EXHIBIT 4.2
EXECUTION VERSION
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NISSAN MASTER OWNER TRUST RECEIVABLES
Issuer
JPMORGAN CHASE BANK
Indenture Trustee
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AMENDED AND RESTATED
INDENTURE
Dated as of October 15, 2003
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NISSAN MASTER OWNER TRUST RECEIVABLES,
SERIES NOTES
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS........................................................................... 3
Section 1.01 Definitions...................................................................... 3
Section 1.02 Other Definitional Provisions.................................................... 3
ARTICLE II THE NOTES............................................................................. 4
Section 2.01 Form Generally................................................................... 4
Section 2.02 Denominations.................................................................... 4
Section 2.03 Execution, Authentication and Delivery........................................... 4
Section 2.04 Authenticating Agent............................................................. 5
Section 2.05 Registration of and Limitations on Transfer and Exchange of Notes................ 6
Section 2.06 Mutilated, Destroyed, Lost or Stolen Notes....................................... 7
Section 2.07 Persons Deemed Owners............................................................ 8
Section 2.08 Appointment of Paying Agent...................................................... 9
Section 2.09 Access to List of Noteholders' Names and Addresses............................... 9
Section 2.10 Cancellation..................................................................... 10
Section 2.11 Release of Collateral............................................................ 10
Section 2.12 New Issuances.................................................................... 10
Section 2.13 Book-Entry Notes................................................................. 11
Section 2.14 Notices to Clearing Agency or Foreign Clearing Agency............................ 12
Section 2.15 Definitive Notes................................................................. 12
Section 2.16 Global Note; Euro-Note Exchange Date............................................. 13
Section 2.17 Meetings of Noteholders.......................................................... 14
Section 2.18 Uncertificated Classes........................................................... 14
Section 2.19 Tax Status....................................................................... 14
ARTICLE III REPRESENTATIONS AND COVENANTS OF ISSUER............................................... 14
Section 3.01 Payment of Principal and Interest................................................ 14
Section 3.02 Maintenance of Office or Agency.................................................. 15
Section 3.03 Money for Note Payments to Be Held in Trust...................................... 15
Section 3.04 Existence........................................................................ 16
Section 3.05 Protection of Trust.............................................................. 17
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TABLE OF CONTENTS
(continued)
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Section 3.06 Opinions as to Trust Assets...................................................... 17
Section 3.07 Performance of Obligations; Servicing of Receivables............................. 17
Section 3.08 Negative Covenants............................................................... 19
Section 3.09 Annual Statements as to Compliance............................................... 20
Section 3.10 Issuer May Consolidate, Etc., Only on Certain Terms.............................. 20
Section 3.11 Successor Substituted............................................................ 22
Section 3.12 No Other Business................................................................ 22
Section 3.13 No Borrowing..................................................................... 22
Section 3.14 Servicer's Obligations........................................................... 22
Section 3.15 Guarantees, Loans, Advances and Other Liabilities................................ 22
Section 3.16 Capital Expenditures............................................................. 22
Section 3.17 Removal of Administrator......................................................... 23
Section 3.18 Restricted Payments.............................................................. 23
Section 3.19 Additional Representations of the Issuer......................................... 23
Section 3.20 Further Instruments and Acts..................................................... 24
ARTICLE IV SATISFACTION AND DISCHARGE............................................................ 24
Section 4.01 Satisfaction and Discharge of Indenture.......................................... 24
Section 4.02 Application of Trust Money....................................................... 25
ARTICLE V EARLY AMORTIZATION EVENTS, DEFAULTS AND REMEDIES...................................... 26
Section 5.01 Early Amortization Events........................................................ 26
Section 5.02 Events of Default................................................................ 26
Section 5.03 Acceleration of Maturity; Rescission and Annulment............................... 26
Section 5.04 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee........ 27
Section 5.05 Remedies; Priorities............................................................. 29
Section 5.06 Optional Preservation of Trust Assets............................................ 30
Section 5.07 Limitation on Suits.............................................................. 31
Section 5.08 Unconditional Rights of Noteholders to Receive Principal and Interest............ 31
Section 5.09 Restoration of Rights and Remedies............................................... 32
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TABLE OF CONTENTS
(continued)
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Section 5.10 Rights and Remedies Cumulative................................................... 32
Section 5.11 Delay or Omission Not Waiver..................................................... 32
Section 5.12 Rights of Noteholders to Direct Indenture Trustee................................ 32
Section 5.13 Waiver of Past Defaults.......................................................... 33
Section 5.14 Undertaking for Costs............................................................ 33
Section 5.15 Waiver of Stay or Extension Laws................................................. 33
Section 5.16 Sale of Trust Assets............................................................. 34
Section 5.17 Action on Notes.................................................................. 34
ARTICLE VI THE INDENTURE TRUSTEE................................................................. 35
Section 6.01 Duties of Indenture Trustee...................................................... 35
Section 6.02 Notice of Early Amortization Event, Events of Default or Servicer Default........ 36
Section 6.03 Rights of Indenture Trustee...................................................... 37
Section 6.04 Not Responsible for Recitals or Issuance of Notes................................ 38
Section 6.05 May Hold Notes................................................................... 38
Section 6.06 Money Held in Trust.............................................................. 38
Section 6.07 Compensation, Reimbursement and Indemnification.................................. 38
Section 6.08 Replacement of Indenture Trustee................................................. 39
Section 6.09 Successor Indenture Trustee by Merger............................................ 40
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee................ 40
Section 6.11 Eligibility; Disqualification.................................................... 41
Section 6.12 Preferential Collection of Claims Against........................................ 42
Section 6.13 Tax Returns...................................................................... 42
Section 6.14 Representations and Covenants of Indenture Trustee............................... 42
Section 6.15 The Securities Intermediary...................................................... 43
Section 6.16 Annual Reports to Holders........................................................ 44
ARTICLE VII NOTEHOLDERS' LIST AND REPORTS BY INDENTURE TRUSTEE AND ISSUER......................... 44
Section 7.01 Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders........... 44
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TABLE OF CONTENTS
(continued)
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Section 7.02 Preservation of Information; Communications to Noteholders....................... 44
Section 7.03 Reports by Issuer................................................................ 44
Section 7.04 Reports by Indenture Trustee..................................................... 45
Section 7.05 Notice by Publication............................................................ 45
ARTICLE VIII ALLOCATION AND APPLICATION OF COLLECTIONS............................................. 45
Section 8.01 Collection of Money.............................................................. 45
Section 8.02 Rights of Noteholders............................................................ 46
Section 8.03 Establishment of Collection Account, Excess Funding Account and Accumulation
Account.......................................................................... 46
Section 8.04 Collections and Allocations...................................................... 48
Section 8.05 Sharing Groups................................................................... 49
Section 8.06 [Reserved.]...................................................................... 50
Section 8.07 Release of Trust Assets; Eligible Loan Documents................................. 50
ARTICLE IX DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS.............................................. 51
Section 9.01 Distributions and Reports to Noteholders......................................... 51
ARTICLE X SUPPLEMENTAL INDENTURES............................................................... 51
Section 10.01 Supplemental Indentures without Consent of Noteholders........................... 51
Section 10.02 Supplemental Indentures with Consent of Noteholders.............................. 53
Section 10.03 Execution of Supplemental Indentures............................................. 55
Section 10.04 Effect of Supplemental Indenture................................................. 55
Section 10.05 Conformity with Trust Indenture Act.............................................. 55
Section 10.06 Reference in Notes to Supplemental Indentures.................................... 55
ARTICLE XI TERMINATION........................................................................... 56
Section 11.01 Termination of Trust............................................................. 56
Section 11.02 Final Distribution............................................................... 56
Section 11.03 Transferor's Termination Rights.................................................. 57
Section 11.04 Defeasance....................................................................... 57
ARTICLE XII MISCELLANEOUS......................................................................... 58
Section 12.01 Compliance Certificates, Opinions, etc........................................... 58
Section 12.02 Form of Documents Delivered to Indenture Trustee................................. 60
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TABLE OF CONTENTS
(continued)
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Section 12.03 Acts of Noteholders.............................................................. 61
Section 12.04 Notices, etc. to Indenture Trustee and Issuer.................................... 61
Section 12.05 Notices to Noteholders; Waiver................................................... 62
Section 12.06 Alternate Payment and Notice Provisions.......................................... 63
Section 12.07 Conflict with Trust Indenture Act................................................ 63
Section 12.08 Effect of Headings and Table of Contents......................................... 63
Section 12.09 Successors and Assigns........................................................... 63
Section 12.10 Separability..................................................................... 63
Section 12.11 Benefits of Indenture............................................................ 63
Section 12.12 Governing Law.................................................................... 63
Section 12.13 Counterparts..................................................................... 64
Section 12.14 Trust Obligation................................................................. 64
Section 12.15 No Petition...................................................................... 64
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RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE PROVISIONS*
Trust Indenture Act Section Indenture Section
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310(a)(1).......................................... 6.11
(a)(2)............................................. 6.11
(a)(3)............................................. 6.10
(a)(4)............................................. Not Applicable
(a)(5)............................................. 6.11
(b)................................................ 6.08, 6.11
(c)................................................ Not Applicable
311(a)............................................. 6.12
(b)................................................ 6.12
(c)................................................ Not Applicable
312(a)............................................. 7.01, 7.02(a)
(b)................................................ 7.02(b)
(c)................................................ 7.02(c)
313(a)............................................. 7.04
(b)................................................ 7.04
(c)................................................ 7.03, 7.04
(d)................................................ 7.04
314(a)............................................. 3.09, 7.03(a)
(b)................................................ 3.06
(c)(1)............................................. 2.11, 8.07(c), 12.01(a)
(c)(2)............................................. 2.11, 8.07(c), 12.01(a)
(c)(3)............................................. 2.11, 8.07(c), 12.01(a)
(d)(1)............................................. 2.11, 8.07(c), 12.01(b)
(d)(2)............................................. Not Applicable
(d)(3)............................................. Not Applicable
(e)................................................ 12.01(a)
315(a)............................................. 6.01(b)
(b)................................................ 6.02
(c)................................................ 6.01(c)
(d)................................................ 6.01(d)
(d)(1)............................................. 6.01(d)
(d)(2)............................................. 6.01(d)
(d)(3)............................................. 6.01(d)
(e)................................................ 5.14
316(a)(1)(A)....................................... 5.12
316(a)(1)(B)....................................... 5.13
316(a)(2).......................................... Not Applicable
316(b)............................................. 5.08
317(a)(1).......................................... 5.04
317(a)(2).......................................... 5.04(d)
317(b)............................................. 5.04(a)
318(a)............................................. 12.07
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*This reconciliation and tie is not, for any purpose, to be deemed to be part of
the within Indenture.
AMENDED AND RESTATED INDENTURE, dated as of October 15, 2003, by and
between NISSAN MASTER OWNER TRUST RECEIVABLES, a Delaware statutory trust, as
Issuer (the "Issuer"), and JPMORGAN CHASE BANK, a New York banking corporation,
as Indenture Trustee (the "Indenture Trustee").
RECITALS
A. The Issuer and the Indenture Trustee are party to the
Indenture (the "Original Indenture"), dated as of July 24, 2003 (the "Initial
Closing Date").
B. The Issuer and the Indenture Trustee desire to amend certain
provisions of the Original Indenture and for ease of convenience and reference
desire to amend and restate the Original Indenture in its entirety.
C. It is the intent of the parties that this Indenture shall not
cause a novation of the rights and obligations of the parties under the Original
Indenture and that this Indenture shall not release, limit or impair in any way
the priority of any security interests held by the Indenture Trustee for the
benefit of the Noteholders and any Series Enhancer granted under the Original
Indenture.
D. The Issuer and the Indenture Trustee are executing and
delivering this Indenture to provide for the issuance from time to time by the
Issuer of Notes in one or more Series, the principal terms of which will be
specified in one or more Indenture Supplements to this Indenture.
E. The obligations of the Issuer under all Notes issued under
this Indenture will be equally and ratably secured by, among other things,
Receivables from time to time transferred to the Issuer by the Transferor
pursuant to the Transfer and Servicing Agreement, such Receivables having, in
turn, been sold to the Transferor by the Seller pursuant to the Receivables
Purchase Agreement with the Transferor.
In consideration of the mutual covenants and agreements herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
GRANTING CLAUSES
On and as of the Initial Closing Date, the Issuer hereby Grants to the
Indenture Trustee, for the benefit of the Noteholders and any Series Enhancers,
all of the Issuer's right, title and interest (whether now owned or hereafter
acquired) in, to and under the following (collectively, the "Collateral"):
(i) the Receivables transferred to the Issuer pursuant to
the Transfer and Servicing Agreement, including all Related Security
with respect thereto and all monies, instruments, investment property
and other property distributed or distributable in respect of such
Receivables (including all amounts on deposit in the Cash Management
Account as applied to reduce the principal amount of any Receivable)
(together with all interest, proceeds, earnings, income, revenue,
dividends and other distributions thereof);
(ii) all Eligible Investments and all monies, instruments,
securities, security entitlements, documents, certificates of deposit
and other property from time to time on deposit in or credited to the
Collection Account, the Series Accounts and the Excess Funding Account
and in all interest, proceeds, earnings, income, revenue, dividends and
other distributions thereof (including any accrued discount realized on
liquidation of any investment purchased at a discount);
(iii) all rights, remedies, powers, privileges and claims
of the Issuer under or with respect to the Transfer and Servicing
Agreement, the Receivables Purchase Agreement and each Repurchase
Agreement (whether arising pursuant to the terms of such agreements or
otherwise available to the Issuer at law or in equity), including the
rights of the Issuer to enforce the Transfer and Servicing Agreement,
the Receivables Purchase Agreement and each Repurchase Agreement and to
give or withhold any and all consents, requests, notices, directions,
approvals, extensions or waivers under or with respect to the Transfer
and Servicing Agreement, the Receivables Purchase Agreement and each
Repurchase Agreement; and
(iv) all present and future claims, demands, causes of
action and choses in action regarding any of the foregoing and all
payments on any of the foregoing and all proceeds of any nature
whatsoever regarding any of the foregoing, including all proceeds of
the voluntary or involuntary conversion thereof into cash or other
liquid property and all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, chattel paper, general intangibles, goods,
checks, deposit accounts, money, instruments, investment property,
insurance proceeds, condemnation awards, rights to payment of any kind
and other forms of obligations and receivables, instruments and other
property that at any time constitute any part of or are included in the
proceeds of any of the foregoing.
The foregoing Grants are made in trust to secure (a) the Issuer's
obligations under the Notes equally and ratably without prejudice, priority or
distinction between any Series of Notes and any other Series of Notes, except to
the extent expressly provided in such Notes, this Indenture or the related
Indenture Supplements, (b) the Issuer's obligations under any Series Enhancement
Agreements entered into with any Series Enhancers, but only to the extent
expressly provided in such Series Enhancement Agreements, this Indenture or the
related Indenture Supplements, (c) the payment of all other sums payable under
the Notes, this Indenture and the related Indenture Supplements and (d) the
compliance with the terms and conditions of the Notes, this Indenture, the
related Indenture Supplements and any Series Enhancement Agreements entered into
with any Series Enhancers, all as provided herein or therein.
The Indenture Trustee, as indenture trustee on behalf of the
Noteholders and any Series Enhancers, hereby acknowledges the foregoing Grants,
accepts the trusts under this Indenture in accordance with the provisions of
this Indenture, and agrees to perform the duties herein required to the end that
the interests of the Noteholders and any Series Enhancers may be adequately
protected.
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ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS.
All terms used herein and not otherwise defined herein have the
meanings ascribed to them in the Annex of Definitions. Whenever used in this
Indenture, such terms are applicable to the singular as well as the plural forms
of such terms and to the masculine as well as to the feminine and neuter genders
of such terms.
Section 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in the Annex of Definitions have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Indenture and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Indenture or in any such certificate or other document, and
accounting terms partly defined in this Indenture or in any such certificate or
other document to the extent not defined, have the respective meanings given to
them under generally accepted accounting principles or regulatory accounting
principles, as applicable and as in effect on the date of this Indenture. To the
extent that the definitions of accounting terms in this Indenture or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles or regulatory accounting
principles in the United States, the definitions contained in this Indenture or
in any such certificate or other document will control.
(c) Any reference to each Rating Agency only applies to any
specific rating agency if such rating agency is then rating any outstanding
Series.
(d) Unless otherwise specified, references to any dollar amount as
on deposit or outstanding on any particular date mean such amount at the close
of business on such day.
(e) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Indenture refer to this Indenture as a whole
and not to any particular provision of this Indenture. References to any
subsection, Section, Schedule or Exhibit are references to subsections,
Sections, Schedules and Exhibits in or to this Indenture, unless otherwise
specified. The term "including" means "including without limitation."
(f) Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Noteholder;
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"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Indenture Trustee; and
"obligor" on the indenture securities means the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by Commission rule have the
meaning assigned to them by such definitions.
ARTICLE II
THE NOTES
Section 2.01 FORM GENERALLY.
Any Series or Class of Notes, together with the Indenture Trustee's
certificate of authentication related thereto, may be issued in fully registered
form (the "Registered Notes"), in the form of a temporary global note (the
"Global Note"), or such other forms approved from time to time by or pursuant to
this Indenture or an Indenture Supplement and, in each case, will be in
substantially the form of an exhibit to the related Indenture Supplement, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture or such Indenture Supplement, and
may have such letters, numbers or other marks of identification and such legends
or endorsements placed thereon, as may, consistently herewith, be determined by
the officers executing such Notes, as evidenced by their execution of such
Notes. Any portion of the text of any Note may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the Note. The
terms of any Note set forth in an exhibit to the related Indenture Supplement
are part of the terms of this Indenture, as applicable. Each Note other than a
Definitive Note will be dated as of the Series Issuance Date, and each
Definitive Note will be dated as of the date of its authentication.
Section 2.02 DENOMINATIONS.
Except as otherwise specified in the related Indenture Supplement or
the Notes, each Class of Notes of each Series will be issued in the form of
typewritten Notes representing the Book-Entry Notes. Where the Notes are issued
in registered form, they shall be in minimum amounts of $1,000 and in integral
multiples of $1,000 in excess thereof (except that one Note of each Class may be
issued in a different amount so long as such amount exceeds the applicable
minimum denomination for such Class), and will be issued upon original issuance
as one or more Notes in an aggregate original principal amount equal to the
applicable Invested Amount of such Class or Series on the date of original
issuance.
Section 2.03 EXECUTION, AUTHENTICATION AND DELIVERY.
(a) Each Note will be executed by manual or facsimile signature on
behalf of the Issuer by an Authorized Officer. Notes bearing the manual or
facsimile signature of an individual who was, at the time when such signature
was affixed, authorized to sign on behalf of
4
the Issuer will not be rendered invalid, notwithstanding the fact that such
individual ceased to be so authorized before the authentication and delivery of
such Notes or does not hold such office at the date of issuance of such Notes.
(b) At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer
to the Indenture Trustee for authentication and delivery, and the Indenture
Trustee will authenticate and deliver such Notes as provided in this Indenture
or the related Indenture Supplement and at the written order of the Issuer, and
not otherwise. No Note will be entitled to any benefit under this Indenture or
the related Indenture Supplement or be valid or obligatory for any purpose
unless there appears on such Note a certificate of authentication substantially
in the form provided for herein or in the related Indenture Supplement and
executed by or on behalf of the Indenture Trustee by the manual signature of a
duly authorized signatory, and such certificate upon any Note will be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
Section 2.04 AUTHENTICATING AGENT.
(a) The Indenture Trustee may appoint one or more authenticating
agents with respect to the Notes. Any authenticating agent will be authorized to
act on behalf of the Indenture Trustee in authenticating the Notes in connection
with the issuance, delivery, registration of transfer, exchange or repayment of
the Notes. Whenever reference is made in this Indenture to the authentication of
Notes by the Indenture Trustee or the Indenture Trustee's certificate of
authentication, such reference will be deemed to include authentication on
behalf of the Indenture Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Indenture Trustee by an authenticating
agent. Each authenticating agent, including any successor authenticating agent,
must be acceptable to the Issuer and the Servicer.
(b) Any institution succeeding to the corporate agency business of
an authenticating agent will continue to be an authenticating agent without the
execution or filing of any power or any further act on the part of the Indenture
Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by giving
written notice of resignation to the Indenture Trustee and to the Issuer and the
Servicer. The Indenture Trustee may at any time terminate the agency of an
authenticating agent by giving notice of termination to such authenticating
agent and to the Issuer and the Servicer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time an authenticating
agent ceases to be acceptable to the Indenture Trustee or to the Issuer and the
Servicer, the Indenture Trustee may promptly appoint a successor authenticating
agent. Any successor authenticating agent upon acceptance of its appointment
hereunder will become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
authenticating agent.
(d) The Issuer hereby appoints the Indenture Trustee as initial
authentication agent, and the Indenture Trustee hereby accepts such appointment.
5
(e) The Issuer agrees to pay to each authenticating agent from
time to time reasonable compensation for its services under this Section.
(f) The provisions of Sections 6.01 and 6.04 are applicable to any
authenticating agent.
(g) Pursuant to an appointment made under this Section, the Notes
may have endorsed thereon, in lieu of or in addition to the Indenture Trustee's
certificate of authentication, an alternative certificate of authentication in
substantially the following form:
"This is one of the Notes of the Series, Class or tranche described
therein and referred to in the within-mentioned Indenture.
__________________________________
as Authenticating Agent
for the Indenture Trustee
By:_______________________________
Authorized Signatory"
Section 2.05 REGISTRATION OF AND LIMITATIONS ON TRANSFER AND EXCHANGE
OF NOTES.
(a) Where the Notes are issued in a registered form, the Issuer
will cause a register (the "Note Register") to be kept in which the Issuer will
provide for the registration of Notes and the registration of transfers and
exchanges of Notes. The Indenture Trustee initially is the transfer agent and
registrar (in such capacity, the "Transfer Agent and Registrar") for the purpose
of registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Transfer Agent and Registrar, the Issuer will promptly
appoint a successor or, if it elects not to make such an appointment, assume the
duties of Transfer Agent and Registrar.
(b) If a Person other than the Indenture Trustee is appointed by
the Issuer as Transfer Agent and Registrar, the Issuer will give the Indenture
Trustee prompt written notice of the appointment of such Transfer Agent and
Registrar and of the location, and any change in the location, of the Transfer
Agent and Note Register. The Indenture Trustee has the right to inspect the Note
Register at all reasonable times and to obtain copies thereof, and the Indenture
Trustee has the right to rely upon a certificate executed on behalf of the
Transfer Agent and Registrar by an officer thereof as to the names and addresses
of the Noteholders and the principal amounts and numbers of such Notes.
(c) Upon surrender for registration of transfer of any Note at the
office or agency of the Transfer Agent and Registrar to be maintained as
provided in Section 3.02, if the requirements of Section 8-401(a) of the UCC are
met, the Issuer will execute, and upon receipt of such surrendered Note the
Indenture Trustee will authenticate and deliver to the Noteholder, in the name
of the designated transferee or transferees, one or more new Notes (of the same
Series and Class) in any authorized denominations of like aggregate principal
amount.
(d) At the option of a Noteholder, Notes may be exchanged for
other Notes (of the same Series and Class) in any authorized denominations and
of like aggregate principal amount,
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upon surrender of such Notes to be exchanged at the office or agency of the
Transfer Agent and Registrar. Whenever any Notes are so surrendered for
exchange, if the requirements of Section 8-401(a) of the UCC are met, the Issuer
will execute, and upon receipt of such surrendered Note the Indenture Trustee
will authenticate and deliver to the Noteholder, 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 will evidence the same obligations, evidence the same debt, and be
entitled to the same rights and privileges 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 will be duly endorsed by, or be accompanied by a written
instrument of transfer in a form satisfactory to the Indenture Trustee duly
executed by, the Noteholder thereof or his attorney-in-fact duly authorized in
writing, and by such other documents as the Indenture Trustee may reasonably
require.
(g) The registration of transfer of any Note will be subject to
the additional requirements, if any, set forth in the related Indenture
Supplement.
(h) No service charge will be made for any registration of
transfer or exchange of Notes, but the Issuer or the Transfer Agent and
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of such Notes.
(i) All Notes surrendered for registration of transfer or exchange
will be cancelled by the Issuer and delivered to the Indenture Trustee for
subsequent destruction without liability on the part of either. The Indenture
Trustee will destroy the Global Note upon its exchange in full for Definitive
Notes and will deliver a certificate of destruction to the Issuer. Such
certificate will also state that a certificate or certificates of each Foreign
Clearing Agency as to the satisfaction of certain conditions specified in
Section 2.15 and Section 2.16 hereof was received with respect to each portion
of the Global Note exchanged for Definitive Notes.
(j) The preceding provisions of this Section notwithstanding, the
Issuer is not required to make, and the Registrar need not register, transfers
or exchanges of any Note for a period of 20 days preceding the due date for any
payment with respect to such Note.
(k) If and so long as any Series of Notes are listed on a stock
exchange and such exchange so requires, the Indenture Trustee will appoint a
co-transfer agent and co-registrar in accordance with the rules of such
exchange. Any reference in this Indenture to the Transfer Agent and Registrar
includes any co-transfer agent and co-registrar unless the context otherwise
requires. The Indenture Trustee will enter into any appropriate agency agreement
with any co-transfer agent and co-registrar not a party to this Indenture to
implement the provisions of this Indenture that relate to such agent.
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Section 2.06 MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
(a) If:
(i) any mutilated Note is surrendered to the Indenture
Trustee or the Indenture Trustee receives evidence to its reasonable
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, the
Noteholders and the Indenture Trustee harmless
then, in the absence of notice to the Issuer, the Transfer Agent and Registrar
or the Indenture Trustee that such Note has been acquired by a bona fide
purchaser, the Issuer will execute, and the Indenture Trustee will authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Note, a replacement Note of like tenor (including the same date of
issuance) and principal amount, bearing a number not contemporaneously
outstanding; provided, however, that if any such mutilated, destroyed, lost or
stolen Note has become or within seven days will be due and payable, or has been
selected or called for redemption, instead of issuing a replacement Note, the
Issuer may pay such Note without surrender thereof, except that any mutilated
Note will be surrendered. If, after the delivery of such replacement Note or
payment of a destroyed, lost or stolen Note pursuant to the proviso to the
preceding sentence, a bona fide purchaser of the original Note in lieu of which
such replacement Note was issued presents for payment such original Note, the
Issuer and the Indenture Trustee will be entitled to recover such replacement
Note (or such payment) from the Person to whom it was delivered or any Person
taking such replacement Note from such Person to whom such replacement Note was
delivered or any assignee of such Person, except a bona fide purchaser, and will
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.
(b) Upon the issuance of any replacement Note under this Section,
the Issuer may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee or the Transfer Agent and Registrar) connected
therewith.
(c) Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note will constitute
complete and indefeasible evidence of an obligation of the Issuer, as if
originally issued, whether or not the mutilated, destroyed, lost or stolen Note
is found at any time, and will be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Notes duly issued hereunder.
(d) The provisions of this Section are exclusive and 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 2.07 PERSONS DEEMED OWNERS.
Before due presentment for registration of transfer of any Note, the
Issuer, the Indenture Trustee and any agent of the Transferor, the Issuer or the
Indenture Trustee will treat the Person in whose name any Note is registered as
the owner of such Note for the purpose of receiving
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distributions pursuant to the terms of the related Indenture Supplement and for
all other purposes whatsoever, whether or not such Note is overdue, and none of
the Transferor, the Issuer, the Indenture Trustee or any agent of the
Transferor, the Issuer or the Indenture Trustee will be affected by any notice
to the contrary.
Section 2.08 APPOINTMENT OF PAYING AGENT.
(a) The Issuer reserves the right at any time to vary or terminate
the appointment of a Paying Agent for the Notes, and to appoint additional or
other Paying Agents. The Issuer hereby appoints the Indenture Trustee as initial
Paying Agent, and the Indenture Trustee hereby accepts such appointment. If and
so long as any Series of Notes are listed on a stock exchange and such exchange
so requires, the Indenture Trustee will appoint a co-paying agent in accordance
with the rules of such exchange. The Indenture Trustee will enter into any
appropriate agency agreement with any co-paying agent not a party to this
Indenture to implement the provisions of this Indenture that relate to such
agent. Notice of all changes in the identity or specified office of a Paying
Agent will be delivered promptly to the Noteholders by the Indenture Trustee.
(b) The Indenture Trustee will cause the Paying Agent (other than
itself) to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent agrees with the Indenture Trustee that such Paying Agent will
hold all sums, if any, held by it for payment to the Noteholders in trust for
the benefit of the Noteholders entitled thereto until such sums are paid to such
Noteholders and further agrees, and if the Indenture Trustee is the Paying Agent
it hereby agrees, that it will comply with all requirements of the Code
regarding the withholding by the Indenture Trustee of payments in respect of
United States federal income taxes due from the Beneficial Owners.
Section 2.09 ACCESS TO LIST OF NOTEHOLDERS' NAMES AND ADDRESSES.
(a) The Issuer will furnish or cause to be furnished to the
Indenture Trustee, the Servicer, any Noteholder or the Paying Agent, within five
Business Days after receipt by the Issuer of a written request therefor from the
Indenture Trustee, the Servicer, such Noteholder or the Paying Agent,
respectively, a list of the names and addresses of the Noteholders. Three or
more Noteholders of any Series or holders of 10% of the Outstanding Principal
Amount of any Series (the "Applicants") may apply in writing to the Indenture
Trustee, and if such application states that the Applicants desire to
communicate with other Noteholders of any Series with respect to their rights
under this Agreement or under the Notes and is accompanied by a copy of the
communication which such Applicants propose to transmit, then the Indenture
Trustee, after having been adequately indemnified by such Applicants for its
costs and expenses, will afford or cause the Transfer Agent and Registrar to
afford such Applicants access during normal business hours to the most recent
list of Noteholders held by the Indenture Trustee and will give the Servicer
notice that such request has been made, within five Business Days after the
receipt of such application. Such list is to be as of a date no more than 45
days prior to the date of receipt of such Applicants' request.
(b) Every Noteholder, by receiving and holding a Note, agrees that
none of the Issuer, the Indenture Trustee, the Transfer Agent and Registrar and
the Servicer or any of their respective agents and employees may be held
accountable by reason of the disclosure of any
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such information as to the names and addresses of the Noteholders hereunder,
regardless of the sources from which such information was derived.
Section 2.10 CANCELLATION.
All Notes surrendered for payment, registration of transfer, exchange
or redemption will, if surrendered to any Person other than the Indenture
Trustee, be delivered to the Indenture Trustee and will be promptly cancelled by
it. 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 lawful manner whatsoever, and all Notes so delivered will
be promptly cancelled by the Indenture Trustee. No Notes may be authenticated in
lieu of or in exchange for any Notes cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Notes held by the
Indenture Trustee must be destroyed unless the Issuer directs by a timely order
that they be returned to it.
Section 2.11 RELEASE OF COLLATERAL.
Subject to Section 12.01, the Indenture Trustee will release property
from the Lien of this Indenture only upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d) or an Opinion of
Counsel in lieu of such Independent Certificates to the effect that the TIA does
not require any such Independent Certificates.
Section 2.12 NEW ISSUANCES.
(a) Pursuant to one or more Indenture Supplements, the Issuer may,
or the Transferor may from time to time direct the Owner Trustee, on behalf of
the Issuer, to issue one or more new Series of Notes (each such issuance a "New
Issuance"). The Notes of all outstanding Series will be equally and ratably
entitled as provided herein to the benefits of this Indenture without
preference, priority or distinction, all in accordance with the terms and
provisions of this Indenture and the related Indenture Supplement except, with
respect to any Series or Class, as provided in the related Indenture Supplement.
Interest on and principal of the Notes of each outstanding Series will be paid
as specified in or pursuant to the related Indenture Supplement.
(b) On or before the Series Issuance Date relating to any new
Series of Notes, the parties hereto will execute and deliver an Indenture
Supplement which will specify the Principal Terms of such Series. The terms of
such Indenture Supplement may modify or amend the terms of this Indenture solely
as applied to such new Series. The obligation of the Indenture Trustee to
authenticate and deliver the Notes of any new Series (other than any Series
issued pursuant to an Indenture Supplement dated as of the initial Series
Issuance Date) and to execute and deliver the related Indenture Supplement will
be subject to the satisfaction of the following conditions:
(i) on or before the seventh Business Day immediately
preceding the Series Issuance Date for such Series, the Transferor has
given the Owner Trustee, the Indenture Trustee, the Servicer and each
Rating Agency written notice (unless such notice requirement is
otherwise waived) of such issuance and such Series Issuance Date;
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(ii) the Transferor has delivered to the Owner Trustee and
the Indenture Trustee the related Indenture Supplement, in form
satisfactory to the Indenture Trustee, executed by each party hereto
(other than the Indenture Trustee);
(iii) the Transferor has delivered to the Indenture Trustee
any related Series Enhancement Agreement executed by each of the
parties thereto (other than the Indenture Trustee);
(iv) the Transferor has delivered to the Indenture Trustee
an Officer's Certificate, dated such Series Issuance Date, to the
effect that the Transferor reasonably believes that as of such Series
Issuance Date no Event of Default or Early Amortization Event has
occurred and is continuing for any Series and such issuance will not
have a Significant Adverse Effect and will not cause any Event of
Default or Early Amortization Event to occur with respect to any
outstanding Series;
(v) the Transferor has delivered to the Indenture Trustee
a Required Federal Income Tax Opinion, dated such Series Issuance Date,
with respect to such issuance;
(vi) after giving effect to such issuance, the Adjusted
Pool Balance equals or exceeds the Required Participation Amount; and
(vii) the Rating Agency Condition is satisfied on such
Series Issuance Date.
(c) Any Indenture Supplement providing for the issuance of
subclasses of Notes within the related Series may specify, in addition to the
conditions hereunder applicable to each such subclass, other conditions for the
issuance of such subclasses, which conditions will be consistent with the
conditions for the issuance of the related Series.
(d) Upon satisfaction of the above conditions, pursuant to Section
2.03, the Owner Trustee, on behalf of the Issuer, will execute and the Indenture
Trustee will authenticate and deliver the Notes of such Series as provided in
this Indenture and the related Indenture Supplement. The Indenture Trustee may,
but is not obligated to, enter into any such Indenture Supplement that adversely
affects the Indenture Trustee's own rights, duties or immunities under this
Indenture.
Section 2.13 BOOK-ENTRY NOTES.
Unless otherwise provided in any related Indenture Supplement, the
Notes, upon original issuance, will be issued in the form of typewritten Notes
representing the Book-Entry Notes, to be delivered to The Depository Trust
Company, the initial Clearing Agency or a custodian therefor, by, or on behalf
of, the Issuer. The Book-Entry Notes shall be registered initially on the Note
Register in the name of Cede & Co., the nominee of The Depository Trust Company
for such Book-Entry Notes. Unless and until Definitive Notes are issued under
the limited circumstances described in Section 2.15, no Beneficial Owner will be
entitled to receive a Definitive Note representing such Beneficial Owner's
interest in such Note and:
(i) the provisions of this Section will be in full force
and effect with respect to each such Series;
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(ii) the Indenture Trustee will be entitled to deal with
the Clearing Agency or Foreign Clearing Agency and the Clearing Agency
Participants for all purposes of this Indenture (including the payment
of principal of and interest on the Notes of each such Series) as the
authorized representatives of the Beneficial Owners;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Indenture, the provisions of
this Section will control with respect to each such Series;
(iv) the rights of Beneficial Owners of each such Series
may be exercised only through the Clearing Agency or Foreign Clearing
Agency and the applicable Clearing Agency Participants and will be
limited to those established by law and agreements between such
Beneficial Owners and the Clearing Agency or Foreign Clearing Agency
and/or the Clearing Agency Participants;
(v) the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit distributions of principal and interest on the Notes to such
Clearing Agency Participants; and
(vi) whenever this Indenture requires or permits actions
to be taken based upon instructions or directions of the Holders of
Notes evidencing a specified percentage of the Outstanding Principal
Amount, the Clearing Agency or Foreign Clearing Agency will be deemed
to represent such percentage only to the extent that it has received
instructions to such effect from the Beneficial Owners and/or Clearing
Agency Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Notes and has delivered
such instructions to the Indenture Trustee.
Section 2.14 NOTICES TO CLEARING AGENCY OR FOREIGN CLEARING AGENCY.
Whenever a notice or other communication to the Noteholders is required
under this Indenture, unless and until Definitive Notes have been issued to
Beneficial Owners pursuant to Section 2.15, the Indenture Trustee will give all
such notices and communications specified herein to be given to Noteholders to
the Clearing Agency or Foreign Clearing Agency, as applicable, and will have no
obligation to the Beneficial Owners.
Section 2.15 DEFINITIVE NOTES.
If any of the following events occurs:
(i) (1) the Transferor or the Administrator advises the
Indenture Trustee in writing that the Clearing Agency or Foreign
Clearing Agency is no longer willing or able to properly discharge its
responsibilities as Clearing Agency or Foreign Clearing Agency with
respect to the Book-Entry Notes of a given Class and (2) the
Transferor, the Indenture Trustee or the Administrator is unable to
locate and reach an agreement on satisfactory terms with a qualified
successor; or
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(ii) the Transferor, the Indenture Trustee or the
Administrator, as applicable, at its option, elects to terminate the
book-entry system through the Clearing Agency or Foreign Clearing
Agency with respect to such Class; or
(iii) after the occurrence of a Servicer Default or an
Event of Default, Beneficial Owners of at least a majority of the
Outstanding Principal Amount of such Class, acting together as a single
Class, advise the Indenture Trustee and the applicable Clearing Agency
or Foreign Clearing Agency through the applicable Clearing Agency
Participants in writing that the continuation of a book-entry system
through the appropriate Clearing Agency or Foreign Clearing Agency with
respect to such Notes is no longer in the best interests of the
Beneficial Owners of such Class;
then, the Indenture Trustee will, through the appropriate Clearing Agency or
Foreign Clearing Agency, notify all Beneficial Owners of such Class of the
occurrence of such event and of the availability of Definitive Notes to
Beneficial Owners of such Class. Upon surrender to the Indenture Trustee of the
certificates representing the Notes of such Class, accompanied by registration
instructions from the applicable Clearing Agency, the Issuer will execute and
the Indenture Trustee will authenticate Definitive Notes of such Class and will
recognize the registered holders of such Definitive Notes as Noteholders under
this Indenture. Neither the Issuer nor the Indenture Trustee will be liable for
any delay in delivery of such instructions, and the Issuer and the Indenture
Trustee may conclusively rely on, and will be protected in relying on, such
instructions. Upon the issuance of Definitive Notes of such Series, all
references herein to obligations imposed upon or to be performed by the
applicable Clearing Agency or Foreign Clearing Agency will be deemed to be
imposed upon and performed by the Indenture Trustee, to the extent applicable
with respect to such Definitive Notes, and the Indenture Trustee will recognize
the registered holders of the Definitive Notes of such Series as Noteholders of
such Series hereunder. Definitive Notes will be transferable and exchangeable at
the offices of the Transfer Agent and Registrar. No service charge will be
imposed for any registration of transfer or exchange, but the Indenture Trustee
may require payment of a sum sufficient to cover any tax or other governmental
charge imposed in connection therewith.
Section 2.16 GLOBAL NOTE; EURO-NOTE EXCHANGE DATE.
If specified in the related Indenture Supplement for any Series, Notes
may be initially issued in the form of a single temporary Global Note in bearer
form, without interest coupons, in the denomination of the Initial Invested
Amount and substantially in the form attached to the related Indenture
Supplement. Unless otherwise specified in the related Indenture Supplement, the
provisions of this Section will apply to such Global Note. The Global Note will
be authenticated by the Indenture Trustee upon the same conditions, in
substantially the same manner and with the same effect as the Definitive Notes.
The Global Note may be exchanged in the manner described in the related
Indenture Supplement for Registered Notes in definitive form. Except as
otherwise specifically provided in the Indenture Supplement, any Notes that are
issued in bearer form pursuant to this Indenture will be issued in accordance
with the requirements of section 163(f)(2) of the Code.
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Section 2.17 MEETINGS OF NOTEHOLDERS.
To the extent provided by the Indenture Supplement for any Series
issued in whole or in part, the Servicer or the Indenture Trustee may at any
time call a meeting of the Noteholders of such Series, to be held at such time
and at such place as the Servicer or the Indenture Trustee, as the case may be,
determines, for the purpose of approving a modification of or amendment to, or
obtaining a waiver of, any covenant or condition set forth in this Indenture
with respect to such Series or in the Notes of such Series, subject to Article
X.
Section 2.18 UNCERTIFICATED CLASSES.
Notwithstanding anything to the contrary contained in this Article II
or in Article XI, unless otherwise specified in any Indenture Supplement, any
provisions contained in this Article II and in Article XI relating to the
registration, form, execution, authentication, delivery, presentation,
cancellation and surrender of Notes are not applicable to any uncertificated
Notes, provided, however, that, except as otherwise expressly provided in the
related Indenture Supplement, any such uncertificated Notes will be issued in
"registered form" within the meaning of section 163(f)(1) of the Code.
Section 2.19 TAX STATUS.
Unless otherwise specified in this Indenture or an Indenture Supplement
with respect to a particular Series, the Issuer has entered into this Indenture,
and the Notes will be issued, with the intention that, for United States
federal, state and local income and franchise tax purposes, (i) the Notes of
each Series that are characterized as indebtedness at the time of their issuance
will qualify as indebtedness secured by the Collateral and (ii) the Issuer will
not be treated as an association or publicly traded partnership taxable as a
corporation. The Issuer, by entering into this Agreement, and each Beneficial
Owner and Note Owner, by the acceptance of any such Note (and each beneficial
owner of a Note, by its acceptance of an interest in the applicable Note), agree
to treat such Notes for federal, state and local income and franchise tax
purposes as indebtedness. Each Beneficial Owner and Note Owner of such Note
agrees that it will cause any beneficial owner acquiring an interest in a Note
through it to comply with this Agreement as to treatment as indebtedness under
applicable tax law, as described in this Section. The parties hereto agree that
they will not cause or permit the making, as applicable, of any election under
Treasury Regulation Section 301.7701-3 whereby the Issuer or any portion thereof
would be treated as a corporation for federal income tax purposes and, except as
required by Section 6.13 of this Indenture, will not file tax returns for the
Issuer but will treat the Issuer as a security device for such purposes. The
provisions of this Indenture are to be construed in furtherance of the foregoing
intended tax treatment.
ARTICLE III
REPRESENTATIONS AND COVENANTS OF ISSUER
Section 3.01 PAYMENT OF PRINCIPAL AND INTEREST.
(a) The Issuer will duly and punctually pay principal and interest
in accordance with the terms of the Notes as specified in the related Indenture
Supplement.
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(b) The Noteholders of a Series as of the Record Date in respect
of a Payment Date will be entitled to the interest accrued and payable and
principal payable on such Payment Date as specified in the related Indenture
Supplement. All payment obligations under a Note are discharged to the extent
such payments are made to the Noteholder of record.
Section 3.02 MAINTENANCE OF OFFICE OR AGENCY.
The Issuer will maintain an office or agency within the Borough of
Manhattan, City of New York where Notes may be presented or surrendered for
payment, where Notes may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Issuer in respect of the Notes and
this Indenture may be served. The Issuer hereby initially appoints JPMorgan
Chase Bank, currently located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, to
serve as its agent for the foregoing purposes. The Issuer will give prompt
written notice to the Indenture Trustee and the Noteholders of the location, and
of any change in the location, of any such office or agency. If at any time the
Issuer fails to maintain any such office or agency or fails to furnish the
Indenture Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, and the
Issuer hereby appoints the Indenture Trustee at its Corporate Trust Office as
its agent to receive all such presentations, surrenders, notices and demands.
Section 3.03 MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST.
(a) As specified in Section 8.03 herein and in the related
Indenture Supplement, all payments of amounts due and payable with respect to
the Notes that are to be made from amounts withdrawn from the Collection Account
and the Excess Funding Account will be made on behalf of the Issuer by the
Indenture Trustee or by the Paying Agent, and no amounts so withdrawn from the
Collection Account or the Excess Funding Account may be paid over to or at the
direction of the Issuer except as provided in this Section and in the related
Indenture Supplement.
(b) On or before the Payment Dates or other dates specified in the
related Indenture Supplements, the Issuer will deposit or cause to be deposited
in the Series Accounts for each outstanding Series, the sums specified to be
deposited therein as and when required to be deposited therein, such sums to be
held in trust for the benefit of the Persons entitled thereto, and (unless the
Paying Agent is the Indenture Trustee) will promptly notify the Indenture
Trustee in writing of its action or failure so to act.
(c) Whenever the Issuer has a Paying Agent in addition to the
Indenture Trustee, the Issuer will, on or before the Business Day next preceding
each Payment Date, direct the Indenture Trustee to deposit with such Paying
Agent on or before such Payment Date, the sums specified to be deposited therein
as and when required to be deposited therein, such sums to be (i) held in trust
for the benefit of Persons entitled thereto and (ii) invested, pursuant to an
Issuer Order, by the Paying Agent in Eligible Investments in accordance with the
terms of the related Indenture Supplement. For all investments made by a Paying
Agent under this Section, such Paying Agent will be entitled to all of the
rights and obligations of the Indenture Trustee under the related Indenture
Supplement, such rights and obligations being incorporated in this paragraph by
this reference.
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(d) The Issuer will cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an instrument
in which such Paying Agent agrees with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the
provisions of this Section, that such Paying Agent, in acting as Paying Agent,
is an express agent of the Issuer and, further, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts
due with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums are 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 by 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 at the time of its appointment;
and
(v) comply with all requirements of the Code with respect
to the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
(e) The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which such sums were held by such Paying Agent;
and upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent will be released from all further liability with respect to such money.
Section 3.04 EXISTENCE.
The Issuer will keep in full effect its existence, rights and
franchises as a statutory trust under the laws of the State of Delaware (unless
it becomes, or any successor Issuer hereunder is or becomes, organized under the
laws of any other state or of the United States of America, in which case the
Issuer will keep in full effect its existence, rights and franchises under the
laws of such other jurisdiction) and will obtain and preserve its qualification
to do business in each jurisdiction in which such qualification is or will be
necessary to protect the validity and enforceability of this Indenture, the
Indenture Supplements, the Notes, the Collateral and each other related
instrument or agreement.
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Section 3.05 PROTECTION OF TRUST.
The Issuer will from time to time prepare, or cause to be prepared,
execute and deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of further assurance
and other instruments, and will take such other action necessary or advisable
to:
(i) grant more effectively all or any portion of the
Trust Assets for the Notes;
(ii) maintain or preserve the Lien (and the priority
thereof) of this Indenture or to carry out more effectively the
purposes hereof;
(iii) perfect, publish notice of, or protect the validity
of any Grant made or to be made by this Indenture;
(iv) enforce any of the Collateral; or
(v) preserve and defend title to the Trust Assets
securing the Notes and the rights therein of the Indenture Trustee and
the Noteholders secured thereby against the claims of all persons and
parties.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required pursuant to this Section.
The Issuer will pay or cause to be paid any taxes levied on all or any
part of Receivables securing the Notes.
Section 3.06 OPINIONS AS TO TRUST ASSETS.
On the Series Issuance Date relating to any new Series of Notes, the
Issuer will furnish to the Indenture Trustee an Opinion of Counsel either (i)
stating that, in the opinion of such counsel, such action has been taken to
perfect the Lien of this Indenture, including with respect to the execution and
filing of any UCC financing statements and continuation statements as are so
necessary and reciting the details of such action or (ii) stating that, in the
opinion of such counsel, no such action is necessary to maintain the perfection
of such Lien.
Section 3.07 PERFORMANCE OF OBLIGATIONS; SERVICING OF RECEIVABLES.
(a) The Issuer will not take any action and will use its best
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Trust Assets or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture, the Transfer and Servicing Agreement or
such other instrument or agreement.
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(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate of
the Issuer will be deemed to be action taken by the Issuer. Initially, the
Issuer has contracted with the Servicer and the Administrator to assist the
Issuer in performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the other Transaction
Documents and the instruments and agreements relating to the Trust Assets,
including filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by the terms of this Indenture and
the Transfer and Servicing Agreement in accordance with and within the time
periods provided for herein and therein. Except as otherwise expressly provided
therein, the Issuer may not waive, amend, modify, supplement or terminate the
Transaction Document or any provision thereof without the consent of the Holders
of a majority of the Outstanding Principal Amount of each adversely affected
Series.
(d) If the Issuer has knowledge of the occurrence of a Servicer
Default under the Transfer and Servicing Agreement, the Issuer will promptly
notify the Indenture Trustee and each Rating Agency thereof specifying in such
notice the action, if any, being taken by the Issuer or, to the knowledge of the
Issuer, by the Servicer, with respect to such default. If a Servicer Default
arises from the failure of the Servicer to perform any of its duties or
obligations under the Transfer and Servicing Agreement with respect to the
Receivables, the Issuer will take all reasonable steps available to it to remedy
such failure.
(e) On and after the receipt by the Servicer of a Termination
Notice pursuant to Section 6.01(a) of the Transfer and Servicing Agreement, the
Servicer will continue to perform all servicing functions under this Agreement
until the date specified in the Termination Notice or otherwise specified by the
Indenture Trustee or until a date mutually agreed upon by the Servicer and the
Indenture Trustee. As promptly as possible after the giving of a Termination
Notice to the Servicer, the Indenture Trustee will appoint a Successor Servicer,
and such Successor Servicer will accept its appointment by a written assumption
in a form acceptable to the Indenture Trustee. In the event that a Successor
Servicer has not been appointed and accepted its appointment at the time when
the Servicer ceases to act as Servicer or within 120 days of the date of such
Termination Notice, the Indenture Trustee without further action will
automatically be appointed the Successor Servicer. The Indenture Trustee may
delegate any of its servicing obligations to an Affiliate or agent in accordance
with Sections 3.01(a) and 5.05 of the Transfer and Servicing Agreement.
Notwithstanding the foregoing, the Indenture Trustee will, if it is legally
unable so to act, petition at the expense of the Servicer a court of competent
jurisdiction to appoint any established institution qualifying as an Eligible
Servicer as the Successor Servicer hereunder. The Indenture Trustee will give
prompt notice to each Rating Agency and each Series Enhancers upon the
appointment of a Successor Servicer. Upon its appointment, the Successor
Servicer will be the successor in all respects to the Servicer with respect to
servicing functions under the Transfer and Servicing Agreement and will be
subject to all the responsibilities, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions thereof, and all references
in this Indenture to the Servicer will be deemed to refer to the Successor
Servicer. In connection with any Termination Notice, the Indenture Trustee will
review any bids which it obtains from Eligible Servicers and will be permitted
to appoint any
18
Eligible Servicer submitting such a bid as a Successor Servicer for servicing
compensation, subject to the limitations set forth in Section 6.02 of the
Transfer and Servicing Agreement.
(f) 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 (i) that it will not, without the
prior written consent of the Indenture Trustee and the Holders of at least a
majority of the Outstanding Principal Amount, amend, modify, waive, supplement,
terminate or surrender, or agree to any amendment, modification, supplement,
termination, waiver or surrender of, the terms of any Collateral (except to the
extent otherwise provided in the Transfer and Servicing Agreement) or the
Transaction Documents (except to the extent otherwise provided in the
Transaction Documents), or waive timely performance or observance by the
Servicer or the Transferor under the Transfer and Servicing Agreement and (ii)
that any such amendment will not (A) increase or reduce in any manner the amount
of, or accelerate or delay the timing of, collections of payments on the
Receivables or distributions that are required to be made for the benefit of the
Noteholders or (B) reduce the aforesaid percentage of the Notes that is required
to consent to any such amendment, without the consent of the Holders of all the
Outstanding Notes that are affected thereby. If any such amendment,
modification, supplement or waiver is so consented to by the Indenture Trustee
and such Noteholders, 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 3.08 NEGATIVE COVENANTS.
So long as any Notes are Outstanding, the Issuer will not:
(i) sell, transfer, exchange, pledge or otherwise dispose
of any part of the Trust Assets, except as expressly permitted by this
Indenture, the Receivables Purchase Agreement, the Trust Agreement or
the Transfer and Servicing Agreement;
(ii) claim any credit on, or make any deduction from, the
principal and 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 any taxes levied or assessed
upon any part of the Trust Assets;
(iii) incur, assume or guarantee any direct or contingent
indebtedness other than incurred pursuant to and in compliance with the
Transaction Documents;
(iv) permit (A) the validity or effectiveness of this
Indenture to be impaired, or permit the Lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or
permit any Person to be released from any covenants or obligations with
respect to the Notes under this Indenture, except as may be expressly
permitted hereby, (B) any Lien (other than the Lien of this Indenture)
to be created on or extend to or otherwise arise upon or burden the
Trust Assets or any part thereof or any interest therein or the
proceeds thereof (other than Permitted Liens) or (C) the Lien of this
Indenture not
19
to constitute a valid first priority security interest (other than with
respect to a tax, mechanics or similar Lien) in the Trust Assets; or
(v) voluntarily dissolve or liquidate in whole or in
part.
Section 3.09 ANNUAL STATEMENTS AS TO COMPLIANCE.
The Issuer will deliver to the Indenture Trustee, within 90 days after
the end of each fiscal year of the Issuer (commencing in 2004), an Officer's
Certificate stating, as to the Authorized Officer signing such Officer's
Certificate, that:
(i) a review of the activities and performance of the
Issuer under this Indenture during the 12-month period ending at the
end of such fiscal year (or in the case of the first fiscal year, the
period from the first Series Issuance Date to the last day of such
first fiscal year) has been made under such Authorized Officer's
supervisions; and
(ii) to the best of such Authorized Officer's knowledge,
based on such review, the Issuer has complied with all conditions and
covenants under this Indenture throughout such year, or, if there has
been a default in the compliance of any such condition or covenant,
specifying each such default known to such Authorized Officer and the
nature and status thereof.
Section 3.10 ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
(a) The Issuer may not consolidate or merge with or into any other
Person or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger or that acquires by conveyance
or transfer the properties and assets of the Issuer substantially as an
entirety is a Person (A) organized and existing under the laws of the
United States of America or any state thereof or the District of
Columbia and (B) expressly assumes, by a supplemental indenture hereto,
executed and delivered to the Indenture Trustee, in a form satisfactory
to the Indenture Trustee, the due and punctual payment of the principal
of and interest on all Notes and the performance of every covenant of
this Indenture on the part of the Issuer to be performed or observed;
(ii) immediately after giving effect to such transaction,
no Event of Default or Early Amortization Event has occurred and is
continuing;
(iii) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that (A)
such consolidation, merger, conveyance or transfer and such
supplemental indenture comply with this Section, (B) all conditions
precedent in this Section provided for relating to such transaction
have been complied with (including any filing required by the Exchange
Act) and (C) such supplemental indenture is duly authorized, executed
and delivered and is valid, binding and enforceable against such
Person;
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(iv) the Rating Agency Condition has been satisfied with
respect to such transaction;
(v) the Issuer has received a Required Federal Income Tax
Opinion dated the date of such consolidation, merger or transfer and
has delivered copies thereof to the Indenture Trustee; and
(vi) any action that is necessary to maintain the Lien of
this Indenture has been taken.
(b) The Issuer may not convey or transfer any of its properties or
assets, including those included in the Trust Assets to any Person, unless:
(i) the Person that acquires by conveyance or transfer
the properties and assets of the Issuer the conveyance or transfer of
which is hereby restricted (A) is a United States citizen or a Person
organized and existing under the laws of the United States of America
or any state thereof or the District of Columbia, (B) expressly
assumes, by a supplemental indenture executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture Trustee, the
due and punctual payment of the principal of and interest on all Notes
and the performance or observance of every agreement and covenant of
this Indenture on the part of the Issuer to be performed or observed,
all as provided herein, (C) expressly agrees by means of such
supplemental indenture that all right, title and interest so conveyed
or transferred are subject and subordinate to the rights of Holders of
the Notes, (D) unless otherwise provided in such supplemental
indenture, expressly agrees to indemnify, defend and hold harmless the
Issuer against and from any loss, liability or expense arising under or
related to this Indenture and the Notes and (E) expressly agrees by
means of such supplemental indenture that such Person (or if a group of
Persons, then one specified Person) will 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 Event of Default or Early Amortization Event has occurred and is
continuing;
(iii) the Rating Agency Condition has been satisfied with
respect to such transaction;
(iv) the Issuer has received a Required Federal Income Tax
Opinion and has delivered copies thereof to the Indenture Trustee;
(v) any action that is necessary to maintain the Lien of
this Indenture has been taken; and
(vi) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such supplemental indenture comply with this
Section and that all conditions precedent herein provided for relating
to such transaction have been complied with (including any filing
required by the Exchange Act).
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Section 3.11 SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Issuer substantially as an entirety in accordance
with Section 3.10, the Person formed by or surviving such consolidation or
merger (if other than the Issuer) or the Person to which such conveyance or
transfer is made will 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. In the event of any such
conveyance or transfer, the Person named as the Issuer in the first paragraph of
this Indenture or any successor that has theretofore become such in the manner
prescribed in this Section will be released from its obligations under this
Indenture as issued immediately upon the effectiveness of such conveyance or
transfer, provided that the Issuer will not be released from any obligations or
liabilities to the Indenture Trustee or the Noteholders arising prior to such
effectiveness.
Section 3.12 NO OTHER BUSINESS.
The Issuer may not engage in any business other than financing,
purchasing, owning and selling and managing the payment obligations in the
manner contemplated by this Indenture and the other Transaction Documents and
activities incidental thereto.
Section 3.13 NO BORROWING.
The Issuer may not issue, incur, assume, guarantee or otherwise become
liable, directly or indirectly, for any indebtedness except as expressly
provided for pursuant to the terms of the Transaction Documents and the Notes.
Section 3.14 SERVICER'S OBLIGATIONS.
The Issuer will cause the Servicer to comply with all of its
obligations under the Transaction Documents.
Section 3.15 GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES.
Except as contemplated by this Indenture or the Transfer and Servicing
Agreement, the Issuer may not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
Section 3.16 CAPITAL EXPENDITURES.
The Issuer may not make any expenditure (by long-term or operating
lease or otherwise) for capital assets (either realty or personalty).
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Section 3.17 REMOVAL OF ADMINISTRATOR.
So long as any Notes are outstanding, the Issuer may remove the
Administrator solely in accordance with Section 8 of the Administration
Agreement.
Section 3.18 RESTRICTED PAYMENTS.
The Issuer may not, directly or indirectly, do any of the following:
(i) pay any dividend or make any distribution (by
reduction of capital or otherwise), whether in cash, property,
securities or a combination thereof, to the Owner Trustee or any owner
of a beneficial interest in the Issuer or otherwise with respect to any
ownership or equity interest or security in or of the Issuer or to the
Servicer;
(ii) redeem, purchase, retire or otherwise acquire for
value any such ownership or equity interest or security; or
(iii) set aside or otherwise segregate any amounts for any
such purpose;
provided, however, that the Issuer may make, or cause to be made, (1)
distributions as contemplated by, and to the extent funds are available for such
purpose under, this Indenture, the Transfer and Servicing Agreement or the Trust
Agreement and (2) payments to the Indenture Trustee pursuant to Section 6.07.
The Issuer may not, directly or indirectly, make payments to or distributions
from the Collection Account except in accordance with the Transaction Documents.
Section 3.19 ADDITIONAL REPRESENTATIONS OF THE ISSUER.
The Issuer represents and warrants that as of the date hereof the
following representations and warranties are true and correct (which
representations and warranties shall survive the pledge of the Collateral to the
Indenture Trustee pursuant to this Indenture):
(i) This Indenture creates a valid and continuing
security interest (as defined in the UCC) in the Collateral in favor of
the Indenture Trustee, which security interest is prior to all other
Liens (other than Liens permitted by the Transaction Documents), and is
enforceable as such as against creditors of and purchasers from the
Issuer.
(ii) The Issuer has taken all steps necessary to perfect
its security interest against the Transferor in the property securing
the Receivables.
(iii) The Receivables constitutes "chattel paper" or
"accounts" within the meaning of the UCC.
(iv) The Issuer owns and has good and marketable title to
the Collateral, free and clear of any Lien (other than Liens permitted
by the Transaction Documents), claim or encumbrance of any Person.
(v) The Issuer has caused or will have caused, within ten
days of the initial Series Issuance Date, the filing of all appropriate
financing statements in the proper filing
23
office in the appropriate jurisdictions under applicable law in order
to perfect the security interest in the Collateral granted to the
Indenture Trustee hereunder.
(vi) The Issuer has not authorized the filing of and is
not aware of any financing statements against the Issuer that include a
description of collateral covering the Collateral other than any
financing statement (i) relating to the security interest granted to
the Indenture Trustee hereunder, (ii) that has been terminated or as to
which the secured party has released its security interest with respect
to collateral covering the Collateral, or (iii) that was filed with
respect to Liens permitted by the Transaction Documents.
(vii) The Issuer has received a written acknowledgment from
the Servicer that the Servicer is holding the Floorplan Financing
Agreements that create the Receivables solely on behalf of and for the
benefit of the Indenture Trustee, to the extent relating to the
Receivables. The Floorplan Financing Agreements that create the
Receivables do not have any marks or notations indicating that the
Receivables have been pledged, assigned or otherwise conveyed to any
Person other than the Indenture Trustee. All financing statements filed
or to be filed against the Issuer in favor of the Indenture Trustee in
connection herewith describing the Collateral contain a statement to
the following effect: "A purchase of or security interest in any
collateral described in this financing statement, other than with
respect to a Liens permitted by the Transaction Documents, will violate
the rights of the Indenture Trustee."
Section 3.20 FURTHER INSTRUMENTS AND ACTS.
Upon request of the Indenture Trustee, the Issuer will execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture will cease to be of further effect with respect to the
Notes of any Series, except as to (a) rights of registration of transfer and
exchange, (b) substitution of mutilated, destroyed, lost or stolen Notes, (c)
the rights of Noteholders to receive payments of principal thereof and interest
thereon, (d) Sections 3.03, 3.05, 3.07, 3.08, 3.10, 3.11 and 3.12, (e) the
rights and immunities of the Indenture Trustee hereunder, including the rights
of the Indenture Trustee under Section 6.07, and the obligations of the
Indenture Trustee under Section 4.02 and (f) the rights of Noteholders as
beneficiaries hereof with respect to the property so deposited with the
Indenture Trustee and payable to all or any of them, and the Indenture Trustee,
on demand of and at the expense of the Issuer, will execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
Notes when:
(i) either:
24
(A) all Notes of such Series theretofore
authenticated and delivered (other than (1) Notes which have
been destroyed, lost or stolen and which have been replaced,
or paid as provided in Section 2.06, and (2) Notes for whose
full 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 3.03) have been delivered to the Indenture
Trustee for cancellation;
(B) all Notes of such Series not theretofore
delivered to the Indenture Trustee for cancellation:
(1) have become due and payable;
(2) will become due and payable at the
Final Maturity Date for such Class or Series of
Notes;
(3) are to be called for redemption
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; or
(4) have been defeased in accordance
with Section 11.04 of this Indenture;
and the Issuer, in the case of (1), (2), (3) or (4) 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 indebtedness on such Notes not
theretofore delivered to the Indenture Trustee for
cancellation when due at the Final Maturity Date for such
Class or Series of Notes or the Redemption Date (if Notes have
been called for redemption pursuant to the related Indenture
Supplement), as the case may be;
(ii) the Issuer has paid or caused to be paid all other
sums payable hereunder by the Issuer; and
(iii) the Issuer has delivered to the Indenture Trustee,
upon written request of the Indenture Trustee, an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA) an
Independent Certificate from a firm of certified public accountants,
each meeting the applicable requirements of Section 12.01(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 4.02 APPLICATION OF TRUST MONEY.
All monies deposited with the Indenture Trustee pursuant to Section
4.01 will be held in trust and applied by it, in accordance with the provisions
of the Notes, this Indenture and the applicable Indenture Supplement, to make
payments, either directly or through any Paying
25
Agent, as the Indenture Trustee may determine, to the Noteholders and for the
payment in respect 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 Transfer and Servicing Agreement or required by law.
ARTICLE V
EARLY AMORTIZATION EVENTS, DEFAULTS AND REMEDIES
Section 5.01 EARLY AMORTIZATION EVENTS.
Upon the occurrence of an Early Amortization Event, an Early
Amortization Period will commence and payment on the Notes of each Series will
be made in accordance with the terms of the related Indenture Supplement.
Section 5.02 EVENTS OF DEFAULT.
The Issuer will deliver to the Indenture Trustee, within five days
after the occurrence of an Event of Default, written notice in the form of an
Officer's Certificate of any event which with the giving of notice and the lapse
of time would become an Event of Default, its status and what action the Issuer
is taking or proposes to take with respect thereto.
Section 5.03 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
(a) If an Event of Default described in clause (1), (2) or (4) of
the definition thereof occurs and is continuing with respect to the Notes, then
the Indenture Trustee, or the Holders of at least 66 2/3% of the Outstanding
Principal Amount of each Class of each affected Series, may declare all the
Notes of such Series to be immediately due and payable, by a notice in writing
to the Issuer (and to the Indenture Trustee if declared by Noteholders). In
addition, unless the Holders of at least 66 2/3% of the Outstanding Principal
Amount of each Class of the affected Series otherwise elect, the Indenture
Trustee shall declare all the Notes of such Series immediately due and payable
on the Trust Termination Date. If an Event of Default described in clause (3) of
the definition thereof occurs and is continuing, then the Indenture Trustee will
declare all of the Notes to be immediately due and payable, by a notice in
writing to the Issuer. Upon any such declaration, the Revolving Period (or, if
applicable, any other period of principal payment or accumulation other than an
Early Amortization Period) with respect to such Series will terminate, an Early
Amortization Period will commence and the unpaid principal amount of such Notes,
together with accrued and unpaid interest thereon through the date of
acceleration, will become immediately due and payable.
(b) At any time after such declaration of acceleration of maturity
has been made pursuant to Section 5.03(a) above, and before a judgment or decree
for payment of the money due has been obtained by the Indenture Trustee as
hereinafter provided in this Article V, the Holders of at least 66 2/3% of the
Outstanding Principal Amount of each Class of such Series, by written notice to
the Issuer and the Indenture Trustee, may rescind and annul such declaration and
its consequences with respect to such Series. No such rescission will affect any
subsequent default or impair any right consequent thereto.
26
Section 5.04 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE.
(a) The Issuer covenants that if (i) default is made in the
payment of any interest on any Note when the same becomes due and payable, and
such default continues for a period of 5 days following the date on which such
interest became due and payable or (ii) default is made in the payment of
principal of any Note, if and to the extent not previously paid, when the same
becomes due and payable on its Final Maturity Date, the Issuer will, upon demand
of the Indenture Trustee, pay to it, for the benefit of the Holders of the Notes
of the affected Series, the whole amount then due and payable on such Notes for
principal and interest, with interest upon the overdue principal, and, to the
extent payment at such rate of interest is legally enforceable, interest upon
overdue installments of interest, at the applicable Note Interest Rate borne by
the Notes of such Series, and in addition thereto will pay such further amount
as is 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 fails forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the 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 5.05, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders of
the affected Series, by such appropriate Proceedings as the Indenture Trustee
may deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy
or legal or equitable right vested in the Indenture Trustee by this Indenture or
by law.
(d) If there are pending, relative to the Issuer or any other
obligor upon the Notes of the affected Series, or any Person having or claiming
an ownership interest in the Trust Assets, Proceedings under Title 11 of the
United States Code or any other applicable United States federal or state
bankruptcy, insolvency or other similar law, or if a receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, sequestrator, custodian or
similar official has 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 of
such Series, or to the creditors or property of the Issuer or such other
obligor, the Indenture Trustee, irrespective of whether the principal of any
Notes is then due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Indenture Trustee has made any demand
pursuant to the provisions of this Section, will be entitled and empowered, by
intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect of the
Notes of such Series and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the
27
Indenture Trustee (including any claim for reasonable compensation to
the Indenture Trustee and each predecessor Indenture Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Indenture Trustee and each predecessor Indenture Trustee, except as a
result of negligence or bad faith) and of the Noteholders of such
Series allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations,
to vote on behalf of the Holders of Notes of such Series 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 of such Series
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 of such Series allowed
in any judicial proceedings relative to the Issuer, its creditors and
its property;
and any trustee, receiver, liquidator, custodian, assignee, sequestrator or
other similar official in any such Proceeding is hereby authorized by each of
such Noteholders to make payments to the Indenture Trustee, and, if the
Indenture Trustee consents to the making of payments directly to such
Noteholders, to pay to the Indenture Trustee such amounts as are sufficient to
cover reasonable compensation to the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee except as a result of negligence
or bad faith.
(e) Nothing herein contained may be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such action or Proceedings
instituted by the Indenture Trustee will 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 Indenture Trustee and their respective agents and attorneys, will be
for the benefit of the Holders of the Notes of the affected Series as provided
herein.
(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 is a
28
party), the Indenture Trustee will be deemed to represent all the Holders of the
Notes of the affected Series, and it will not be necessary to make any such
Noteholder a party to any such Proceedings.
Section 5.05 REMEDIES; PRIORITIES.
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee:
(i) may institute Proceedings in its own name and as
trustee of an express trust for the collection of all amounts then
payable on the Notes of the affected Series or under this Indenture
with respect thereto, whether by declaration or otherwise, enforce any
judgment obtained, and collect from the Issuer and any other obligor
upon such Notes monies adjudged due;
(ii) may take any other appropriate action to protect and
enforce the rights and remedies of the Indenture Trustee and the
Holders of the Notes of the affected Series;
(iii) may at its own election or shall at the written
direction of the Holders of at least a majority of the Outstanding
Principal Amount of any accelerated Series (excluding any Notes of such
Series held by the Transferor or one of its Affiliates), institute
foreclosure Proceedings from time to time with respect to the portion
of the Trust Assets which secures such Notes by causing the Issuer to
sell such Trust Assets (together with their related interest
components) to a Permitted Assignee in an amount equal to the product
of the amount of all Trust Assets multiplied by the Series Allocation
Percentage of the accelerated Series of Notes in accordance with
Section 5.16, but only if the Indenture Trustee determines that the
proceeds of such sale will be sufficient to pay principal of and
interest on such Notes in full; provided, that the Indenture Trustee
will not cause the Issuer to sell Trust Assets the proceeds of which
would exceed the Outstanding Principal Amount of the Notes of such
Series plus all accrued and unpaid interest and any amounts owing to
Series Enhancers at the time of such sale;
(iv) shall at the direction of the Holders of at least 66
2/3% of the Outstanding Principal Amount of each Class of any
accelerated Series (excluding any Notes of such Series held by the
Transferor or one of its Affiliates), institute foreclosure Proceedings
from time to time with respect to the portion of the Trust Assets that
secures such Notes, regardless of the sufficiency of the proceeds
thereof, by causing the Issuer to sell such Trust Assets (together with
their related interest components) to a Permitted Assignee in an amount
equal to the product of the amount of all Trust Assets multiplied by
the Series Allocation Percentage of the accelerated Series of Notes in
accordance with Section 5.16; provided, that the Indenture Trustee will
not cause the Issuer to sell Trust Assets the proceeds of which would
exceed the Outstanding Principal Amount of the Notes of such Series
plus all accrued and unpaid interest and any amounts owing to Series
Enhancers at the time of such sale (each of the actions described in
this clause (iv) and clause (iii) above, being a "Foreclosure Remedy");
and
(v) shall, unless the vote of the Holders of at least 66
2/3% of the Outstanding Principal Amount of each Class of such Series
(excluding any Notes of such Series held
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by the Transferor or one of its Affiliates) determines otherwise,
automatically institute foreclosure Proceedings on the Trust
Termination Date with respect to the portion of the Trust Assets which
secures such Notes by causing the Issuer to sell such Trust Assets
(together with their related interest components) to a Permitted
Assignee in an amount equal to the product of the amount of all Trust
Assets multiplied by the Series Allocation Percentage of such Series of
Notes in accordance with Section 5.16; provided, that the Indenture
Trustee will not cause the Issuer to sell Trust Assets the proceeds of
which would exceed the Outstanding Principal Amount of the Notes of
such Series plus all accrued and unpaid interest and any amounts owing
to Series Enhancers at the time of such sale.
In determining such sufficiency or insufficiency with respect to
clauses (iii) and (iv) above, the Indenture Trustee may, but need not, obtain
and rely upon an opinion of an Independent investment banking or accounting firm
of national reputation as to the feasibility of such proposed action and as to
the sufficiency of the Trust Assets or available portions thereof for such
purpose.
(b) Any money or property collected by the Indenture Trustee
pursuant to this Article V following the acceleration of the maturities of the
Notes of the affected Series pursuant to Section 5.03 (so long as such
declaration has not been rescinded or annulled) will be treated as Collections
and distributed, together with any amounts then held in the Collection Account,
Excess Funding Account or any Series Accounts for such Series and any amounts
available under the Series Enhancement for such Series, as payments to the
Holders of the Notes of such Series and the Series Enhancers for such Series in
accordance with the terms of this Indenture, the related Indenture Supplement
and the Series Enhancement for such Series. Following the sale of the Collateral
(or portion thereof) for a Series and the application of the proceeds of such
sale to such Series and the application of the amounts then held in the
Collection Account, the Excess Funding Account and any Series Accounts for such
Series as are allocated to such Series and any amounts available under the
Series Enhancement for such Series, such Series will no longer be entitled to
any allocation of Collections or other property constituting the Collateral
under this Indenture and the Notes of such Series will no longer be Outstanding.
(c) The Indenture Trustee may, upon notification to the Issuer,
fix a record date and payment date for any payment to Noteholders of the
affected Series pursuant to this Section. At least fifteen days before such
record date, the Indenture Trustee will provide notice by mail, private
overnight courier service or facsimile transmission to each such Noteholder,
which notice will state the record date, the payment date and the amount to be
paid.
Section 5.06 OPTIONAL PRESERVATION OF TRUST ASSETS.
If the Notes of any Series have been declared to be due and payable
under Section 5.03 following an Event of Default and such declaration and its
consequences have not been rescinded and annulled, and the Indenture Trustee has
not received written direction from the Noteholders pursuant to Section 5.12,
the Indenture Trustee may, but need not, elect to maintain possession of all or
any portion of the Trust Assets. 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 will take such
desire into account when determining whether or
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not to maintain possession of the Trust Assets. In determining whether to
maintain possession of all or any portion of the Trust Assets, the Indenture
Trustee may, but need not, obtain and rely upon an opinion of an independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Trust
Assets or retained portion thereof for such purpose.
Section 5.07 LIMITATION ON SUITS.
No Noteholder will have any right to institute any proceedings,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(i) the Holders of at least 25% of the Outstanding
Principal Amount of each affected Series have made written request to
the Indenture Trustee to institute such proceeding in its own name as
Indenture Trustee;
(ii) such Noteholder or Noteholders has previously given
written notice to the Indenture Trustee of a continuing Event of
Default;
(iii) such Noteholder or Noteholders has offered to the
Indenture Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance 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
any such proceeding; and
(v) no direction inconsistent with such written request
has been given to the Indenture Trustee during such 60-day period by
the Holders of at least a majority of the Outstanding Principal Amount
of such Series;
it being understood and intended that no one or more Noteholders of the affected
Series has any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Noteholders of such Series or to obtain or to seek to obtain priority or
preference over any other Noteholders of such Series or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Noteholders of such Series.
If the Indenture Trustee receives conflicting or inconsistent requests
and indemnity from two or more groups of Noteholders of such affected Series,
each holding less than a majority of the Outstanding Principal Amount of such
Series, the Indenture Trustee in its sole discretion may determine what action,
if any, to take, notwithstanding any other provisions of this Indenture.
Section 5.08 UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST.
Notwithstanding any other provision in this Indenture, each Noteholder
has the absolute and unconditional right to receive payment of the principal of
and interest in respect of such Note as such principal and interest become due
and payable and to institute suit for the enforcement of
31
any such payment, and such right may not be impaired without the consent of such
Noteholder; provided, however, notwithstanding any other provision in this
Indenture to the contrary, the obligation to pay principal and interest on the
Notes or any other amount payable to any Noteholder will be without recourse to
NMAC, the Indenture Trustee , the Owner Trustee or any Affiliate, officer,
employee or director of any of them and the obligation to pay principal or
interest on the Notes or any amount payable to any Noteholder will be subject to
Article VIII and the allocation and payment provisions of the related Indenture
Supplement.
Section 5.09 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, 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 Noteholder will, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Indenture Trustee and the Noteholders will continue as though no such proceeding
had been instituted.
Section 5.10 RIGHTS AND REMEDIES CUMULATIVE.
No right, remedy, power or privilege herein conferred upon or reserved
to the Indenture Trustee or to the Noteholders is intended to be exclusive of
any other right, remedy, power or privilege, and every right, remedy, power or
privilege is, to the extent permitted by law, cumulative and in addition to
every other right, remedy, power or privilege given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or exercise
of any right or remedy will not preclude any other further assertion or the
exercise of any other appropriate right or remedy.
Section 5.11 DELAY OR OMISSION NOT WAIVER.
No failure to exercise and no delay in exercising, on the part of the
Indenture Trustee or of any Noteholder or other Person, any right or remedy
occurring hereunder upon any Event of Default will impair any such right or
remedy or constitute a waiver thereof of any such Event of 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 5.12 RIGHTS OF NOTEHOLDERS TO DIRECT INDENTURE TRUSTEE.
Holders of at least a majority of the Outstanding Principal Amount of
any affected Series has the right to direct in writing 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 with respect to the Notes; provided, however, that subject
to Section 6.01:
(i) the Indenture Trustee has the right to decline any
such written direction if the Indenture Trustee, after being advised by
counsel, determines that the action so directed is in conflict with any
rule of law or with this Indenture, and
32
(ii) the Indenture Trustee has the right to decline any
such direction if the Indenture Trustee determines in good faith, by a
Responsible Officer of the Indenture Trustee, that the proceedings so
directed would be illegal or involve the Indenture Trustee in personal
liability or be unjustly prejudicial to the Noteholders not parties to
such direction.
Section 5.13 WAIVER OF PAST DEFAULTS.
Prior to the declaration of the acceleration of the maturity of the
Notes of the affected Series as provided in Section 5.02, Holders of at least a
majority of the Outstanding Principal Amount of such Series may, on behalf of
all such Noteholders waive in writing any past default with respect to such
Notes and its consequences, except a default:
(i) in the payment of the principal or interest in
respect of any Note of such Series, or
(ii) in respect of a covenant or provision hereof that
under Section 10.02 cannot be modified or amended without the consent
of the Noteholder of each Outstanding Note affected.
Upon any such written waiver, such default will cease to exist, and any
Event of Default arising therefrom will be deemed to have been cured, for every
purpose of this Indenture; but no such waiver will extend to any subsequent or
other default or impair any right consequent thereon. After a declaration of
acceleration, only waivers pursuant to Section 5.03 are permitted.
Section 5.14 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Noteholder by its
acceptance of a Note will be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Indenture Trustee for any action
taken, suffered or omitted by it as Indenture Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section will not apply to any suit instituted by the
Indenture Trustee, to any suit instituted by any Noteholder, or group of
Noteholders (in compliance with Section 5.08), holding in the aggregate more
than 10% of the Outstanding Principal Amount of the affected Series, or to any
suit instituted by any Noteholder for the enforcement of the payment of the
principal or interest in respect of any Note on or after the Payment Date on
which any of such amounts was due (or, in the case of redemption, on or after
the applicable Redemption Date).
Section 5.15 WAIVER OF STAY OR EXTENSION LAWS.
The Issuer covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may adversely affect the covenants
or the performance of this Indenture; and the Issuer (to the extent
33
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Indenture Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
Section 5.16 SALE OF TRUST ASSETS.
(a) The method, manner, time, place and terms of any sale of
Receivables (or interest therein) pursuant to Section 5.05(a) must be
commercially reasonable. The Indenture Trustee may from time to time postpone
any sale by public announcement made at the time and place of such sale. The
Indenture Trustee hereby expressly waives its right to any amount fixed by law
as compensation for any sale.
(b) The Indenture Trustee is hereby irrevocably appointed the
agent and attorney-in-fact of the Issuer in connection with any sale of
Receivables pursuant to Section 5.05(a)(iii) and (iv). No purchaser or
transferee at any such sale is required to ascertain the Indenture Trustee's
authority, inquire into the satisfaction of any conditions precedent or see to
the application of any monies.
(c) In its exercise of the foreclosure remedy pursuant to Section
5.05(a), the Indenture Trustee will solicit bids from Permitted Assignees for
the sale of Trust Assets (together with their related interest components) in an
amount equal to the product of all Trust Assets multiplied by the Series
Allocation Percentage of the affected Series of Notes at the time of sale;
provided, that the Indenture Trustee will not cause the Issuer to sell Trust
Assets the proceeds of which would exceed the Outstanding Principal Amount of
the Notes of such Series plus all accrued and unpaid interest and any amounts
owing to Series Enhancers at the time of such sale. The Transferor or any of its
Affiliates who are Permitted Assignees will be entitled to participate in, and
to receive from the Indenture Trustee a copy of each other bid submitted in
connection with, such bidding process; provided that (i) at least one
participant other than the Transferor and any of its Affiliates must submit a
bona fide offer and (ii) the Transferor and any of its Affiliates are prohibited
from bidding an amount which exceeds fair value of such Trust Assets. The
Indenture Trustee must sell such Trust Assets (together with their related
interest components) to the bidder with the highest cash purchase offer. The
proceeds of any such sale must be applied in accordance with Section 5.05(b).
Section 5.17 ACTION ON NOTES.
The Indenture Trustee's right to seek and recover judgment on the Notes
or under this Indenture will not be affected by the seeking or obtaining of or
application for 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 will be impaired by the recovery of any judgment by
the Indenture Trustee against the Issuer or by the levy of any execution under
such judgment upon any portion of the Trust Assets or upon any of the assets of
the Issuer. Any money or property collected by the Indenture Trustee must be
applied as specified in the applicable Indenture Supplement.
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ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01 DUTIES OF INDENTURE TRUSTEE.
(a) If an Event of Default has occurred and is continuing and a
Trustee Officer has actual knowledge or written notice of such Event of Default,
the Indenture Trustee will, prior to the receipt of written directions, if any,
from the Holders of at least a majority of the Outstanding Principal Amount of
such affected Series or as otherwise provided herein in the case of certain
directions, exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations are to be read into
this Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith or negligence 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,
the Indenture Trustee, upon receipt of any resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Indenture Trustee which are specifically required to
be furnished pursuant to any provision of this Indenture or any
Indenture Supplement, will examine them to determine whether they
substantially conform to the requirements of this Indenture or any
Indenture Supplement. The Indenture Trustee will give prompt written
notice to the Noteholders and each Rating Agency of any material lack
of conformity of any such instrument to the applicable requirements of
this Indenture or any Indenture Supplement discovered by the Indenture
Trustee that would entitle the Holders of a majority of the Outstanding
Principal Amount of such affected Series to take any action pursuant to
this Indenture or any Indenture Supplement.
(c) In case an Early Amortization Event has occurred and is
continuing and a Trustee Officer has actual knowledge or written notice of such
Early Amortization Event, the Indenture Trustee will, prior to the receipt of
directions, if any, from the Holders of at least a majority of the Outstanding
Principal Amount of such affected Series, exercise such rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(d) No provision of this Indenture is to be construed to relieve
the Indenture Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
35
(i) this subsection is not to be construed to limit the
effect of subsection (a) of this Section;
(ii) the Indenture Trustee will not be liable for any
error of judgment made in good faith by a Trustee Officer, unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Indenture Trustee will not be liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the Indenture and/or the direction of the
Holders of at least a majority of the Outstanding Principal Amount of
each Outstanding Series affected thereby or entitled to vote or give
approvals with respect thereto relating to the time, method and place
of conducting any proceeding for any remedy available to the Indenture
Trustee, or for exercising any trust or power conferred upon the
Indenture Trustee, under this Indenture; and
(iv) the Indenture Trustee will not be liable for any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Servicer, the Transferor or the
Issuer.
(e) No provision of this Indenture requires the Indenture Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it has reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(f) Every provision of this Indenture that in any way relates to
the Indenture Trustee is subject to subsections (a), (b), (c) and (d) of this
Section.
(g) Except as expressly provided in this Indenture and the other
Transaction Documents, the Indenture Trustee has no power to vary the Trust
Assets, including by (i) accepting any substitute payment obligation for a
Receivable transferred to the Issuer under the Transfer and Servicing Agreement,
(ii) adding any other investment, obligation or security to the Trust Assets or
(iii) withdrawing any Receivable from the Trust Assets.
(h) The Indenture Trustee has no responsibility or liability for
investment losses on Eligible Investments.
(i) The Indenture Trustee will hold directly, or through a
custodian, any "instruments" within the meaning of any applicable enactment of
the UCC.
Section 6.02 NOTICE OF EARLY AMORTIZATION EVENT, EVENTS OF DEFAULT OR
SERVICER DEFAULT.
Upon the occurrence of any Early Amortization Event, Event of Default
or Servicer Default of which a Trustee Officer has actual knowledge or has
received notice thereof, the Indenture Trustee will give notice to all
Noteholders, as their names and addresses appear on the Note Register and the
Rating Agencies, of such Early Amortization Event, Event of Default or Servicer
Default known to the Indenture Trustee within 30 days after it occurs or within
ten
36
Business Days after the Indenture Trustee receives such notice or obtains actual
notice, if later. For all purposes under this Indenture, the Indenture Trustee
will not be deemed to have notice or knowledge of any Event of Default, Early
Amortization Event or Servicer Default unless a Trustee Officer assigned to and
working in the Corporate Trust Office of the Indenture Trustee has actual
knowledge thereof or has received written notice thereof. For purposes of
determining the Indenture Trustee's responsibility and liability hereunder, any
reference to an Event of Default, Early Amortization Event or Servicer Default
is to be construed to refer only to such event of which the Indenture Trustee is
deemed to have notice as described in this Section.
Section 6.03 RIGHTS OF INDENTURE TRUSTEE.
Except as otherwise provided in Section 6.01:
(a) the Indenture Trustee may conclusively rely and will be fully
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, note or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) whenever in the administration of this Indenture the Indenture
Trustee deems it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Indenture Trustee
(unless other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate of the Issuer. The
Issuer will provide a copy of such Officer's Certificate to the Noteholders at
or prior to the time the Indenture Trustee receives such Officer's Certificate;
(c) as a condition to the taking, suffering or omitting of any
action by it hereunder, the Indenture Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel will be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(d) the Indenture Trustee is under no obligation to exercise any
of the rights or powers vested in it by this Indenture or to honor the request
or direction of any of the Noteholders pursuant to this Indenture, unless such
Noteholders have offered to the Indenture Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(e) the Indenture Trustee is not required to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, note or other paper or document, but the Indenture Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Indenture Trustee determines to make such
further inquiry or investigation, it will be entitled to examine the books,
records and premises of the Issuer and the Servicer, personally or by agent or
attorney;
(f) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, attorneys, custodians or nominees and the Indenture Trustee is not
responsible for any (i) misconduct or negligence on the part of any agent,
attorney, custodians or nominees appointed with due care by it hereunder
37
or (ii) the supervision of such agents, attorneys, custodians or nominees after
such appointment with due care;
(g) the Indenture Trustee will not be liable for any actions
taken, suffered or omitted by it in good faith, without negligence and
reasonably believed by it to be authorized or within the discretion or rights
conferred upon the Indenture Trustee by this Indenture; and
(h) if the Indenture Trustee is also acting as Paying Agent and
Transfer Agent and Registrar, the rights and protections afforded to the
Indenture Trustee pursuant to this Article VI will also be afforded to such
Paying Agent and Transfer Agent and Registrar.
Section 6.04 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained herein and in the Notes, except the certificate
of authentication of the Indenture Trustee, will be deemed to be the statements
of the Issuer, and the Indenture Trustee assumes no responsibility for their
correctness. The Indenture Trustee makes no representation as to the validity or
sufficiency of this Indenture, the Notes, or any related document. The Indenture
Trustee is not accountable for the use or application by the Issuer of the
proceeds from the Notes.
Section 6.05 MAY HOLD NOTES.
The Indenture Trustee, any Paying Agent, Transfer Agent and Registrar
or any other agent of the Issuer, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with the Issuer with
the same rights it would have if it were not Indenture Trustee, Paying Agent,
Transfer Agent and Registrar or such other agent.
Section 6.06 MONEY HELD IN TRUST.
Money held by the Indenture Trustee in trust hereunder need not be
segregated from other funds held by the Indenture Trustee in trust hereunder
except to the extent required herein or required by law. The Indenture Trustee
will have no liability for interest on any money received by it hereunder except
as otherwise agreed upon in writing by the Indenture Trustee and the Issuer.
Section 6.07 COMPENSATION, REIMBURSEMENT AND INDEMNIFICATION.
(a) The Issuer agrees:
(i) to pay or cause the Servicer to pay the Indenture
Trustee reasonable compensation for all services rendered by it under
this Indenture and the Indenture Supplements, which compensation will
not be limited by any provision of law regarding the compensation of a
trustee of an express trust;
(ii) except as otherwise expressly provided in this
Indenture, to reimburse or cause the Servicer to reimburse the
Indenture Trustee on its request for all reasonable expenses,
disbursements, and advances incurred or made by the Indenture Trustee
pursuant to this Indenture and the Indenture Supplements, including the
costs of
38
implementing any Swap Agreement as contemplated by Section 10.02, and
including all costs and expenses incurred by the Indenture Trustee
exercising any remedies under this Indenture and the reasonable
compensation and the expenses and disbursements of its agents and
counsel, except any expense, disbursement, or advance to the extent
attributable to its willful misconduct, negligence or bad faith; and
(iii) to indemnify the Indenture Trustee, its officers,
directors, employees, and agents against any loss, liability, expense,
damage, or injury suffered or sustained without willful misconduct,
negligence or bad faith on its part, arising in connection with the
acceptance or administration of this trust under this Indenture and in
connection with the Transaction Documents, including the costs and
expenses of defending itself against any claim or liability from the
exercise or performance of any of its powers or duties under this
Indenture.
(b) The Issuer's payment obligations to the Indenture Trustee
pursuant to this Section will survive the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of any Event of Default
specified in Section 5.02 with respect to the Issuer, the expenses are intended
to constitute expenses of administration under Title 11 of the United States
Code or any other applicable United States federal or state bankruptcy,
insolvency or similar law.
Section 6.08 REPLACEMENT OF INDENTURE TRUSTEE.
No resignation or removal of the Indenture Trustee and no appointment
of a successor Indenture Trustee will become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section. The
Indenture Trustee may resign at any time by giving 30 days' written notice to
the Issuer. The Holders of at least a majority of the Outstanding Principal
Amount of all Series may remove the Indenture Trustee by so notifying the
Indenture Trustee and may appoint a successor Indenture Trustee. The Servicer
must, by giving 30 days written notice, remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section
6.11;
(ii) the Indenture Trustee is adjudged bankrupt or
insolvent;
(iii) a receiver of the Indenture Trustee or of its
property is appointed, or any public officer takes charge of the
Indenture Trustee or its property or its affairs for the purpose of
rehabilitation, conservation or liquidation; or
(iv) the Indenture Trustee otherwise becomes legally
unable to act.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (the Indenture Trustee in such event
being referred to herein as the retiring Indenture Trustee), the Administrator
must promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee will deliver a written acceptance of its
appointment to the retiring Indenture Trustee, the Issuer and to the
Administrator. Thereupon the resignation or removal of the retiring indenture
Trustee will become effective, and the successor Indenture
39
Trustee will have all the rights, powers and duties of the Indenture Trustee
under this Indenture. The successor Indenture Trustee will notify the
Noteholders in writing of its succession. The retiring Indenture Trustee must
promptly transfer all property held by it as Indenture Trustee to the successor
Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Holders of at least a majority of the
Outstanding Principal Amount of all Series may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11 and the
Servicer fails promptly to take action to find a replacement Indenture Trustee,
any Noteholder may petition any court of competent jurisdiction for the removal
of the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's obligations under Section 6.07 will continue for the
benefit of the retiring Indenture Trustee.
Section 6.09 SUCCESSOR INDENTURE TRUSTEE BY MERGER.
If the Indenture Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or
transferee corporation without any further act will be the successor Indenture
Trustee; provided, that such corporation or banking association is otherwise
qualified and eligible under Section 6.11. The Indenture Trustee shall provide
notice to each Rating Agency promptly after any such consolidation or merger in
accordance with this Section.
If, at the time such successor or successors by merger, conversion,
consolidation or transfer to the Indenture Trustee succeeds to the trusts
created by this Indenture, any of the Notes have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the certificate
of authentication of any predecessor Indenture Trustee and deliver such Notes so
authenticated; and in case at that time any of the Notes have not been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes in the name of the successor to the Indenture Trustee; and in all such
cases such certificates will have the full force and effect as provided in the
Notes or in this Indenture with respect to certificates of authentication of the
Indenture Trustee.
Section 6.10 APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE INDENTURE
TRUSTEE.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust Assets may at the time be located or for the purpose
of implementing any Swap Agreement as contemplated by Section 10.02, the
Indenture Trustee has the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Trust Assets, and to
vest in such Person or Persons, in such capacity and for the benefit of the
Noteholders, such title to the Trust Assets, or any part hereof, and, subject to
the other provisions of this Section, such powers, duties,
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obligations, rights and trusts as the Indenture Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder is required to meet
the terms of eligibility as a successor trustee under Section 6.11 and no notice
to Noteholders of the appointment of any co-trustee or separate trustee is
required under Section 6.08.
(b) Every separate trustee and co-trustee will, 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 will 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 where any particular act or acts are to be
performed the Indenture Trustee is incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Trust Assets or
any portion thereof in any such jurisdiction) will be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Indenture Trustee;
(ii) no co-trustee or separate trustee hereunder will 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 will 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 must refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, will 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 must 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 dies, becomes incapable of acting, resigns or is removed, all of
its estates, properties, rights, remedies and trusts will vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 6.11 ELIGIBILITY; DISQUALIFICATION.
The Indenture Trustee must at all times satisfy the requirements of TIA
Section 310(a). The Indenture Trustee must 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 its long-term unsecured debt
41
must be rated at least Baa3 by Moody's, BBB- by Standard & Poor's. The Indenture
Trustee must comply with TIA Section 310(b), including the optional provision
permitted by the second sentence of TIA Section 310(b)(9); provided, however,
that any indenture or indentures under which other securities of the Issuer are
outstanding will be excluded from the operation of TIA Section 310(b)(1) if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 6.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST.
The Indenture Trustee must comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). An Indenture Trustee who
has resigned or been removed will be subject to TIA Section 311(a) to the extent
indicated.
Section 6.13 TAX RETURNS.
If the Issuer is required to file tax returns, the Servicer will
prepare or cause to be prepared such tax returns and will provide such tax
returns to the Owner Trustee for signature at least five days before such tax
returns are due to be filed. The Servicer, in accordance with the terms of each
Indenture Supplement, will also prepare or cause to be prepared all tax
information required by law to be distributed to Noteholders and will deliver
such information to the Owner Trustee at least five days prior to the date it is
required by law to be distributed to Noteholders. The Owner Trustee, upon
request, will furnish the Servicer with all such information known to the Owner
Trustee as may be reasonably required in connection with the preparation of all
tax returns of the Issuer, and will, upon request, execute such returns. In no
event will the Owner Trustee be liable for any liabilities, costs or expenses of
the Issuer or any Noteholder arising under any tax law, including United States
federal, state or local income or excise taxes or any other tax imposed on or
measured by income (or any interest or penalty with respect thereto arising from
a failure to comply therewith).
Section 6.14 REPRESENTATIONS AND COVENANTS OF INDENTURE TRUSTEE.
The Indenture Trustee represents, warrants and covenants that:
(i) the Indenture Trustee is a banking corporation duly
organized and validly existing under the laws of New York;
(ii) the Indenture Trustee has full power and authority to
deliver and perform this Indenture and has taken all necessary action
to authorize the execution, delivery and performance by it of this
Indenture and other Transaction Documents to which it is a party; and
(iii) each of this Indenture and the other Transaction
Documents to which it is a party has been duly executed and delivered
by the Indenture Trustee and constitutes its legal, valid and binding
obligation in accordance with its terms.
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Section 6.15 THE SECURITIES INTERMEDIARY.
(a) JPMorgan Chase Bank, is appointed as the initial Securities
Intermediary hereunder and JPMorgan Chase Bank, accepts such appointment.
(b) JPMorgan Chase Bank, represents and warrants that it is as of
the initial Series Issuance Date and will be for so long as it is the Securities
Intermediary hereunder a corporation that in the ordinary course of its business
maintains securities accounts for others and is acting in that capacity
hereunder. JPMorgan Chase Bank agrees with the parties hereto that, as of the
initial Series Issuance Date and for so long as it is the Securities
Intermediary hereunder, each of the Collection Account, Excess Funding Account
and each Series Account will be an account to which financial assets may be
credited. JPMorgan Chase Bank undertakes that for so long as it is the
Securities Intermediary it will treat the Indenture Trustee as entitled to
exercise rights that comprise such financial assets, and to exercise the
ordinary rights of an entitlement holder, in the fashion contemplated by the
UCC. JPMorgan Chase Bank agrees with the parties hereto that for so long as it
is the Securities Intermediary hereunder each item of property credited to the
Collection Account, the Excess Funding Account and each Series Account will be
treated as a "financial asset" within the meaning of the UCC. JPMorgan Chase
Bank acknowledges that as a result of Section 12.12, the "securities
intermediary's jurisdiction" as defined in the UCC of JPMorgan Chase Bank, with
respect to the Collateral, is the State of New York. JPMorgan Chase Bank
covenants that so long as it is the Securities Intermediary hereunder it will
not take any action inconsistent with the provisions of this Indenture
applicable to it. JPMorgan Chase Bank agrees that as long as it is the
Securities Intermediary hereunder no item of property credited to the Collection
Account, the Excess Funding Account or a Series Account will be subject to any
security interest, Lien, or right of setoff in favor of the Securities
Intermediary or anyone claiming through the Securities Intermediary (other than
the Indenture Trustee).
(c) It is the intent of the Indenture Trustee and the Issuer that
each of the Collection Account, Excess Funding Account and each Series Account
will be a securities account of the Indenture Trustee and not an account of the
Issuer. If despite such intent, the Collection Account, the Excess Funding
Account or a Series Account is determined to be an account of the Issuer, then
(i) the Securities Intermediary agrees to comply with entitlement orders
originated by the Indenture Trustee without further consent by the Issuer, and
(ii) JPMorgan Chase Bank, as initial Securities Intermediary, agrees that for so
long as it is the Securities Intermediary hereunder, it will comply with
entitlement orders originated by the Indenture Trustee without further consent
by the Issuer.
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Section 6.16 ANNUAL REPORTS TO HOLDERS. The Indenture Trustee shall
deliver or cause the Paying Agent to deliver annually to each Noteholder of
record such information as may be required to enable such holder to prepare its
federal and state income tax returns.
ARTICLE VII
NOTEHOLDERS' LIST AND REPORTS BY INDENTURE TRUSTEE AND ISSUER
Section 7.01 ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF
NOTEHOLDERS.
The Issuer will furnish or cause to be furnished to the Indenture
Trustee (i) upon each transfer of a Note, a list, in such form as the Indenture
Trustee may reasonably require, of the names, addresses and taxpayer
identification numbers of the Noteholders as they appear on the Note Register as
of such Record Date and (ii) at such other times, as the Indenture Trustee may
request in writing, within ten days after receipt by the Issuer of any such
request, a list of similar form and content as of a date not more than ten days
before the time such list is furnished; provided, however, that for so long as
the Indenture Trustee is the Transfer Agent and Registrar, the Indenture Trustee
will furnish to the Issuer such list in the same manner prescribed in clause
(ii) above.
Section 7.02 PRESERVATION OF INFORMATION; COMMUNICATIONS TO
NOTEHOLDERS.
(a) The Indenture Trustee will preserve, in as current a form as
is reasonably practicable, the names and addresses of the Noteholders contained
in the most recent list furnished to the Indenture Trustee as provided in
Section 7.01 and the names, addresses and taxpayer identification numbers of the
Noteholders received by the Indenture Trustee in its capacity as Transfer Agent
and Registrar. The Indenture Trustee may destroy any list furnished to it as
provided in Section 7.01 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 Transfer Agent and
Registrar will have the protection of TIA Section 312(c).
Section 7.03 REPORTS BY ISSUER.
(a) The Issuer must file or cause to be filed:
(i) 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
(ii) supply to the Indenture Trustee (and the Indenture
Trustee will transmit by mail to all Noteholders described in TIA
Section 313(c)) such summaries of any
44
information, documents and reports required to be filed by the Issuer
pursuant to clause (i) and 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 will end on March 31 of each year.
Section 7.04 REPORTS BY INDENTURE TRUSTEE.
As required by TIA Section 313(a), within 120 days after the end of
each fiscal year of the Issuer (commencing in 2004), the Indenture Trustee will
mail to each Noteholder as required by TIA Section 313(c) a brief report dated
as of such date that complies with TIA Section 313(a) as to its eligibility and
qualification to continue as Indenture Trustee under this Indenture, any amounts
advanced by it under this Indenture, the amount, interest rate and maturity date
of certain indebtedness owed by the Trust to such Indenture Trustee, in its
individual capacity, the property and funds physically held by such Indenture
Trustee in its capacity as such, and any action taken by it that materially
affects the Notes and that has not been previously reported. The Indenture
Trustee also must comply with TIA Section 313(b). At the time the report is
mailed to Noteholders, the Indenture Trustee must file a copy with the
Commission and each stock exchange, if any, on which the Notes are listed. The
Issuer must notify the Indenture Trustee if and when the Notes are listed on any
stock exchange.
Section 7.05 NOTICE BY PUBLICATION.
In addition to notices required to be given in any other manner
hereunder, all notices required to be given to the Noteholders will be effected
by publication at least once, if any Notes are listed on a stock exchange and
the rules of such stock exchange so require, in a publication meeting the
requirements of such stock exchange.
ARTICLE VIII
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 8.01 COLLECTION OF MONEY.
Except as otherwise expressly provided herein and in the related
Indenture Supplement, the Indenture Trustee may demand payment or delivery of,
and 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 will hold all such money and property received by it in trust for the
Noteholders and apply it as provided in this Indenture. Except as otherwise
expressly provided in this Indenture, if any default occurs in the making of any
payment or performance under the Transfer and Servicing Agreement or any other
Transaction Document, the Indenture Trustee may, and upon the request of the
Holders of at least a majority of the Outstanding Principal Amount of all Series
will, take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings. Any such action will be without prejudice to any right to claim an
Early Amortization Event or a Default or Event of Default under this Indenture
and to proceed thereafter as provided in Article V.
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Section 8.02 RIGHTS OF NOTEHOLDERS.
The Notes represent obligations of the Issuer secured by the Trust
Assets, which, with respect to each Series, will consist of Noteholders'
Collateral, it being understood that, except as specifically set forth in the
Indenture Supplement with respect thereto, the Notes of any Series or Class will
not be secured by any interest in any Series Account or Series Enhancement
pledged for the benefit of the Noteholders of any other Series or Class. The
"Transferor Interest" represents the ownership interest in the Trust Assets not
allocated pursuant to this Indenture or any Indenture Supplement to the
Noteholders' Collateral, including the right to receive Collections of the
Receivables at the times and in the amounts specified in this Indenture or in
any Indenture Supplement to be paid to the Transferor on behalf of all holders
of the Transferor Interest; provided, however, that the Transferor Interest will
represent an interest in the Collection Account, the Excess Funding Account, any
Series Account or any Series Enhancement, subject to the Lien of, and only as
expressly provided in, this Indenture or any Indenture Supplement.
Section 8.03 ESTABLISHMENT OF COLLECTION ACCOUNT, EXCESS FUNDING
ACCOUNT AND ACCUMULATION ACCOUNT.
(a) For the benefit of all Noteholders and any Series Enhancers,
the Issuer will establish and the Indenture Trustee will maintain and hold in
the name of the Indenture Trustee, for the benefit of all Noteholders and any
Series Enhancers, a Qualified Account bearing a designation clearly indicating
that the funds and other property credited thereto are held for the benefit of
the Noteholders and any Series Enhancers (the "Collection Account"). The
Indenture Trustee will possess all right, title and interest in all Eligible
Investments and all monies, instruments, securities, securities entitlements,
documents, certificates of deposit and other property from time to time on
deposit in or credited to the Collection Account and in all interest, proceeds,
earnings, income, revenue, dividends and other distributions thereof (including
any accrued discount realized on liquidation of any investment purchased at a
discount) for the benefit of the Noteholders and any Series Enhancers. The
Collection Account will be under the sole dominion and control of the Indenture
Trustee for the benefit of the Noteholders and any Series Enhancers. Except as
expressly provided in this Indenture and the Transfer and Servicing Agreement,
the Servicer agrees that it has no right of setoff or banker's lien against, and
no right to otherwise deduct from, any funds and other property held in the
Collection Account for any amount owed to it by the Indenture Trustee, the
Issuer, any Noteholder or any Series Enhancers. If, at any time, the Collection
Account ceases to be a Qualified Account, the Indenture Trustee (or the Servicer
on its behalf), within ten Business Days (or such longer period, not to exceed
30 calendar days, as to which each Rating Agency may consent), will establish a
new Collection Account meeting the conditions specified above, transfer any
monies, instruments, securities, security entitlements, documents, certificates
of deposit and other property to such new Collection Account and from the date
such new Collection Account is established, it will be the "Collection Account."
Pursuant to the authority granted to the Servicer in Section 3.01(a) of the
Transfer and Servicing Agreement, the Servicer has the power, revocable by the
Indenture Trustee, to make withdrawals and payments from the Collection Account
and to instruct the Indenture Trustee to make withdrawals and payments from the
Collection Account for the purposes of carrying out the Servicer's or the
Indenture Trustee's duties under the Transfer and Servicing Agreement and
hereunder, as applicable.
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Funds on deposit in the Collection Account (other than amounts
deposited pursuant to Section 2.03(c) or 6.01 of the Transfer and Servicing
Agreement or Section 11.02 hereof) will, at the written direction of the
Servicer, be invested by the Indenture Trustee or its nominee (including the
Securities Intermediary) in Eligible Investments selected by the Servicer. All
such Eligible Investments will be held by the Indenture Trustee for the benefit
of the Noteholders and any Series Enhancers. The Indenture Trustee will cause
each Eligible Investment to be delivered to it or its nominee (including a
securities intermediary) and will be credited to the Collection Account
maintained by the Indenture Trustee with the Securities Intermediary.
Investments of funds representing Collections collected during any Collection
Period will be invested in Eligible Investments that will mature so that such
funds will be available no later than the close of business on the Business Day
next preceding the Payment Date occurring in the following Collection Period. On
each Payment Date, all interest and other investment earnings (net of losses and
investment expenses) on funds on deposit in the Collection Account will be
treated as Interest Collections with respect to the last day of the related
Collection Period except as otherwise specified in the related Indenture
Supplement. The Indenture Trustee will bear no responsibility or liability for
any losses resulting from investment or reinvestment of any funds in accordance
with this Section 8.03(a) nor for the selection of Eligible Investments in
accordance with the provisions of this Indenture, any Indenture Supplement or
the Transfer and Servicing Agreement.
(b) For the benefit of all Noteholders and any Series Enhancers,
the Issuer will establish and the Indenture Trustee will maintain and hold in
the name of the Indenture Trustee, for the benefit of all Noteholders and any
Series Enhancers, a Qualified Account bearing a designation clearly indicating
that the funds and other property credited thereto are held for the benefit of
the Noteholders and any Series Enhancers (the "Excess Funding Account"). The
Indenture Trustee will possess all right, title and interest in all Eligible
Investments and all monies, instruments, securities, securities entitlement,
documents, certificates of deposit and other property from time to time on
deposit in or credited to the Excess Funding Account and in all interest,
proceeds, earnings, income and revenue, dividends and other distributions
thereof (including any accrued discount realized on liquidation of any
investment purchased at a discount) for the benefit of the Noteholders and any
Series Enhancers. The Excess Funding Account will be under the sole dominion and
control of the Indenture Trustee for the benefit of the Noteholders and any
Series Enhancers. Except as expressly provided in this Indenture and the
Transfer and Servicing Agreement, the Servicer agrees that it has no right of
setoff or banker's lien against, and no right to otherwise deduct from, any
funds and other property held in the Excess Funding Account for any amount owed
to it by the Indenture Trustee, the Issuer, any Noteholder or any Series
Enhancers. If, at any time, the Excess Funding Account ceases to be a Qualified
Account, the Indenture Trustee (or the Servicer on its behalf), within ten
Business Days (or such longer period, not to exceed 30 calendar days, as to
which each Rating Agency may consent), will establish a new Excess Funding
Account meeting the conditions specified above, transfer any monies,
instruments, securities, securities entitlements, documents, certificates of
deposit and other property to such new Excess Funding Account and from the date
such new Excess Funding Account is established, it will be the "Excess Funding
Account." Upon deposit of funds into the Excess Funding Account, the Servicer
will provide written notice of the allocation of any funds deposited to the
Excess Funding Account.
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Funds on deposit in the Excess Funding Account will, at the written
direction of the Servicer, be invested by the Indenture Trustee (including the
Securities Intermediary) in Eligible Investments selected by the Servicer. All
such Eligible Investments will be held by the Indenture Trustee or its nominee
for the benefit of the Noteholders and any Series Enhancers. The Indenture
Trustee will cause each Eligible Investment to be delivered to it or its nominee
(including a securities intermediary) and will be credited to the Excess Funding
Account maintained by the Indenture Trustee with the Securities Intermediary.
Funds on deposit in the Excess Funding Account on any Payment Date will be
invested in Eligible Investments that will mature so that such funds will be
available no later than the close of business on the Business Day next preceding
the Payment Date occurring in the following Collection Period. On each Payment
Date, all interest and other investment earnings (net of losses and investment
expenses) on funds on deposit in the Excess Funding Account will be treated as
Interest Collections with respect to the last day of the related Collection
Period except as otherwise specified in the related Indenture Supplement. The
Indenture Trustee will bear no responsibility or liability for any losses
resulting from investment or reinvestment of any funds in accordance with this
Section 8.03(b) nor for the selection of Eligible Investments in accordance with
the provisions of this Indenture, any Indenture Supplement or the Transfer and
Servicing Agreement.
During the Accumulation Period for any Series, funds on deposit in the
Excess Funding Account will be made available for deposit into the Accumulation
Account for such Series when and to the extent specified in the related
Indenture Supplement. If an Early Amortization Period has commenced and is
continuing with respect to one or more outstanding Series, any funds on deposit
in the Excess Funding Account will be allocated and distributed in accordance
with Section 8.04 and the terms of the related Indenture Supplements.
(c) If so specified in the related Indenture Supplement, the
Issuer may direct the Indenture Trustee to establish and maintain in the name of
the Indenture Trustee supplemental accounts for any Series or Class of Notes for
the benefit of the related Noteholders and, if applicable, any Series Enhancers.
For each Series of Notes that has an Accumulation Period, the Issuer will
establish and the Indenture Trustee will maintain and hold a separate account,
an "Accumulation Account," to which money or instruments deposited in the
Collection Account will be credited pending payment thereof to the related
Noteholders on the applicable Expected Final Payment Dates or on the Payment
Date or Payment Dates following the commencement of an Early Amortization Period
or Controlled Amortization Period with respect to such Series.
Section 8.04 COLLECTIONS AND ALLOCATIONS.
(a) The Servicer will apply or will instruct the Indenture Trustee
to apply all funds on deposit in the Collection Account as described in this
Article VIII and in each Indenture Supplement.
(b) Except as otherwise provided below, the Servicer will deposit
Collections received into the Collection Account as promptly as possible after
the Date of Processing of such Collections, but in no event later than the
second Business Day following the Date of Processing. Subject to the express
terms of any Indenture Supplement, but notwithstanding anything else in this
Indenture or the Transfer and Servicing Agreement to the contrary, the Servicer
need not make the daily deposits of Collections into the Collection Account as
provided in the preceding
48
sentence, but may make a single deposit in the Collection Account in immediately
available funds not later than 1:00 p.m., New York City time, on the Business
Day preceding the Payment Date following the Collection Period with respect to
which such deposit relates, for so long as NMAC remains the Servicer, no
Servicer Default has occurred and is continuing and any of the following
conditions is satisfied:
(i) NMAC's short-term unsecured debt obligations are
rated at least "P-1" by Moody's, "A-1" by Standard & Poor's and "F1" by
Fitch (for so long as Moody's, Standard & Poor's and Fitch are each
Rating Agencies);
(ii) NMAC arranges for and maintains a letter of credit or
other form of enhancement in respect of the Servicer's obligations to
make deposits of Collections into the Collection Account that is
acceptable in form and substance to each Rating Agency; or
(iii) NMAC otherwise satisfies the requirements of each
Rating Agency.
(c) Amounts on deposit in the Excess Funding Account will be
allocated and paid to the Noteholders entitled thereto in accordance with this
Article VIII and each Indenture Supplement. Amounts so allocated to any Series
will not, except as specified in the related Indenture Supplement, be available
to the Noteholders of any other Series. Allocations of the foregoing amounts
between the Noteholders' and the Transferor Interest, among the Series and among
the Classes in any Series, will be set forth in the related Indenture Supplement
or Indenture Supplements.
(d) The Servicer shall deposit Collections received into the
Collection Account only to the extent that such amounts are required for deposit
or distribution to the Noteholders or other parties, pursuant to this Indenture
or the related Indenture Supplement. If on any day the amounts on deposit in the
Collection Account exceed the amount required for deposit or distribution
pursuant to this Indenture or the related Indenture Supplement, the Servicer may
withdraw this excess amount. Subject to this Section 8.04, the Servicer may
retain its Servicing Fee with respect to any Series and is not required to
deposit the Servicing Fee into the Collection Account. The Servicer may elect to
waive its Monthly Servicing Fee with respect to any Series, for any Collection
Period, as and to the extent provided in any Indenture Supplement.
(e) On each day during each Collection Period, the Servicer will
allocate Interest Collections, Principal Collections and Defaulted Amounts among
the outstanding Series. The Servicer will allocate such amounts to each Series
based on the product of (i) the Series Allocation Percentage for such Series on
such day and (ii) the Interest Collections, Principal Collections and Defaulted
Amounts processed on such day. Once allocated to a particular Series, such
amounts will be further allocated between the holders of the Transferor Interest
and the Noteholders of such Series in accordance with the related Indenture
Supplement.
Section 8.05 SHARING GROUPS.
If so specified in the related Indenture Supplement, any Series may be
grouped into an Excess Interest Sharing Group or an Excess Principal Sharing
Group. To the extent that available amounts are not needed to make required
interest or principal payments or deposits for
49
a Series in an Excess Interest Sharing Group or Excess Principal Sharing Group,
respectively, the excess amounts may be applied, subject to certain limitations,
to cover shortfalls of required distributions and deposits for other Series that
are included in such Sharing Group.
(a) Excess Interest Sharing Groups. On each Payment Date, (i) the
Servicer will allocate Shared Excess Interest Amounts to each Excess Interest
Sharing Series in a particular Excess Interest Sharing Group, pro rata, in
proportion to the Interest Shortfalls, if any, with respect to each such Series
and (ii) the Servicer will withdraw from the Collection Account and pay to the
Owner Trustee for distribution to the holders of the Transferor Interest in
accordance with the Trust Agreement an amount equal to the excess, if any, of
(1) the aggregate Shared Excess Interest Amounts as defined in the related
Indenture Supplements for all such Series for such Payment Date over (2) the
aggregate Interest Shortfalls as defined in the related Indenture Supplements
for all such Series for such Payment Date, provided, however, that if the Pool
Balance, together with the amount on deposit in the Excess Funding Account as of
such Payment Date is less than the Required Pool Balance, the Servicer will not
distribute to the Owner Trustee any such amount, but will deposit such funds
into the Excess Funding Account.
(b) Excess Principal Sharing Groups. On each Payment Date, (i) the
Servicer will allocate Shared Excess Principal Amounts to each Principal Sharing
Series in a particular Principal Sharing Group, pro rata, in proportion to the
Principal Shortfalls, if any, with respect to each such Series and (ii) the
Servicer will withdraw from the Collection Account and pay to the Owner Trustee
for distribution to the holders of the Transferor Interest (in accordance with
the Trust Agreement) an amount equal to the excess, if any, of (1) the aggregate
Shared Excess Principal Amounts as defined in the related Indenture Supplements
for all such Series for such Payment Date over (2) the aggregate Principal
Shortfalls as defined in the related Indenture Supplements for all such Series
for such Payment Date; provided, however, that if the Pool Balance, together
with the amount on deposit in the Excess Funding Account as of such Payment Date
is less than the Required Pool Balance, the Servicer will not distribute to the
Owner Trustee any such amount, but will deposit such funds into the Excess
Funding Account.
Section 8.06 [RESERVED.]
Section 8.07 RELEASE OF TRUST ASSETS; ELIGIBLE LOAN DOCUMENTS.
(a) Subject to the payment of its fees and expenses, the Indenture
Trustee may, and when required by the provisions of this Indenture or any
Indenture Supplement must, execute instruments to release property from the Lien
of this Indenture or any Indenture Supplement, or convey the Indenture Trustee's
interest in the same, in a manner and under circumstances which are not
inconsistent with the provisions of this Indenture or such Indenture Supplement.
No party relying upon an instrument executed by the Indenture Trustee as
provided in this Article VIII is required to ascertain the Indenture Trustee's
authority, inquire into the satisfaction of any conditions precedent or see to
the application of any monies.
(b) In order to facilitate the servicing of the Receivables by the
Servicer and as provided in the Transfer and Servicing Agreement with respect to
a reassignment of Receivables, the Indenture Trustee, by written direction of a
Responsible Officer of the Indenture Trustee, will authorize the Servicer to
execute in the name and on behalf of the Indenture Trustee instruments
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of satisfaction or cancellation, or of partial or full release or discharge, and
other comparable instruments with respect to the Receivables (and the Indenture
Trustee will execute any such documents on request of the Servicer), subject to
the obligations of the Servicer under the Transfer and Servicing Agreement.
(c) The Indenture Trustee will, at such time as there are no Notes
outstanding, release and transfer, without recourse, all of the Trust Assets
that secured the Notes (other than any cash held for the payment of the Notes
pursuant to Section 4.02). The Indenture Trustee will release property from the
Lien of this Indenture pursuant to this Section only upon receipt of an Issuer
Order accompanied by an Officer's Certificate, an Opinion of Counsel and (if
required by the TIA) Independent Certificates in accordance with TIA sections
314(c) and 314(d)(1) meeting the applicable requirements of Section 12.01.
(d) Notwithstanding anything to the contrary in this Indenture or
the other Transaction Documents, immediately prior to the release of any portion
of the Trust Assets or any funds on deposit in the Series Accounts pursuant to
this Indenture or any Indenture Supplement, the Indenture Trustee must remit to
the holders of the Transferor Interest for their own account any funds that,
upon such release, would otherwise be remitted to the Issuer.
ARTICLE IX
DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS
Section 9.01 DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS.
Distributions must be made to, and reports provided to, Noteholders as
set forth in the related Indenture Supplement. The identity of the Noteholders
with respect to distributions and reports will be determined as of the Record
Date immediately preceding the related Payment Date.
ARTICLE X
SUPPLEMENTAL INDENTURES
Section 10.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
(a) Without the consent of the Holders of any Notes, 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 conform to the provisions of the TIA as in force at the date of the
execution thereof), upon satisfaction of the Rating Agency Condition (if such
supplemental indenture is material), 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
to the Lien of this Indenture additional property;
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(ii) to evidence the succession, in compliance with
Section 3.11, of another Person to the Issuer, and the assumption by
any such successor of the covenants of the Issuer herein and in the
Notes contained;
(iii) to add to the covenants of the Issuer, for the
benefit of the Holders of the Notes, or to surrender any right or power
herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to evidence and provide for the acceptance of the
appointment hereunder by a successor Indenture Trustee with respect to
the Notes and to add to or change any of the provisions of this
Indenture as may be necessary to facilitate the administration of the
trusts hereunder by more than one trustee, pursuant to the requirements
of Article VI;
(vi) to modify, eliminate or add to the provisions of this
Indenture to such extent as may be necessary, as evidenced by an
Opinion of Counsel, to effect the qualification of this Indenture under
the TIA or under any similar United States federal statute hereafter
enacted and to add to this Indenture such other provisions as may be
expressly required by the TIA;
(vii) to provide for the termination of any Series
Enhancement in accordance with the provisions of the related Indenture
Supplement;
provided, however, 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 must conform to the provisions of the TIA
as in force at the date of the execution thereof), in form satisfactory to the
Indenture Trustee, without the consent of the Holders of any Notes in order (A)
to cure any ambiguity, to correct or supplement any provision herein or in any
supplemental indenture that may be inconsistent with any other provision herein
or in any supplemental indenture or (B) to make any other provisions with
respect to matters or questions arising under this Indenture or in any
supplemental indenture, so long as, in each case, the Transferor has delivered
to the Indenture Trustee an Officer's Certificate, dated the date of any such
action, stating that the Transferor reasonably believes that such action will
not have a Significant Adverse Effect.
(b) Except as otherwise provided in Section 10.02, the Issuer and
the Indenture Trustee, when authorized by an Issuer Order, may, also without the
consent of any Noteholders of any Series then Outstanding enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture or of modifying in any manner the rights of the Holders of
the Notes under this Indenture upon (i) satisfaction of the Rating Agency
Condition (if such amendment is material) with respect to the Notes of all
Series, (ii) receipt of an Officer's Certificate of the Transferor to the effect
that the proposed amendment will not have a Significant Adverse Effect, and
(iii) receipt of a Required Federal Income Tax Opinion regarding such amendment.
Additionally, notwithstanding the preceding sentence, the Issuer and
the Indenture Trustee, when authorized by an Issuer Order, may, also without the
consent of any Noteholders
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of any Series then Outstanding, enter into an indenture or indentures
supplemental hereto to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable all or a portion of the Issuer to
qualify as, and to permit an election to be made for the Issuer to be treated as
a "financial asset securitization investment trust" under the Code and to avoid
the imposition of state or local income or franchise taxes imposed on the
Issuer's property or its income; provided, however, that (i) the Transferor
delivers to the Indenture Trustee and the Owner Trustee an Officer's Certificate
to the effect that the proposed amendments meet the requirements set forth in
this paragraph, (ii) the Rating Agency Condition has been satisfied (if such
amendment is material) and (iii) such amendment does not affect the rights,
duties or obligations of the Indenture Trustee or the Owner Trustee hereunder.
(c) Subject to the conditions specified in Section 2.12, 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 must conform to the provisions of the TIA as in force at the date
of the execution thereof), in form satisfactory to the Indenture Trustee,
without the consent of the Holders of any Notes, to provide for the issuance of
one or more Series of Notes in accordance with Section 2.12.
Section 10.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS.
The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, also may, with the consent of the Holders of at least a majority of the
Outstanding Principal Amount of each adversely affected Series and upon
satisfaction of the Rating Agency Condition (if such addition, change or
elimination is material), 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 of modifying in any manner the rights
of such Noteholders under this Indenture; provided, however, that no such
supplemental indenture may, without the consent of the Holder of each
outstanding Note affected thereby:
(i) change the due date of any installment of principal
of or interest on any Note, or reduce the principal amount thereof, the
interest rate specified thereon or the redemption price with respect
thereto or change any place of payment where, or the coin or currency
in which, any Note or any interest thereon is payable;
(ii) impair the right to institute suit for the
enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article V, to
the payment of any such amount due on the Notes on or after the
respective due dates thereof (or, in the case of redemption, on or
after the Redemption Date);
(iii) reduce the percentage that constitutes a majority of
the Outstanding Principal Amount of any Series outstanding the consent
of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required for any
waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences as provided for in
this Indenture;
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(iv) reduce the percentage of the Outstanding Principal
Amount, the consent of the Holders of which is required to direct the
Indenture Trustee to sell or liquidate the Trust Assets if the proceeds
of such sale would be insufficient to pay the principal amount and
accrued but unpaid interest on the outstanding Notes of such Series;
(v) decrease the percentage of the Outstanding Principal
Amount required to amend the sections of this Indenture that specify
the applicable percentage of the aggregate principal amount of the
Notes of such Series necessary to amend the Indenture or any
Transaction Documents which require such consent;
(vi) modify or alter the provisions of this Indenture
regarding the voting of Notes held by the Issuer, any other obligor on
the Notes, NMAC or any Affiliate thereof; or
(vii) except as otherwise permitted or contemplated herein,
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
for any Notes or terminate the Lien of this Indenture on any such
Collateral at any time subject hereto or deprive the Holder of any Note
of the security provided by the Lien of this Indenture.
The Indenture Trustee may in its discretion determine whether or not any Notes
would be affected by any supplemental indenture and any such determination will
be conclusive upon the Holders of all Notes, whether theretofore or thereafter
authenticated and delivered hereunder. The Indenture Trustee will not be liable
for any such determination made in good faith.
The Issuer and the Indenture Trustee may otherwise, with prior notice
to each Rating Agency (and satisfaction of the Rating Agency Condition if any
addition, change or elimination is material) and with the consent of the holders
of at least a majority of the Outstanding Principal Amount of the Notes of each
adversely affected Series, enter into one or more supplemental indentures to add
provisions to, change in any manner or eliminate any provision of this
Indenture, or to change the rights of the Noteholders under this Indenture.
Pursuant to the Trust Agreement and the Transfer and Servicing
Agreement, the Issuer may, from time to time, if so directed by the Transferor,
enter into a currency Swap Agreement with a Swap Counterparty to swap amounts
payable to the Holders of the Transferor Interest from U.S. dollars to Japanese
yen; provided, that (1) at the time the Issuer enters into the Swap Agreement,
the Rating Agency Condition shall be satisfied, and (2) any payments to the Swap
Counterparty (including termination payments) are payable only from amounts that
are otherwise payable to the Holders of the Transferor Interest. Any payments
received by the Issuer from the Swap Counterparty under such a Swap Agreement
shall not be deposited in the Collection Account and shall be paid by the
Indenture Trustee directly to or to the order of the Holders of the Transferor
Interest on the related Payment Date. In connection with executing any such Swap
Agreement, the Issuer, Indenture Trustee, Owner Trustee, Transferor and Servicer
will enter into a supplement to this Indenture, subject to this Section 10.02
and subject to the approval of the Owner Trustee and the Holders of the
Transferor Interest, that will specify the creation of any necessary accounts
and modifications of any provisions necessary or appropriate to effectuate the
intention of such Swap Agreement.
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The substance of any proposed supplemental indenture made pursuant to
this Section must be approved by the Act of the Noteholders, but the particular
form of such supplemental indenture need not be.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section, the Indenture Trustee will
give to the Holders of the Notes to which such amendment or supplemental
indenture relates written notice setting forth in general terms the substance of
such supplemental indenture. Any failure of the Indenture Trustee to give such
notice, or any defect therein, will not, however, in any way impair or affect
the validity of any such supplemental indenture.
Section 10.03 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or permitting the additional trusts created by, any
supplemental indenture permitted by this Article X or the modification thereby
of the trusts created by this Indenture, the Indenture Trustee is entitled to
receive, and subject to Sections 6.01 and 6.02, is fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Indenture Trustee
may, but is not 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 10.04 EFFECT OF SUPPLEMENTAL INDENTURE.
Upon the execution of any supplemental indenture under this Article X,
this Indenture will be modified in accordance therewith, and such supplemental
indenture will form a part of this Indenture for all purposes, and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder will be
bound thereby.
Section 10.05 CONFORMITY WITH TRUST INDENTURE ACT.
Every amendment of this Indenture and every supplemental indenture
executed pursuant to this Article X must conform to the requirements of the TIA
as then in effect so long as this Indenture is then qualified under the TIA.
Section 10.06 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article X may, and if required by the
Indenture Trustee must, bear a notation in form approved by the Indenture
Trustee as to any matter provided for in such supplemental indenture. If the
Issuer so determines, new Notes so modified as to conform, in the opinion of the
Indenture Trustee and the Issuer, to any such supplemental indenture may be
prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for the outstanding Notes.
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ARTICLE XI
TERMINATION
Section 11.01 TERMINATION OF TRUST.
The Issuer and the respective obligations and responsibilities of the
Indenture Trustee created hereby (other than the obligation of the Indenture
Trustee to make payments to Noteholders as hereinafter set forth) will
terminate, except with respect to the duties described in Section 11.02(b), on
the Trust Termination Date.
Section 11.02 FINAL DISTRIBUTION.
(a) The Servicer will give the Indenture Trustee at least 30 days'
prior written notice of the Payment Date on which the Noteholders of any Series
or Class may surrender their Notes for final payment and cancellation of such
Notes (or, in the event of a final payment resulting from the application of
Section 2.03(c) or 6.01 of the Transfer and Servicing Agreement, notice of such
Payment Date promptly after the Servicer has determined that a final
distribution will occur, if such determination is made less than 30 days prior
to such Payment Date). Such notice must be accompanied by an Officer's
Certificate setting forth the information specified in Section 3.04 of the
Transfer and Servicing Agreement covering the period during the then current
calendar year through the date of such notice. Not less than 15 nor more than 30
days prior to the date on which the final distribution in respect of such Series
or Class is payable to Noteholders, the Indenture Trustee will provide notice to
Noteholders of such Series or Class specifying (i) the date upon which final
payment of such Series or Class will be made upon presentation and surrender of
Notes of such Series or Class at the office or offices therein designated, (ii)
the amount of any such final payment and (iii) that the Record Date otherwise
applicable to such payment date is not applicable, payments being made only upon
presentation and surrender of such Notes at the office or offices therein
specified. The Indenture Trustee will give such notice to the Transfer Agent and
Registrar and the Paying Agent at the time such notice is given to Noteholders.
(b) Notwithstanding a final distribution to the Noteholders of any
Series or Class (or the termination of the Issuer), except as otherwise provided
in this paragraph, all funds then on deposit in the Collection Account and any
Series Account that have been allocated to such Noteholders will continue to be
held in trust for the benefit of such Noteholders and the Paying Agent or the
Indenture Trustee will pay such funds to such Noteholders upon surrender of
their Notes, if certificated (and any excess will be paid in accordance with the
terms of any Series Enhancement Agreement). In the event that all such
Noteholders do not surrender their Notes for cancellation within six months
after the date specified in the notice from the Indenture Trustee described in
paragraph (a), the Indenture Trustee will give a second notice to the remaining
such Noteholders to surrender their Notes for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
all such Notes have not been surrendered for cancellation, the Indenture Trustee
may take appropriate steps, or may appoint an agent to take appropriate steps,
to contact the remaining such Noteholders concerning surrender of their Notes,
and the cost thereof will be paid out of the funds in the Collection Account or
any Series Account held for the benefit of such Noteholders. The Indenture
Trustee
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and the Paying Agent will pay to the Transferor any monies held by them for the
payment of principal or interest that remains unclaimed for two years. 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 after such amount has become
due and payable and after the Indenture Trustee has taken the steps described in
this paragraph shall be discharged from such trust and be paid to Children's
Hospital Los Angeles upon presentation thereto of an Issuer Request. After
payment to the Transferor, Noteholders entitled to the money must look to the
Transferor for payment as general creditors unless an applicable abandoned
property law designates another Person.
Section 11.03 TRANSFEROR'S TERMINATION RIGHTS.
Upon the termination of the Issuer pursuant to Section 11.01, the
Indenture Trustee will, following the distribution of all amounts to which the
Noteholders and any Series Enhancers are entitled, assign and convey to the
holders of the Transferor Interest or any of their designees, without recourse,
representation or warranty, all right, title and interest of the Issuer in, to
and under the Trust Assets, whether then existing or thereafter created, all
monies due or to become due and all amounts received with respect thereto
(including all monies then held in the Collection Account, the Excess Funding
Account or any Series Account) and all proceeds thereof, except for amounts held
by the Indenture Trustee pursuant to Section 11.02(b). The Indenture Trustee
will execute and deliver such instruments of transfer and assignment, in each
case without recourse, as may be reasonably requested by the Transferor to vest
in the Holders of the Transferor Interest or any of their designees all right,
title and interest that the Issuer had in the Trust Assets.
Section 11.04 DEFEASANCE.
Notwithstanding anything to the contrary in this Indenture, unless
otherwise specified in any Indenture Supplement:
(a) The Issuer may at its option be discharged from its
obligations hereunder with respect to any Series or all outstanding Series
(each, a "Defeased Series") on the date the applicable conditions set forth in
Section 11.04(c) are satisfied (a "Defeasance"); provided, however, that the
following rights, obligations, powers, duties and immunities will survive with
respect to each Defeased Series until otherwise terminated or discharged
hereunder: (i) the rights of the Holders of Notes of the Defeased Series to
receive, solely from the trust funds provided for in Section 11.04(c), payments
in respect of interest on and principal of such Notes when such payments are
due; (ii) the Issuer's obligations with respect to such Notes under Sections
2.05 and 2.06; (iii) the rights, powers, trusts, duties, and immunities of the
Indenture Trustee, the Paying Agent and the Registrar hereunder; and (iv) this
Section.
(b) Subject to Section 11.04(c), the Transferor at its option may
cause Collections allocated to each Defeased Series and available to purchase
additional Receivables to be applied to purchase Eligible Investments rather
than additional Receivables.
(c) The following conditions must be satisfied prior to any
Defeasance under Section 11.04(a):
57
(i) the Issuer has irrevocably deposited, or has caused
the Transferor to irrevocably deposit or cause to be deposited, with
the Indenture Trustee (such deposit to be made from other than the
Transferor's or any Affiliate of the Transferor's funds), under the
terms of an irrevocable trust agreement in form and substance
satisfactory to the Indenture Trustee, as trust funds in trust in an
amount sufficient to pay and discharge (without relying on income or
gain from reinvestment of such amount) all accrued and all remaining
scheduled interest and principal payments on all outstanding Notes of
each Defeased Series on the dates scheduled for such payments in this
Indenture and the related Indenture Supplements and all amounts owing
to the Series Enhancers with respect to each Defeased Series. The
Transferor will make these amounts available in cash or Eligible
Investments or a combination thereof. The Indenture Trustee will apply
all such amounts to pay and discharge the amounts specified above;
(ii) the Issuer has delivered, or has caused the
Transferor to deliver, a statement from a firm of nationally recognized
independent public accountants (who may also render other services to
the Transferor) to the effect that such deposit is sufficient to pay
the amounts specified in clause (i) above;
(iii) the Issuer has delivered, or has caused the
Transferor to deliver, to the Indenture Trustee an Opinion of Counsel
(the preparation and delivery of which will not be at the expense of
the Indenture Trustee) to the effect that (1) for federal income tax
purposes, the deposit and termination of obligations will not result in
the Issuer, or any portion of the Issuer, to be treated as an
association, or publicly traded partnership, taxable as a corporation,
and (2) the deposit and termination of obligations will not result in
the Issuer being required to register as an "investment company" within
the meaning of the Investment Company Act;
(iv) the Issuer has delivered, or has caused the
Transferor to deliver, to the Indenture Trustee an Officer's
Certificate of the Issuer or the Transferor, as the case may be,
stating that the Issuer or the Transferor, as the case may be,
reasonably believes that such deposit and termination of obligations
will not, based on the facts known to such officer at the time of such
certification, then cause an Early Amortization Event with respect to
any Series or any event that, with the giving of notice or the lapse of
time, would result in the occurrence of an Early Amortization Event
with respect to any Series; and
(v) the Rating Agency Condition has been satisfied with
respect to each other Outstanding Series.
ARTICLE XII
MISCELLANEOUS
Section 12.01 COMPLIANCE CERTIFICATES, 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,
upon written request of the Indenture
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Trustee, will 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 or (iii) (if required by the TIA) an
Independent Certificate from a firm of certified public accountants meeting the
applicable requirements of this Section, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by 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 must include:
(i) a statement that each signatory of such certificate
or opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination or investigation as
is necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been complied with.
(b) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the Lien of this Indenture, the
Issuer will, in addition to any obligation imposed in Section 12.01(a) or
elsewhere in this Indenture, upon written request of the Indenture Trustee,
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
90 days of such deposit) to the Issuer of the Collateral or other property or
securities to be so deposited.
(c) 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 subsection (b) above, the Issuer, upon
written request of the Indenture Trustee, will also deliver to the Indenture
Trustee (if required by the TIA) 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 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 subsection (b) above and
this subsection (c), is 10% or more of the Outstanding Principal Amount of all
Series, 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 Principal Amount.
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(d) Whenever any property or securities are to be released from
the Lien of this Indenture, the Issuer will 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 90 days of such
release) of the property or securities proposed to be released and stating that
in the opinion of such person the proposed release will not impair the security
under this Indenture in contravention of the provisions hereof; provided,
however, that no such certificate is required to be furnished in the event the
Transferor redesignates Accounts in accordance with Sections 2.08 or 2.09 of the
Transfer and Servicing Agreement.
(e) 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 subsection (d) above, the Issuer will
also furnish to the Indenture Trustee (if required by the TIA), upon the written
request of 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 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 subsection (d) above and this subsection (e), equals 10% or more of
the Outstanding Principal Amount of all Series, 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 Principal.
(f) Notwithstanding Section 2.11 or any other provision of this
Section, the Issuer may (A) collect, liquidate, sell or otherwise dispose of
Receivables as and to the extent permitted or required by the Transaction
Documents and (B) make cash payments out of the Series Accounts as and to the
extent permitted or required by the Transaction Documents.
Section 12.02 FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of a Responsible 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 such officer's
certificate or opinion is based are erroneous. Any such certificate of a
Responsible 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 Transferor, 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 Transferor, the
Issuer or the Administrator, unless such Responsible Officer or 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.
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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.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
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 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 may 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 12.03 ACTS OF NOTEHOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agent
duly appointed in writing and satisfying any requisite percentages as to minimum
number or dollar value of outstanding principal amount represented by such
Noteholders; and, except as herein otherwise expressly provided, such action
will 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 will be sufficient for any
purpose of this Indenture and conclusive in favor of the Indenture Trustee and
the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Indenture Trustee
deems sufficient.
(c) The ownership of Notes will be established by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Notes will bind the Holder
(and any transferee thereof) of every Note issued upon the registration thereof
in exchange therefor or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Indenture Trustee or the Issuer in reliance thereon,
whether or not notation of such action is made upon such Note.
Section 12.04 NOTICES, ETC. TO INDENTURE TRUSTEE AND ISSUER.
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:
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(i) the Indenture Trustee by any Noteholder or by the
Issuer will be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to a Trustee Officer, by facsimile
transmission, electronic transmission, or by other means acceptable to
the Indenture Trustee to or with the Indenture Trustee at its Corporate
Trust Office; or
(ii) the Issuer by the Indenture Trustee or by any
Noteholder will be sufficient for every purpose hereunder if in writing
and (A) mailed, first-class postage prepaid, to the Issuer addressed to
it at Nissan Master Owner Trust Receivables, c/o Wilmington Trust
Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: Nissan Master Owner Trust Receivables with a
copy to Nissan Motor Acceptance Corporation, 000 Xxxx 000xx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Secretary, or at any other
address previously furnished in writing to the Indenture Trustee by the
Issuer or (B) delivered by facsimile or other electronic transmission
to the address previously furnished in writing to the Indenture
Trustee.
Section 12.05 NOTICES TO NOTEHOLDERS; WAIVER.
(a) Where this Indenture and any Indenture Supplement provides for
notice to Noteholders of any event, such notice will be sufficiently given
(unless otherwise herein expressly provided) if in writing and (i) mailed by
registered or certified mail or first class postage prepaid or national
overnight courier service or (ii) delivered electronically in a manner
acceptable to the Servicer, the Owner Trustee on behalf of the Issuer and the
Indenture Trustee, to each Noteholder affected by such event, at such
Noteholder's address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Noteholder will affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided will conclusively be presumed to have been duly given.
(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 will be the equivalent of such
notice. Waivers of notice by Noteholders are to be filed with the Indenture
Trustee but such filing is not a condition precedent to the validity of any
action taken in reliance upon such waiver.
(c) If, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it is impractical to mail
notice of any event to Noteholders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice satisfactory to the Indenture Trustee will be deemed to be a sufficient
giving of such notice.
(d) Where this Indenture provides for notice to any Rating Agency,
failure to give such notice will not affect any other rights or obligations
created hereunder and will not under any circumstance constitute a Default or
Event of Default.
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Section 12.06 ALTERNATE PAYMENT AND NOTICE PROVISIONS.
Notwithstanding any provision of this Indenture or any of the Notes to
the contrary, the Issuer, with the consent of the Indenture Trustee, may enter
into any agreement with any Holder of a Note providing for a method of payment,
or notice by the Indenture Trustee or any Paying Agent to such Holder, that is
different from the methods provided for in this Indenture for such payments or
notices. The Issuer will furnish to the Indenture Trustee a copy of each such
agreement and the Indenture Trustee will cause payments to be made and notices
to be given in accordance with such agreements.
Section 12.07 CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof that is required to be included in this Indenture by any of the
provisions of the TIA, such required provision will control. The provisions of
TIA Sections 310 through 318 (inclusive) 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 12.08 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the table of contents are
for convenience only and are not intended to affect the construction hereof.
Section 12.09 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Issuer and the
Indenture Trustee will bind their respective successors and assigns, whether so
expressed or not.
Section 12.10 SEPARABILITY.
If any provision in this Indenture or in the Notes is invalid, illegal
or unenforceable, the validity, legality, and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.
Section 12.11 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied, will
give to any Person, other than the parties hereto and their successors
hereunder, and the Noteholders and Series Enhancers, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 12.12 GOVERNING LAW.
THE INDENTURE AND EACH NOTE ARE TO BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF
LAWS PRINCIPLES.
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Section 12.13 COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each of
which so executed will be deemed to be an original, but all such counterparts
will together constitute but one and the same instrument.
Section 12.14 TRUST OBLIGATION.
No recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against (i) the Indenture Trustee or the Owner
Trustee in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee in its
individual capacity, 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 its individual capacity, 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
capacity) and except that any such partner, owner or beneficiary will be fully
liable, to the extent provided by applicable law, for any unpaid consideration
for stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity. For all purposes of this Indenture, in the performance of
any duties or obligations of the Issuer hereunder, the Owner Trustee will be
subject to, and entitled to the benefits of, the terms and provisions of
Articles V, VI and VII of the Trust Agreement. Notwithstanding anything to the
contrary herein, none of the Transferor, the Administrator, the Owner Trustee,
the Indenture Trustee, the Servicer, NMAC, NML, or NNA, nor any holder of an
ownership interest in the Issuer, nor any of their owners, beneficiaries,
agents, officers, directors, managers, employees, successors or assigns will, in
the absence of an express agreement to the contrary, be personally liable for
the payment of the principal of or interest on the Notes or for the agreements
of the Issuer contained in this Indenture. The Notes will represent obligations
solely of the Issuer, and the Notes will not be insured or guaranteed by the
Transferor, the Administrator, the Owner Trustee, the Indenture Trustee, the
Servicer, NMAC, NNA, NML or any other Person, except as provided in the related
Indenture Supplement.
Section 12.15 NO PETITION.
The Indenture Trustee, by entering into this Indenture, and each
Noteholder, by accepting a Note, hereby covenant and agree that they will not at
any time institute against the Issuer or the Transferor, or join in any
institution against the Issuer or Transferor, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, this Indenture or any of the Transaction
Documents.
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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective duly authorized officers,
all as of the day and year first above written.
NISSAN MASTER OWNER TRUST RECEIVABLES,
as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity, but
solely as Owner Trustee
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Financial Services Officer
JPMORGAN CHASE BANK, not in its individual
capacity, but solely as Indenture Trustee
By: /s/ Xxxxxxxx X. XxXxxxx
---------------------------------------------
Name: Xxxxxxxx X. XxXxxxx
Title: Vice President
[A/R Indenture]
S-1
