, except that, in the case of any
such application or request as to which the furnishing of such documents is
specifically required by this Indenture, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(w) a statement that each signatory of such certificate
or opinion has read or has caused to be read such covenant or
condition and the definitions herein relating thereto;
(x) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(y) a statement that, in the opinion of each such
signatory, such signatory has made (or has caused to be made) such
examination or investigation as is necessary to enable such
signatory to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(z) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been complied with.
53
(b)(i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the Lien of this
Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.1(a) or elsewhere in this Indenture, furnish to the Indenture
Trustee an Officers' Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days of
such deposit) to the Issuer of the Collateral or other property or
securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officers' Certificate described in clause
(i), the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value
to the Issuer of the Collateral or other property or securities to
be so deposited and of all other such Collateral or other property
or securities made the basis of any such withdrawal or release
since the commencement of the then-current fiscal year of the
Issuer, as set forth in the certificates delivered pursuant to
clause (i) and this clause (ii), is 10% or more of the Outstanding
Amount of the Notes, but such a certificate need not be furnished
with respect to any Collateral or other property or securities so
deposited if the fair value thereof to the Issuer as set forth in
the related Officers' Certificate is less than $25,000 or less
than one percent of the then Outstanding Amount of the Notes.
(iii) Other than with respect to property as contemplated
by clause (v), whenever any Collateral or other property or
securities are to be released from the Lien of this Indenture, the
Issuer shall also furnish to the Indenture Trustee an Officers'
Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within 90 days of
such release) of the Collateral or other property or securities
proposed to be released and stating that in the opinion of such
person the proposed release will not impair the security under
this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officers' Certificate certifying or stating
the opinion of any signer thereof as to the matters described in
clause (iii), the Issuer shall also furnish to the Indenture
Trustee an Independent Certificate as to the same matters if the
fair value to the Issuer of the Collateral or other property or
securities and of all other property, other than property as
contemplated by clause (v), or securities released from the Lien
of this Indenture since the commencement of the then-current
fiscal year, as set forth in the certificates required by clause
(iii) and this clause (iv), equals 10% or more of the Outstanding
Amount of the Notes, but such certificate need not be furnished in
the case of any release of Collateral or other
54
property or securities if the fair value thereof to the Issuer as
set forth in the related Officers' Certificate is less than
$25,000 or less than one percent of the then Outstanding Amount of
the Notes.
(v) Notwithstanding Section 2.9 or any other provision of
this Section, the Issuer may, without compliance with the
requirements of the other provisions of this Section: (A) collect,
liquidate, sell or otherwise dispose of Receivables and Financed
Equipment as and to the extent permitted or required by the Basic
Documents and (B) make cash payments out of the Trust Accounts as
and to the extent permitted or required by the Basic Documents so
long as the Issuer shall deliver to the Indenture Trustee every
six months, commencing June 1, 1999, an Officers' Certificate of
the Issuer stating that all such dispositions of Collateral that
occurred since the execution of the previous such Officers'
Certificate (or for the first such Officers' Certificate, since
the Closing Date) were in the ordinary course of the Issuer's
business and that the proceeds thereof were applied in accordance
with the Basic Documents.
SECTION 11.2. Form of Documents Delivered to Indenture Trustee. In
any case where several matters are required to be certified by, or covered
by an opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an Authorized Officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate,
opinion or representations with respect to the matters upon which his
certificate or opinion is based is/are erroneous. Any such certificate of
an Authorized Officer or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Servicer, the Seller, the
Issuer or the Administrator, stating that the information with respect to
such factual matters is in the possession of the Servicer, the Seller, the
Issuer or the Administrator, as applicable, unless such Authorized Officer
or counsel knows, or in the exercise of reasonable care should know, that
the certificate, opinion or representations with respect to such matters
is/are erroneous.
Where any Person is required or permitted to make, give or execute
two or more applications, requests, consents, certificates, statements,
opinions or other
55
instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever in this Indenture, in connection with any application,
certificate or report to the Indenture Trustee, it is provided that the
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer's compliance with any term
hereof, it is intended that the truth and accuracy, at the time of the
granting of such application or at the effective date of such certificate
or report (as the case may be), of the facts and opinions stated in such
document shall in such case be conditions precedent to the right of the
Issuer to have such application granted or to the sufficiency of such
certificate or report. The foregoing shall not, however, be construed to
affect the Indenture Trustee's right to rely upon the truth and accuracy of
any statement or opinion contained in any such document as provided in
Article VI.
SECTION 11.3. Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Noteholders may be embodied in
and evidenced by one or more instrument(s) 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(s) are delivered to the
Indenture Trustee, and, where it is hereby expressly required, to the
Issuer. Such instrument(s) (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Noteholders
signing such instrument(s). Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 6.1) conclusive in favor of the
Indenture Trustee and the Issuer, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Indenture
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or Act by the Holder of any Notes shall bind the Holder of
every Note issued upon the registration thereof, in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done
by the Indenture Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
56
SECTION 11.4. Notices, etc., to the 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, shall be in writing and, if such request,
demand, authorization, direction, notice, consent, waiver or Act of
Noteholders is to be made upon, given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the
Issuer, shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Indenture
Trustee at its Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any
Noteholder, shall be sufficient for every purpose hereunder if in
writing and mailed, first-class, postage prepaid, to the Issuer
addressed to: Case Equipment Receivables Trust 1998-C, in care of
The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Corporate Trust Administration - Asset
Backed Finance Unit, and to Case Credit Corporation, as
Administrator, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000,
Attention: Treasurer, or at any other address previously furnished
in writing to the Indenture Trustee by the Issuer or the
Administrator. The Issuer shall promptly transmit any notice
received by it from the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer,
the Indenture Trustee or the Trustee shall be in writing, personally
delivered or mailed by certified mail, return receipt requested, to their
respective addresses set forth in Section 10.3 of the Sale and Servicing
Agreement.
SECTION 11.5. Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class, postage prepaid to each Noteholder
affected by such event, at his address as it appears on the Note Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to
Noteholders is given by mail, neither the failure to mail such notice nor
any defect in any notice so mailed to any particular Noteholder shall
affect the sufficiency of such notice with respect to other Noteholders,
and any notice that is mailed in the manner herein provided shall
conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Noteholders shall be filed
with the Indenture Trustee but such filing
57
shall not be a condition precedent to the validity of any action taken in
reliance upon such a waiver.
In case, by reason of the suspension of regular mail service, it
shall be impractical to mail notice of any event to Noteholders when such
notice is required to be given pursuant to this Indenture, then any manner
of giving such notice as shall be satisfactory to the Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance
constitute a Default or Event of Default.
SECTION 11.6. Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the 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
provided for in this Indenture or the Notes for such payments or notices.
The Issuer will furnish to the Indenture Trustee a copy of each such
agreement and the Indenture Trustee will cause payments to be made and
notices to be given in accordance with such agreements.
SECTION 11.7. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by the Trust Indenture Act, such
required provision shall control.
The provisions of TIA 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. All covenants and agreements
in this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture
Trustee in this Indenture shall bind its successors, co-trustees and agents
of the Indenture Trustee.
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SECTION 11.10. Severability. Any provision of this Indenture or
the Notes that is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or of
the Notes, as applicable, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 11.11. Benefits of Indenture. Nothing in this Indenture or
in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the Noteholders, any other
party secured hereunder and any other Person with an ownership interest in
any part of the Trust Estate, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 11.12. Legal Holidays. In any case where the date on which
any payment is due shall not be a Business Day, then (notwithstanding any
other provision of the Notes or this Indenture) payment need not be made on
such date, but may be made on the next Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 11.13. Governing Law. This Indenture shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 11.14. Counterparts. This Indenture may be executed in any
number of counterparts, each of which when so executed shall be deemed to
be an original, but all such counterparts shall together constitute but one
and the same instrument.
SECTION 11.15. Recording of Indenture. If this Indenture is
subject to recording in any public recording offices, such recording is to
be effected by the Issuer and, at its expense, accompanied by an Opinion of
Counsel (which may be counsel to the Indenture Trustee or any other counsel
reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Noteholders or any
other Person secured hereunder or for the enforcement of any right or
remedy granted to the Indenture Trustee under this Indenture.
SECTION 11.16. Trust Obligation. No recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Trustee or
the Indenture Trustee on the Notes or under this Indenture or any certificate
or other writing delivered in connection herewith or therewith, against:
(i) the Indenture
59
Trustee or the Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
officer, director, employee or agent of: (a) the Indenture Trustee or the
Trustee in their individual capacities, (b) any owner of a beneficial
interest in the Issuer, the Trustee or the Indenture Trustee or (c) of any
successor or assign of the Indenture Trustee or the Trustee in their
individual capacities, except as any such Person may have expressly agreed
(it being understood that the Indenture Trustee and the Trustee have no
such obligations in their individual capacities) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided
by applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such
entity. For all purposes of this Indenture, in the performance of any
duties or obligations of the Issuer hereunder, the Trustee shall be subject
to, and entitled to the benefits of, Articles VI, VII and VIII of the Trust
Agreement.
SECTION 11.17. No Petition. The Indenture Trustee, by entering
into this Indenture, and each Noteholder, by accepting a Note, hereby
covenant and agree that they will not at any time institute against the
Seller or the Issuer, or join in any institution against the Seller or the
Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States
Federal or State bankruptcy or similar law in connection with any
obligations relating to the Notes, this Indenture or any of the Basic
Documents. The foregoing shall not limit the rights of the Indenture
Trustee to file any claim in or otherwise take any action with respect to
any insolvency proceeding that was instituted against the Issuer by any
Person other than the Indenture Trustee.
SECTION 11.18. Inspection. The Issuer agrees that, on reasonable
prior notice, it will permit any representative of the Indenture Trustee,
during the Issuer's normal business hours, to examine all the books of
account, records, reports and other papers of the Issuer, to make copies
and extracts therefrom, to cause such books to be audited by Independent
certified public accountants, and to discuss the Issuer's affairs, finances
and accounts with the Issuer's officers, employees and Independent
certified public accountants, all at such reasonable times and as often as
may be reasonably requested. The Indenture Trustee shall and shall cause
its representatives to hold in confidence all such information; provided,
however, that the foregoing shall not be construed to prohibit: (i)
disclosure of any and all information that is or becomes publicly know, or
information obtained by the Indenture Trustee from sources other than the
Issuer or Servicer, (ii) disclosure of any and all information: (A) if
required to do so by any applicable statute, law, rule or regulation, (B)
to any government agency or regulatory or self-regulatory body having or
claiming authority to regulate or oversee any aspects of the Indenture
Trustee's business or that of its Affiliates, (C) pursuant to any subpoena,
civil investigative demand or similar demand or
60
request of any court, regulatory authority, arbitrator or arbitration to
which the Indenture Trustee or an Affiliate or any officer, director,
employee or shareholder thereof is subject, (D) in any preliminary or final
offering circular, registration statement or contract or other document
pertaining to the transactions contemplated by the Indenture and approved
in advance by the Issuer or (E) to any Affiliate, independent or internal
auditor, agent, employee or attorney of the Indenture Trustee having a need
to know the same; provided, that the Indenture Trustee advises such
recipient of the confidential nature of the information being disclosed and
such recipient agrees to keep such information confidential, (iii) any
other disclosure authorized by the Issuer or the Servicer or (iv)
disclosure to the other parties to the transactions contemplated by the
Basic Documents.
61
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed by their respective officers duly authorized as of the
day and year first above written.
CASE EQUIPMENT RECEIVABLES TRUST 1998-C;
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as Trustee
By: /s/ Xxxxxx X. Laser
--------------------------------------------------
Name: Xxxxxx X. Laser
Title: Assistant Vice President
XXXXXX TRUST AND SAVINGS BANK,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ Xxxxx Xxxxxxxxxx
---------------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Assistant Vice President
62
EXHIBIT A-1
to Indenture
FORM OF A-1 NOTES
-----------------
REGISTERED $____________1/
No. R-___ CUSIP NO. ____________
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any
Note issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS
AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CASE EQUIPMENT RECEIVABLES TRUST 1998-C
5.42% CLASS A-1 ASSET BACKED NOTES
Case Equipment Receivables Trust 1998-C, a trust organized and
existing under the laws of the State of Delaware (including any successor,
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________________ DOLLARS
($___________), partially payable on each Payment Date in an amount equal
to the aggregate amount, if any, payable from the Note Distribution Account
in respect of principal on the A-1 Notes pursuant to Section 3.1 of the
Indenture; provided, however, that the entire unpaid principal amount of
this Note shall be due and payable on the earlier of the December 1999
Payment Date and the Redemption Date, if any, pursuant to Section 10.1(a)
of the Indenture. The Issuer will pay interest on this Note at the rate per
annum shown above, on each Payment Date until the principal of this
----------------------
1/Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Note is paid or made available for payment, on the principal amount of this
Note outstanding on the preceding Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to
certain limitations contained in Section 3.1 of the Indenture. Interest on
this Note will accrue for each Payment Date from the most recent Payment
Date on which interest has been paid to but excluding the then current
Payment Date or, if no interest has yet been paid, from the date hereof.
Interest will be computed on the basis of a 360- day year and actual days
elapsed. Such principal of and interest on this Note shall be paid in the
manner specified in the Indenture.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. 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 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated: November __, 1998
CASE EQUIPMENT RECEIVABLES TRUST 1998-C
By: THE BANK OF NEW YORK
not in its individual capacity but solely as Trustee
under the Trust Agreement
By:________________________________________________
Name: ___________________________________________
Title: ___________________________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: November __, 1998
XXXXXX TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By: _______________________________________________
Authorized Signatory
[REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.42% Class A-1 Asset Backed Notes (herein called
the "A-1 Notes" or the "Notes"), all issued under an Indenture dated as of
November 1, 1998 (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Issuer and Xxxxxx Trust and Savings
Bank, not in its individual capacity but solely as trustee (the "Indenture
Trustee", which term includes any successor Indenture Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders
of the Notes. The Notes are subject to all terms of the Indenture. All
terms used in this Note that are not otherwise defined herein and that are
defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Notes, the A-2 Notes, the A-3 Notes and the A-4 Notes are and
will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest
at the A-1 Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect
to the obligations of the Issuer or the Indenture Trustee on the Notes or
under the Indenture or any certificate or other writing delivered in
connection therewith, against: (i) the Indenture Trustee or the Trustee in
their individual capacities, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of: (a) the Indenture Trustee or the Trustee in their
individual capacities, (b) any holder of a beneficial interest in the
Issuer, the Trustee or the Indenture Trustee or of (c) any successor or
assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed and except
that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing
to such entity.
It is the intent of the Seller, the Servicer, the Noteholders and
the Note Owners that, for purposes of Federal and State income tax and any
other tax measured in whole or in part by income, the Notes will qualify as
indebtedness of the Trust. Each Noteholder or Note Owner, by acceptance of
a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, agrees to treat, and
to take no action inconsistent with the treatment of, the Notes for such
tax purposes as indebtedness of the Trust.
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 that such Noteholder will
not at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy,
reorganization or arrangement, insolvency or liquidation proceedings under
any United States Federal or State bankruptcy or similar law in connection
with any obligations relating to the Notes, the Indenture or the Basic
Documents.
This Note and the Indenture shall be construed in accordance with
the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this 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 Xxxxxx Trust and Savings
Bank, in its individual capacity, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents,
officers, directors, employees, successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on, or performance of, or omission to perform, any
of the covenants, obligations or indemnifications contained in this Note or
the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Indenture Trustee
for the sole purposes of binding the interests of the Indenture Trustee in
the assets of the Issuer. The Holder of this Note by the acceptance hereof,
and each Note Owner by the acceptance of a beneficial interest herein, each
agrees that, except as expressly provided in the Basic Documents, in the
case of an Event of Default under the Indenture, the Holder and Note Owner
shall have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained
in the Indenture or in this 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 ______________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
----------------------------------------
Signatures must be
guaranteed by an "eligible
guarantor institution"
meeting the requirements of
the Note Registrar, which
requirements include
membership or participation
in STAMP or such other
"signature guarantee
program" as may be
determined by the Note
Registrar in addition to,
or in substitution for,
STAMP, all in accordance
with the Securities
Exchange Act of 1934, as
amended.
-------------------------
*/ 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 A-2
to Indenture
FORM OF A-2 NOTES
-----------------
REGISTERED $____________2/
No. R-___ CUSIP NO. ___________
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any
Note issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS
AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CASE EQUIPMENT RECEIVABLES TRUST 1998-C
5.49% CLASS A-2 ASSET BACKED NOTES
Case Equipment Receivables Trust 1998-C, a trust organized and
existing under the laws of the State of Delaware (including any successor,
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________________ DOLLARS
($___________), partially payable on each Payment Date in an amount equal
to the aggregate amount, if any, payable from the Note Distribution Account
in respect of principal on the A-2 Notes pursuant to Section 3.1 of the
Indenture; provided, however, that the entire unpaid principal amount of
this Note shall be due and payable on the earlier of the August 2002
Payment Date and the Redemption Date, if any, pursuant to Section 10.1(a)
of the Indenture. No payments of principal of the Notes will be made until
the principal of the A-1 Notes has been paid in full. The Issuer will
--------
2/Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
1
pay interest on this Note at the rate per annum shown above, on each
Payment 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
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note will accrue for each
Payment Date from the most recent Payment Date on which interest has been
paid to but excluding the then current Payment Date or, if no interest has
yet been paid, from the date hereof. Interest will be computed on the basis
of 360-day year of twelve 30-day months. Such principal of and interest on
this Note shall be paid in the manner specified in the Indenture.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. 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 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated: November __, 1998
CASE EQUIPMENT RECEIVABLES TRUST 1998-C
By: THE BANK OF NEW YORK
not in its individual capacity but solely
as Trustee under the Trust Agreement
By: ______________________________________________
Name: __________________________________________
Title: _________________________________________
2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: November __, 1998
XXXXXX TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By: _______________________________________________
Authorized Signatory
3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.49% Class A-2 Asset Backed Notes (herein called
the "A-2 Notes" or the "Notes"), all issued under an Indenture dated as of
November 1, 1998 (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Issuer and Xxxxxx Trust and Savings
Bank, not in its individual capacity but solely as trustee (the "Indenture
Trustee", which term includes any successor Indenture Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders
of the Notes. The Notes are subject to all terms of the Indenture. All
terms used in this Note that are not otherwise defined herein and that are
defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Notes, the A-1 Notes, the A-3 Notes and the A-4 Notes are and
will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest
at the A-2 Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect
to the obligations of the Issuer or the Indenture Trustee on the Notes or
under the Indenture or any certificate or other writing delivered in
connection therewith, against: (i) the Indenture Trustee or the Trustee in
their individual capacities, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of: (a) the Indenture Trustee or the Trustee in their
individual capacities, (b) any holder of a beneficial interest in the
Issuer, the Trustee or the Indenture Trustee or of (c) any successor or
assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed and except
that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing
to such entity.
It is the intent of the Seller, the Servicer, the Noteholders and
the Note Owners that, for purposes of Federal and State income tax and any
other tax measured in whole or in part by income, the Notes will qualify as
indebtedness of the Trust. Each Noteholder or Note Owner, by acceptance of
a Note, or, in the
1
case of a Note Owner, a beneficial interest in a Note, agrees to treat, and
to take no action inconsistent with the treatment of, the Notes for such
tax purposes as indebtedness of the Trust.
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 that such Noteholder will
not at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy,
reorganization or arrangement, insolvency or liquidation proceedings under
any United States Federal or State bankruptcy or similar law in connection
with any obligations relating to the Notes, the Indenture or the Basic
Documents.
This Note and the Indenture shall be construed in accordance with
the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this 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 Xxxxxx Trust and Savings
Bank, in its individual capacity, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents,
officers, directors, employees, successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on, or performance of, or omission to perform, any
of the covenants, obligations or indemnifications contained in this Note or
the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Indenture Trustee
for the sole purposes of binding the interests of the Indenture Trustee in
the assets of the Issuer. The Holder of this Note by the acceptance hereof,
and each Note Owner by the acceptance of a beneficial interest herein, each
agrees that, except as expressly provided in the Basic Documents, in the
case of an Event of Default under the Indenture, the Holder and Note Owner
shall have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained
in the Indenture or in this Note.
2
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 ______________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
----------------------------------------
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Note Registrar,
which requirements include membership
or participation in STAMP or such other
"signature guarantee
program" as may be
determined by the Note
Registrar in addition to,
or in substitution for,
STAMP, all in accordance
with the Securities
Exchange Act of 1934, as
amended.
-------------------------
*/ 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 A-3
to Indenture
FORM OF A-3 NOTES
REGISTERED $____________3/
No. R-___ CUSIP NO. ___________
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any
Note issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS
AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CASE EQUIPMENT RECEIVABLES TRUST 1998-C
5.52% CLASS A-3 ASSET BACKED NOTES
Case Equipment Receivables Trust 1998-C, a trust organized and
existing under the laws of the State of Delaware (including any successor,
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________________ DOLLARS
($___________), partially payable on each Payment Date in an amount equal
to the aggregate amount, if any, payable from the Note Distribution Account
in respect of principal on the A-3 Notes pursuant to Section 3.1 of the
Indenture; provided, however, that the entire unpaid principal amount of
this Note shall be due and payable on the earlier of the June 2003 Payment
Date and the Redemption Date, if any, pursuant to Section 10.1(a) of the
Indenture. No payments of principal of the Notes will be made until the
principal of the A-1 Notes and the A-2 Notes has been paid in full.
----------------
3/Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
The Issuer will pay interest on this Note at the rate per annum shown
above, on each Payment 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 Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to
certain limitations contained in Section 3.1 of the Indenture. Interest on
this Note will accrue for each Payment Date from the most recent Payment
Date on which interest has been paid to but excluding the then current
Payment Date or, if no interest has yet been paid, from the date hereof.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the
manner specified in the Indenture.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. 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 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated: November ___, 1998
CASE EQUIPMENT RECEIVABLES TRUST 1998-C
By: THE BANK OF NEW YORK
not in its individual capacity but solely
as Trustee under the Trust Agreement
By: ______________________________________________
Name: ____________________________________________
Title: ___________________________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: November __, 1998
XXXXXX TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By: ________________________________________________
Authorized Signatory
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.52% Class A-3 Asset Backed Notes (herein called
the "A-3 Notes" or the "Notes"), all issued under an Indenture dated as of
November 1, 1998 (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Issuer and Xxxxxx Trust and Savings
Bank, not in its individual capacity but solely as trustee (the "Indenture
Trustee", which term includes any successor Indenture Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders
of the Notes. The Notes are subject to all terms of the Indenture. All
terms used in this Note that are not otherwise defined herein and that are
defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Notes, the A-1 Notes, the A-2 Notes and the A-4 Notes are and
will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest
at the A-3 Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect
to the obligations of the Issuer or the Indenture Trustee on the Notes or
under the Indenture or any certificate or other writing delivered in
connection therewith, against: (i) the Indenture Trustee or the Trustee in
their individual capacities, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of: (a) the Indenture Trustee or the Trustee in their
individual capacities, (b) any holder of a beneficial interest in the
Issuer, the Trustee or the Indenture Trustee or of (c) any successor or
assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed and except
that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing
to such entity.
It is the intent of the Seller, the Servicer, the Noteholders and
the Note Owners that, for purposes of Federal and State income tax and any
other tax measured in whole or in part by income, the Notes will qualify as
indebtedness of the Trust. Each Noteholder or Note Owner, by acceptance of
a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, agrees to treat, and
to take no action inconsistent with the treatment of, the Notes for such
tax purposes as indebtedness of the Trust.
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 that such Noteholder will
not at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy,
reorganization or arrangement, insolvency or liquidation proceedings under
any United States Federal or State bankruptcy or similar law in connection
with any obligations relating to the Notes, the Indenture or the Basic
Documents.
This Note and the Indenture shall be construed in accordance with
the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this 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 Xxxxxx Trust and Savings
Bank, in its individual capacity, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents,
officers, directors, employees, successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on, or performance of, or omission to perform, any
of the covenants, obligations or indemnifications contained in this Note or
the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Indenture Trustee
for the sole purposes of binding the interests of the Indenture Trustee in
the assets of the Issuer. The Holder of this Note by the acceptance hereof,
and each Note Owner by the acceptance of a beneficial interest herein, each
agrees that, except as expressly provided in the Basic Documents, in the
case of an Event of Default under the Indenture, the Holder and Note Owner
shall have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained
in the Indenture or in this 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 ______________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
----------------------------------------
Signatures must be
guaranteed by an "eligible
guarantor institution"
meeting the requirements of
the Note Registrar, which
requirements include
membership or participation
in STAMP or such other
"signature guarantee
program" as may be
determined by the Note
Registrar in addition to,
or in substitution for,
STAMP, all in accordance
with the Securities
Exchange Act of 1934, as
amended.
-------------------------
*/ 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 A-4
to Indenture
FORM OF A-4 NOTES
REGISTERED $____________4/
No. R-___ CUSIP NO. ___________
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any
Note issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS
AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CASE EQUIPMENT RECEIVABLES TRUST 1998-C
5.61% CLASS A-4 ASSET BACKED NOTES
Case Equipment Receivables Trust 1998-C, a trust organized and
existing under the laws of the State of Delaware (including any successor,
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________________ DOLLARS
($___________), partially payable on each Payment Date in an amount equal
to the aggregate amount, if any, payable from the Note Distribution Account
in respect of principal on the A-4 Notes pursuant to Section 3.1 of the
Indenture; provided, however, that the entire unpaid principal amount of
this Note shall be due and payable on the earlier of the April 2005 Payment
Date and the Redemption Date, if any, pursuant to Section 10.1(a) of the
Indenture. No payments of principal of the Notes will be made until the
principal of the A-1 Notes, the A-2 Notes and the A-3 Notes has
-----------------------
4/Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
been paid in full. The Issuer will pay interest on this Note at the rate
per annum shown above, on each Payment 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 Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to
certain limitations contained in Section 3.1 of the Indenture. Interest on
this Note will accrue for each Payment Date from the most recent Payment
Date on which interest has been paid to but excluding the then current
Payment Date or, if no interest has yet been paid, from the date hereof.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the
manner specified in the Indenture.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. 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 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated: November __, 1998
CASE EQUIPMENT RECEIVABLES TRUST 1998-C
By: THE BANK OF NEW YORK
not in its individual capacity but solely
as Trustee under the Trust Agreement
By: _______________________________________________
Name: _____________________________________________
Title: ____________________________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: November __, 1998
XXXXXX TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By: _______________________________________________
Authorized Signatory
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.61% Class A-4 Asset Backed Notes (herein called
the "A-4 Notes" or the "Notes"), all issued under an Indenture dated as of
November 1, 1998 (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Issuer and Xxxxxx Trust and Savings
Bank, not in its individual capacity but solely as trustee (the "Indenture
Trustee", which term includes any successor Indenture Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders
of the Notes. The Notes are subject to all terms of the Indenture. All
terms used in this Note that are not otherwise defined herein and that are
defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Notes, the A-1 Notes, the A-2 Notes and the A-3 Notes are and
will be equally and ratably secured by the collateral pledged as security
therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest
at the A-4 Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect
to the obligations of the Issuer or the Indenture Trustee on the Notes or
under the Indenture or any certificate or other writing delivered in
connection therewith, against: (i) the Indenture Trustee or the Trustee in
their individual capacities, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of: (a) the Indenture Trustee or the Trustee in their
individual capacities, (b) any holder of a beneficial interest in the
Issuer, the Trustee or the Indenture Trustee or of (c) any successor or
assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed and except
that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing
to such entity.
It is the intent of the Seller, the Servicer, the Noteholders and
the Note Owners that, for purposes of Federal and State income tax and any
other tax measured in whole or in part by income, the Notes will qualify as
indebtedness of the Trust. Each Noteholder or Note Owner, by acceptance of
a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, agrees to treat, and
to take no action inconsistent with the treatment of, the Notes for such
tax purposes as indebtedness of the Trust.
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 that such Noteholder will
not at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy,
reorganization or arrangement, insolvency or liquidation proceedings under
any United States Federal or State bankruptcy or similar law in connection
with any obligations relating to the Notes, the Indenture or the Basic
Documents.
This Note and the Indenture shall be construed in accordance with
the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this 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 Xxxxxx Trust and Savings
Bank, in its individual capacity, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents,
officers, directors, employees, successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on, or performance of, or omission to perform, any
of the covenants, obligations or indemnifications contained in this Note or
the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Indenture Trustee
for the sole purposes of binding the interests of the Indenture Trustee in
the assets of the Issuer. The Holder of this Note by the acceptance hereof,
and each Note Owner by the acceptance of a beneficial interest herein, each
agrees that, except as expressly provided in the Basic Documents, in the
case of an Event of Default under the Indenture, the Holder and Note Owner
shall have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained
in the Indenture or in this 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 ______________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
----------------------------------------
Signatures must be
guaranteed by an "eligible
guarantor institution"
meeting the requirements of
the Note Registrar, which
requirements include
membership or participation
in STAMP or such other
"signature guarantee
program" as may be
determined by the Note
Registrar in addition to,
or in substitution for,
STAMP, all in accordance
with the Securities
Exchange Act of 1934, as
amended.
-------------------------
*/ 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 A-5
to Indenture
FORM OF CLASS B NOTES
REGISTERED $____________5/
No. R-___ CUSIP NO. ___________
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any
Note issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS
AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CASE EQUIPMENT RECEIVABLES TRUST 1998-C
6.20% CLASS B ASSET BACKED NOTES
Case Equipment Receivables Trust 1998-C, a trust organized and
existing under the laws of the State of Delaware (including any successor,
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________________ DOLLARS
($___________), partially payable on each Payment Date in an amount equal
to the aggregate amount, if any, payable from the Note Distribution Account
in respect of principal on the Class B Notes pursuant to Section 3.1 of the
Indenture; provided, however, that the entire unpaid principal amount of
this Note shall be due and payable on the earlier of the April 2005 Payment
Date and the Redemption Date, if any, pursuant to Section 10.1(a) of the
Indenture. The Issuer will pay interest on this Note at the rate per annum
shown above, on each Payment Date until the principal of this
--------
5/Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Note is paid or made available for payment, on the principal amount of this
Note outstanding on the preceding Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to
certain limitations contained in Section 3.1 of the Indenture. Interest on
this Note will accrue for each Payment Date from the most recent Payment
Date on which interest has been paid to but excluding the then current
Payment Date or, if no interest has yet been paid, from the date hereof.
Interest will be computed on the basis of a 360- day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the
manner specified in the Indenture.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. 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 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated: November 1, 1998
CASE EQUIPMENT RECEIVABLES TRUST 1998-C
By: THE BANK OF NEW YORK
not in its individual capacity but solely
as Trustee under the Trust Agreement
By: _______________________________________________
Name: ____________________________________________
Title: ___________________________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: November __, 1998
XXXXXX TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By: ________________________________________________
Authorized Signatory
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 6.20% Class B Asset Backed Notes (herein called
the "Class B Notes" or the "Notes"), all issued under an Indenture dated as
of November 1, 1998 (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Issuer and Xxxxxx Trust and Savings
Bank, not in its individual capacity but solely as trustee (the "Indenture
Trustee", which term includes any successor Indenture Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders
of the Notes. The Notes are subject to all terms of the Indenture. All
terms used in this Note that are not otherwise defined herein and that are
defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Class B Notes are and will be equally and ratably secured by
the collateral pledged as security therefor as provided in the Indenture,
but the interest of the Class B Noteholders in such collateral is
subordinated and second to the rights of the Class A Noteholders.
The Issuer shall pay interest on overdue installments of interest
at the Class B Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect
to the obligations of the Issuer or the Indenture Trustee on the Notes or
under the Indenture or any certificate or other writing delivered in
connection therewith, against: (i) the Indenture Trustee or the Trustee in
their individual capacities, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of: (a) the Indenture Trustee or the Trustee in their
individual capacities, (b) any holder of a beneficial interest in the
Issuer, the Trustee or the Indenture Trustee or of (c) any successor or
assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed and except
that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing
to such entity.
It is the intent of the Seller, the Servicer, the Noteholders and
the Note Owners that, for purposes of Federal and State income tax and any
other tax measured in whole or in part by income, the Notes will qualify as
indebtedness of
the Trust. Each Noteholder or Note Owner, by acceptance of a Note, or, in
the case of a Note Owner, a beneficial interest in a Note, agrees to treat,
and to take no action inconsistent with the treatment of, the Notes for
such tax purposes as indebtedness of the Trust.
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 that such Noteholder will
not at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy,
reorganization or arrangement, insolvency or liquidation proceedings under
any United States Federal or State bankruptcy or similar law in connection
with any obligations relating to the Notes, the Indenture or the Basic
Documents.
This Note and the Indenture shall be construed in accordance with
the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this 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 Xxxxxx Trust and Savings
Bank, in its individual capacity, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries, agents,
officers, directors, employees, successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on, or performance of, or omission to perform, any
of the covenants, obligations or indemnifications contained in this Note or
the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Indenture Trustee
for the sole purposes of binding the interests of the Indenture Trustee in
the assets of the Issuer. The Holder of this Note by the acceptance hereof,
and each Note Owner by the acceptance of a beneficial interest herein, each
agrees that, except as expressly provided in the Basic Documents, in the
case of an Event of Default under the Indenture, the Holder and Note Owner
shall have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained
in the Indenture or in this 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 ______________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
----------------------------------------
Signatures must be
guaranteed by an "eligible
guarantor institution"
meeting the requirements of
the Note Registrar, which
requirements include
membership or participation
in STAMP or such other
"signature guarantee
program" as may be
determined by the Note
Registrar in addition to,
or in substitution for,
STAMP, all in accordance
with the Securities
Exchange Act of 1934, as
amended.
-------------------------
*/ 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 B
to Indenture
FORM OF SECTION 3.9 OFFICERS' CERTIFICATE
------------------------------------------
____________, 199_
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Indenture Trust Administration
Pursuant to Section 3.9 of the Indenture, dated as of November 1,
1998 (the "Indenture"), between Case Equipment Receivables Trust 1998-C
(the "Issuer") and Xxxxxx Trust and Savings Bank, as Indenture Trustee, the
undersigned hereby certify that:
(a) a review of the activities of the Issuer during the
previous fiscal year and of performance under the Indenture has
been made under the supervision of the undersigned; and
(b) to the best knowledge of the undersigned, based on
such review, the Issuer has complied with all conditions and
covenants under the Indenture throughout such year. [or, if there
has been a default in the compliance of any such condition or
covenant, this certificate is to specify each such default known
to the undersigned and the nature and status thereof]
CASE EQUIPMENT RECEIVABLES TRUST 1998-C
By: _______________________________________________
Name:_____________________________________________
Title:____________________________________________
By: ________________________________________________
Name:______________________________________________
Title:_____________________________________________
