Exhibit 4.3
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NAVISTAR FINANCIAL 200 OWNER TRUST
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Class A-1 Asset Backed Notes
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Class A-2 Asset Backed Notes
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Class A-3 Asset Backed Notes
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Class A-4 Asset Backed Notes
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Class B Asset Backed Notes
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INDENTURE
Dated as of , 200
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a ,
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Indenture Trustee
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE...............................................................2
SECTION 1.1 Definitions............................................................................2
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SECTION 1.2 Incorporation by Reference of Trust Indenture Act......................................3
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ARTICLE II
THE NOTES................................................................................................3
SECTION 2.1 Form...................................................................................3
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SECTION 2.2 Execution, Authentication and Delivery.................................................4
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SECTION 2.3 Temporary Notes........................................................................4
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SECTION 2.4 Registration; Registration of Transfer and Exchange of Notes...........................5
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SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes.............................................6
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SECTION 2.6 Persons Deemed Noteholders.............................................................7
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SECTION 2.7 Payment of Principal and Interest......................................................7
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SECTION 2.8 Cancellation of Notes..................................................................9
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SECTION 2.9 Release of Collateral..................................................................9
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SECTION 2.10 Book-Entry Notes.......................................................................9
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SECTION 2.11 Notices to Clearing Agency............................................................10
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SECTION 2.12 Definitive Notes......................................................................10
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SECTION 2.13 Seller as Noteholder..................................................................11
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SECTION 2.14 Tax Treatment.........................................................................11
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ARTICLE III
COVENANTS...............................................................................................11
SECTION 3.1 Payment of Principal and Interest.....................................................11
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SECTION 3.2 Maintenance of Agency Office..........................................................11
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SECTION 3.3 Money for Payments To Be Held in Trust................................................12
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SECTION 3.4 Existence.............................................................................13
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SECTION 3.5 Protection of Collateral; Acknowledgment of Pledge....................................13
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SECTION 3.6 Opinions as to Collateral.............................................................14
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SECTION 3.7 Performance of Obligations; Servicing of Receivables..................................15
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SECTION 3.8 Negative Covenants....................................................................16
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SECTION 3.9 Annual Statement as to Compliance.....................................................16
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SECTION 3.10 Consolidation, Merger, etc., of the Issuer; Disposition of Trust
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Assets................................................................................17
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SECTION 3.11 Successor or Transferee...............................................................19
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SECTION 3.12 No Other Business.....................................................................19
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SECTION 3.13 No Borrowing..........................................................................19
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SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities.....................................19
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SECTION 3.15 Servicer's Obligations................................................................20
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SECTION 3.16 Capital Expenditures..................................................................20
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SECTION 3.17 Removal of Administrator..............................................................20
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SECTION 3.18 Restricted Payments...................................................................20
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SECTION 3.19 Notice of Events of Default...........................................................20
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SECTION 3.20 Further Instruments and Acts..........................................................21
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SECTION 3.21 Indenture Trustee's Assignment of Administrative Receivables and
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Warranty Receivables..................................................................21
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SECTION 3.22 Representations and Warranties by the Issuer to the Indenture
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Trustee...............................................................................21
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ARTICLE IV
SATISFACTION AND DISCHARGE..............................................................................22
SECTION 4.1 Satisfaction and Discharge of Indenture...............................................22
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SECTION 4.2 Application of Trust Money............................................................23
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SECTION 4.3 Repayment of Monies Held by Paying Agent..............................................23
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SECTION 4.4 Duration of Position of Indenture Trustee for Benefit of
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Certificateholders....................................................................23
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ARTICLE V
DEFAULT AND REMEDIES....................................................................................24
SECTION 5.1 Events of Default.....................................................................24
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SECTION 5.2 Acceleration of Maturity; Rescission and Annulment....................................25
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SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture
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Trustee...............................................................................26
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SECTION 5.4 Remedies; Priorities..................................................................28
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SECTION 5.5 Optional Preservation of the Collateral...............................................29
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SECTION 5.6 Limitation of Suits...................................................................29
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SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and
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Interest..............................................................................30
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SECTION 5.8 Restoration of Rights and Remedies....................................................30
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SECTION 5.9 Rights and Remedies Cumulative........................................................30
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SECTION 5.10 Delay or Omission Not a Waiver........................................................31
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SECTION 5.11 Control by Noteholders................................................................31
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SECTION 5.12 Waiver of Past Defaults...............................................................31
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SECTION 5.13 Undertaking for Costs.................................................................32
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SECTION 5.14 Waiver of Stay or Extension Laws......................................................32
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SECTION 5.15 Action on Notes.......................................................................32
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SECTION 5.16 Performance and Enforcement of Certain Obligations....................................33
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ARTICLE VI
THE INDENTURE TRUSTEE...................................................................................34
SECTION 6.1 Duties of Indenture Trustee...........................................................34
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SECTION 6.2 Rights of Indenture Trustee...........................................................35
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SECTION 6.3 Indenture Trustee May Own Notes.......................................................36
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SECTION 6.4 Indenture Trustee's Disclaimer........................................................36
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SECTION 6.5 Notice of Defaults....................................................................36
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SECTION 6.6 Reports by Indenture Trustee to Holders...............................................36
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SECTION 6.7 Compensation; Indemnity...............................................................36
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SECTION 6.8 Replacement of Indenture Trustee......................................................37
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SECTION 6.9 Merger or Consolidation of Indenture Trustee..........................................38
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SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
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Trustee...............................................................................38
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SECTION 6.11 Eligibility; Disqualification.........................................................40
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SECTION 6.12 Preferential Collection of Claims Against Issuer......................................41
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SECTION 6.13 Representations and Warranties of Indenture Trustee...................................41
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SECTION 6.14 Indenture Trustee May Enforce Claims Without Possession of
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Notes.................................................................................41
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SECTION 6.15 Suit for Enforcement..................................................................42
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SECTION 6.16 Rights of Noteholders to Direct Indenture Trustee.....................................42
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ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS..........................................................................42
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of
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Noteholders...........................................................................42
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SECTION 7.2 Preservation of Information, Communications to Noteholders............................43
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SECTION 7.3 Reports by Issuer.....................................................................43
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SECTION 7.4 Reports by Indenture Trustee..........................................................43
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ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES....................................................................44
SECTION 8.1 Collection of Money...................................................................44
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SECTION 8.2 Designated Accounts; Payments.........................................................44
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SECTION 8.3 General Provisions Regarding Accounts.................................................48
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SECTION 8.4 Release of Collateral.................................................................49
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SECTION 8.5 Opinion of Counsel....................................................................49
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SECTION 8.6 Investment Earnings and Supplemental Servicing Fees...................................49
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SECTION 8.7 Net Deposits..........................................................................50
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SECTION 8.8 Statements to Securityholders.........................................................50
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SECTION 8.9 Designated Accounts...................................................................52
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SECTION 8.10 Reserve Account.......................................................................52
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SECTION 8.11 Pre-Funding Account...................................................................53
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SECTION 8.12 Negative Carry Account................................................................53
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SECTION 8.13 Sale of Assets; Termination...........................................................54
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ARTICLE IX
SUPPLEMENTAL INDENTURES.................................................................................55
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders................................55
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SECTION 9.2 Supplemental Indentures With Consent of Noteholders...................................56
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SECTION 9.3 Execution of Supplemental Indentures..................................................58
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SECTION 9.4 Effect of Supplemental Indenture......................................................58
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SECTION 9.5 Conformity with Trust Indenture Act...................................................58
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SECTION 9.6 Reference in Notes to Supplemental Indentures.........................................59
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ARTICLE X
REDEMPTION OF NOTES.....................................................................................59
SECTION 10.1 Redemption............................................................................59
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SECTION 10.2 Form of Redemption Notice.............................................................59
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SECTION 10.3 Notes Payable on Redemption Date......................................................60
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ARTICLE XI
MISCELLANEOUS...........................................................................................60
SECTION 11.1 Compliance Certificates and Opinions, etc.............................................60
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SECTION 11.2 Form of Documents Delivered to Indenture Trustee......................................62
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SECTION 11.3 Acts of Noteholders...................................................................63
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SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and
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Rating Agencies.......................................................................63
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SECTION 11.5 Notices to Noteholders; Waiver........................................................64
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SECTION 11.6 Alternate Payment and Notice Provisions...............................................64
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SECTION 11.7 Conflict with Trust Indenture Act.....................................................64
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SECTION 11.8 Effect of Headings and Table of Contents..............................................65
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SECTION 11.9 Successors and Assigns................................................................65
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SECTION 11.10 Separability..........................................................................65
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SECTION 11.11 Benefits of Indenture.................................................................65
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SECTION 11.12 Legal Holidays........................................................................65
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SECTION 11.13 Governing Law.........................................................................65
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SECTION 11.14 Counterparts..........................................................................65
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SECTION 11.15 Recording of Indenture................................................................65
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SECTION 11.16 No Recourse...........................................................................66
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SECTION 11.17 No Petition...........................................................................66
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SECTION 11.18 Inspection............................................................................67
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Exhibit A - Locations of Composite Schedule of Receivables
Exhibit B - Form of Class A-1 Asset Backed Note
Exhibit C - Form of Class X-0, Xxxxx X-0, Class A-4 and Class B Asset
Backed Note
Exhibit D - Form of Note Depository Agreement
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INDENTURE, dated as of , 200 between NAVISTAR FINANCIAL
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200 OWNER TRUST, a Delaware business trust (the "Issuer"), and
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, a , as trustee and not in its individual
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capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Notes and (only to the extent
expressly provided herein) the Certificateholders:
GRANTING CLAUSE
The Issuer hereby grants to the Indenture Trustee on the Closing Date, as
trustee for the benefit of the Noteholders and (only to the extent expressly
provided herein) the Certificateholders, all of the Issuer's right, title and
interest in, to and under (a) the Receivables listed on the Composite Schedule
of Receivables which is on file at the locations listed on Exhibit A hereto,
whether now existing or hereafter acquired and including, without limitation,
Subsequent Receivables acquired by the Issuer pursuant to the Pooling Agreement
listed on the schedules to the Subsequent Transfer PSA Assignments with respect
to such Subsequent Receivables and all Related Security; (b) the Collection
Account and the Note Distribution Account and all funds on deposit from time to
time in the Collection Account and the Note Distribution Account; (c) the
Reserve Account and all proceeds thereof (other than the Investment Earnings
thereon), including all other amounts, investments and investment property held
from time to time in the Reserve Account (whether in the form of deposit
accounts, Physical Property, book-entry securities, uncertificated securities,
or otherwise); (d) the Reserve Account Initial Deposit with respect to the
Closing Date and the Reserve Account Subsequent Transfer Deposit with respect to
each Subsequent Transfer Date and all proceeds thereof (other than the
Investment Earnings thereon) (c) and (d), collectively, the "Reserve Account
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Property"); (e) the Pre-Funding Account and all funds on deposit from time to
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time in the Pre-Funding Account and all proceeds thereof, including all other
amounts and investments held from time to time in the Pre-Funding Account
(whether in the form of deposit accounts, Physical Property, book-entry
securities, uncertificated securities or otherwise) (collectively, the
"Pre-Funding Account Property"); (f) the Negative Carry Account and all funds on
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deposit from time to time in the Negative Carry Account and all proceeds thereof
(other than the Investment Earnings thereon), including all other amounts,
investments and investment property held from time to time in the Negative Carry
Account (whether in the form of deposit accounts, Physical Property, book-entry
securities, uncertificated securities or otherwise); (g) the Pooling Agreement
(including all rights of NFRRC under the Purchase Agreement, the Initial PA
Assignment and any Subsequent Transfer PA Assignments assigned to the Issuer
pursuant to the Pooling Agreement); (h) the Servicing Agreement; (i) the rights
of NFC under the Lease Purchase Agreement assigned to NFRRC pursuant to the
Purchase Agreement and then to the Issuer pursuant to the Pooling Agreement; (j)
the Titling Trust Documents; (k) all Collections, and (l) all present and future
claims, demands, causes and choses in action in respect of any or all of the
foregoing and all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all proceeds of
the conversion, voluntary or involuntary, into cash or other
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liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property which at
any time constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the "Collateral").
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The foregoing Grant is made in trust to secure (a) first, the payment of
principal of and interest on, and any other amounts owing in respect of, the
Class A Notes, equally and ratably without prejudice, priority or distinction,
and (b) second, the payment of principal of and interest on, and any other
amounts owing in respect of, the Class B Notes, equally and ratably without
prejudice, priority or distinction, and to secure compliance with the provisions
of this Indenture, all as provided in this Indenture. This Indenture constitutes
a security agreement under the UCC.
The foregoing Grant includes all rights, powers and options (but none of
the obligations, if any) of the Issuer under any agreement or instrument
included in the Collateral, including the immediate and continuing right to
claim for, collect, receive and give receipt for principal, interest and lease
payments and other Scheduled Payments in respect of the Receivables included in
the Collateral and all other monies payable under the Collateral, to give and
receive notices and other communications, to make waivers or other agreements,
to exercise all rights and options, to bring Proceedings in the name of the
Issuer or otherwise and generally to do and receive anything that the Issuer is
or may be entitled to do or receive under or with respect to the Collateral.
The Indenture Trustee, as trustee on behalf of the Noteholders and (only to
the extent expressly provided herein) the Certificateholders, acknowledges such
Grant and accepts the trusts under this Indenture in accordance with the
provisions of this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Certain capitalized terms used in this Indenture
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shall have the respective meanings assigned them in Part I of Appendix A to the
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Pooling Agreement of even date herewith between the Issuer and NFRRC (as it may
be amended, supplemented or modified from time to time, the "Pooling
Agreement"). All references herein to "the Indenture" or "this Indenture" are to
this Indenture as it may be amended, supplemented or modified from time to time,
the exhibits hereto and the capitalized terms used herein which are defined in
such Appendix A. All references herein to Articles, Sections, subsections and
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exhibits are to Articles, Sections, subsections and exhibits contained in or
attached to this Indenture unless otherwise specified. All terms defined in this
Indenture shall have the defined meanings when used in any certificate, notice,
Note or other document made or delivered pursuant hereto unless otherwise
defined therein. The rules of construction set forth in Part II of such Appendix
A shall be applicable to this Indenture.
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SECTION 1.2 Incorporation by Reference of Trust Indenture Act
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Incorporation by Reference of Trust Indenture Act. Whenever this Indenture
refers to a provision of the TIA, such provision is incorporated by
reference in and made a part of this Indenture. The following TIA terms
used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" means the Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by a Commission rule
have the respective meanings assigned to them by such definitions.
ARTICLE II
THE NOTESARTICLE II THE NOTES
SECTION 2.1 Form
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(a) The Class A-1 Notes and each of the Class A-2 Notes, Class A-3
Notes, Class A-4 Notes and Class B Notes, with the Indenture Trustee's
certificate of authentication, shall be substantially in the form set forth in
Exhibit B and Exhibit C, respectively, with such appropriate insertions,
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omissions, substitutions and other variations as are required or permitted by
this Indenture, and each such class may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note.
(b) The Definitive Notes shall be typewritten, printed, lithographed
or engraved or produced by any combination of these methods (with or without
steel engraved borders), all as determined by the officers executing such Notes,
as evidenced by their execution of such Notes.
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(c) Each Note shall be dated the date of its authentication. The terms
of each class of Notes as provided for in Exhibit B and Exhibit C hereto are
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part of the terms of this Indenture.
SECTION 2.2 Execution, Authentication and Delivery
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(a) Each Note shall be dated the date of its authentication, and shall
be issuable as a registered Note in the minimum denomination of $1,000 and in
integral multiples thereof (except, if applicable, for one Note representing a
residual portion of each class which may be issued in a different denomination).
(b) The Notes shall be executed on behalf of the Issuer by any of its
Authorized Officers. The signature of any such Authorized Officer on the Notes
may be manual or facsimile.
(c) Notes bearing the manual or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
office prior to the authentication and delivery of such Notes or did not hold
such office at the date of such Notes.
(d) The Indenture Trustee shall upon Issuer Order authenticate and
deliver to or upon the order of the Issuer, the Notes for original issue in
aggregate principal amount of $ , comprised of (i) Class A-1 Notes in the
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aggregate principal amount of $ , (ii) Class A-2 Notes in the aggregate
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principal amount of , (iii) Class A-3 Notes in the aggregate principal
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amount of $ and (iv) Class A-4 Notes in the aggregate principal
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amount of $ , and (v) Class B Notes in the aggregate principal amount
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of $ . The aggregate principal amount of all Notes outstanding at any
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time may not exceed $ except as provided in Section 2.5.
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(e) No Notes shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form set forth, in the case
of the Class A-1 Notes, in Exhibit B, and in the case of the Class A-2 Notes,
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the Class A-3 Notes, the Class A-4 Notes and the Class B Notes, in Exhibit C,
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executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
SECTION 2.3 Temporary Notes
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(a) Pending the preparation of Definitive Notes, if any, the Issuer
may execute, and upon receipt of an Issuer Order the Indenture Trustee shall
authenticate and deliver, such Temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, of the tenor of the Definitive
Notes in lieu of which they are issued and with such
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variations as are consistent with the terms of this Indenture as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
(b) If Temporary Notes are issued, the Issuer shall cause Definitive
Notes to be prepared without unreasonable delay. After the preparation of
Definitive Notes, the Temporary Notes shall be exchangeable for Definitive Notes
upon surrender of the Temporary Notes at the Agency Office of the Issuer to be
maintained as provided in Section 3.2, without charge to the Noteholder. Upon
surrender for cancellation of any one or more Temporary Notes, the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so delivered in exchange, the Temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Notes.
SECTION 2.4 Registration; Registration of Transfer and Exchange of Notes
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(a) The Issuer shall cause to be kept the Note Register, comprising
separate registers for each class of Notes, in which, subject to such reasonable
regulations as the Issuer may prescribe, the Issuer shall provide for the
registration of the Notes and the registration of transfers and exchanges of the
Notes. The Indenture Trustee shall initially be the Note Registrar for the
purpose of registering the Notes and transfers of the Notes as herein provided.
Upon any resignation of any Note Registrar, the Issuer shall promptly appoint a
successor Note Registrar or, if it elects not to make such an appointment,
assume the duties of the Note Registrar.
(b) If a Person other than the Indenture Trustee is appointed by the
Issuer as Note Registrar, the Issuer will give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location,
and any change in the location, of the Note Register. The Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof. The Indenture Trustee shall have the right to rely upon a
certificate executed on behalf of the Note Registrar by an Executive Officer
thereof as to the names and addresses of the Noteholders and the principal
amounts and number of such Notes.
(c) Upon surrender for registration of transfer of any Note at the
Corporate Trust Office of the Indenture Trustee or the Agency Office of the
Issuer (and following the delivery, in the former case, of such Notes to the
Issuer by the Indenture Trustee), the Issuer shall execute, the Indenture
Trustee shall authenticate and the Noteholder shall obtain from the Indenture
Trustee, in the name of the designated transferee or transferees, one or more
new Notes in any authorized denominations, of a like aggregate principal amount.
(d) At the option of the Noteholder, Notes may be exchanged for other
Notes of the same class in any authorized denominations, of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at the Corporate
Trust Office of the Indenture Trustee or the Agency Office of the Issuer (and
following the delivery, in the former case, of such Notes to the Issuer by the
Indenture Trustee), the Issuer shall execute, and the Indenture Trustee shall
authenticate and the
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Noteholder shall obtain from the Indenture Trustee, the Notes which the
Noteholder making the exchange is entitled to receive.
(e) All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed by, or be accompanied by a written instrument
of transfer in form satisfactory to the Indenture Trustee and the Note
Registrar, duly executed by the Holder thereof or such Holder's attorney duly
authorized in writing, with such signature guaranteed by a commercial bank or
trust company located, or having a correspondent located, in the City of New
York or the city in which the Corporate Trust Office of the Indenture Trustee is
located, or by a member firm of a national securities exchange, and such other
documents as the Indenture Trustee may require.
(g) No service charge shall be made to a Holder for any registration
of transfer or exchange of Notes, but the Issuer or Indenture Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 2.3 or Section 9.6
not involving any transfer.
(h) The preceding provisions of this Section 2.4 notwithstanding, the
Issuer shall not be required to transfer or make exchanges, and the Note
Registrar need not register transfers or exchanges, of Notes that: (i) have been
selected for redemption pursuant to Article X, if applicable; or (ii) are due
for repayment in full within 15 days of surrender to the Corporate Trust Office
or the Agency Office.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes
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(a) If (i) any mutilated Note is surrendered to the Indenture Trustee,
or the Indenture Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered to the
Indenture Trustee such security or indemnity as may be required by it to hold
the Issuer and the Indenture Trustee harmless, then, in the absence of notice to
the Issuer, the Note Registrar or the Indenture Trustee that such Note has been
acquired by a protected purchaser, the Issuer shall execute and upon the
Issuer's request the Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note of a like class and aggregate principal amount; provided,
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however, that if any such destroyed, lost or stolen Note, but not a mutilated
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Note, shall have become or within seven days shall be due and payable in full,
or shall have been called for redemption, instead of issuing a replacement Note,
the Issuer may make payment to the Holder of such destroyed, lost or stolen Note
when so due or payable or upon the Redemption Date, if applicable, without
surrender thereof.
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(b) If, after the delivery of a replacement Note or payment in respect
of a destroyed, lost or stolen Note pursuant to subsection (a), any protected
purchaser of the original Note in lieu of which such replacement Note was issued
presents for payment such original Note, the Issuer and the Indenture Trustee
shall be entitled to recover such replacement Note (or such payment) from (i)
any Person to whom it was delivered, (ii) the Person taking such replacement
Note from the Person to whom such replacement Note was delivered or (iii) any
assignee of such Person, except any protected purchaser, and the Issuer and the
Indenture Trustee shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
the Issuer or the Indenture Trustee in connection therewith.
(c) In connection with the issuance of any replacement Note under this
Section 2.5, the Issuer may require the payment by the Holder of such Note of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including all fees and
expenses of the Indenture Trustee) connected therewith.
(d) Any duplicate Note issued pursuant to this Section 2.5 in
replacement for any mutilated, destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be found at any time or be
enforced by any Person, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.
(e) The provisions of this Section 2.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 Persons Deemed Noteholders. Prior to due presentment for
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registration of transfer of any Note, the Issuer, the Indenture Trustee and any
of their agents may treat the Person in whose name any Note is registered (as of
the day of determination) as the Noteholder for the purpose of receiving
payments of principal of and interest on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Issuer, the
Indenture Trustee nor any agent of the Issuer or the Indenture Trustee shall be
affected by notice to the contrary.
SECTION 2.7 Payment of Principal and Interest.
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(a) Interest on the Class A-1 Notes shall accrue in the manner set
forth in Exhibit B at the applicable Interest Rate for such class, and such
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interest shall be payable on each Distribution Date, in accordance with the
priorities set forth in Section 8.2(c), as specified in the form of Note set
forth in Exhibit B. Interest on the Class A-2 Notes, the Class A-3 Notes, the
---------
Class A-4 Notes and the Class B Notes shall accrue in the manner set forth in
Exhibit C at the applicable Interest Rate for such class, and shall be payable
---------
on each Distribution Date, in accordance with the priorities set forth in
Section 8.2(c), as specified in the form of Note set forth in Exhibit C. Any
---------
instalment of interest payable on any Note shall be punctually paid or duly
provided for by a deposit
7
by or at the direction of the Issuer or the Servicer into the Note Distribution
Account before each Distribution Date for payment to Noteholders on the related
Distribution Date and shall be paid to the Person in whose name such Note (or
one or more Predecessor Notes) is registered on the applicable Record Date, by
check mailed first-class, postage prepaid to such Person's address as it appears
on the Note Register on such Record Date; provided, however, that, unless and
` -------- -------
until Definitive Notes have been issued pursuant to Section 2.12, with respect
to Notes registered on the applicable Record Date in the name of the Note
Depository (initially, Cede & Co.), payment shall be made by wire transfer in
immediately available funds to the account designated by the Note Depository.
(b) Prior to the occurrence of an Event of Default and a declaration
in accordance with Section 5.2(a) that the Notes have become immediately due and
payable, the principal of each class of Notes shall be payable in full on the
Final Scheduled Distribution Date for such class and, to the extent of funds
available therefor, in instalments on the Distribution Dates (if any) preceding
the Final Scheduled Distribution Date for such class, in the amounts and in
accordance with the priorities set forth in Section 8.2(d)(ii) or (iii), as
applicable, and, if applicable, Section 8.2(e). All principal payments on each
class of Notes shall be made pro rata to the Noteholders of such class entitled
thereto. Any instalment of principal payable on any Note shall be punctually
paid or duly provided for by a deposit by the Indenture Trustee in accordance
with the provisions of Section 8.2 into the Note Distribution Account prior to
the applicable Distribution Date and shall be paid to the Person in whose name
such Note (or one or more Predecessor Notes) is registered on the applicable
Record Date, by check mailed first-class, postage prepaid to such Person's
address as it appears on the Note Register on such Record Date; provided,
--------
however, that, unless and until Definitive Notes have been issued pursuant to
-------
Section 2.12, with respect to Notes registered on the Record Date in the name of
the Note Depository, payment shall be made by wire transfer in immediately
available funds to the account designated by the Note Depository, except for:
(i) the final instalment of principal on any Note; and (ii) the Redemption Price
for the Notes redeemed pursuant to Section 10.1, which, in each case, shall be
payable as provided herein. The funds represented by any such checks in respect
of interest or principal returned undelivered shall be held in accordance with
Section 3.3.
(c) [Reserved.]
(d) From and after the occurrence of an Event of Default and a
declaration in accordance with Section 5.2(a) that the Notes have become
immediately due and payable, principal on the Notes shall be payable as provided
in Section 8.2(d)(iv) or (v), as applicable and, if applicable, Section 8.2(e).
(e) With respect to any Distribution Date on which the final
instalment of principal and interest on a class of Notes is to be paid, the
Indenture Trustee shall notify each Noteholder of such class of record as of the
Record Date for such Distribution Date of the fact that the final instalment of
principal of and interest on such Note is to be paid on such Distribution Date.
Such notice shall be sent (i) on such Record Date by facsimile, if Book-Entry
Notes are outstanding;
8
or (ii) not later than three Business Days after such Record Date in accordance
with Section 11.5(a) if Definitive Notes are outstanding, and shall specify that
such final instalment shall be payable only upon presentation and surrender of
such Note and shall specify the place where such Note may be presented and
surrendered for payment of such instalment and the manner in which such payment
shall be made. Notices in connection with redemptions of Notes shall be mailed
to Noteholders as provided in Section 10.2. Within sixty days of the surrender
pursuant to this Section 2.7(e) or cancellation pursuant to Section 2.8 of all
of the Notes of a particular class, the Indenture Trustee shall provide each of
the Rating Agencies with written notice stating that all Notes of such class
have been surrendered or canceled.
SECTION 2.8 Cancellation of Notes. All Notes surrendered for payment,
---------------------
redemption, exchange or registration of transfer shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly canceled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly canceled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes canceled as provided in this Section 2.8, except as expressly
permitted by this Indenture. All canceled Notes may be held or disposed of by
the Indenture Trustee in accordance with its standard retention or disposal
policy as in effect at the time unless the Issuer shall direct by an Issuer
Order that they be returned to it; provided, however, that such Issuer Order is
-------- -------
timely and the Notes have not been previously disposed of by the Indenture
Trustee. The Indenture Trustee shall certify to the Issuer that surrendered
Notes have been duly canceled and retained or destroyed, as the case may be.
SECTION 2.9 Release of Collateral. The Indenture Trustee shall release
---------------------
property from the lien of this Indenture, other than as permitted by Sections
3.21, 8.2, 8.4 and 11.1, only upon receipt of an Issuer Request accompanied by
an Officers' Certificate, an Opinion of Counsel (to the extent required by the
TIA) and Independent Certificates in accordance with TIA Sections 314(c) and
314(d)(1).
SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance, shall be
----------------
issued in the form of a typewritten Note or Notes representing the Book-Entry
Notes, to be delivered to The Depository Trust Company, the initial Clearing
Agency by or on behalf of the Issuer. Such Note or Notes shall be registered on
the Note Register in the name of the Note Depository (initially, Cede & Co.),
and no Note Owner shall receive a Definitive Note representing such Note Owner's
interest in such Note, except as provided in Section 2.12. Unless and until
Definitive Notes have been issued to the Note Owners pursuant to Section 2.12:
(a) the provisions of this Section 2.10 shall be in full force and
effect;
(b) the Note Registrar and the Indenture Trustee shall be entitled to
deal with the Clearing Agency for all purposes of this Indenture (including the
payment of principal of and interest
9
on the Notes and the giving of instructions or directions hereunder) as the sole
holder of the Notes and shall have no obligation to the Note Owners;
(c) to the extent that the provisions of this Section 2.10 conflict
with any other provisions of this Indenture, the provisions of this Section 2.10
shall control;
(d) the rights of the Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and agreements
between such Note Owners and the Clearing Agency and/or the Clearing Agency
Participants and unless and until Definitive Notes are issued pursuant to
Section 2.12, the initial Clearing Agency shall make book-entry transfers
between the Clearing Agency Participants and receive and transmit payments of
principal of and interest on the Notes to such Clearing Agency Participants,
pursuant to the Note Depository Agreement; and
(e) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Holders of Notes evidencing a specified
percentage of the Outstanding Amount of the Controlling Class, the Clearing
Agency shall be deemed to represent such percentage only to the extent that it
has (i) received written instructions to such effect from Note Owners and/or
Clearing Agency Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Notes and (ii) has delivered such
instructions to the Indenture Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
--------------------------
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Note Owners pursuant to Section
2.12, the Indenture Trustee shall give all such notices and communications
specified herein to be given to Noteholders to the Clearing Agency and shall
have no other obligation to the Note Owners.
SECTION 2.12 Definitive Notes.
----------------
If (i) the Administrator advises the Indenture Trustee in writing that
the Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Notes and the Issuer is unable to locate a
qualified successor; (ii) the Administrator, at its option, advises the
Indenture Trustee in writing that it elects to terminate the book-entry system
through the Clearing Agency; or (iii) after the occurrence of an Event of
Default or a Servicer Default, Note Owners representing beneficial interests
aggregating at least a majority of the Outstanding Amount of the Controlling
Class advise the Clearing Agency in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best interests
of the Note Owners, then the Clearing Agency shall notify all Note Owners and
the Indenture Trustee of the occurrence of any such event and of the
availability of Definitive Notes to Note Owners requesting the same. Upon
surrender to the Indenture Trustee of the typewritten Note or Notes representing
the Book-Entry Notes by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee shall
authenticate the Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Note Registrar or the Indenture Trustee
shall be liable for any delay
10
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Notes, the Indenture Trustee shall recognize the Holders of the Definitive Notes
as Noteholders.
SECTION 2.13 Seller as Noteholder. The Seller in its individual or any
--------------------
other capacity may become the owner or pledgee of Notes and may otherwise deal
with the Issuer or its affiliates with the same rights it would have if it were
not the Seller.
SECTION 2.14 Tax Treatment. The Issuer in entering into this Indenture, and
-------------
the Noteholders and the Note Owners, by acquiring any Note or interest therein,
(i) express their intention that the Notes qualify under applicable tax law as
indebtedness secured by the Collateral, and (ii) unless otherwise required by
appropriate taxing authorities, agree to treat the Notes as indebtedness secured
by the Collateral for the purpose of federal income taxes, state and local
income and franchise taxes, and any other taxes imposed upon, measured by or
based upon gross or net income.
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest. The Issuer shall duly and
---------------------------------
punctually pay the principal of and interest on the Notes in accordance with the
terms of the Notes and this Indenture. On each Distribution Date and on the
Redemption Date (if applicable), the Indenture Trustee shall distribute amounts
on deposit in the Note Distribution Account to the Noteholders in accordance
with Sections 2.7 and 8.2, less amounts properly withheld under the Code by any
Person from a payment to any Noteholder of interest and/or principal. Any
amounts so withheld shall be considered as having been paid by the Issuer to
such Noteholder for all purposes of this Indenture.
SECTION 3.2 Maintenance of Agency Office. As long as any of the Notes
----------------------------
remains outstanding, the Issuer shall maintain in the Borough of Manhattan, the
City of New York, an office (the "Agency Office"), being an office or agency
-------------
where Notes may be surrendered to the Issuer for registration of transfer or
exchange, and where notices and demands to or upon the Issuer in respect of the
Notes and this Indenture may be served. The Issuer hereby initially appoints the
Indenture Trustee to serve as its agent for the foregoing purposes. The Issuer
shall give prompt written notice to the Indenture Trustee of the location, and
of any change in the location, of the Agency Office. If at any time the Issuer
shall fail to maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Indenture Trustee,
and the Issuer hereby appoints the Indenture Trustee as its agent to receive all
such surrenders, notices and demands.
11
SECTION 3.3 Money for Payments To Be Held in Trust.
--------------------------------------
(a) As provided in Section 8.2, all payments of amounts due and
payable with respect to any Notes that are to be made from amounts withdrawn
from the Note Distribution Account pursuant to Section 8.2(d), (e) or (f) shall
be made on behalf of the Issuer by the Indenture Trustee or by another Paying
Agent, and no amounts so withdrawn from the Note Distribution Account for
payments of Notes shall be paid over to the Issuer except as provided in this
Section 3.3.
(b) Before each Distribution Date or the Redemption Date (if
applicable), the Indenture Trustee shall deposit in the Note Distribution
Account an aggregate sum sufficient to pay the amounts then becoming due with
respect to the Notes, such sum to be held in trust for the benefit of the
Persons entitled thereto.
(c) The Issuer shall cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of
this Section 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and pay such sums to such Persons as
herein provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer (or any other obligor upon the Notes) of which it has actual
knowledge in the making of any payment required to be made with
respect to the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to
the Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the payment of
Notes if at any time it ceases to meet the standards required to be
met by a Paying Agent in effect at the time of determination; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
(d) The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay
12
to the Indenture Trustee all sums held in trust by such Paying Agent, such sums
to be held by the Indenture Trustee upon the same trusts as those upon which the
sums were held by such Paying Agent; and upon such payment by any Paying Agent
to the Indenture Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
(e) Subject to applicable laws with respect to escheat of funds, any
money held by the Indenture Trustee or any Paying Agent in trust for the payment
of any amount due with respect to any Note and remaining unclaimed for one year
after such amount has become due and payable shall be discharged from such trust
and be paid by the Indenture Trustee to the Issuer on Issuer Request; and the
Holder of such Note shall thereafter, as an unsecured general creditor, look
only to the Issuer for payment thereof (but only to the extent of the amounts so
paid to the Issuer), and all liability of the Indenture Trustee or such Paying
Agent with respect to such trust money shall thereupon cease; provided, however,
-------- -------
that the Indenture Trustee or such Paying Agent, before being required to make
any such payment, may at the expense of the Issuer cause to be published once,
in a newspaper published in the English language, customarily published on each
Business Day and of general circulation in the City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining shall be paid to the Issuer. The Indenture
Trustee may also adopt and employ, at the expense of the Issuer, any other
reasonable means of notification of such payment (including, but not limited to,
mailing notice of such payment to Holders whose Notes have been called but have
not been surrendered for redemption or whose right to or interest in monies due
and payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
SECTION 3.4 Existence. The Issuer shall keep in full effect its existence,
---------
rights and franchises as a business trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer shall keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and shall obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Collateral.
SECTION 3.5 Protection of Collateral; Acknowledgment of Pledge. The Issuer
--------------------------------------------------
shall from time to time execute and deliver all such supplements and amendments
hereto and all such financing statements, amendments thereto, continuation
statements, assignments, certificates, instruments of further assurance and
other instruments, and shall take such other action as may be determined to be
necessary or advisable in an Opinion of Counsel to the Owner Trustee delivered
to the Indenture Trustee to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof including by making the necessary filings of financing
statements or amendments thereto
13
within sixty days after the occurrence of any of the following: (A)
any change in the name of the Issuer (or its successor), (B) any
change in the jurisdiction of formation of the Issuer (or its
successor) and (C) any merger or consolidation or other change in the
identity or organizational structure of the Issuer and by promptly
notifying the Indenture Trustee of any such filings;
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(iii) enforce the rights of the Indenture Trustee and the
Noteholders in any of the Collateral; or
(iv) preserve and defend title to the Collateral and the rights
of the Indenture Trustee and the Noteholders in such Collateral
against the claims of all Persons and parties, and the Issuer hereby
authorizes the Indenture Trustee to execute and file any financing
statement, continuation statement or other instrument required by the
Indenture Trustee pursuant to this Section 3.5.
SECTION 3.6 Opinions as to Collateral.
-------------------------
(a) On the Closing Date, the Issuer shall furnish to the Indenture
Trustee an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording and filing of
this Indenture, any indentures supplemental hereto and any other requisite
documents, and with respect to the execution and filing of any financing
statements and continuation statements as are necessary to perfect and make
effective the lien and security interest of this Indenture and reciting the
details of such action, or stating that, in the opinion of such counsel, no such
action is necessary to make such lien and security interest effective.
(b) On or before April 15 in each calendar year, beginning April 15,
200 , the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
-
either stating that, in the opinion of such counsel, such action has been taken
with respect to the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite documents
and with respect to the execution and filing of any financing statements and
continuation statements as is necessary to maintain the lien and security
interest created by this Indenture and reciting the details of such action or
stating that in the opinion of such counsel no such action is necessary to
maintain the lien and security interest created by this Indenture. Such Opinion
of Counsel shall also describe the recording, filing, re-recording and refiling
of this Indenture, any indentures supplemental hereto and any other requisite
documents and the execution and filing of any financing statements and
continuation statements that will, in the opinion of such counsel, be required
to maintain the lien and security interest of this Indenture until April 15 in
the following calendar year.
14
SECTION 3.7 Performance of Obligations; Servicing of Receivables.
----------------------------------------------------
(a) The Issuer shall not take any action and shall use its reasonable
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Collateral or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
otherwise expressly provided in this Indenture, the Pooling Agreement, the
Servicing Agreement, the Purchase Agreement, the Administration Agreement or
such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in the Basic Documents or an
Officers' Certificate of the Issuer shall be deemed to be action taken by the
Issuer. Initially, the Issuer has contracted with the Servicer and the
Administrator to assist the Issuer in performing its duties under this
Indenture.
(c) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents and
in the instruments and agreements included in the Collateral, including but not
limited to filing or causing to be filed all UCC financing statements and
continuation statements required to be filed under the terms of this Indenture,
the Pooling Agreement and the Purchase Agreement in accordance with and within
the time periods provided for herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of a Servicer
Default under the Servicing Agreement, the Issuer shall promptly notify the
Indenture Trustee and the Rating Agencies thereof, and shall specify in such
notice the response or action, if any, the Issuer has taken or is taking with
respect of such default. If a Servicer Default shall arise from the failure of
the Servicer to perform any of its duties or obligations under the Servicing
Agreement with respect to the Receivables, the Issuer and the Indenture Trustee
shall take all reasonable steps available to them pursuant to the Servicing
Agreement to remedy such failure.
(e) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees that it shall not consent so as
to permit NFRRC, NFC, or Harco Leasing to, without the prior written consent of
the Indenture Trustee or the Holders of at least a majority in Outstanding
Amount of the Controlling Class, as required in accordance with the terms
thereof, amend, modify, waive, supplement, terminate or surrender, or agree to
any amendment, modification, supplement, termination, waiver or surrender of,
the terms of any Collateral or any of the Basic Documents, or waive timely
performance or observance by the Seller under the Pooling Agreement or the
Purchase Agreement, the Servicer under the Servicing Agreement, the
Administrator under the Administration Agreement, NFC under the Purchase
Agreement or Harco Leasing under the Lease Purchase Agreement, except as
specifically permitted under these documents; provided, however, that,
-------- -------
notwithstanding the foregoing, no action specified in the proviso to Section
-------
9.2(a) shall be taken
15
except in compliance with Section 9.2. If any such amendment, modification,
supplement or waiver shall be so consented to by the Indenture Trustee or such
Holders, as applicable, the Issuer agrees, promptly following a request by the
Indenture Trustee to do so, to execute and deliver, in its own name and at its
own expense, such agreements, instruments, consents and other documents as the
Indenture Trustee may deem necessary or appropriate in the circumstances.
SECTION 3.8 Negative Covenants. So long as any Notes are Outstanding, the
------------------
Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of any of the
properties or assets of the Issuer, except the Issuer may (i) collect,
liquidate, sell or otherwise dispose of Receivables (including Warranty
Receivables, Administrative Receivables and Liquidating Receivables), (ii) make
cash payments out of the Designated Accounts and the Certificate Distribution
Account and (iii) take other actions, in each case as contemplated by the Basic
Documents;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of the Notes (other than amounts properly withheld
from such payments under the Code or applicable state law) or assert any claim
against any present or former Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Collateral;
(c) voluntarily commence any insolvency, readjustment of debt,
marshaling of assets and liabilities or other proceeding, or apply for an order
by a court or agency or supervisory authority for the winding-up or liquidation
of its affairs or any other event specified in Section 5.1(f); or
(d) either (i) permit the validity or effectiveness of this Indenture
to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (ii) permit any lien,
charge, excise, claim, security interest, mortgage or other encumbrance (other
than the lien of this Indenture) to be created on or extend to or otherwise
arise upon or burden the Collateral or any part thereof or any interest therein
or the proceeds thereof (other than tax liens, mechanics' liens and other liens
that arise by operation of law, in each case on a Financed Vehicle and arising
solely as a result of an action or omission of the related Obligor), or (iii)
permit the lien of this Indenture not to constitute a valid first priority
security interest in the Collateral (other than with respect to any such tax,
mechanics' or other lien).
SECTION 3.9 Annual Statement as to Compliance. The Issuer shall deliver to
---------------------------------
the Indenture Trustee, with a copy to each of the Rating Agencies, on or before
February 1 of each year, beginning February 1, 200 , an Officer's Certificate
--
signed by an Authorized Officer, dated as of the immediately preceding October
31, stating that:
16
(a) a review of the activities of the Issuer during such fiscal year
and of performance by the Issuer under this Indenture has been made under such
Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based on such
review, the Issuer has fulfilled in all material respects all of its obligations
under this Indenture throughout such year, or, if there has been a default in
the fulfillment of any such obligation, specifying each such default known to
such Authorized Officer and the nature and status thereof. A copy of such
certificate may be obtained by any Noteholder by a request in writing to the
Issuer addressed to the Corporate Trust Office of the Indenture Trustee.
SECTION 3.10 Consolidation, Merger, etc., of the Issuer; Disposition of
----------------------------------------------------------
Trust Assets.
------------
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing
under the laws of the United States of America or any State and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the due and timely payment of the principal of and
interest on all Notes and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to
be performed or observed, all as provided herein;
(ii) immediately after giving effect to such merger or
consolidation, no Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction and such Person for each then outstanding
class of Notes;
(iv) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been completed; and
(v) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel addressed to the
Issuer, each stating:
(A) that such consolidation or merger and such supplemental
indenture comply with this Section 3.10;
(B) that such consolidation or merger and such supplemental
indenture shall have no material adverse tax consequence to the
Issuer or any Securityholder; and
17
(C) that all conditions precedent herein provided for in
this Section 3.10 have been complied with, which shall include
any filing required by the Exchange Act.
(b) Except as otherwise expressly permitted by this Indenture or the
other Basic Documents, the Issuer shall not sell, convey, exchange, transfer or
otherwise dispose of any of its properties or assets, including those included
in the Collateral, to any Person, unless:
(i) the Person that acquires such properties or assets of the
Issuer (A) shall be a United States citizen or a Person organized and
existing under the laws of the United States of America or any State
and (B) by an indenture supplemental hereto, executed and delivered to
the Indenture Trustee, in form satisfactory to the Indenture Trustee:
(A) expressly assumes the due and punctual payment of the
principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture on
the part of the Issuer to be performed or observed, all as
provided herein;
(B) expressly agrees that all right, title and interest so
sold, conveyed, exchanged, transferred or otherwise disposed of
shall be subject and subordinate to the rights of Noteholders;
(C) unless otherwise provided in such supplemental
indenture, expressly agrees to indemnify, defend and hold
harmless the Issuer against and from any loss, liability or
expense arising under or related to this Indenture and the Notes;
and
(D) expressly agrees that such Person (or if a group of
Persons, then one specified Person) shall make all filings with
the Commission (and any other appropriate Person) required by the
Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction and such Person for each then outstanding
class of Notes;
(iv) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
18
(v) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel addressed to the
Issuer, each stating that:
(A) such sale, conveyance, exchange, transfer or disposition
and such supplemental indenture comply with this Section 3.10;
(B) such sale, conveyance, exchange, transfer or disposition
and such supplemental indenture have no material adverse tax
consequence to the Issuer or to any Noteholders or
Certificateholders; and
(C) that all conditions precedent herein provided for in
this Section 3.10 have been complied with, which shall include
any filing required by the Exchange Act.
SECTION 3.11 Successor or Transferee.
-----------------------
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.10(a), the Person formed by or surviving such consolidation or merger
(if other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer pursuant to Section 3.10(b), the Issuer shall be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of the Issuer with respect to the Securityholders immediately upon the delivery
of written notice to the Indenture Trustee from the Person acquiring such assets
and properties stating that the Issuer is to be so released.
SECTION 3.12 No Other Business. The Issuer shall not engage in any business
-----------------
or activity other than acquiring, holding and managing the Collateral and the
proceeds therefrom in the manner contemplated by the Basic Documents, issuing
the Securities, making payments on the Securities and such other activities that
are necessary, suitable, desirable or convenient to accomplish the foregoing or
are incidental thereto, as set forth in Section 2.3 of the Trust Agreement.
After the end of the Funding Period, the Issuer shall not fund the purchase of
any new Receivables.
SECTION 3.13 No Borrowing. The Issuer shall not issue, incur, assume,
------------
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness for money borrowed other than indebtedness for money borrowed in
respect of the Notes or in accordance with the Basic Documents.
SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities. Except as
-------------------------------------------------
contemplated by this Indenture or the other Basic Documents, the Issuer shall
not make any loan or advance or credit to, or guarantee (directly or indirectly
or by an instrument having the effect of assuring another's payment or
performance on any obligation or capability of so doing or otherwise),
19
endorse or otherwise become contingently liable, directly or indirectly, in
connection with the obligations, stocks or dividends of, or own, purchase,
repurchase or acquire (or agree contingently to do so) any stock, obligations,
assets or securities of, or any other interest in, or make any capital
contribution to, any other Person.
SECTION 3.15 Servicer's Obligations. The Issuer shall use its best efforts
----------------------
to cause the Servicer to comply with its obligations under Sections 2.17, 3.01
and 3.02 of the Servicing Agreement.
SECTION 3.16 Capital Expenditures. The Issuer shall not make any
--------------------
expenditure (whether by long-term or operating lease or otherwise) for capital
assets (either real, personal or intangible property) other than the purchase of
the Receivables and other property and rights from the Seller pursuant to the
Pooling Agreement.
SECTION 3.17 Removal of Administrator. So long as any Notes are
------------------------
Outstanding, the Issuer shall not remove the Administrator without cause unless
the Rating Agency Condition for each class of Notes then outstanding shall have
been satisfied in connection with such removal.
SECTION 3.18 Restricted Payments. Except for payments of principal or
-------------------
interest on or redemption of the Notes, so long as any Notes are Outstanding,
the Issuer shall not, directly or indirectly:
(a)pay any dividend or make any distribution (by reduction of capital
or otherwise), whether in cash, property, securities or a combination thereof,
to the Owner Trustee or any owner of a beneficial interest in the Issuer or
otherwise, in each case with respect to any ownership or equity interest or
similar security in or of the Issuer or to the Servicer;
(b) redeem, purchase, retire or otherwise acquire for value any such
ownership or equity interest or similar security; or
(c) set aside or otherwise segregate any amounts for any such purpose;
provided, however, that the Issuer may make, or cause to be made, distributions
-------- -------
to the Servicer, the Seller, the Indenture Trustee, the Owner Trustee and the
Certificateholders as permitted by, and to the extent funds are available for
such purpose hereunder or under, the Pooling Agreement, the Servicing Agreement,
the Trust Agreement or the other Basic Documents. The Issuer shall not, directly
or indirectly, make payments to or distributions from the Collection Account
except in accordance with the Basic Documents.
SECTION 3.19 Notice of Events of Default. The Issuer agrees to give the
---------------------------
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder, each Servicer Default under the Servicing Agreement, each
default on the part of the Seller of its obligations under the Pooling
Agreement, each default on the part of NFC of its obligations under
20
the Purchase Agreement and each default on the part of Harco Leasing under the
Lease Purchase Agreement.
SECTION 3.20 Further Instruments and Acts. Upon request of the Indenture
----------------------------
Trustee, the Issuer shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 3.21 Indenture Trustee's Assignment of Administrative Receivables
------------------------------------------------------------
and Warranty Receivables. Upon receipt of the Administrative Purchase Payment or
------------------------
the Warranty Payment with respect to an Administrative Receivable or a Warranty
Receivable, as the case may be, the Indenture Trustee shall release to the
Servicer or the Warranty Purchaser, as applicable, all of the Indenture
Trustee's right, title and interest in and to such repurchased Receivable and
the Related Security with respect thereto and any documents relating thereto,
and the Servicer or the Warranty Purchaser, as applicable, shall thereupon own
such Receivable and the Related Security with respect thereto free of any
further obligation to the Indenture Trustee or the Noteholders with respect
thereto. If in any enforcement suit or legal proceeding it is held that the
Servicer may not enforce a Receivable on the ground that it is not a real party
in interest or a holder entitled to enforce such Receivable, the Indenture
Trustee shall, at the Servicer's expense, take such steps as the Servicer deems
necessary to enforce the Receivable, including bringing suit in the Indenture
Trustee's name or the names of the Securityholders.
SECTION 3.22 Representations and Warranties by the Issuer to the Indenture
-------------------------------------------------------------
Trustee. The Issuer hereby represents and warrants to the Indenture Trustee as
-------
follows:
(a) Good Title. No Receivable has been sold, transferred, assigned or
----------
pledged by the Issuer to any Person other than the Indenture Trustee;
immediately prior to the grant of a security interest in the Receivable pursuant
to this Indenture, the Issuer had good and marketable title thereto, free of any
Lien (except for Permitted Liens); and, upon execution and delivery of this
Indenture by the Issuer, the Indenture Trustee shall have all of the right,
title and interest of the Issuer in, to and under the Collateral, free of any
Lien (except for any Lien which may exist in accessions to the Financed Vehicles
not financed by NFC); and
(b) All Filings Made. All filings necessary under the UCC in any
----------------
jurisdiction to give the Indenture Trustee a first priority perfected security
interest in the Receivables and, to the extent constituting Code Collateral, the
other Collateral shall have been made. The Receivables constitute Code
Collateral.
(c) Series 200 Portfolio Certificate. The Series 200_ Portfolio
--------------------------------
Certificate has been duly registered in the name of the Indenture Trustee and
all other action necessary (including the filing of UCC-1 financing statements)
to protect and perfect the Indenture Trustee's security interest in the
Collateral now in existence and hereafter acquired or created has been duly and
effectively taken.
21
(d) Lien of Indenture. This Indenture constitutes a valid and
continuing Lien on the Collateral in favor of the Indenture Trustee on behalf of
the Noteholders, which Lien will be prior to all other Liens (other than
Permitted Liens), will be enforceable as such as against creditors of and
purchasers from the Issuer in accordance with its terms, except as such
enforceability may be limited by may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law,
and all action necessary to perfect such prior security interest has been duly
taken.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture shall
---------------------------------------
cease to be of further effect with respect to the Notes except as to: (i) rights
of registration of transfer and exchange; (ii) substitution of mutilated,
destroyed, lost or stolen Notes; (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon; (iv) Sections 3.2, 3.3, 3.4, 3.5,
3.8, 3.10, 3.11, 3.12, 3.13, 3.14, 3.16, 3.17, 3.19 and 3.21; (v) the rights,
obligations and immunities of the Indenture Trustee hereunder (including the
rights of the Indenture Trustee under Section 6.7 and the obligations of the
Indenture Trustee under Sections 4.2 and 4.4); and (vi) the rights of
Noteholders as beneficiaries hereof with respect to the property so deposited
with the Indenture Trustee payable to all or any of them, and the Indenture
Trustee, on demand of and at the expense of the Issuer shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to the Notes, if:
(a) either:
(i) all Notes theretofore authenticated and delivered (other than
(A) Notes that have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 2.5 and (B) Notes for whose
payment money has theretofore been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 3.3) have been
delivered to the Indenture Trustee for cancellation; or
(ii) all Notes not theretofore delivered to the Indenture Trustee
for cancellation:
(A) have become due and payable,
(B) will be due and payable on their respective Final
Scheduled Distribution Dates within one year, or
22
(C) are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving
of notice of redemption by the Indenture Trustee in the name, and
at the expense, of the Issuer.
and the Issuer, in the case of (A), (B) or (C) of subsection 4.1(a)(2) above,
has irrevocably deposited or caused to be irrevocably deposited with the
Indenture Trustee cash or direct obligations of or obligations guaranteed by the
United States of America (which will mature prior to the date such amounts are
payable), in trust for such purpose, in an amount sufficient to pay and
discharge the entire unpaid principal and accrued interest on such Notes not
theretofore delivered to the Indenture Trustee for cancellation when due on the
Final Scheduled Distribution Date for such Notes or the Redemption Date for such
Notes (if such Notes are to be called for redemption pursuant to Section
10.1(a)), as the case may be;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(c) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate of the Issuer, an Opinion of Counsel and (if required by the TIA or
the Indenture Trustee) an Independent Certificate from a firm of certified
public accountants, each meeting the applicable requirements of Section 11.1(a)
and each stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been complied with.
SECTION 4.2 Application of Trust Money. All monies deposited with the
--------------------------
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Holders of the particular Notes for the payment or
redemption of which such monies have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest; but such
monies need not be segregated from other funds except to the extent required
herein or in the Servicing Agreement or by applicable law.
SECTION 4.3 Repayment of Monies Held by Paying Agent. In connection with
----------------------------------------
the satisfaction and discharge of this Indenture with respect to each class of
Notes, all monies then held by any Paying Agent other than the Indenture Trustee
under the provisions of this Indenture with respect to each such class of Notes
shall, upon demand of the Issuer, be paid to the Indenture Trustee to be held
and applied according to Section 3.3 and thereupon such Paying Agent shall be
released from all further liability with respect to such monies.
SECTION 4.4 Duration of Position of Indenture Trustee for Benefit of
--------------------------------------------------------
Certificateholders. Notwithstanding (i) the earlier payment in full of all
------------------
principal and interest due to the Noteholders under the terms of Notes of each
class, (ii) the cancellation of such Notes pursuant to Section 2.8 and (iii) the
discharge of the Indenture Trustee's duties hereunder with
23
respect to such Notes, the Indenture Trustee shall continue to act in the
capacity as Indenture Trustee hereunder for the benefit of the
Certificateholders and the Indenture Trustee, for the benefit of the
Certificateholders, shall comply with its obligations under Sections 2.02, 7.02
and 7.03 of the Servicing Agreement, as appropriate, until such time as all
distributions in respect of the Certificates have been paid in full.
ARTICLE V
DEFAULT AND REMEDIES
SECTION 5.1 Events of Default. For the purposes of this Indenture, "Event
-----------------
of Default" wherever used herein, means any one of the following events:
(a) failure to pay any interest on any Note as and when the same
becomes due and payable, and such default shall continue unremedied for a period
of five (5) days; or
(b) except as set forth in Section 5.1(c), failure to pay any
instalment of the principal of any Note as and when the same becomes due and
payable, and such default shall continue unremedied for a period of thirty (30)
days after there shall have been given, by registered or certified mail, to the
Issuer and the Seller (or the Servicer, as applicable) by the Indenture Trustee
or to the Issuer and the Seller (or the Servicer, as applicable) and the
Indenture Trustee by the Holders of at least 25% of the Outstanding Amount of
the Controlling Class, a written notice specifying such default, demanding that
it be remedied and stating that such notice is a "Notice of Default" hereunder;
or
(c) failure to pay in full the outstanding principal balance of any
class of Notes by the Final Scheduled Distribution Date for such class; or
(d) default in the observance or performance in any material respect
of any covenant or agreement of the Issuer made in this Indenture (other than a
covenant or agreement, a default in the observance or performance of which is
specifically dealt with elsewhere in this Section 5.1) which failure materially
and adversely affects the rights of the Noteholders, and such default shall
continue or not be cured for a period of thirty (30) days after there shall have
been given, by registered or certified mail, to the Issuer and the Seller (or
the Servicer, as applicable) by the Indenture Trustee or to the Issuer and the
Seller (or the Servicer, as applicable) and the Indenture Trustee by the Holders
of at least 25% of the Outstanding Amount of the Controlling Class, a written
notice specifying such default, demanding that it be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(e) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial part of
the Owner Trust Estate in an involuntary case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
24
similar official of the Issuer (other than as Owner Trustee) or for any
substantial part of the Collateral, or ordering the winding-up or liquidation of
the Issuer's affairs, and such decree or order shall remain unstayed and in
effect for a period of sixty (60) consecutive days; or
(f) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by the Issuer to the entry of an order for
relief in an involuntary case under any such law, or the consent by the Issuer
to the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the Owner Trust Estate, or the making by the Issuer of any
general assignment for the benefit of creditors, or the failure by the Issuer
generally to pay its debts as such debts become due, or the taking of action by
the Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five (5) Business Days
after learning of the occurrence thereof, written notice in the form of an
Officer's Certificate of any Default under Section 5.1(d), its status and what
action the Issuer is taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
(a) If an Event of Default should occur and be continuing, then and in
every such case, unless the principal amount of the Notes shall have already
become due and payable, either the Indenture Trustee or the Holders of Notes
representing not less than a majority of the Outstanding Amount of the
Controlling Class may declare all the Notes to be immediately due and payable,
by a notice in writing to the Issuer (and to the Indenture Trustee if given by
the Noteholders) setting forth the Event or Events of Default, and upon any such
declaration the unpaid principal amount of the Notes together with accrued and
unpaid interest thereon through the date of acceleration, shall become
immediately due and payable.
(b) At any time after such declaration of acceleration of maturity of
the Notes has been made and before a judgment or decree for payment of the money
due thereunder has been obtained by the Indenture Trustee as hereinafter
provided in this Article V, the Holders of Notes representing not less than a
majority of the Outstanding Amount of the Controlling Class, by written notice
to the Issuer and the Indenture Trustee, may rescind and annul such declaration
and its consequences with respect to the Notes; provided, that no such
--------
rescission and annulment shall extend to or affect any subsequent or other
Default or impair any right consequent thereto; and provided further, that if
-------- -------
the Indenture Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission and annulment or for any other reason, or such proceedings
shall have been determined adversely to the Indenture Trustee, then and in every
such case, the Indenture Trustee, the Issuer and the Noteholders, as the case
may be, shall be restored to their respective former positions and rights
hereunder, and all rights, remedies and powers of the Indenture Trustee, the
Issuer and the Noteholders, as the case may be, shall continue as though no such
proceedings had been commenced.
25
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Indenture Trustee.
-----------------
(a) The Issuer covenants that if there shall occur an Event of Default
under Sections 5.1(a), (b) or (c), the Issuer shall, upon demand of the
Indenture Trustee, pay to the Indenture Trustee, for the benefit of the
Noteholders in accordance with their respective outstanding principal amounts,
the entire amount then due and payable on the Notes for principal and interest,
with interest through the date of such payment on the overdue principal amount
of each class of Notes, at the rate applicable to such class of Notes, and in
addition thereto such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its agents and counsel.
(b) If the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon the Notes, wherever situated, the monies adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.4, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders, by
such appropriate Proceedings as the Indenture Trustee shall deem most effective
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy or legal or
equitable right vested in the Indenture Trustee by this Indenture or by
applicable law.
(d) If there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Collateral, Proceedings under Title 11 of the United States Code or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or if a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section 5.3, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the entire amount of
the unpaid principal and interest owing in respect of the Notes and to
file such other papers or documents as may be necessary or advisable
in order to have the claims of the Indenture Trustee (including any
claim for reasonable compensation to the Indenture
26
Trustee and each predecessor trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Indenture Trustee
and each predecessor trustee, except as a result of negligence or bad
faith) and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of Notes in any election of a trustee, a
standby trustee or Person performing similar functions in any such
Proceedings;
(iii) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of the
Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Indenture Trustee or the Holders of Notes allowed in any judicial
proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, if the Indenture Trustee shall consent
to the making of payments directly to such Noteholders, to pay to the Indenture
Trustee such amounts as shall be sufficient to cover reasonable compensation to
the Indenture Trustee, each predecessor trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor trustee, except as
a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such Proceedings instituted by the
Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
trustee and their respective agents and attorneys, shall be applied in
accordance with Section 5.4(b).
27
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
SECTION 5.4 Remedies; Priorities.
--------------------
(a) If an Event of Default shall have occurred and be continuing and
the Notes have been accelerated under Section 5.2(a), the Indenture Trustee may
do one or more of the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then due and payable
on the Notes or under this Indenture with respect thereto, whether by
declaration of acceleration or otherwise, enforce any judgment
obtained, and collect from the Issuer and any other obligor upon such
Notes monies adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Collateral;
(iii) exercise any remedies of a secured party under the UCC and
take any other appropriate action to protect and enforce the rights
and remedies of the Indenture Trustee and the Noteholders; and
(iv) sell the Collateral or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law or elect to have the Issuer
maintain possession of the Collateral, including the Receivables
included therein and continue to apply collections on such Receivables
as if there had been no declaration of acceleration; provided,
--------
however, that the Indenture Trustee may not sell or otherwise
-------
liquidate the Collateral following an Event of Default and
acceleration of the Notes, unless (A) the Holders of all of the
aggregate Outstanding Amount of the Notes consent thereto, (B) the
proceeds of such sale or liquidation distributable to the Noteholders
are sufficient to discharge in full the principal of and the accrued
interest on the Notes, in each case as of the date of such sale or
liquidation or (C) (i) there has been an Event of Default under
Section 5.1(a), (b) or (c) or otherwise arising from a failure to make
a required payment of principal on any Notes, (ii) the Indenture
Trustee determines that the Collateral will not continue to provide
sufficient funds for the payment of principal of and interest on the
Notes as and when they would have become due if the Notes had not been
declared due and payable and (iii) the Indenture Trustee obtains the
consent of Holders of a majority of the aggregate Outstanding Amount
of the Controlling Class. In determining such sufficiency or
insufficiency with respect to clauses (B) and (C), the Indenture
Trustee may, but need not, obtain and rely upon an opinion of an Inde-
28
pendent investment banking or accounting firm of national reputation
as to the feasibility of such proposed action and as to the
sufficiency of the Collateral for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant
to this Article V, it shall pay out or deposit such money or property in the
following order:
FIRST: to the Indenture Trustee for amounts due under Section
6.7; and
SECOND: to the Collection Account, for distribution pursuant to
Section 4.02 of the Pooling Agreement and Section 8.2(c) of this
Indenture.
SECTION 5.5 Optional Preservation of the Collateral. If the Notes have been
---------------------------------------
declared to be due and payable under Section 5.2(a) following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled in accordance with Section 5.2(b), the Indenture Trustee may, but need
not, elect to take and maintain possession of the Collateral. It is the desire
of the parties hereto and the Noteholders that there be at all times sufficient
funds for the payment of principal of and interest on the Notes, and the
Indenture Trustee shall take such desire into account when determining whether
or not to take and maintain possession of the Collateral. In determining whether
to take and maintain possession of the Collateral, the Indenture Trustee may,
but need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Collateral for such purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note shall have any right
-------------------
to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(i) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the Outstanding Amount
of the Controlling Class have made written request to the Indenture
Trustee to institute such Proceeding in respect of such Event of
Default in its own name as Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the Indenture
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceedings; and
29
(v) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 60-day period by the
Holders of a majority of the Outstanding Amount of the Controlling
Class;
it being understood and intended that no Holder or Holders of Notes shall have
any right in any manner whatsoever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Notes or to obtain or to seek to obtain priority or preference
over any other Holders of Notes or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable (on the basis of
the respective aggregate amount of principal and interest, respectively, due and
unpaid on the Notes held by each Noteholder) and common benefit of all
Noteholders. For the protection and enforcement of the provisions of this
Section 5.6, each and every Noteholder shall be entitled to such relief as can
be given either at law or in equity.
If the Indenture Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Holders of Notes, each
representing less than a majority of the Outstanding Amount of the Controlling
Class, the Indenture Trustee in its sole discretion may determine what action,
if any, shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and
------------------------------------------------------------
Interest. Notwithstanding any other provisions in this Indenture, the Holder of
--------
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest on such Note on or after the respective
due dates thereof expressed in such Note or in this Indenture (or, in the case
of redemption, if applicable, on or after the Redemption Date) and to institute
suit for the enforcement of any such payment, and such right shall not be
impaired without the consent of such Holder.
SECTION 5.8 Restoration of Rights and Remedies. If the Indenture Trustee or
----------------------------------
any Noteholder has instituted any Proceeding to enforce any right or remedy
under this Indenture and such Proceeding has been discontinued or abandoned for
any reason or has been determined adversely to the Indenture Trustee or to such
Noteholder, then and in every such case the Issuer, the Indenture Trustee and
the Noteholders shall, subject to any determination in such Proceeding, be
restored severally to their respective former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy herein
------------------------------
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
30
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of the
------------------------------
Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default shall impair any such right or remedy or constitute a
waiver of any such Default or an acquiescence therein. Every right and remedy
given by this Article V or by law to the Indenture Trustee or to the Noteholders
may be exercised from time to time, and as often as may be deemed expedient, by
the Indenture Trustee or by the Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. The Holders of a majority of the
----------------------
Outstanding Amount of the Controlling Class shall, subject to provision being
made for indemnification against costs, expenses and liabilities in a form
satisfactory to the Indenture Trustee, have the right to direct the time, method
and place of conducting any Proceeding for any remedy available to the Indenture
Trustee with respect to the Notes or exercising any trust or power conferred on
the Indenture Trustee; provided, however, that:
-------- -------
(i) such direction shall not be in conflict with any rule of law
or with this Indenture;
(ii) subject to the express terms of Section 5.4, any direction
to the Indenture Trustee to sell or liquidate the Collateral shall be
by the Holders of Notes representing 100% of the Outstanding Amount of
the Notes;
(iii) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Collateral
pursuant to Section 5.5, then any direction to the Indenture Trustee
by Holders of Notes representing less than 100% of the Outstanding
Amount of the Notes to sell or liquidate the Collateral shall be of no
force and effect; and
(iv) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction;
provided, however, that, subject to Section 6.1, the Indenture Trustee need not
-------- -------
take any action that it determines might cause it to incur any liability (a)
with respect to which the Indenture Trustee shall have reasonable grounds to
believe that adequate indemnity against such liability in not assured to it and
(b) which might materially adversely affect the rights of any Noteholders not
consenting to such action.
SECTION 5.12 Waiver of Past Defaults.
-----------------------
(a) Prior to the declaration of the acceleration of the maturity of
the Notes as provided in Section 5.2(a), the Holders of not less than a majority
of the Outstanding Amount of the Controlling Class may waive any past Default
and its consequences except a Default (i) in the payment of principal of or
interest on any of the Notes or (ii) in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the Holder of
each Note. In the
31
case of any such waiver, the Issuer, the Indenture Trustee and the Noteholders
shall be restored to their respective former positions and rights hereunder; but
no such waiver shall extend to or affect any subsequent or other Default or
impair any right consequent thereto.
(b) Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred,
for every purpose of this Indenture; but no such waiver shall extend to or
affect any subsequent or other Default or impair any right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture agree,
---------------------
and each Holder of any Note by such Holder's acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any Proceeding
for the enforcement of any right or remedy under this Indenture, or in any
Proceeding against the Indenture Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such Proceeding of
an undertaking to pay the costs of such Proceeding, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such Proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to:
(a) any Proceeding instituted by the Indenture Trustee;
(b) any Proceeding instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Controlling Class; or
(c) any Proceeding instituted by any Noteholder for the enforcement of
the payment of principal of or interest on any Note on or after the respective
due dates expressed in such Note and in this Indenture (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer, covenants (to
--------------------------------
the extent that it may lawfully do so) that it shall not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may adversely affect the covenants or the performance
of this Indenture. The Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and
---------------
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired
32
by the recovery of any judgment by the Indenture Trustee against the Issuer or
by the levy of any execution under such judgment upon any portion of the
Collateral or upon any of the assets of the Issuer. Any money or property
collected by the Indenture Trustee shall be applied in accordance with Section
5.4(b).
SECTION 5.16 Performance and Enforcement of Certain Obligations.
--------------------------------------------------
(a) Promptly following a request from the Indenture Trustee to do so
and at the Administrator's expense, the Issuer agrees to take all such lawful
action as the Indenture Trustee may request to compel or secure the performance
and observance by the Seller of its obligations to the Issuer under or in
connection with the Pooling Agreement and the Purchase Agreement, by the
Servicer of its obligations to the Issuer under or in connection with the
Servicing Agreement, by NFC of its obligations under or in connection with the
Lease Purchase Agreement and the Purchase Agreement, by Harco Leasing of its
obligation under or in connection with the Lease Purchase Agreement or any other
party to a Titling Trust Document of its obligations under or in connection with
such Titling Trust Document in accordance with the terms thereof, and to
exercise any and all rights, remedies, powers and privileges lawfully available
to the Issuer under or in connection with the Pooling Agreement, the Servicing
Agreement, the Purchase Agreement, the Lease Purchase Agreement and the Titling
Trust Documents to the extent and in the manner directed by the Indenture
Trustee, including the transmission of notices of default on the part of the
Seller, the Servicer, NFC, Harco Leasing or any other party to a Titling Trust
Document thereunder and the institution of legal or administrative actions or
proceedings to compel or secure performance by the Seller, the Servicer, NFC,
Harco Leasing or any other Party to a Titling Trust Document of each of their
respective obligations under the Pooling Agreement, the Servicing Agreement, the
Purchase Agreement, Lease Purchase Agreement and the Titling Trust Documents.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the Controlling Class shall,
exercise all rights, remedies, powers, privileges and claims of the Issuer
against the Seller under or in connection with the Pooling Agreement and the
Purchase Agreement, the Servicer under or in connection with the Servicing
Agreement, NFC under or in connection with the Lease Purchase Agreement and the
Purchase Agreement, Harco Leasing under or in connection with the Lease Purchase
Agreement or any party to a Titling Trust Document under or in connection with
such Titling Trust Document, including the right or power to take any action to
compel or secure performance or observance by the Seller, the Servicer, NFC,
Harco Leasing or such party of each of their obligations to the Issuer
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Pooling Agreement, the Servicing Agreement, the
Purchase Agreement, the Lease Purchase Agreement and the Titling Trust
Documents, and any right of the Issuer to take such action shall be suspended.
33
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee.
---------------------------
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, the
Pooling Agreement and the Servicing Agreement and no implied covenants
or obligations shall be read into this Indenture, the Pooling
Agreement, the Servicing Agreement or any other Basic Document against
the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; provided, however, that the Indenture
-------- -------
Trustee shall examine the certificates and opinions to determine
whether or not they conform to any applicable requirements of this
Indenture.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(i) this Section 6.1(c) does not limit the effect of Section
6.1(b);
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 5.11.
(d) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing with
the Issuer.
(e) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms of
this Indenture or the Servicing Agreement.
34
(f) No provision of this Indenture shall require the Indenture Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayments
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(g) The Indenture Trustee shall reimburse the Seller and any director,
officer, employee or agent of the Seller for any contractual damages, liability
or expense incurred by reason of the Indenture Trustee's willful misfeasance,
bad faith or gross negligence (except errors in judgment) in the performance of
its duties under any of the Further Transfer and Servicing Agreements, or by
reason of reckless disregard of its obligations and duties under any of the
Further Transfer and Servicing Agreements.
(h) Every provision of this Indenture relating to the Indenture
Trustee shall be subject to the provisions of this Section 6.1 and to the
provisions of the TIA.
SECTION 6.2 Rights of Indenture Trustee.
---------------------------
(a) The Indenture Trustee may rely on any document believed by it to
be genuine and to have been signed or presented by the proper Person. The
Indenture Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate from the Issuer or an Opinion of Counsel that
such action or omission is required or permissible hereunder. The Indenture
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Indenture Trustee's conduct does
-------- -------
not constitute wilful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
35
SECTION 6.3 Indenture Trustee May Own Notes. The Indenture Trustee in its
-------------------------------
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuer, the Servicer or any of their respective
Affiliates with the same rights it would have if it were not Indenture Trustee;
provided, however, that the Indenture Trustee shall comply with Sections 6.10
-------- -------
and 6.11. Any Paying Agent, Note Registrar, co-registrar or co-paying agent may
do the same with like rights.
SECTION 6.4 Indenture Trustee's Disclaimer. The Indenture Trustee shall not
------------------------------
be responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Issuer's use of
the proceeds from the Notes, and it shall not be responsible for any statement
of the Issuer in the Indenture or in any document issued in connection with the
sale of the Notes or in the Notes other than the Indenture Trustee's certificate
of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is continuing and
------------------
if it is known to a Responsible Officer of the Indenture Trustee, the Indenture
Trustee shall mail to each Noteholder notice of the Default within 30 days after
such Responsible Officer obtained knowledge of such Default. Except in the case
of a Default in payment of principal of or interest on any Note, the Indenture
Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of Noteholders.
SECTION 6.6 Reports by Indenture Trustee to Holders. The Indenture Trustee
---------------------------------------
shall deliver to each Noteholder the information and documents set forth in
Article VII, and, in addition, all such information with respect to the Notes as
may be required, as specified by the Servicer, to enable such Holder to prepare
its federal and state income tax returns.
SECTION 6.7 Compensation; Indemnity.
-----------------------
(a) The Issuer shall cause the Servicer pursuant to the Servicing
Agreement to pay to the Indenture Trustee from time to time such compensation
for its services as shall be agreed upon in writing. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall cause the Servicer pursuant to the Servicing
Agreement to reimburse the Indenture Trustee for all reasonable out-of-pocket
expenses incurred or made by it, including costs of collection, in addition to
the compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture Trustee's
agents, counsel, accountants and experts. The Issuer shall cause the Servicer
pursuant to the Servicing Agreement to indemnify the Indenture Trustee in
accordance with Section 6.05 of the Servicing Agreement.
(b) The Issuer's obligations to the Indenture Trustee pursuant to this
Section 6.7 shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(e) or (f) the expenses are intended to constitute
36
expenses of administration under Title 11 of the United States Code or any other
applicable federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of Indenture Trustee.
--------------------------------
(a) The Indenture Trustee may at any time give notice of its intent to
resign by so notifying the Issuer; provided, however, that no such resignation
-------- -------
shall become effective and the Indenture Trustee shall not resign prior to the
time set forth in Section 6.8(c). The Holders of a majority in Outstanding
Amount of the Controlling Class may remove the Indenture Trustee by so notifying
the Indenture Trustee and may appoint a successor Indenture Trustee. Such
resignation or removal shall become effective in accordance with Section 6.8(c).
The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
(b) If the Indenture Trustee gives notice of its intent to resign or
is removed or if a vacancy exists in the office of the Indenture Trustee for any
reason (the Indenture Trustee in such event being referred to herein as the
retiring Indenture Trustee), the Issuer shall promptly appoint and designate a
successor Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written acceptance
of its appointment and designation to the retiring Indenture Trustee and to the
Issuer. Thereupon the resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the Indenture Trustee under this Indenture. The
successor Indenture Trustee shall mail a notice of its succession to Noteholders
and to each of the Rating Agencies. The retiring Indenture Trustee shall
promptly transfer all property held by it as Indenture Trustee to the successor
Indenture Trustee.
(d) If a successor Indenture Trustee does not take office within 60
days after the retiring Indenture Trustee gives notice of its intent to resign
or is removed, the retiring Trustee, the Issuer or the Holders of a majority of
the Outstanding Amount of the Controlling Class may petition any court of
competent jurisdiction for the appointment and designation of a successor
Indenture Trustee.
37
(e) If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
(f) Notwithstanding the replacement of the Indenture Trustee pursuant
to this Section 6.8, the Issuer's obligations under Section 6.7 and the
Servicer's corresponding obligations under the Servicing Agreement shall
continue for the benefit of the retiring Indenture Trustee.
SECTION 6.9 Merger or Consolidation of Indenture Trustee.
--------------------------------------------
(a) Any Person into which the Indenture Trustee may be merged or with
which it may be consolidated, or any Person resulting from any merger or
consolidation to which the Indenture Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Indenture Trustee,
shall be the successor of the Indenture Trustee under this Indenture; provided,
--------
however, that such Person shall be eligible under the provisions of Section
-------
6.11, without the execution or filing of any instrument or any further act on
the part of any of the parties to this Indenture, anything in this Indenture to
the contrary notwithstanding. Following such merger or consolidation, the
successor Indenture Trustee shall mail a notice of such merger or consolidation
to each of the Rating Agencies.
(b) If at the time such successor or successors by merger or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture, any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee. In all such cases such certificate of
authentication shall have the same full force as is provided anywhere in the
Notes or herein with respect to the certificate of authentication of the
Indenture Trustee.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
----------------------------------------------------------
Trustee.
-------
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Collateral or any Financed Vehicle may at the time be
located, the Indenture Trustee shall have the power and may execute and deliver
all instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of the
Collateral, and to vest in such Person or Persons, in such capacity and for the
benefit of the Noteholders and (only to the extent expressly provided herein)
the Certificateholders, such title to the Collateral, or any part hereof, and,
subject to the other provisions of this Section 6.10, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 6.11
38
and no notice to Noteholders of the appointment of any co-trustee or separate
trustee shall be required under Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the
Collateral or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
39
SECTION 6.11 Eligibility; Disqualification.
-----------------------------
(a) The Indenture Trustee shall at all times satisfy the requirements
of TIA Section 310(a). The Indenture Trustee shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition and (unless waived by Moody's) it shall have a long term
unsecured debt rating of Baa3 or better by Moody's. The Indenture Trustee shall
comply with TIA Section 310(b); provided, however, that there shall be excluded
-------- -------
from the operation of TIA Section 310(b)(1) any indenture or indentures under
which other securities of the Issuer are outstanding if the requirements for
such exclusion set forth in TIA Section 310(b)(1) are met.
(b) If a Default occurs and is continuing, and the Indenture Trustee
is deemed to have a conflicting interest as a result of acting as trustee for
both the Class A Notes and the Class B Notes, the Issuer shall appoint a
successor Indenture Trustee for one or both of such classes, so that there will
be separate Indenture Trustees for the Class A Notes and the Class B Notes. No
such event shall alter the voting rights of the Class A Noteholders or Class B
Noteholders under this Indenture or any other Basic Document. However, so long
as any amounts remain unpaid with respect to the Class A Notes, only the
Indenture Trustee for the Class A Noteholders will have the right to exercise
remedies under this Indenture (but subject to the express provisions of Section
5.4 and to the right of the Class B Noteholders to receive their share of any
proceeds of enforcement, subject to the subordination of the Class B Notes to
the Class A Notes as described herein) to make deposits to and withdrawals from
the Designated Accounts, hold Designated Account Property and to make
distributions to Noteholders from the Note Distribution Account. Upon repayment
of the Class A Notes in full, all rights to exercise remedies under the
Indenture will transfer to the Indenture Trustee for the Class B Notes.
(c) In the case of the appointment hereunder of a successor Indenture
Trustee with respect to any class of Notes, the Issuer, the retiring Indenture
Trustee and the successor Indenture Trustee with respect to such class of Notes
shall execute and deliver an indenture supplemental hereto wherein the successor
Indenture Trustee shall accept such appointment and which (i) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, the successor Indenture Trustee all the rights, powers, trusts and
duties of the retiring Indenture Trustee with respect to the Notes of the class
to which the appointment of such successor Indenture Trustee relates, (ii) if
the retiring Indenture Trustee is not retiring with respect to all classes of
Notes, shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the retiring
Indenture Trustee with respect to the Notes of each class as to which the
retiring Indenture Trustee is not retiring shall continue to be vested in the
retiring Indenture Trustee, and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Indenture Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that each
such 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
40
supplemental indenture the resignation or removal of the retiring Indenture
Trustee shall become effective to the extent provided therein.
SECTION 6.12 Preferential Collection of Claims Against Issuer. The
------------------------------------------------
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.13 Representations and Warranties of Indenture Trustee. The
---------------------------------------------------
Indenture Trustee represents and warrants as of the Closing Date that:
(a) the Indenture Trustee is a duly organized,
-----------------------
validly existing and in good standing under the laws of the State of
and the eligibility requirements set forth in Section 6.11
------------------
are satisfied with respect to the Indenture Trustee;
(b) the Indenture Trustee has full power, authority and legal right to
execute, deliver and perform this Indenture, and has taken all necessary action
to authorize the execution, delivery and performance by it of this Indenture;
(c) the execution, delivery and performance by the Indenture Trustee
of this Indenture (i) shall not violate any provision of any law or regulation
governing the banking and trust powers of the Indenture Trustee or any order,
writ, judgment or decree of any court, arbitrator, or governmental authority
applicable to the Indenture Trustee or any of its assets, (ii) shall not violate
any provision of the corporate charter or by-laws of the Indenture Trustee or
(iii) shall not violate any provision of, or constitute, with or without notice
or lapse of time, a default under, or result in the creation or imposition of
any lien on any properties included in the Collateral pursuant to the provisions
of any mortgage, indenture, contract, agreement or other undertaking to which it
is a party, which violation, default or lien could reasonably be expected to
have a materially adverse effect on the Indenture Trustee's performance or
ability to perform its duties under this Indenture or on the transactions
contemplated in this Indenture;
(d) the execution, delivery and performance by the Indenture Trustee
of this Indenture shall not require the authorization, consent or approval of,
the giving of notice to, the filing or registration with, or the taking of any
other action in respect of, any governmental authority or agency regulating the
banking and corporate trust activities of the Indenture Trustee; and
(e) this Indenture has been duly executed and delivered by the
Indenture Trustee and constitutes the legal, valid and binding agreement of the
Indenture Trustee, enforceable in accordance with its terms.
SECTION 6.14 Indenture Trustee May Enforce Claims Without Possession of
----------------------------------------------------------
Notes. All rights of action and claims under this Indenture or the Notes may be
-----
prosecuted and enforced by the Indenture Trustee without the possession of any
of the Notes or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Indenture Trustee shall be
41
brought in its own name as Indenture Trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee, its agents and counsel, be
for the ratable benefit of the Noteholders and (only to the extent expressly
provided herein) the Certificateholders in respect of which such judgment has
been obtained.
SECTION 6.15 Suit for Enforcement. If an Event of Default shall occur and
--------------------
be continuing, the Indenture Trustee in its discretion may, subject to the
provisions of Section 6.1, proceed to protect and enforce its rights and the
rights of the Noteholders under this Indenture by a Proceeding whether for the
specific performance of any covenant or agreement contained in this Indenture or
in aid of the execution of any power granted in this Indenture or for the
enforcement of any other legal, equitable or other remedy as the Indenture
Trustee, being advised by counsel, shall deem most effectual to protect and
enforce any of the rights of the Indenture Trustee or the Noteholders.
SECTION 6.16 Rights of Noteholders to Direct Indenture Trustee. Holders of
-------------------------------------------------
Notes evidencing not less than a majority of the Outstanding Amount of the
Controlling Class shall have the right to direct in writing the time, method and
place of conducting any Proceeding for any remedy available to the Indenture
Trustee or exercising any trust or power conferred on the Indenture Trustee;
provided, however, that subject to Section 6.1, the Indenture Trustee shall have
-------- -------
the right to decline to follow any such direction if the Indenture Trustee being
advised by counsel determines that the action so directed may not lawfully be
taken, or if the Indenture Trustee in good faith shall, by a Responsible
Officer, determine that the proceedings so directed would be illegal or subject
it to personal liability or be unduly prejudicial to the rights of Noteholders
not parties to such direction; and provided, further, that nothing in this
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Indenture shall impair the right of the Indenture Trustee to take any action
deemed proper by the Indenture Trustee and which is not inconsistent with such
direction by the Noteholders.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of
----------------------------------------------------------
Noteholders. The Issuer shall furnish or cause to be furnished by the Servicer
-----------
to the Indenture Trustee (a) not more than five days before each Distribution
Date, a list, in such form as the Indenture Trustee may reasonably require, of
the names and addresses of the Holders of Notes as of the close of business on
the Record Date, and (b) at such other times as the Indenture Trustee may
request in writing, within 14 days after receipt by the Issuer of any such
request, a list of similar form and content as of a date not more than 10 days
prior to the time such list is furnished; provided, however, that so long as the
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Indenture Trustee is the Note Registrar, no such list shall be required to be
furnished.
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SECTION 7.2 Preservation of Information, Communications to Noteholders.
----------------------------------------------------------
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.1 and the names and addresses of Holders of Notes received by the
Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in such Section 7.1 upon receipt of
a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall
have the protection of TIA Section 312(c).
SECTION 7.3 Reports by Issuer.
-----------------
(a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the Issuer
may be required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by
the Commission such additional information, documents and reports with
respect to compliance by the Issuer with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee
shall transmit by mail to all Noteholders described in TIA Section
313(c)) such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to clauses (i) and (ii) of
this Section 7.3(a) as may be required by rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on October 31 of each year.
SECTION 7.4 Reports by Indenture Trustee. If required by TIA Section
----------------------------
313(a), within 60 days after each February 1, beginning with February 1, 200_,
the Indenture Trustee shall mail to each
43
Noteholder as required by TIA Section 313(c) a brief report dated as of such
date that complies with TIA Section 313(a). The Indenture Trustee also shall
comply with TIA Section 313(b). A copy of any report delivered pursuant to this
Section 7.4(a) shall, at the time of its mailing to Noteholders, be filed by the
Indenture Trustee with the Commission and each stock exchange, if any, on which
the Notes are listed. The Issuer shall notify the Indenture Trustee if and when
the Notes are listed on any stock exchange.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise expressly provided
-------------------
herein or in the other Basic Documents, the Indenture Trustee may demand payment
or delivery of, and shall receive and collect, directly and without intervention
or assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall apply all such money received by it as
provided in this Indenture and the Servicing Agreement. Except as otherwise
expressly provided in this Indenture or in Article II of the Servicing
Agreement, if any default occurs in the making of any payment or performance
under any agreement or instrument that is part of the Collateral, the Indenture
Trustee may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim an
Event of Default under this Indenture and any right to proceed thereafter as
provided in Article V.
SECTION 8.2 Designated Accounts; Payments.
-----------------------------
(a) On or before each Determination Date, with respect to the
preceding Monthly Period and the related Distribution Date, the Servicer shall
calculate the Total Available Amount, Collected Amount, the Total Servicing Fee,
the Aggregate Class A Noteholders' Interest Distributable Amount, the Class B
Noteholders' Interest Distributable Amount, the Principal Payment Amount, the
Noteholders' Principal Distributable Amount and all other amounts required to
determine the amounts to be deposited in or paid from each of the Collection
Account, the Pre-Funding Account, the Negative Carry Account, the Note
Distribution Account, the Certificate Distribution Account and the Reserve
Account on the next succeeding Distribution Date and supply such information to
the Issuer and the Indenture Trustee.
(b) On or before each Transfer Date, the Indenture Trustee shall cause
to be made the following withdrawals, deposits, transfers and distributions in
the amounts set forth in the Servicer's Certificate delivered to the Indenture
Trustee pursuant to Section 2.17 of the Servicing Agreement:
(i) from the Collection Account to the Servicer, in immediately
available funds, reimbursement of Outstanding Monthly Advances
pursuant to Section 2.14 of
44
the Servicing Agreement, payments of Liquidation Expenses with respect
to Receivables which became Liquidating Receivables during the related
Monthly Period pursuant to Section 2.04 of the Servicing Agreement and
any unpaid Liquidation Expenses from prior periods;
(ii) from the Pre-Funding Account to the Collection Account, the
Investment Earnings on the Pre-Funding Account for the related Monthly
Period;
(iii) from the Negative Carry Account to the Collection Account,
the Negative Carry Amount for such Distribution Date; and
(iv) from the Reserve Account to the Collection Account, the
lesser of (A) the amount of cash or other immediately available funds
therein on the day preceding such Distribution Date and (B) the
amount, if any, by which (I) the sum of the Total Servicing Fee, the
Aggregate Class A Noteholders' Interest Distributable Amount, the
Class B Noteholders' Interest Distributable Amount and the
Noteholders' Principal Distributable Amount exceeds (II) the sum of
the Collected Amount for such Distribution Date plus the amounts
deposited to the Collection Account on such date pursuant to Sections
8.2(b)(ii) and 8.2(b)(iii).
(c) Before 12:00 noon, New York City time, on each Transfer Date, the
Indenture Trustee (based on the information contained in the Servicer's
Certificate delivered to the Indenture Trustee pursuant to Section 2.17 of the
Servicing Agreement) shall make the following distributions from the Collection
Account (after the withdrawals, deposits and transfers specified in Section
8.2(b) have been made) in the following order of priority:
(i) first, to the Servicer, to the extent of the Total Available
Amount, the Total Servicing Fee;
(ii) second, to the Note Distribution Account, to the extent of
the Total Available Amount (as such amount has been reduced by the
distributions described in clause (c) (i) above), the Aggregate Class
A Noteholders' Interest Distributable Amount;
(iii) third, to the Note Distribution Account, to the extent of
the Total Available Amount (as such amount has been reduced by the
distributions described in clauses (c) (i) and (ii) above), the Class
B Noteholders' Interest Distributable Amount;
(iv) fourth, to the Note Distribution Account, to the extent of
the Total Available Amount (as such amount has been reduced by the
distributions described in clauses (c) (i), (ii) and (iii) above), the
Noteholders' Principal Distributable Amount; and
45
(v) fifth, to the Reserve Account, any portion of the Total
Available Amount remaining after the distributions described in
clauses (c) (i) through (iv), inclusive, above.
(d) On each Distribution Date, the Indenture Trustee shall distribute
all amounts on deposit in the Note Distribution Account, other than amounts
deposited in the Note Distribution Account pursuant to Section 8.11(b) and
subject to the Certificateholder's rights under Section 8.6 to Investment
Earnings, to the Noteholders to the extent of amounts due and unpaid on the
Notes for principal and interest, in the following amounts, and in the following
order of priority:
(i) (A) first, to accrued and unpaid interest on the Class A
Notes; provided, however, that if there are not sufficient funds in
-------- -------
the Note Distribution Account to pay the entire amount of accrued and
unpaid interest then due on the Class A Notes, the amount in the Note
Distribution Account shall be applied to the payment of such interest
on each Note of each class of the Class A Notes pro rata on the basis
of the respective aggregate amount of interest due on each such class
of Class A Notes; and (B) second, unless otherwise provided in clause
(iv) below, to accrued and unpaid interest on the Class B Notes;
provided, however, that if there are not sufficient funds in the Note
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Distribution Account (after the payment of all accrued and unpaid
interest on the Class A Notes) to pay the entire amount of accrued and
unpaid interest then due on the Class B Notes, the amount in the Note
Distribution Account shall be applied to the payment of such interest
on each of the Class B Notes pro rata on the basis of the aggregate
amount of interest due on each such Class B Note;
(ii) unless otherwise provided in clause (iii), (iv) or (v)
below, the Principal Payment Amount shall be applied on each
Distribution Date, as follows:
(A) first, 100% of the Principal Payment Amount shall be
applied to pay the principal of the Class A-1 Notes until the
Class A-1 Notes are paid in full;
(B) thereafter, % of the Principal Payment Amount (in
-----
the case of the Distribution Date on which the Class A-1 Notes
are paid in full, % of the remaining Principal Payment
-----
Amount) shall be applied to pay the principal of the other Class
A Notes (all of which shall be applied to pay the principal of
the Class A-2 Notes until paid in full, then shall be applied to
pay the principal of the Class A-3 Notes until paid in full, and
then shall be applied to pay the principal of the Class A-4 Notes
until paid in full) and % of the Principal Payment Amount (in
----
the case of the Distribution Date on which the Class A-1 Notes
are paid full, % of the remaining Principal Payment Amount)
----
shall be applied to pay the principal of the Class B Notes until
the Class A Notes are paid in full; and
46
(C) thereafter, 100% of the Principal Payment Amount (in the
case of the Distribution Date on which the Class A Notes are paid in
full, the remaining Principal Payment Amount) to the Class B Notes
until the Class B Notes are paid in full;
(iii) if the amount on deposit in the Reserve Account on any
Distribution Date would be, after giving effect to the application of
the Principal Payment Amount in accordance with the foregoing
priorities, less than % of the Initial Aggregate Receivables
----
Balance, then on each Distribution Date thereafter until either the
Class A Notes are paid in full or the amount on deposit in the Reserve
Account equals or exceeds the Specified Reserve Account Balance, 100%
of the Principal Payment Amount shall be applied on each Distribution
Date to pay the principal of the Class A Notes (all of which shall be
applied to pay the principal of the Class A-1 Notes until paid in
full, then shall be applied to pay the principal of the Class A-2
Notes until paid in full, then shall be applied to pay the principal
of Class A-3 Notes until paid in full, and then shall be applied to
pay the principal of the Class A-4 Notes until paid in full). When
principal payments on the Class B Notes resume in accordance with the
preceding sentence, the Principal Payment Amount for such Distribution
Date shall be applied in accordance with Section 8.2(d)(ii) hereof
until the Class A Notes have been paid in full, and thereafter 100% of
the Principal Payment Amount for such Distribution Date shall be
applied to pay the principal of the Class B Notes until the Class B
Notes are paid in full;
(iv) if the Notes have been declared immediately due and payable
as provided in Section 5.2(a) following the occurrence of an Event of
Default specified in Section 5.1(a), (b) or (c) until such time as the
Class A Notes have been paid in full and this Indenture has been
discharged with respect to the Class A Notes any amounts remaining in
the Note Distribution Account after the application described in
Section 8.2(d)(i)(A) shall be applied in the following priority: (1)
to the repayment of principal of each of the Class A-1 Notes pro rata
on the basis of the respective unpaid principal amount of each such
Class A-1 Note; (2) to the repayment of principal of each of the Class
A-2 Notes, the Class A-3 Notes and the Class A-4 Notes pro rata on the
basis of the respective unpaid principal amount of each such Class A
Note; (3) to the repayment of interest on each of the Class B Notes
pro rata on the basis of the amount of interest due and unpaid on each
such Class B Note and (4) to the repayment of principal on each of the
Class B Notes pro rata on the basis of the respective unpaid principal
amount of each such Class B Note; and
(v) if the Notes have been declared immediately due and payable
as provided in Section 5.2(a) following the occurrence of an Event of
Default specified in Section 5.1(d), (e) or (f), 100% of the Principal
Payment Amount shall be applied on each Distribution Date to the
payment of principal of the Class A-1 Notes on the basis of the
respective unpaid principal balance of each such Class A-1 Note,
47
thereafter 100% of the Principal Payment Amount shall be applied on
each Distribution Date to the payment of principal of the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes pro rata on the
basis of the respective unpaid principal amount of each such Class A
Note, and, thereafter, 100% of the Principal Payment Amount shall be
applied on each Distribution Date to the payment of principal of the
Class B Notes pro rata on the basis of the respective unpaid principal
amount of each such Class B Note.
(e) Subject to Sections 8.2(d)(iii), (iv) and (v), on the Distribution
Date on which the Funding Period ends (or, if the Funding Period does not end on
a Distribution Date, on the Distribution Date following the end of the Funding
Period), the Indenture Trustee shall apply any and all amounts deposited into
the Note Distribution Account pursuant to Section 8.11(b) (other than
Noteholders' Prepayment Premium) to the repayment of principal on the Notes in
accordance with the priorities set forth in Section 8.2(d)(ii); provided,
however, that if the Pre-Funded Amount as of the end of the Funding Period is
greater than $100,000, the Indenture Trustee shall apply such amounts to the
repayment of principal of each Class of Notes pro rata on the basis of the
respective initial principal amount of each such Class of Notes, as instructed
by the Servicer in writing.
(f) On the Distribution Date on which the Funding Period ends (or, if
the Funding Period does not end on a Distribution Date, on the first
Distribution Date following the end of the Funding Period), the Indenture
Trustee shall distribute to the Noteholders the Noteholders' Prepayment Premiums
deposited in the Note Distribution Account, as instructed by Servicer in writing
pursuant to Section 8.11(b); provided, however, if less than the required
-------- -------
Noteholders' Prepayment Premium for all classes of Notes has been deposited into
the Note Distribution Account, the amount distributable to the holders of each
class of Notes shall be their ratable share of the amount so deposited into the
Note Distribution Account based upon the amount of Noteholders' Prepayment
Premium due with respect to each class of Notes. In either case, the Indenture
Trustee shall distribute the Noteholders' Prepayment Premium allocated to each
class of Notes to the Noteholders of such class of Notes pro rata on the basis
of the unpaid principal amount of such Noteholder's Notes of such class, as
instructed by the Servicer in writing.
SECTION 8.3 General Provisions Regarding Accounts.
-------------------------------------
(a) Subject to Section 6.1(c), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in any of the Designated
Accounts resulting from any loss on any Eligible Investment included therein
except for losses attributable to the Indenture Trustee's failure to make
payments on such Eligible Investments issued by the Indenture Trustee, in its
commercial capacity as principal obligor and not as trustee, in accordance with
their terms.
(b) If (i) the Servicer shall have failed to give investment
directions for any funds on deposit in the Designated Accounts to the Indenture
Trustee by 11:00 a.m., New York City time (or such other time as may be agreed
by the Servicer and the Indenture Trustee) on any Business Day; or (ii) a
Default shall have occurred and be continuing with respect to the Notes but the
Notes
48
shall not have been declared due and payable pursuant to Section 5.2(a), or, if
such Notes shall have been declared due and payable following an Event of
Default, but amounts collected or receivable from the Collateral are being
applied in accordance with Section 5.5 as if there had not been such a
declaration; then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Designated Accounts in one or more
Eligible Investments selected by the Indenture Trustee.
SECTION 8.4 Release of Collateral.
---------------------
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.7, the Indenture Trustee may, and when required by the provisions of
this Indenture shall, execute instruments to release property in the Collateral
from the lien of this Indenture, or convey the Indenture Trustee's interest in
the same, in a manner and under circumstances that are consistent with the
provisions of this Indenture. No party relying upon an instrument executed by
the Indenture Trustee as provided in this Article VIII shall be bound to
ascertain the Indenture Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any monies.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due to the Indenture Trustee pursuant to Section 6.7
have been paid, notify the Issuer thereof in writing and upon receipt of an
Issuer Request, release any remaining portion of the Collateral that secured the
Notes from the lien of this Indenture and release to the Issuer or any other
Person entitled thereto any funds then on deposit in the Note Distribution
Account. The Indenture Trustee shall (i) release any remaining portion of the
Collateral that secured the Certificates from the lien of this Indenture and
(ii) deposit in the Certificate Distribution Account any funds then on deposit
in the Reserve Account or the Collection Account only at such time as (y) there
are no Notes Outstanding and (z) all sums due to the Indenture Trustee pursuant
to Section 6.7 have been paid.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall receive at
------------------
least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require as a condition to such action, an
Opinion of Counsel, in form and substance satisfactory to the Indenture Trustee,
stating the legal effect of any such action, outlining the steps required to
complete the same, and concluding that all conditions precedent to the taking of
such action have been complied with and such action shall not materially and
adversely impair the security for the Notes or the rights of the Noteholders in
contravention of the provisions of this Indenture; provided, however, that such
-------- -------
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Collateral. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Indenture Trustee in connection with any such
action.
SECTION 8.6 Investment Earnings and Supplemental Servicing Fees. The
---------------------------------------------------
Servicer shall be entitled to retain all Supplemental Servicing Fees. Except as
otherwise provided in Section 2.02(b)(i) of the Servicing Agreement, the
Certificateholders (via the Certificate Distribution
49
Account or such other account as shall be designated in writing by the
Certificateholders to the Servicer) shall be entitled to receive all Investment
Earnings (other than Investment Earnings from amounts on deposit in the
Pre-Funding Account), when and as paid without any obligation to (a) either
Trustee, (b) with respect to the Supplemental Servicing Fees, the
Certificateholders or (c) with respect to the Investment Earnings, the Servicer,
in respect thereof. The Servicer will not have any obligation to deposit any
such amount in any account established hereunder. To the extent that any such
amount shall be held in any account (other than, with respect to amounts to be
distributed to the Certificateholders, the Certificate Distribution Account)
held by either Trustee, or otherwise established hereunder, such amount will be
withdrawn therefrom and paid to the Servicer or deposited in the Certificate
Distribution Account for distribution to the Certificateholders, as applicable,
upon presentation of a certificate signed by a Responsible Officer of such
Person setting forth, in reasonable detail, the amount of such Supplemental
Servicing Fees or such Investment Earnings, respectively.
SECTION 8.7 Net Deposits. At any time that (i) NFC shall be the Servicer
------------
and (ii) the Servicer shall be permitted by Section 2.12 of the Servicing
Agreement to remit collections on a basis other than a daily basis, the
Indenture Trustee may make any remittances pursuant to this Article VIII net of
amounts to be distributed by the Indenture Trustee to such remitting party.
Nonetheless, shall account for all of the above described remittances and
distributions as if the amounts were deposited and/or transferred separately.
SECTION 8.8 Statements to Securityholders.
-----------------------------
(a) On each Distribution Date, the Issuer shall include with each
distribution to each Certificateholder, and the Indenture Trustee shall include
with each distribution to each Noteholder, a statement (which statement shall
also be provided to the Rating Agencies) based on (subject to the last sentence
of this paragraph (a)) information in the Servicer's Certificate furnished
pursuant to Section 2.17 of the Servicing Agreement. Each such statement shall
set forth the following information as to the Notes with respect to such
Distribution Date or the preceding Monthly Period, as applicable:
(i) the amount of the distribution allocable to interest on or
with respect to each class of Notes;
(ii) the Aggregate Receivables Balance as of the close of
business on the last day of such Monthly Period;
(iii) the amount of Outstanding Monthly Advances with respect to
all Receivables on such Distribution Date;
(iv) the amount of the Total Servicing Fee paid or payable to the
Servicer with respect to the related Monthly Period;
50
(v) the amount of Aggregate Losses for the related Monthly
Period;
(vi) the Delinquency Percentage for the related Monthly Period;
(vii) the sum of all Administrative Purchase Payments and all
Warranty Payments made for the related Monthly Period;
(viii) the amount of the distribution allocable to principal of
each class of Notes;
(ix) the Note Principal Balance and the Note Pool Factor for each
class of Notes, each after giving effect to all payments reported
under (viii) above on such date;
(x) the amounts, if any, paid to the Servicer or distributed to
Noteholders from amounts on deposit in the Reserve Account plus
amounts in respect thereof to be distributed to each class of
Noteholders as a prepayment of principal (expressed as a dollar amount
per $1,000 of the face amount of the Notes);
(xi) the amount of the Class A Noteholders' Interest Carryover
Shortfall, the Noteholders' Principal Carryover Shortfall and the
Class B Noteholders' Interest Carryover Shortfall if any, and the
change in such amounts from the preceding Distribution Date;
(xii) the balance (if any) of the Reserve Account on such date,
after giving effect to distributions, withdrawals, transfers and
deposits made on such date, and the change in such balance from that
of the prior Distribution Date;
(xiii) the Negative Carry Amount and the balance, if any, of the
Negative Carry Account on such date, after giving effect to the
withdrawals made on such date;
(xiv) for Distribution Dates during the Funding Period, the
Starting Receivables Balance of all Subsequent Receivables transferred
to the Issuer since the preceding Distribution Date, the remaining
Pre-Funded Amount and the Investment Earnings on amounts on deposit in
the Pre-Funding Account (if any) for the related Monthly Period; and
(xv) for the first Distribution Date occurring on or after the
last day of the Funding Period, the amount of any remaining Pre-Funded
Amount that has not been used to fund the purchase of Subsequent
Receivables.
51
Each amount set forth pursuant to clauses (i), (iv), (viii), (x) and (xi) above
shall be expressed as a dollar amount per $1,000 of initial Note Principal
Balance. In lieu of preparing and delivering a separate statement to
Securityholders pursuant to this Section, a Trustee may deliver a copy of the
Servicer's Certificate furnished pursuant to Section 2.17 of the Servicing
Agreement.
(b) Within the prescribed period of time for tax reporting purposes
after the end of each calendar year during the term of this Agreement, the
Servicer shall prepare and execute and the Indenture Trustee and the Owner
Trustee shall mail to each Person who at any time during such calendar year
shall have been a holder of Notes or Certificates, respectively, and received
any payments thereon, a statement prepared and supplied by the Servicer
containing the amounts set forth in each of clauses (i), (iv), (viii), (x) and
(xi) in paragraph (a) above, for such calendar year or, if such Person shall
have been a Securityholder during a portion of such calendar year and received
any payments thereon, for the applicable portion of such year, for the purposes
of such Securityholder's preparation of federal income tax returns.
SECTION 8.9 Designated Accounts. On or prior to the Closing Date, the
-------------------
Issuer shall cause the Servicer to establish and maintain, in the name of the
Indenture Trustee, for the benefit of the Securityholders, the Designated
Accounts as provided in Section 2.02 of the Servicing Agreement.
SECTION 8.10 Reserve Account.
---------------
(a) On the Closing Date, the Seller shall deposit the Reserve Account
Initial Deposit into the Reserve Account. The Reserve Account shall be the
property of the Issuer, subject to the rights of the Indenture Trustee in the
Reserve Account Property.
(b) If the amount on deposit in the Reserve Account on any
Distribution Date (after giving effect to all deposits therein or withdrawals
therefrom on such Distribution Date) exceeds the Specified Reserve Account
Balance for such Distribution Date, the Indenture Trustee shall, upon receipt of
instruction from the Servicer, deposit into the Certificate Distribution Account
an amount equal to any such excess for distribution to the Certificateholders or
upon the order of the Certificateholders in an account designated in writing by
the Certificateholders to the Servicer.
(c) If the Servicer, pursuant to Section 2.14 of the Servicing
Agreement, determines on any Determination Date that it is required to make a
Monthly Advance and does not do so from its own funds, the Indenture Trustee
shall, upon receipt of instructions from the Servicer, withdraw funds from the
Reserve Account and deposit them in the Collection Account to cover any
shortfall. Such payment shall be deemed to have been made by the Servicer
pursuant to Section 2.14 of the Servicing Agreement for purposes of making
distributions pursuant to this Agreement, but shall not otherwise satisfy the
Servicer's obligation to deliver the amount of the Monthly Advances to the
Collection Account, and the Servicer shall within two Business Days replace any
funds in the Reserve Account so used. The Servicer shall not be entitled to
reimbursement for any such deemed
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Monthly Advances unless and until the Servicer shall have replaced such funds in
the Reserve Account.
SECTION 8.11 Pre-Funding Account.
-------------------
(a) On the Closing Date, the Seller shall deposit in the Pre-Funding
Account $ from the net proceeds of the sale of the Notes. On each
--------------
Subsequent Transfer Date, the Indenture Trustee shall, upon receipt of
instructions from the Servicer, withdraw from the Pre-Funding Account an amount
equal to (i) the aggregate Starting Receivables Balance of the Subsequent
Receivables transferred to the Issuer on such Subsequent Transfer Date less the
Reserve Account Subsequent Transfer Deposit with respect to such Subsequent
Transfer Date and distribute such amount to or upon the order of the Seller upon
satisfaction of the conditions set forth in Section 2.02(b) of the Pooling
Agreement with respect to such transfer, and (ii) the Reserve Account Subsequent
Transfer Deposit with respect to such Subsequent Transfer Date and, on behalf of
the Seller, deposit such amount in the Reserve Account.
(b) If the Pre-Funded Amount has not been reduced to zero on or prior
to the Distribution Date on which the Funding Period ends (or, if the Funding
Period does not end on a Distribution Date, on the first Distribution Date
following the end of the Funding Period), the Indenture Trustee shall, upon
receipt of instructions from the Servicer, transfer from the Pre-Funding Account
on such Distribution Date any amount then remaining in the Pre-Funding Account
to the Note Distribution Account and, if such amount is greater than $100,000
the Issuer will deposit into the Note Distribution Account an amount equal to
the aggregate of Noteholders' Prepayment Premiums for all classes of Notes;
provided, however, that the Issuer's obligation to pay the Noteholders'
-------- -------
Prepayment Premiums shall be limited to funds which are received by the Issuer
from the Seller pursuant to Section 2.02(c) of the Pooling Agreement as
liquidated damages for the failure to deliver the Subsequent Receivables, and no
other assets of the Issuer will be available for making such payments. If the
amount of funds available for payment of the Noteholders' Prepayment Premiums is
less than the sum of the Noteholders' Prepayment Premium for each class of
Notes, then the available funds will be allocated among each class of Notes in
accordance with the Pre-Funded Percentage for such class of Notes.
SECTION 8.12 Negative Carry Account.
----------------------
(a) On the Closing Date, the Seller shall deposit in the Negative
Carry Account $ (the "Negative Carry Account Initial Deposit") from
------------
the net proceeds of the sale of the Notes. On or before the Transfer Date
preceding each Distribution Date occurring on or prior to the first Distribution
Date that occurs on or after the end of the Funding Period, the Indenture
Trustee shall, upon receipt of instructions from the Servicer, withdraw from the
Negative Carry Account and deposit into the Collection Account an amount equal
to the Negative Carry Amount for such Distribution Date.
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(b) On each Distribution Date during the Funding Period, the Indenture
Trustee shall, upon receipt of instructions from the Servicer, withdraw from the
Negative Carry Account an amount equal to the excess, if any, of the amount on
deposit in the Negative Carry Account over the Required Negative Carry Account
Balance and deposit it (i) in the Certificate Distribution Account for
distribution to the Certificateholders or (ii) upon the order of the
Certificateholders in an account designated in writing by the Certificateholders
to the Servicer, and on the Distribution Date on or immediately following the
last day of the Funding Period, the Indenture Trustee shall, upon receipt of
instructions from the Servicer, withdraw from the Negative Carry Account the
amount remaining on deposit in the Negative Carry Account and deposit it in the
Certificate Distribution Account for distribution to the Certificateholders or
upon the order of the Certificateholders in an account designated in writing by
the Certificateholders to the Servicer.
SECTION 8.13 Sale of Assets; Termination.
---------------------------
(a) Upon any sale or other disposition of the assets of the Collateral
pursuant to Article V of the Indenture (an "Event of Default Sale"), the
---------------------
Indenture Trustee, based on information supplied by the Servicer, shall deposit
the proceeds from such disposition after all payments and reserves therefrom
have been made or the amount specified in clause SECOND of Section 5.4(b) (the
"Event of Default Proceeds") in the Collection Account. On the Transfer Date on
-------------------------
which the Event of Default Proceeds are deposited in the Collection Account (or,
if such proceeds are not so deposited on that Transfer Date, on the Transfer
Date immediately following such deposit), the Indenture Trustee, based on
information supplied by the Servicer, shall make the following deposits (after
the application on the Transfer Date of the Collected Amount and funds on
deposit in the Reserve Account pursuant to Sections 8.2 and 8.10) from the Event
of Default Proceeds and any funds remaining on deposit in the Reserve Account
(including the proceeds of any sale of investments therein as described in the
following sentence) in the following priority:
(i) to the Note Distribution Account, any portion of the
Aggregate Class A Noteholders' Interest Distributable Amount not
otherwise deposited into the Note Distribution Account on the Transfer
Date;
(ii) if such Event of Default Sale results from the occurrence of
an Event of Default specified in Section 5.1(a), (b) or (c), to the
Note Distribution Account, an amount equal to the Note Principal
Balance of the Class A Notes (after giving effect to the reduction in
the Aggregate Note Principal Balance to result from the deposits made
in the Note Distribution Account on the Transfer Date and on each
prior Transfer Date);
(iii) to the Note Distribution Account, any portion of the Class
B Noteholders' Interest Distributable Amount not otherwise deposited
into the Note Distribution Account on the Transfer Date;
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(iv) if such Event of Default Sale does not result from the
circumstances specified in Section 8.13(a)(ii), to the Note
Distribution Account, an amount equal to the Note Principal Balance of
the Class A Notes (after giving effect to the reduction in the
Aggregate Note Principal Balance to result from the deposits made in
the Note Distribution Account on the Transfer Date and on each prior
Transfer Date); and
(v) to the Note Distribution Account, an amount equal to the Note
Principal Balance of the Class B Notes (after giving effect to the
reduction therein to result from the deposits made in the Note
Distribution Account on the day preceding such Distribution Date and
on the Transfer Date and on each prior Transfer Date).
Subject to the Section 2.02(b) of the Servicing Agreement, any investments on
deposit in the Reserve Account which shall not mature on or before the day
preceding such Distribution Date shall be sold by the Indenture Trustee at such
time as shall result in the Indenture Trustee receiving the proceeds from such
sale not later than the Transfer Date. Any Event of Default Proceeds remaining
after the deposits described above shall be deposited into the Certificate
Distribution Account for distribution to the Certificateholders.
(b) Notice of any termination of the Trust shall be given by the
Servicer to each Trustee as soon as practicable after the Servicer has received
notice thereof.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders.
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(a) Without the consent of the Holders of any Notes but with prior
notice to the Rating Agencies, the Issuer and the Indenture Trustee, when
authorized by an Issuer Order, at any time and from time to time, may enter into
one or more indentures supplemental hereto (which shall conform to the
provisions of the TIA as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject
additional property to the lien of this Indenture;
(ii) to evidence the succession, in compliance with Section 3.11
and the applicable provisions hereof, of another Person to the Issuer,
and the assumption by any such successor of the covenants of the
Issuer contained herein and in the Notes;
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(iii) to add to the covenants of the Issuer for the benefit of
the Securityholders, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property
to or with the Indenture Trustee;
(v) to cure any ambiguity or to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein, in any supplemental
indenture or in any other Basic Document;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor or additional Indenture Trustee
with respect to the Notes or any class thereof and to add to or change
any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA, and the
Indenture Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate
agreements and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Noteholders but with prior
notice to the Rating Agencies, at any time and from time to time enter into one
or more indentures supplemental hereto for the purpose of adding any provisions
to, changing in any manner, or eliminating any of the provisions of, this
Indenture or modifying in any manner the rights of the Noteholders under this
Indenture; provided, however, that such action shall not, as evidenced by an
-------- -------
Opinion of Counsel, adversely affect in any material respect the interests of
any Noteholder.
SECTION 9.2 Supplemental Indentures With Consent of Noteholders.
---------------------------------------------------
(a) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, also may, with prior notice to the Rating Agencies and with the consent
of the Holders of not less than a majority of the Outstanding Amount of the
Controlling Class, by Act of such Holders delivered to the Issuer and the
Indenture Trustee, enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, changing in any manner, or eliminating
any of the provisions of, this Indenture or modifying in any manner the rights
of the Noteholders under this Indenture; provided, however, that no such
-------- -------
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
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(i) change the due date of any instalment of principal of or
interest on any Note, or reduce the principal amount thereof, the
interest rate applicable thereto, or the Redemption Price with respect
thereto, change any place of payment where, or the coin or currency in
which, any Note or any interest thereon is payable, or impair the
right to institute suit for the enforcement of the provisions of this
Indenture requiring the application of funds available therefor, as
provided in Article V, to the payment of any such amount due on the
Notes on or after the respective due dates thereof (or, in the case of
redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the
Controlling Class, the consent of the Holders of which is required for
(a) any such supplemental indenture, (b) any waiver of compliance with
certain provisions of this Indenture, certain defaults hereunder and
their consequences as provided for in this Indenture or (c) any action
described in Sections 2.12, 3.7(e), 5.2, 5.6, 5.11, 5.12(a), 6.8, or
6.16;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the Notes
required to direct the Indenture Trustee to sell or liquidate the
Collateral pursuant to Section 5.4 if the proceeds of such sale would
be insufficient to pay the principal amount of and accrued but unpaid
interest on the Outstanding Notes;
(v) modify any provision of this Section 9.2 to decrease the
required minimum percentage necessary to approve any amendments to any
provisions of this Indenture or any of the Basic Documents;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Distribution Date
(including the calculation of any of the individual components of such
calculation), or modify or alter the provisions of the Indenture
regarding the voting of Notes held by the Issuer, the Seller or any
Affiliate of either of them; or
(vii) permit the creation of any Lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Collateral or, except as otherwise permitted or contemplated herein,
terminate the lien of this Indenture on any property at any time
subject to the lien of this Indenture or deprive the Holder of any
Note of the security afforded by the lien of this Indenture.
(b) The Indenture Trustee may in its discretion determine whether or
not any Notes would be affected (such that the consent of each Noteholder would
be required) by any
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supplemental indenture proposed pursuant to this Section 9.2 and any such
determination shall be conclusive and binding upon all of the Noteholders,
whether authenticated and delivered thereunder before or after the date upon
which such supplemental indenture becomes effective. The Indenture Trustee shall
not be liable for any such determination made in good faith.
(c) It shall be sufficient if an Act of Noteholders approves the
substance, but not the form, of any proposed supplemental indenture.
(d) Promptly after the execution by the Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this Section 9.2, the
Indenture Trustee shall mail to the Noteholders to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 9.3 Execution of Supplemental Indentures. In executing, or
------------------------------------
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent to
such execution have been satisfied. The Indenture Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution of any
--------------------------------
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith with respect
to the Notes affected thereby, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under this Indenture of the
Indenture Trustee, the Issuer and the Noteholders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every amendment of this
-----------------------------------
Indenture and every supplemental indenture executed pursuant to this Article IX
shall conform to the requirements of the TIA as then in effect so long as this
Indenture shall then be qualified under the TIA.
SECTION 9.6 Reference in Notes to Supplemental Indentures. Notes
---------------------------------------------
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and
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the Issuer, to any such supplemental indenture may be prepared and executed by
the Issuer and authenticated and delivered by the Indenture Trustee in exchange
for Outstanding Notes of the same class.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption
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(a) The Class A-4 Notes and Class B Notes are subject to redemption in
whole, but not in part, upon the exercise by the Servicer of its option to
purchase the Receivables pursuant to Section 4.01 of the Pooling Agreement. Such
redemption shall occur on any Distribution Date after all Class A-1 Notes, Class
A-2 Notes and Class A-3 Notes have been paid in full. The purchase price for the
Class A-4 Notes and Class B Notes to be redeemed shall be equal to the
applicable Redemption Price, provided the Issuer has available funds sufficient
to pay such amount. The Issuer shall furnish the Rating Agencies notice of such
redemption. If the Class A-4 Notes and Class B Notes are to be redeemed pursuant
to this Section 10.1(a), the Issuer shall furnish notice thereof to the
Indenture Trustee not later than 25 days prior to the Redemption Date and the
Issuer shall deposit into the Note Distribution Account, before the Redemption
Date, the aggregate Redemption Price of the Class A-4 Notes and Class B Notes to
be redeemed, whereupon all such Notes shall be due and payable on the Redemption
Date.
(b) [Reserved.]
(c) Within sixty days after the redemption in full pursuant to this
Section 10.1 of any class of Notes, the Indenture Trustee shall provide each of
the Rating Agencies with written notice stating that all of such Notes have been
redeemed.
SECTION 10.2 Form of Redemption Notice.
-------------------------
(a) Notice of redemption of the Class A-4 Notes and Class B Notes
under Section 10.1(a) shall be given by the Indenture Trustee by first-class
mail, postage prepaid, mailed not less than five days prior to the applicable
Redemption Date to each Holder of the Class A-4 Notes and Class B Notes of
record, respectively, at such Noteholder's address appearing in the Note
Register.
(b) All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
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(iii) the place where Class A-4 Notes and Class B Notes are to be
surrendered for payment of the Redemption Price (which shall be the
Agency Office to be maintained as provided in Section 3.2); and
(iv) CUSIP numbers.
(c) Notice of redemption of the Class A-4 Notes and Class B Notes
shall be given by the Indenture Trustee in the name and at the expense of the
Issuer. Failure to give notice of redemption, or any defect therein, to any
Holder of any Class A-4 Note or Class B Note to be redeemed shall not impair or
affect the validity of the redemption of any other Class A-4 Note or Class B
Note to be redeemed.
(d) [Reserved.]
SECTION 10.3 Notes Payable on Redemption Date. The Class A-4 Notes or Class
--------------------------------
B Notes to be redeemed shall, following notice of redemption as required by
Section 10.2, on the Redemption Date cease to be Outstanding for purposes of
this Indenture and shall thereafter represent only the right to receive the
applicable Redemption Price and (unless the Issuer shall default in the payment
of such Redemption Price) no interest shall accrue on such Redemption Price for
any period after the date to which accrued interest is calculated for purposes
of calculating such Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc.
-----------------------------------------
(a) Upon any application or request by the Issuer to the Indenture
Trustee to take any action under any provision of this Indenture, the Issuer
shall furnish to the Indenture Trustee: (i) an Officer's Certificate stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with, (ii) an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with and (iii) (if required by the TIA) an Independent
Certificate from a firm of certified public accountants meeting the applicable
requirements of this Section 11.1, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished. Every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
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(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit with the Indenture Trustee of any
Collateral or other property or securities that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each Person signing such
certificate as to the fair value (within 60 days of such deposit) to the Issuer
of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (b)(i) above,
the Issuer shall also deliver to the Indenture Trustee an Independent
Certificate as to the same matters, if the fair value to the Issuer of
the securities to be so deposited and of all other such securities
made on the basis of any such withdrawal or release since the
commencement of the then current fiscal year of the Issuer, as set
forth in the certificates delivered pursuant to clause (b)(i) above
and this clause (b)(ii), is 10% or more of the Outstanding Amount of
the Notes, but such a certificate need not be furnished with respect
to any securities so deposited if the fair value thereof to the Issuer
as set forth in the related Officer's Certificate is less than $25,000
or less than one percent of the Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any Warranty
Receivables, Administrative Receivables or Liquidating Receivables,
whenever any property or securities are to be released from the lien
of this Indenture, the Issuer shall also furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of
each Person signing such certificate as to the fair value (within 60
days of such release) of the property or securities proposed to be
released and stating that in the opinion of such Person the proposed
release will not impair the security under this Indenture in
contravention of the provisions hereof.
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(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of
any signatory thereof as to the matters described in clause (b)(iii)
above, the Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value of
the property or securities and of all other property, other than
Warranty Receivables, Administrative Receivables and Liquidating
Receivables, or securities released from the lien of this Indenture
since the commencement of the then current calendar year, as set forth
in the certificates required by clause (b)(iii) above and this clause
(b)(iv), equals 10% or more of the Outstanding Amount of the Notes,
but such certificate need not be furnished in the case of any release
of property or securities if the fair value thereof as set forth in
the related Officer's Certificate is less than $25,000 or less than
one percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section 11.1, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of Receivables as and to the extent permitted or required by
the Basic Documents, (B) make cash payments out of the Designated
Accounts and the Certificate Distribution Account as and to the extent
permitted or required by the Basic Documents and (C) take any other
action not inconsistent with the TIA.
SECTION 11.2 Form of Documents Delivered to Indenture Trustee
------------------------------------------------
(a) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an Authorized Officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Servicer, the Seller, the Issuer or the Administrator, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Seller, the Issuer or the Administrator, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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(d) Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 11.3 Acts of Noteholders
-------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders or a class of Noteholders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Noteholders in
person or by agents duly appointed in writing; and except as herein otherwise
expressly provided such action shall become effective when such instrument or
instruments are delivered to the Indenture Trustee, and, where it is hereby
expressly required, to the Issuer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Noteholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section 11.3.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes (or any one or more
predecessor Notes) shall bind the Holder of every Note issued upon the
registration thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Indenture Trustee or the
Issuer in reliance thereon, whether or not notation of such action is made upon
such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating
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Agencies. Any request, demand, authorization, direction, notice, consent, waiver
--------
or Act of Noteholders or other documents provided or permitted by this Indenture
to be made upon, given or furnished to or filed with the Indenture Trustee, the
Issuer or the Rating Agencies under this Indenture shall be made upon, given or
furnished to or filed with such party as specified in Appendix B to the Pooling
----------
Agreement.
SECTION 11.5 Notices to Noteholders; Waiver.
------------------------------
63
(a) Where this Indenture provides for notice to Noteholders of any
condition or event, such notice shall be given as specified in Appendix B to the
----------
Pooling Agreement.
(b) Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event of Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute an Event of
Default.
SECTION 11.6 Alternate Payment and Notice Provisions. Notwithstanding any
---------------------------------------
provision of this Indenture or any of the Notes to the contrary, the Issuer may
enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such Holder,
that is different from the methods provided for in this Indenture for such
payments or notices. The Issuer shall furnish to the Indenture Trustee a copy of
each such agreement and the Indenture Trustee shall cause payments to be made
and notices to be given in accordance with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act.
---------------------------------
(a) If any provision hereof limits, qualifies or conflicts with
another provision hereof that is required to be included in this Indenture by
any of the provisions of the TIA, such required provision shall control.
(b) The provisions of TIA Sections 310 through 317 that impose duties
on any Person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The Article and
----------------------------------------
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns.
----------------------
64
(a) All covenants and agreements in this Indenture and the
Notes by the Issuer shall bind its successors and assigns, whether so expressed
or not.
(b) All covenants and agreements of the Indenture Trustee in this
Indenture shall bind its successors and assigns, whether so expressed or not.
SECTION 11.10 Separability. In case any provision in this Indenture or in
------------
the Notes shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 11.11 Benefits of Indenture. Nothing in this Indenture or in the
---------------------
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Noteholders and the Note Owners and
(only to the extent expressly provided herein) the Certificateholders, any other
party secured hereunder and any other Person with an ownership interest in any
part of the Collateral, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 11.12 Legal Holidays. If the date on which any payment is due shall
--------------
not be a Business Day, then (notwithstanding any other provision of the Notes or
this Indenture) payment need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on the
date on which nominally due, and no interest shall accrue for the period from
and after any such nominal date.
SECTION 11.13 Governing Law. This Indenture shall be construed in
-------------
accordance with the laws of the State of Illinois, without reference to its
conflict of law provisions, except that the obligations, rights and remedies of
the Indenture Trustee hereunder shall be determined in accordance with the
internal laws of the State of New York, without reference to its conflict of law
provisions.
SECTION 11.14 Counterparts. This Indenture may be executed in any number of
------------
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is subject to
----------------------
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
SECTION 11.16 No Recourse. No recourse may be taken, directly or
-----------
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or
65
under this Indenture or any certificate or other writing delivered in connection
herewith or therewith, against:
(i) the Indenture Trustee or the Owner Trustee in its individual
capacity;
(ii) any owner of a beneficial interest in the Issuer; or
(iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee in
their individual capacities, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any
successor or assign of the Indenture Trustee or the Owner Trustee in
their individual capacities (or any of their successors or assigns),
except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no
such obligations in their individual capacities) and except that any
such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for
stock, unpaid capital contribution or failure to pay any instalment or
call owing to such entity. For all purposes of this Indenture, in the
performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of,
the terms and provisions of Articles VI, VII and VIII of the Trust
Agreement.
SECTION 11.17 No Petition.
-----------
(a) The Indenture Trustee, by entering into this Indenture, and each
Noteholder and Note Owner, by accepting a Note (or interest therein) issued
hereunder, hereby covenant and agree that they shall not, prior to the date
which is one year and one day after the termination of this Indenture with
respect to the Issuer pursuant to Section 4.1, acquiesce, petition or otherwise
invoke or cause the Seller or the Issuer to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Seller or the Issuer under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Seller or the Issuer or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Seller, or the Issuer.
(b) Notwithstanding any prior termination of the Series 200_ Portfolio
Supplement, the Indenture Trustee (and each Noteholder by its acceptance of a
Note) covenants and agrees that it shall not, prior to the date which is one
year and a day after which all obligations under each Permitted Financing have
been paid in full, acquiesce, petition or otherwise invoke, or join any other
Person in acquiescing, petitioning or otherwise invoking, against the Titling
Trust or any Special Purpose Entity, any proceeding in court or with any
governmental authority for the purpose of (i) commencing or sustaining a case
against the Titling Trust or such Special Purpose Entity under any federal or
state bankruptcy, insolvency or similar law, or (ii) appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of all or any substantial part of the
66
respective property of the Titling Trust or such Special Purpose Entity, or
(iii) ordering the winding up or liquidation of the affairs of the Titling Trust
or such Special Purpose Entity.
(c) Except as otherwise provided in the Titling Trust Agreement, as
may be amended, restated and supplemented from time to time, the Indenture
Trustee (and each Noteholder by its acceptance of a Note) hereby releases all
Claims to the Titling Trust Assets allocated to the General Interest and to each
Portfolio Interest other than the Series 200_ Portfolio Interest whether then or
thereafter created and, in the event that such release is not given effect, to
fully subordinate all Claims it may be deemed to have against the Titling Trust
Assets allocated to the General Interest and each Portfolio Interest other than
the Series 200_ Portfolio Interest whether then or thereafter created.
SECTION 11.18 Inspection. The Issuer agrees that, on reasonable prior
----------
notice, it shall permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer to make copies and extracts therefrom, to
cause such books to be audited by Independent certified public accountants, and
to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing) and except to
the extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder.
67
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized, all as of the day and year first above written.
NAVISTAR FINANCIAL 200 OWNER TRUST
-
By:
-------------------------------------------
not in its individual capacity but solely as
Owner Trustee
By:
-------------------------------------------
Name:
Title:
----------------------------------------------,
as Indenture Trustee
By:
-------------------------------------------
Name:
Title:
STATE OF ILLINOIS)
) ss.:
COUNTY OF XXXX )
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared , known to me to
------------
be the person and officer whose name is subscribed to the foregoing instrument
and acknowledged to me that the same was the act of the Navistar Financial 200
-
Owner Trust and that he executed the same as the act of said business trust for
the purpose and consideration therein expressed, and in the capacities therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
-----
, 200 .
------------- -
-----------------------------------------------
Notary Public in and for the State of Illinois.
My commission expires:
----------------------------
STATE OF ILLINOIS)
) ss.:
COUNTY OF XXXX )
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared ,
---------------------------
known to me to be the person and officer whose name is subscribed to the
foregoing instrument and acknowledged to me that the same was the act of the
said , and that he executed the same as the
-------------------------------------
act of said for the purpose and consideration therein
---------------------
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of ,
---- -------
200 .
-
Notary Public in and for the State of Illinois.
My Commission expires:
----------------------------
EXHIBIT A
LOCATIONS OF
COMPOSITE SCHEDULE OF RECEIVABLES
The Composite Schedule of Receivables is on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. Navistar Financial Corporation
4. Navistar Financial Retail Receivables Corporation
EXHIBIT B
FORM OF CLASS A-1 ASSET BACKED NOTE
REGISTERED $ /1/
------------
No. R- CUSIP NO.
-------- --------
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any
Note issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
NAVISTAR FINANCIAL 200 OWNER TRUST
-
CLASS A-1 % ASSET BACKED NOTES
---
NAVISTAR FINANCIAL 200_ OWNER TRUST, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of DOLLARS ($ )
--------------- ---------
payable in accordance with the Indenture, prior to the occurrence of an Event of
Default and a declaration that the Notes are due and payable, on each
Distribution Date in an amount equal to the result obtained by multiplying (i) a
fraction, the numerator of which is the initial principal amount hereof and the
denominator of which is [aggregate principal amount for class] by (ii) the
aggregate amount, if any, payable from the Note Distribution Account in respect
of principal on such class of the Notes pursuant to Sections
----------
/1/ Denominations of $1,000 and integral multiples thereof.
1
2.7, 3.1 and 8.2 of the Indenture; provided, however, that the entire unpaid
-------- -------
principal amount of this Note shall be due and payable on (the
-----------
"Final Scheduled Distribution Date"). The Owner Trustee shall pay interest on
---------------------------------
this Note at the rate per annum shown above on each Distribution Date until the
principal of this Note is paid or made available for payment, on the principal
amount of this Note outstanding on the preceding Distribution Date (after giving
effect to all payments of principal made on the preceding Distribution Date).
Interest on this Note will accrue for each Distribution Date from and including
the most recent Distribution Date on which interest has been paid to but
excluding the then current Distribution Date or, if no interest has yet been
paid, from , 200 Interest on this Note will be calculated on the
----------- -
basis of the actual number of days elapsed since the Closing Date or the
preceding Distribution Date divided by 360. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America which, at the time of payment, is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof or be valid or obligatory for any purpose.
2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date: NAVISTAR FINANCIAL 200_ OWNER TRUST
By:
---------------------------------,
not in its individual capacity
but solely as Owner Trustee under
the Trust Agreement
By:
----------------------------
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
---------------------------------,
not in its individual capacity but
solely as Indenture Trustee
By:
----------------------------
Name:
Title:
3
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuer
designated as its Class A-1 % Asset Backed Notes (herein called the "Class
----
A-1 Notes"), all issued under an Indenture, dated as of (such
--------------
Indenture, as supplemented or amended, is herein called the "Indenture"),
---------
between the Issuer and as trustee (the
-----------------------------------
"Indenture Trustee", which term includes any successor trustee under the
-----------------
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Notes
are governed by and subject to all terms of the Indenture (which terms are
incorporated herein and made a part hereof), to which Indenture the holder of
this Note by virtue of acceptance hereof assents and by which such holder is
bound. All capitalized terms used and not otherwise defined in this Note that
are defined in the Indenture, as supplemented or amended, shall have the
meanings assigned to them in or pursuant to the Indenture.
The Indenture secures (a) first, the payment of principal and interest
on, and any other amounts owing in respect of the Class A Notes, equally and
ratably without prejudice, priority or distinction and (b) second, the payment
of principal of and interest on, and any other amounts owing in respect of the
Class B Notes, equally and ratably without prejudice, priority or distinction,
and to secure compliance with the provisions of the Indenture, as provided
therein.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in their
individual capacities, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in their individual capacities, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in their individual capacities, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacities) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any instalment or call owing to such
entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder will not, prior to the
date which is one year and one day after the termination of this Indenture with
respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Seller or the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Seller or the
Issuer under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee,
4
custodian, sequestrator or other similar official of the Seller or the Issuer or
any substantial part of its property, or ordering the winding up or liquidation
of the affairs of the Seller or the Issuer.
Each Noteholder, by acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, unless otherwise required by appropriate
taxing authorities, agrees to treat the Notes as indebtedness secured by the
Receivables for the purpose of federal income taxes, state and local income and
franchise taxes, and any other taxes imposed upon, measured by or based upon
gross or net income.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note shall
be overdue, and neither the Issuer, the Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Holders of Notes representing a majority of the
Outstanding Amount of all the Controlling Class. The Indenture also contains
provisions permitting the Holders of Notes representing specified percentages of
the Outstanding Amount of the Controlling Class, on behalf of the Holders of all
the Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of the Noteholders.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of Illinois, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such
5
laws, except that the obligations, rights and remedies of the Indenture Trustee
hereunder shall be determined in accordance with the internal laws of the State
of New York.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither the Seller, the Servicer, the Indenture
Trustee nor the Owner Trustee in their respective individual capacities, any
owner of a beneficial interest in the Issuer, nor any of their respective
partners, beneficiaries, agents, officers, directors, employees or successors or
assigns, shall be personally liable for, nor shall recourse be had to any of
them for, the payment of principal of or interest on, or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in this Note or the Indenture, it being expressly understood that said
covenants, obligations and indemnifications have been made by the Issuer. The
Holder of this Note by the acceptance hereof agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
-------- -------
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
6
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------
-----------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints , as attorney, to transfer said
------------------------------------
Note on the books kept for registration thereof, with full power of substitution
in the premises.
Dated: /1/
------------------- ----------------------------------
Signature Guaranteed:
------------------------- ----------------------------------
----------
/1/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
7
EXHIBIT C
FORM OF CLASS X-0, XXXXX X-0, CLASS A-4 AND
CLASS B ASSET BACKED NOTE
REGISTERED $ /1/
--------------
No. R- CUSIP No.
---- -----------
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any
Note issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
NAVISTAR FINANCIAL 200 OWNER TRUST
-
CLASS % ASSET BACKED NOTES
---- -----
NAVISTAR FINANCIAL 200_ OWNER TRUST, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of DOLLARS ($ )
--------------- ---------
payable in accordance with the Indenture, prior to the occurrence of an Event of
Default and a declaration that the Notes are due and payable, on each
Distribution Date in an amount equal to the result obtained by multiplying (i) a
fraction, the numerator of which is the initial principal amount hereof and the
denominator of which is
----------
/1/ Denominations of $1,000 and integral multiples thereof (except, if
applicable, for one Note representing a residual portion of such class which may
be issued in a different denomination).
8
[aggregate principal amount for class] by (ii) the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on such class
of the Notes pursuant to Sections 2.7, 3.1 and 8.2 of the Indenture; provided,
--------
however, that the entire unpaid principal amount of this Note shall be due and
-------
payable on [the earlier of] (the "Final Scheduled Distribution
--------------- ----------------------------
Date") [and the Redemption Date, if any, pursuant to Section 10.1(a) of the
----
Indenture]. The Owner Trustee shall pay interest on this Note at the rate per
annum shown above on each Distribution Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date). Interest on this
Note will accrue for each Distribution Date from and including the most recent
Distribution Date on which interest has been paid to but excluding the then
current Distribution Date or, if no interest has yet been paid, from
Interest on this Note will be computed on the basis of a
----------------------
360-day year of twelve 30-day months (or, in the case of the initial
Distribution Date, /30ths of a month). Such principal of and interest on this
--
Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America which, at the time of payment, is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof or be valid or obligatory for any purpose.
9
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date: NAVISTAR FINANCIAL 200 OWNER TRUST
-
By: ,
---------------------------------
not in its individual capacity,
but solely as Owner Trustee under
the Trust Agreement
By:
------------------------------
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
,
--------------------------------
not in its individual capacity but
solely as Indenture Trustee
By:
------------------------------
Name:
Title:
10
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuer
designated as its Class % Asset Backed Notes (herein called
------ -----
the "Class Notes"), all issued under an Indenture, dated as of
----------- --------------
(such Indenture, as supplemented or amended, is herein called the "Indenture"),
---------
between the Issuer and , as trustee (the
---------------------------------
"Indenture Trustee", which term includes any successor trustee under the
-----------------
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Notes
are governed by and subject to all terms of the Indenture (which terms are
incorporated herein and made a part hereof), to which Indenture the holder of
this Note by virtue of acceptance hereof assents and by which such holder is
bound. All capitalized terms used and not otherwise defined in this Note that
are defined in the Indenture, as supplemented or amended, shall have the
meanings assigned to them in or pursuant to the Indenture.
The Indenture secures (a) first, the payment of principal and interest
on, and any other amounts owing in respect of the Class A Notes, equally and
ratably without prejudice, priority or distinction and (b) second, the payment
of principal of and interest on, and any other amounts owing in respect of the
Class B Notes, equally and ratably without prejudice, priority or distinction,
and to secure compliance with the provisions of the Indenture, as provided
therein.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in their
individual capacities, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in their individual capacities, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in their individual capacities, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacities) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any instalment or call owing to such
entity.
11
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder will not, prior to the
date which is one year and one day after the termination of this Indenture with
respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Seller or the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Seller or the
Issuer under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Seller or the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller, or the Issuer.
Each Noteholder, by acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, unless otherwise required by appropriate
taxing authorities, agrees to treat the Notes as indebtedness secured by the
Receivables for the purpose of federal income taxes, state and local income and
franchise taxes, and any other taxes imposed upon, measured by or based upon
gross or net income.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note shall
be overdue, and neither the Issuer, the Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Holders of Notes representing a majority of the
Outstanding Amount of all the Controlling Class. The Indenture also contains
provisions permitting the Holders of Notes representing specified percentages of
the Outstanding Amount of the Controlling Class, on behalf of the Holders of all
the Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of the Noteholders.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
12
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of Illinois, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws, except that the
obligations, rights and remedies of the Indenture Trustee hereunder shall be
determined in accordance with the internal laws of the State of New York.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither the Seller, the Servicer, the Indenture
Trustee nor the Owner Trustee in their respective individual capacities, any
owner of a beneficial interest in the Issuer, nor any of their respective
partners, beneficiaries, agents, officers, directors, employees or successors or
assigns, shall be personally liable for, nor shall recourse be had to any of
them for, the payment of principal of or interest on, or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in this Note or the Indenture, it being expressly understood that said
covenants, obligations and indemnifications have been made by the Issuer. The
Holder of this Note by the acceptance hereof agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
-------- -------
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
13
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------
-----------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints , as attorney, to transfer said
------------------------------------
Note on the books kept for registration thereof, with full power of substitution
in the premises.
Dated: /1/
------------------- ----------------------------------
Signature Guaranteed:
------------------------- ----------------------------------
----------------
/1/ NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
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EXHIBIT D
FORM OF NOTE DEPOSITORY AGREEMENT
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