CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
AS OWNER TRUSTEE
Class A-1 6.73% Asset Backed Notes
Class A-2 6.66% Asset Backed Notes
Class A-3 6.67% Asset Backed Notes
Class A-4 6.78% Asset Backed Notes
Class B 7.03% Asset Backed Notes
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INDENTURE
Dated as of November 1, 2000
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The Bank of New York,
a New York banking corporation,
Indenture Trustee
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CROSS-REFERENCE TABLE
====================== ================================ ========================
TIA Indenture
Section Section
---------------------- -------------------------------- ------------------------
---------------------- -------------------------------- ------------------------
310(a)(1) ............................... 6.11
(a)(2) ............................... 6.11
(a)(3) ............................... 6.10
(a)(4) ............................... 6.14
(b) ............................... 6.11
(c) ............................... N.A.
311(a) ............................... 6.12
(b) ............................... 6.12
(c) ............................... N.A.
312(a) ............................... 7.1, 7.2
(b) ............................... 7.2
(c) ............................... 7.2
313(a) ............................... 7.4(a), 7.4(b)
(b)(1) ............................... 7.4(a)
(b)(2) ............................... 7.4(a)
(c) ............................... 7.4(a)
(d) ............................... 7.4(a)
314(a) ............................... 7.3(a), 3.9
(b) ............................... 3.6
(c)(1) ............................... 2.2, 2.9, 4.1, 11.1(a)
(c)(2) ............................... 11.1(a)
(c)(3) ............................... 11.1(a)
(d) ............................... 2.9, 11.1(b)
(e) ............................... 11.1(a)
(f) ............................... 11.1(a)
315(a) ............................... 6.1(b)
(b) ............................... 6.5
(c) ............................... 6.1(a)
(d) ............................... 6.2, 6.1(c)
(e) ............................... 5.13
316(a)last
sentence ............................... 1.1
(a)(1)(A) ............................... 5.11
(a)(1)(B) ............................... 5.12
(a)(2) ............................... Omitted
316(b), (c) ............................... 5.7
317(a)(1) ............................... 5.3(b)
(a)(2) ............................... 5.3(d)
(b) ............................... 3.3
318(a) ............................... 11.7
N.A. means Not Applicable.
====================== ================================ ========================
Note: This cross-reference table shall not, for any purpose, be deemed to be
part of this Indenture.
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TABLE OF CONTENTS
ARTICLE IDEFINITIONS AND INCORPORATION BY REFERENCE..........................2
SECTION 1.1 Definitions..........................................2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act....2
ARTICLE IITHE NOTES..........................................................3
SECTION 2.1 Form.................................................3
SECTION 2.2 Execution, Authentication and Delivery...............3
SECTION 2.3 Temporary Notes......................................4
SECTION 2.4 Registration; Registration of Transfer and Exchange
of Notes.............................................5
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes...........6
SECTION 2.6 Persons Deemed Noteholders...........................7
SECTION 2.7 Payment of Principal and Interest....................7
SECTION 2.8 Cancellation of Notes................................9
SECTION 2.9 Release of Collateral................................9
SECTION 2.10 Book-Entry Notes.....................................9
SECTION 2.11 Notices to Clearing Agency..........................10
SECTION 2.12 Definitive Notes....................................10
SECTION 2.13 Seller as Noteholder................................10
SECTION 2.14 Tax Treatment.......................................10
ARTICLE IIICOVENANTS........................................................11
SECTION 3.1 Payment of Principal and Interest...................11
SECTION 3.2 Maintenance of Agency Office........................11
SECTION 3.3 Money for Payments To Be Held in Trust..............11
SECTION 3.4 Existence...........................................13
SECTION 3.5 Protection of Trust Estate; Acknowledgment of Pledge13
SECTION 3.6 Opinions as to Trust Estate.........................14
SECTION 3.7 Performance of Obligations; Servicing of Receivables14
SECTION 3.8 Negative Covenants..................................15
SECTION 3.9 Annual Statement as to Compliance...................16
SECTION 3.10 Consolidation, Merger, etc., of Owner Trustee;
Disposition of Trust Assets.........................16
SECTION 3.11 Successor or Transferee.............................17
SECTION 3.12 No Other Business...................................17
SECTION 3.13 No Borrowing........................................17
SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities...17
SECTION 3.15 Servicer's Obligations..............................17
SECTION 3.16 Capital Expenditures................................17
SECTION 3.17 Removal of Administrator............................18
SECTION 3.18 Restricted Payments.................................18
SECTION 3.19 Notice of Events of Default.........................18
SECTION 3.20 Further Instruments and Acts........................18
SECTION 3.21 Indenture Trustee's Assignment of Administrative
Receivables and Warranty Receivables................18
SECTION 3.22 Representations and Warranties by the Owner Trustee
to the Indenture Trustee............................19
ARTICLE IVSATISFACTION AND DISCHARGE........................................19
SECTION 4.1 Satisfaction and Discharge of Indenture.............19
SECTION 4.2 Application of Trust Money..........................21
SECTION 4.3 Repayment of Monies Held by Paying Agent............21
SECTION 4.4 Duration of Position of Indenture Trustee for Benefit
of Certificateholders...............................21
ARTICLE VDEFAULT AND REMEDIES...............................................21
SECTION 5.1 Events of Default...................................21
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment..23
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee................................23
SECTION 5.4 Remedies; Priorities................................25
SECTION 5.5 Optional Preservation of the Trust Estate...........26
SECTION 5.6 Limitation of Suits.................................27
SECTION 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest..............................27
SECTION 5.8 Restoration of Rights and Remedies..................28
SECTION 5.9 Rights and Remedies Cumulative......................28
SECTION 5.10 Delay or Omission Not a Waiver......................28
SECTION 5.11 Control by Noteholders..............................28
SECTION 5.12 Waiver of Past Defaults.............................29
SECTION 5.13 Undertaking for Costs...............................29
SECTION 5.14 Waiver of Stay or Extension Laws....................30
SECTION 5.15 Action on Notes.....................................30
SECTION 5.16 Performance and Enforcement of Certain Obligations..30
ARTICLE VITHE INDENTURE TRUSTEE.............................................31
SECTION 6.1 Duties of Indenture Trustee.........................31
SECTION 6.2 Rights of Indenture Trustee.........................32
SECTION 6.3 Indenture Trustee May Own Notes.....................33
SECTION 6.4 Indenture Trustee's Disclaimer......................33
SECTION 6.5 Notice of Defaults..................................33
SECTION 6.6 Reports by Indenture Trustee to Holders.............33
SECTION 6.7 Compensation; Indemnity.............................34
SECTION 6.8 Replacement of Indenture Trustee....................34
SECTION 6.9 Merger or Consolidation of Indenture Trustee........35
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee...................................36
SECTION 6.11 Eligibility; Disqualification.......................37
SECTION 6.12 Preferential Collection of Claims Against Owner
Trustee.............................................38
SECTION 6.13 Representations and Warranties of Indenture Trustee.38
SECTION 6.14 Indenture Trustee May Enforce Claims Without
Possession of Notes.................................39
SECTION 6.15 Suit for Enforcement................................39
SECTION 6.16 Rights of Noteholders to Direct Indenture Trustee...39
ARTICLE VIINOTEHOLDERS' LISTS AND REPORTS...................................39
SECTION 7.1 Owner Trustee To Furnish Indenture Trustee Names and
Addresses of Noteholders............................39
SECTION 7.2 Preservation of Information, Communications to
Noteholders.........................................40
SECTION 7.3 Reports by Owner Trustee............................40
SECTION 7.4 Reports by Indenture Trustee........................41
ARTICLE VIIIACCOUNTS, DISBURSEMENTS AND RELEASES............................41
SECTION 8.1 Collection of Money.................................41
SECTION 8.2 Designated Accounts; Payments.......................41
SECTION 8.3 General Provisions Regarding Accounts...............44
SECTION 8.4 Release of Trust Estate.............................44
SECTION 8.5 Opinion of Counsel..................................44
ARTICLE IXSUPPLEMENTAL INDENTURES...........................................45
SECTION 9.1 Supplemental Indentures Without Consent of
Noteholders.........................................45
SECTION 9.2 Supplemental Indentures With Consent of Noteholders.46
SECTION 9.3 Execution of Supplemental Indentures................47
SECTION 9.4 Effect of Supplemental Indenture....................48
SECTION 9.5 Conformity with Trust Indenture Act.................48
SECTION 9.6 Reference in Notes to Supplemental Indentures.......48
ARTICLE XREDEMPTION OF NOTES................................................48
SECTION 10.1 Redemption..........................................48
SECTION 10.2 Form of Redemption Notice...........................49
SECTION 10.3 Notes Payable on Redemption Date....................49
ARTICLE XIMISCELLANEOUS.....................................................50
SECTION 11.1 Compliance Certificates and Opinions, etc...........50
SECTION 11.2 Form of Documents Delivered to Indenture Trustee....52
SECTION 11.3 Acts of Noteholders.................................52
SECTION 11.4 Notices, etc., to Indenture Trustee, Owner Trustee
and Rating Agencies.................................53
SECTION 11.5 Notices to Noteholders; Waiver......................53
SECTION 11.6 Alternate Payment and Notice Provisions.............54
SECTION 11.7 Conflict with Trust Indenture Act...................54
SECTION 11.8 Effect of Headings and Table of Contents............54
SECTION 11.9 Successors and Assigns..............................54
SECTION 11.10 Separability........................................54
SECTION 11.11 Benefits of Indenture...............................55
SECTION 11.12 Legal Holidays......................................55
SECTION 11.13 Governing Law.......................................55
SECTION 11.14 Counterparts........................................55
SECTION 11.15 Recording of Indenture..............................55
SECTION 11.16 No Recourse.........................................55
SECTION 11.17 No Petition.........................................56
SECTION 11.18 Inspection..........................................56
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Exhibits
Exhibit A - Locations of Schedule of Receivables
Exhibit B - Form of Class A-1 Asset Backed Note
Exhibit C - Form of Class A-2, Class A-3, Class A-4 and Class B
Asset Backed Note
Exhibit D - Form of Note Depository Agreement
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INDENTURE, dated as of November 1, 2000 between CHASE MANHATTAN
BANK USA, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity but solely as trustee under the Trust Agreement (the
"Owner Trustee"), and THE BANK OF NEW YORK, a New York banking corporation,
as trustee and not in its individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the Holders of the Notes and (only
to the extent expressly provided herein) the Certificateholders:
GRANTING CLAUSE
Chase Manhattan Bank USA, National Association, not in its
individual capacity, but solely as Owner Trustee under the Trust Agreement,
hereby grants to the Indenture Trustee on the Closing Date, as trustee for
the benefit of the Noteholders and (only to the extent expressly provided
herein) the Certificateholders, all of the Owner Trustee's right, title and
interest in, to and under (a) the Receivables listed on the Schedule of
Receivables which is on file at the locations listed on Exhibit A hereto and
all monies paid thereon (including Liquidation Proceeds) and due thereunder
on and after the Cutoff Date; (b) the security interests in the Financed
Vehicles granted by Obligors pursuant to the Receivables and, where permitted
by law, any accessions thereto which are financed by NFC; (c) the benefits of
any lease assignments with respect to the Financed Vehicles; (d) any proceeds
from any Insurance Policies with respect to the Receivables; (e) any proceeds
from Dealer Liability with respect to the Receivables, proceeds from any
International Purchase Obligations with respect to the Receivables (subject
to the limitations set forth in Section 2.04 of the Pooling and Servicing
Agreement) and proceeds of any Guaranties with respect to the Receivables;
(f) all funds on deposit from time to time in the Collection Account and the
Note Distribution Account; (g) the Pooling and Servicing Agreement and the
PSA Assignment (including all rights of NFRRC under the Purchase Agreement
and the PA Assignment); (h) the Reserve Account and all proceeds thereof
(other than the Investment Earnings thereon), including all other amounts,
investments and investment property held from time to time in the Reserve
Account (whether in the form of deposit accounts, Physical Property,
book-entry securities, uncertificated securities, or otherwise); (i) the
Reserve Account Initial Deposit and all proceeds thereof (other than the
Investment Earnings thereon) ((h) and (i), collectively, the "Reserve Account
Property"); and (j) all present and future claims, demands, causes and choses
in action in respect of any or all of the foregoing and all payments on or
under and all proceeds of every kind and nature whatsoever in respect of any
or all of the foregoing, including all proceeds of the conversion, voluntary
or involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, insurance proceeds, condemnation awards, rights to
payment of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing (collectively, the
"Collateral").
The foregoing Grant is made in trust to secure (a) first, the
payment of principal of and interest on, and any other amounts owing in
respect of, the Class A Notes, equally and ratably without prejudice,
priority or distinction, and (b) second, the payment of principal of and
interest on, and any other amounts owing in respect of, the Class B Notes,
equally and ratably without prejudice, priority or distinction, and to secure
compliance with the provisions of this Indenture, all as provided in this
Indenture. This Indenture constitutes a security agreement under the UCC.
The foregoing Grant includes all rights, powers and options (but
none of the obligations, if any) of the Owner Trustee under any agreement or
instrument included in the Collateral, including the immediate and continuing
right to claim for, collect, receive and give receipt for principal and
interest payments in respect of the Receivables included in the Collateral
and all other monies payable under the Collateral, to give and receive
notices and other communications, to make waivers or other agreements, to
exercise all rights and options, to bring Proceedings in the name of the
Owner Trustee or on behalf of the Owner Trust Estate or otherwise and
generally to do and receive anything that the Owner Trustee is or may be
entitled to do or receive under or with respect to the Collateral.
The Indenture Trustee, as trustee on behalf of the Noteholders
and (only to the extent expressly provided herein) the Certificateholders,
acknowledges such Grant and accepts the trusts under this Indenture in
accordance with the provisions of this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION I.1 Definitions. Certain capitalized terms used in
this Indenture shall have the respective meanings assigned them in Part I of
Appendix A to the Pooling and Servicing Agreement of even date herewith among
Chase Manhattan Bank USA, National Association, acting as Owner Trustee of
the Navistar Financial 2000-B Owner Trust, NFRRC and NFC (as it may be
amended, supplemented or modified from time to time, the "Pooling and
Servicing Agreement"). All references herein to "the Indenture" or "this
Indenture" are to this Indenture as it may be amended, supplemented or
modified from time to time, the exhibits hereto and the capitalized terms
used herein which are defined in such Appendix A. All references herein to
Articles, Sections, subsections and exhibits are to Articles, Sections,
subsections and exhibits contained in or attached to this Indenture unless
otherwise specified. All terms defined in this Indenture shall have the
defined meanings when used in any certificate, notice, Note or other document
made or delivered pursuant hereto unless otherwise defined therein. The
rules of construction set forth in Part II of such Appendix A shall be
applicable to this Indenture.
SECTION I.2 Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" means the Indenture Trustee.
"obligor" on the indenture securities means the Owner Trustee and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by a
Commission rule have the respective meanings assigned to them by such
definitions.
ARTICLE II
THE NOTES
SECTION II.1 Form.
(a) The Class A-1 Notes and each of the Class A-2 Notes, Class
A-3 Notes, Class A-4 Notes and Class B Notes, with the Indenture Trustee's
certificate of authentication, shall be substantially in the form set forth
in Exhibit B and Exhibit C, respectively, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and each such class may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may, consistently herewith, be determined by the officers executing such
Notes, as evidenced by their execution of the Notes. Any portion of the text
of any Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Note.
(b) The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods
(with or without steel engraved borders), all as determined by the officers
executing such Notes, as evidenced by their execution of such Notes.
(c) Each Note shall be dated the date of its authentication.
The terms of each class of Notes as provided for in Exhibit B and Exhibit C
hereto are part of the terms of this Indenture.
SECTION II.2 Execution, Authentication and Delivery.
(a) Each Note shall be dated the date of its authentication,
and shall be issuable as a registered Note in the minimum denomination of
$1,000 and in integral multiples thereof (except, if applicable, for one Note
representing a residual portion of each class which may be issued in a
different denomination).
(b) The Notes shall be executed on behalf of the Owner Trustee
by any of its Authorized Officers. The signature of any such Authorized
Officer on the Notes may be manual or facsimile.
(c) Notes bearing the manual or facsimile signature of
individuals who were at any time Authorized Officers of the Owner Trustee
shall bind the Owner Trustee, notwithstanding that such individuals or any
of them have ceased to hold such office prior to the authentication and
delivery of such Notes or did not hold such office at the date of such Notes.
(d) The Indenture Trustee shall upon Issuer Order authenticate
and deliver to or upon the order of the Owner Trustee, the Notes for original
issue in aggregate principal amount of $764,710,097.53, comprised of (i)
Class A-1 Notes in the aggregate principal amount of $140,000,000.00, (ii)
Class A-2 Notes in the aggregate principal amount of $232,400,000.00, (iii)
Class A-3 Notes in the aggregate principal amount of $184,900,000.00 and (iv)
Class A-4 Notes in the aggregate principal amount of $178,733,000.00, and (v)
Class B Notes in the aggregate principal amount of $28,677,097.53. The
aggregate principal amount of all Notes outstanding at any time may not
exceed $764,710,097.53 except as provided in Section 2.5.
(e) No Notes shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Note a certificate of authentication substantially in the form set
forth, in the case of the Class A-1 Notes, in Exhibit B, and in the case of
the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B
Notes, in Exhibit C, executed by the Indenture Trustee by the manual
signature of one of its authorized signatories, and such certificate upon any
Note shall be conclusive evidence, and the only evidence, that such Note has
been duly authenticated and delivered hereunder.
SECTION II.3 Temporary Notes.
(a) Pending the preparation of Definitive Notes, if any, the
Owner Trustee may execute, and upon receipt of an Issuer Order the Indenture
Trustee shall authenticate and deliver, such Temporary Notes which are
printed, lithographed, typewritten, mimeographed or otherwise produced, of
the tenor of the Definitive Notes in lieu of which they are issued and with
such variations as are consistent with the terms of this Indenture as the
officers executing such Notes may determine, as evidenced by their execution
of such Notes.
(b) If Temporary Notes are issued, the Owner Trustee shall
cause Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the Temporary Notes shall be exchangeable
for Definitive Notes upon surrender of the Temporary Notes at the Agency
Office of the Owner Trustee to be maintained as provided in Section 3.2,
without charge to the Noteholder. Upon surrender for cancellation of any one
or more Temporary Notes, the Owner Trustee shall execute and the Indenture
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of Definitive Notes of authorized denominations. Until so delivered
in exchange, the Temporary Notes shall in all respects be entitled to the
same benefits under this Indenture as Definitive Notes.
SECTION II.4 Registration; Registration of Transfer
and Exchange of Notes.
(a) The Owner Trustee shall cause to be kept the Note Register,
comprising separate registers for each class of Notes, in which, subject to
such reasonable regulations as the Owner Trustee may prescribe, the Owner
Trustee shall provide for the registration of the Notes and the registration
of transfers and exchanges of the Notes. The Indenture Trustee shall
initially be the Note Registrar for the purpose of registering the Notes and
transfers of the Notes as herein provided. Upon any resignation of any Note
Registrar, the Owner Trustee shall promptly appoint a successor Note
Registrar or, if it elects not to make such an appointment, assume the duties
of the Note Registrar.
(b) If a Person other than the Indenture Trustee is appointed
by the Owner Trustee as Note Registrar, the Owner Trustee will give the
Indenture Trustee prompt written notice of the appointment of such Note
Registrar and of the location, and any change in the location, of the Note
Register. The Indenture Trustee shall have the right to inspect the Note
Register at all reasonable times and to obtain copies thereof. The Indenture
Trustee shall have the right to rely upon a certificate executed on behalf of
the Note Registrar by an Executive Officer thereof as to the names and
addresses of the Noteholders and the principal amounts and number of such
Notes.
(c) Upon surrender for registration of transfer of any Note at
the Corporate Trust Office of the Indenture Trustee or the Agency Office of
the Owner Trustee (and following the delivery, in the former case, of such
Notes to the Owner Trustee by the Indenture Trustee), the Owner Trustee shall
execute, the Indenture Trustee shall authenticate and the Noteholder shall
obtain from the Indenture Trustee, in the name of the designated transferee
or transferees, one or more new Notes in any authorized denominations, of a
like aggregate principal amount.
(d) At the option of the Noteholder, Notes may be exchanged for
other Notes of the same class in any authorized denominations, of a like
aggregate principal amount, upon surrender of the Notes to be exchanged at
the Corporate Trust Office of the Indenture Trustee or the Agency Office of
the Owner Trustee (and following the delivery, in the former case, of such
Notes to the Owner Trustee by the Indenture Trustee), the Owner Trustee shall
execute, and the Indenture Trustee shall authenticate and the Noteholder
shall obtain from the Indenture Trustee, the Notes which the Noteholder
making the exchange is entitled to receive.
(e) All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Owner Trustee,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Notes surrendered upon such registration of transfer or
exchange.
(f) Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
and the Note Registrar, duly executed by the Holder thereof or such Xxxxxx's
attorney duly authorized in writing, with such signature guaranteed by a
commercial bank or trust company located, or having a correspondent located,
in the City of New York or the city in which the Corporate Trust Office of
the Indenture Trustee is located, or by a member firm of a national
securities exchange, and such other documents as the Indenture Trustee may
require.
(g) No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Owner Trustee or
Indenture Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes, other than exchanges pursuant
to Sections 2.3 or 9.6 not involving any transfer.
(h) The preceding provisions of this Section 2.4
notwithstanding, the Owner Trustee shall not be required to transfer or make
exchanges, and the Note Registrar need not register transfers or exchanges,
of Notes that: (i) have been selected for redemption pursuant to Article X,
if applicable; or (ii) are due for repayment in full within 15 days of
surrender to the Corporate Trust Office or the Agency Office.
SECTION II.5 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If (i) any mutilated Note is surrendered to the Indenture
Trustee, or the Indenture Trustee receives evidence to its satisfaction of
the destruction, loss or theft of any Note, and (ii) there is delivered to
the Indenture Trustee such security or indemnity as may be required by it to
hold the Owner Trustee and the Indenture Trustee harmless, then, in the
absence of notice to the Owner Trustee, the Note Registrar or the Indenture
Trustee that such Note has been acquired by a bona fide purchaser, the Owner
Trustee shall execute and upon the Owner Trustee's request the Indenture
Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Note, a replacement Note of a like
class and aggregate principal amount; provided, however, that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall have become
or within seven days shall be due and payable in full, or shall have been
called for redemption, instead of issuing a replacement Note, the Owner
Trustee may make payment to the Holder of such destroyed, lost or stolen Note
when so due or payable or upon the Redemption Date, if applicable, without
surrender thereof.
(b) If, after the delivery of a replacement Note or payment in
respect of a destroyed, lost or stolen Note pursuant to subsection (a), any
bona fide purchaser of the original Note in lieu of which such replacement
Note was issued presents for payment such original Note, the Owner Trustee
and the Indenture Trustee shall be entitled to recover such replacement Note
(or such payment) from (i) any Person to whom it was delivered, (ii) the
Person taking such replacement Note from the Person to whom such replacement
Note was delivered or (iii) any assignee of such Person, except any bona fide
purchaser, and the Owner Trustee and the Indenture Trustee shall be entitled
to recover upon the security or indemnity provided therefor to the extent of
any loss, damage, cost or expense incurred by the Owner Trustee or the
Indenture Trustee in connection therewith.
(c) In connection with the issuance of any replacement Note
under this Section 2.5, the Owner Trustee may require the payment by the
Holder of such Note of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including all fees and expenses of the Indenture
Trustee) connected therewith.
(d) Any duplicate Note issued pursuant to this Section 2.5 in
replacement for any mutilated, destroyed, lost or stolen Note shall
constitute an original additional contractual obligation of the Owner
Trustee, whether or not the mutilated, destroyed, lost or stolen Note shall
be found at any time or be enforced by any Person, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and
all other Notes duly issued hereunder.
(e) The provisions of this Section 2.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION II.6 Persons Deemed Noteholders. Prior to due
presentment for registration of transfer of any Note, the Owner Trustee, the
Indenture Trustee and any of their agents may treat the Person in whose
name any Note is registered (as of the day of determination) as the
Noteholder for the purpose of receiving payments of principal of and interest
on such Note and for all other purposes whatsoever, whether or not such Note
be overdue, and neither the Owner Trustee, the Indenture Trustee nor any
agent of the Owner Trustee or the Indenture Trustee shall be affected by
notice to the contrary.
SECTION II.7 Payment of Principal and Interest.
(a) Interest on the Class A-1 Notes shall accrue in the manner
set forth in Exhibit B at the applicable Interest Rate for such class, and
such interest shall be payable on each Distribution Date, in accordance with
the priorities set forth in Section 8.2(c), as specified in the form of Note
set forth in Exhibit B. Interest on the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes and the Class B Notes shall accrue in the manner
set forth in Exhibit C at the applicable Interest Rate for such class, and
shall be payable on each Distribution Date, in accordance with the priorities
set forth in Section 8.2(c), as specified in the form of Note set forth in
Exhibit C. Any instalment of interest payable on any Note shall be
punctually paid or duly provided for by a deposit by or at the direction of
the Owner Trustee or the Servicer into the Note Distribution Account before
each Distribution Date for payment to Noteholders on the related Distribution
Date and shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the applicable Record Date, by check
mailed first-class, postage prepaid to such Person's address as it appears on
the Note Register on such Record Date; provided, however, that, unless and
until Definitive Notes have been issued pursuant to Section 2.12, with
respect to Notes registered on the applicable Record Date in the name of the
Note Depository (initially, Cede & Co.), payment shall be made by wire
transfer in immediately available funds to the account designated by the Note
Depository.
(b) Prior to the occurrence of an Event of Default and a
declaration in accordance with Section 5.2(a) that the Notes have become
immediately due and payable, the principal of each class of Notes shall be
payable in full on the Final Scheduled Distribution Date for such class and,
to the extent of funds available therefor, in instalments on the Distribution
Dates (if any) preceding the Final Scheduled Distribution Date for such
class, in the amounts and in accordance with the priorities set forth in
Section 8.2(c)(ii) or (iii), as applicable. All principal payments on each
class of Notes shall be made pro rata to the Noteholders of such class
entitled thereto. Any instalment of principal payable on any Note shall be
punctually paid or duly provided for by a deposit by the Indenture Trustee in
accordance with the provisions of the Pooling and Servicing Agreement into
the Note Distribution Account prior to the applicable Distribution Date and
shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the applicable Record Date, by check
mailed first-class, postage prepaid to such Person's address as it appears on
the Note Register on such Record Date; provided, however, that, unless and
until Definitive Notes have been issued pursuant to Section 2.12, with
respect to Notes registered on the Record Date in the name of the Note
Depository, payment shall be made by wire transfer in immediately available
funds to the account designated by the Note Depository, except for: (i) the
final instalment of principal on any Note; and (ii) the Redemption Price for
the Notes redeemed pursuant to Section 10.1, which, in each case, shall be
payable as provided herein. The funds represented by any such checks in
respect of interest or principal returned undelivered shall be held in
accordance with Section 3.3.
(c) [Reserved.]
(d) From and after the occurrence of an Event of Default and a
declaration in accordance with Section 5.2(a) that the Notes have become
immediately due and payable, principal on the Notes shall be payable as
provided in Section 8.2(c) (iv) or (v), as applicable.
(e) With respect to any Distribution Date on which the final
instalment of principal and interest on a class of Notes is to be paid, the
Indenture Trustee shall notify each Noteholder of such class of record as of
the Record Date for such Distribution Date of the fact that the final
instalment of principal of and interest on such Note is to be paid on such
Distribution Date. Such notice shall be sent (i) on such Record Date by
facsimile, if Book-Entry Notes are outstanding; or (ii) not later than three
Business Days after such Record Date in accordance with Section 11.5(a) if
Definitive Notes are outstanding, and shall specify that such final
instalment shall be payable only upon presentation and surrender of such Note
and shall specify the place where such Note may be presented and surrendered
for payment of such instalment and the manner in which such payment shall be
made. Notices in connection with redemptions of Notes shall be mailed to
Noteholders as provided in Section 10.2. Within sixty days of the surrender
pursuant to this Section 2.7(e) or cancellation pursuant to Section 2.8 of
all of the Notes of a particular class, the Indenture Trustee shall provide
each of the Rating Agencies with written notice stating that all Notes of
such class have been surrendered or canceled.
SECTION II.8 Cancellation of Notes. All Notes
surrendered for payment, redemption, exchange or registration of transfer
shall, if surrendered to any Person other than the Indenture Trustee, be
delivered to the Indenture Trustee and shall be promptly canceled by the
Indenture Trustee. The Owner Trustee may at any time deliver to the
Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Owner Trustee may have acquired in any manner
whatsoever, and all Notes so delivered shall be promptly canceled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange
for any Notes canceled as provided in this Section 2.8, except as expressly
permitted by this Indenture. All canceled Notes may be held or disposed of
by the Indenture Trustee in accordance with its standard retention or
disposal policy as in effect at the time unless the Owner Trustee shall
direct by an Issuer Order that they be returned to it; provided, however,
that such Issuer Order is timely and the Notes have not been previously
disposed of by the Indenture Trustee. The Indenture Trustee shall certify to
the Owner Trustee that surrendered Notes have been duly canceled and retained
or destroyed, as the case may be.
SECTION II.9 Release of Collateral. The Indenture
Trustee shall release property from the lien of this Indenture, other than as
permitted by Sections 3.21, 8.2, 8.4 and 11.1, only upon receipt of an Issuer
Request accompanied by an Officers' Certificate, an Opinion of Counsel (to
the extent required by the TIA) and Independent Certificates in accordance
with TIAss.ss.314(c) and 314(d)(1).
SECTION II.10 Book-Entry Notes. The Notes (other than a
single note representing $97.53 principal amount of Class B Notes, which
shall be a Definitive Note), upon original issuance, shall be issued in the
form of a typewritten Note or Notes representing the Book-Entry Notes, to be
delivered to The Depository Trust Company, the initial Clearing Agency by or
on behalf of the Owner Trustee. Such Note or Notes shall be registered on
the Note Register in the name of the Note Depository (initially, Cede & Co.),
and no Note Owner shall receive a Definitive Note representing such Note
Owner's interest in such Note, except as provided in Section 2.12. Unless and
until Definitive Notes have been issued to the Note Owners pursuant to
Section 2.12:
(a) the provisions of this Section 2.10 shall be in full
force and effect;
(b) the Note Registrar and the Indenture Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Indenture (including the payment of principal of and interest on the
Notes and the giving of instructions or directions hereunder) as the
sole holder of the Notes and shall have no obligation to the Note
Owners;
(c) to the extent that the provisions of this Section
2.10 conflict with any other provisions of this Indenture, the
provisions of this Section 2.10 shall control;
(d) the rights of the Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those established
by law and agreements between such Note Owners and the Clearing Agency
and/or the Clearing Agency Participants and unless and until Definitive
Notes are issued pursuant to Section 2.12, the initial Clearing Agency
shall make book-entry transfers between the Clearing Agency
Participants and receive and transmit payments of principal of and
interest on the Notes to such Clearing Agency Participants, pursuant to
the Note Depository Agreement; and
(e) whenever this Indenture requires or permits actions
to be taken based upon instructions or directions of Holders of Notes
evidencing a specified percentage of the Outstanding Amount of the
Voting Notes, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has (i) received written
instructions to such effect from Note Owners and/or Clearing Agency
Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Notes and (ii) has
delivered such instructions to the Indenture Trustee.
SECTION II.11 Notices to Clearing Agency.
Whenever a notice or other communication to the Noteholders is
required under this Indenture,unless and until Definitive Notes shall have been
issued to Note Owners pursuant to Section 2.12, the Indenture Trustee shall give
all such notices and communications specified herein to be given to Noteholders
to the Clearing Agency and shall have no other obligation to the Note Owners.
SECTION II.12 Definitive Notes.
If (i) the Administrator advises the Indenture Trustee in writing
that the Clearing Agency is no longer willing or able to properly discharge
its responsibilities with respect to the Notes and the Owner Trustee is
unable to locate a qualified successor; (ii) the Administrator, at its
option, advises the Indenture Trustee in writing that it elects to terminate
the book-entry system through the Clearing Agency; or (iii) after the
occurrence of an Event of Default or a Servicer Default, Note Owners
representing beneficial interests aggregating at least a majority of the
Outstanding Amount of the Voting Notes advise the Clearing Agency in writing
that the continuation of a book-entry system through the Clearing Agency is
no longer in the best interests of the Note Owners, then the Clearing Agency
shall notify all Note Owners and the Indenture Trustee of the occurrence of
any such event and of the availability of Definitive Notes to Note Owners
requesting the same. Upon surrender to the Indenture Trustee of the
typewritten Note or Notes representing the Book-Entry Notes by the Clearing
Agency, accompanied by registration instructions, the Owner Trustee shall
execute and the Indenture Trustee shall authenticate the Definitive Notes in
accordance with the instructions of the Clearing Agency. None of the Owner
Trustee, the Note Registrar or the Indenture Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Notes, the Indenture Trustee shall recognize the Holders of the
Definitive Notes as Noteholders.
SECTION II.13 Seller as Noteholder. The Seller in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Owner Trustee or its affiliates with the same
rights it would have if it were not the Seller.
SECTION II.14 Tax Treatment. The Owner Trustee in entering
into this Indenture, and the Noteholders and the Note Owners, by acquiring
any Note or interest therein, (i) express their intention that the Notes
qualify under applicable tax law as indebtedness secured by the Collateral,
and (ii) unless otherwise required by appropriate taxing authorities, agree
to treat the Notes as indebtedness secured by the Collateral for the purpose
of federal income taxes, state and local income and franchise taxes, and any
other taxes imposed upon, measured by or based upon gross or net income.
ARTICLE III
COVENANTS
SECTION III.1 Payment of Principal and Interest. The
Owner Trustee shall duly and punctually pay the principal of and interest on
the Notes in accordance with the terms of the Notes and this Indenture. On
each Distribution Date and on the Redemption Date (if applicable), the
Indenture Trustee shall distribute amounts on deposit in the Note
Distribution Account to the Noteholders in accordance with Sections 2.7 and
8.2, less amounts properly withheld under the Code by any Person from a
payment to any Noteholder of interest and/or principal. Any amounts so
withheld shall be considered as having been paid by the Owner Trustee to such
Noteholder for all purposes of this Indenture.
SECTION III.2 Maintenance of Agency Office. As long as
any of the Notes remains outstanding, the Owner Trustee shall maintain in the
Borough of Manhattan, the City of New York, an office (the "Agency Office"),
being an office or agency where Notes may be surrendered to the Owner Trustee
for registration of transfer or exchange, and where notices and demands to or
upon the Owner Trustee in respect of the Notes and this Indenture may be
served. The Owner Trustee hereby initially appoints the Indenture Trustee to
serve as its agent for the foregoing purposes. The Owner Trustee shall give
prompt written notice to the Indenture Trustee of the location, and of any
change in the location, of the Agency Office. If at any time the Owner
Trustee shall fail to maintain any such office or agency or shall fail to
furnish the Indenture Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Corporate Trust Office of
the Indenture Trustee, and the Owner Trustee hereby appoints the Indenture
Trustee as its agent to receive all such surrenders, notices and demands.
SECTION III.3 Money for Payments To Be Held in Trust.
(a) As provided in Section 8.2, all payments of amounts due and
payable with respect to any Notes that are to be made from amounts withdrawn
from the Note Distribution Account pursuant to Section 8.2(c) shall be made
on behalf of the Owner Trustee by the Indenture Trustee or by another Paying
Agent, and no amounts so withdrawn from the Note Distribution Account for
payments of Notes shall be paid over to the Owner Trustee except as provided
in this Section 3.3.
(b) Before each Distribution Date or the Redemption Date (if
applicable), the Indenture Trustee shall deposit in the Note Distribution
Account an aggregate sum sufficient to pay the amounts then becoming due with
respect to the Notes, such sum to be held in trust for the benefit of the
Persons entitled thereto.
(c) The Owner Trustee shall cause each Paying Agent other than
the Indenture Trustee to execute and deliver to the Indenture Trustee an
instrument in which such Paying Agent shall agree with the Indenture Trustee
(and if the Indenture Trustee acts as Paying Agent, it hereby so agrees),
subject to the provisions of this Section 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided
and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the
Owner Trustee (or any other obligor upon the Notes) of
which it has actual knowledge in the making of any payment
required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in
trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the
payment of Notes if at any time it ceases to meet the
standards required to be met by a Paying Agent in effect at
the time of determination; and
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes
of any applicable withholding taxes imposed thereon and
with respect to any applicable reporting requirements in
connection therewith.
(d) The Owner Trustee may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, by Issuer Order direct any Paying Agent to pay to the Indenture
Trustee all sums held in trust by such Paying Agent, such sums to be held by
the Indenture Trustee upon the same trusts as those upon which the sums were
held by such Paying Agent; and upon such payment by any Paying Agent to the
Indenture Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
(e) Subject to applicable laws with respect to escheat of
funds, any money held by the Indenture Trustee or any Paying Agent in trust
for the payment of any amount due with respect to any Note and remaining
unclaimed for one year after such amount has become due and payable shall be
discharged from such trust and be paid by the Indenture Trustee to the Owner
Trustee on Issuer Request; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Owner Trustee for payment
thereof (but only to the extent of the amounts so paid to the Owner Trustee),
and all liability of the Indenture Trustee or such Paying Agent with respect
to such trust money shall thereupon cease; provided, however, that the
Indenture Trustee or such Paying Agent, before being required to make any
such payment, may at the expense of the Owner Trustee cause to be published
once, in a newspaper published in the English language, customarily published
on each Business Day and of general circulation in the City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining shall be paid
to the Owner Trustee. The Indenture Trustee may also adopt and employ, at
the expense of the Owner Trustee, any other reasonable means of notification
of such payment (including, but not limited to, mailing notice of such
payment to Holders whose Notes have been called but have not been surrendered
for redemption or whose right to or interest in monies due and payable but
not claimed is determinable from the records of the Indenture Trustee or of
any Paying Agent, at the last address of record for each such Holder).
SECTION III.4 Existence. The Owner Trustee shall keep
in full effect its existence, rights and franchises as a national bank
(unless it becomes, or any successor Owner Trustee hereunder is or becomes,
organized under the laws of any other State or of the United States of
America, in which case it shall keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and shall obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
SECTION III.5 Protection of Trust Estate;
Acknowledgment of Pledge. The Owner Trustee shall from time to time execute
and deliver all such supplements and amendments hereto and all such financing
statements, amendments thereto, continuation statements, assignments,
certificates, instruments of further assurance and other instruments, and
shall take such other action as may be determined to be necessary or
advisable in an Opinion of Counsel to the Owner Trustee delivered to the
Indenture Trustee to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof including by making the necessary filings of financing
statements or amendments thereto within sixty days after the occurrence of
any of the following: (A) any change in the Owner Trustee's (or its
successor's) name, (B) any change in the location of the Owner Trustee's (or
its successor's) principal place of business and (C) any merger or
consolidation or other change in the Owner Trustee's identity or
organizational structure and by promptly notifying the Indenture Trustee of
any such filings;
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(iii) enforce the rights of the Indenture Trustee and the
Noteholders in any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and the
rights of the Indenture Trustee and the Noteholders in such Trust Estate
against the claims of all Persons and parties,
and the Owner Trustee hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement
or other instrument required by the Indenture Trustee pursuant to this
Section 3.5.
SECTION III.6 Opinions as to Trust Estate.
(a) On the Closing Date, the Owner Trustee shall furnish to the
Indenture Trustee an Opinion of Counsel either stating that, in the opinion
of such counsel, such action has been taken with respect to the recording and
filing of this Indenture, any indentures supplemental hereto and any other
requisite documents, and with respect to the execution and filing of any
financing statements and continuation statements as are necessary to perfect
and make effective the lien and security interest of this Indenture and
reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such lien and security interest
effective.
(b) On or before April 15 in each calendar year, beginning
April 15, 2001, the Owner Trustee shall furnish to the Indenture Trustee an
Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording, filing, re-recording and
refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and with respect to the execution and filing of any
financing statements and continuation statements as is necessary to maintain
the lien and security interest created by this Indenture and reciting the
details of such action or stating that in the opinion of such counsel no such
action is necessary to maintain the lien and security interest created by
this Indenture. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and the execution and
filing of any financing statements and continuation statements that will, in
the opinion of such counsel, be required to maintain the lien and security
interest of this Indenture until April 15 in the following calendar year.
SECTION III.7 Performance of Obligations; Servicing of
Receivables.
(a) The Owner Trustee shall not take any action and shall use
its reasonable efforts not to permit any action to be taken by others that
would release any Person from any of such Person's material covenants or
obligations under any instrument or agreement included in the Trust Estate or
that would result in the amendment, hypothecation, subordination, termination
or discharge of, or impair the validity or effectiveness of, any such
instrument or agreement, except as otherwise expressly provided in this
Indenture, the Pooling and Servicing Agreement, the Purchase Agreement, the
Administration Agreement or such other instrument or agreement.
(b) The Owner Trustee may contract with other Persons to assist
it in performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Indenture Trustee in the Basic Documents
or an Officers' Certificate of the Owner Trustee shall be deemed to be action
taken by the Owner Trustee. Initially, the Owner Trustee has contracted with
the Servicer and the Administrator to assist the Owner Trustee in performing
its duties under this Indenture.
(c) The Owner Trustee shall punctually perform and
observe all of its obligations and agreements contained in this Indenture,
the Basic Documents and in the instruments and agreements included in the
Trust Estate, including but not limited to filing or causing to be filed all
UCC financing statements and continuation statements required to be filed
under the terms of this Indenture, the Pooling and Servicing Agreement and
the Purchase Agreement in accordance with and within the time periods
provided for herein and therein.
(d) If the Owner Trustee shall have knowledge of the occurrence
of a Servicer Default under the Pooling and Servicing Agreement, the Owner
Trustee shall promptly notify the Indenture Trustee and the Rating Agencies
thereof, and shall specify in such notice the response or action, if any, the
Owner Trustee has taken or is taking with respect of such default. If a
Servicer Default shall arise from the failure of the Servicer to perform any
of its duties or obligations under the Pooling and Servicing Agreement with
respect to the Receivables, the Owner Trustee and the Indenture Trustee shall
take all reasonable steps available to them pursuant to the Pooling and
Servicing Agreement to remedy such failure.
(e) Without derogating from the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the
rights of the Indenture Trustee hereunder, the Owner Trustee agrees that it
shall not, without the prior written consent of the Indenture Trustee or the
Holders of at least a majority in Outstanding Amount of the Voting Notes, as
applicable in accordance with the terms thereof, amend, modify, waive,
supplement, terminate or surrender, or agree to any amendment, modification,
supplement, termination, waiver or surrender of, the terms of any Collateral
or any of the Basic Documents, or waive timely performance or observance by
the Servicer or the Seller under the Pooling and Servicing Agreement or the
Purchase Agreement, the Administrator under the Administration Agreement or
NFC under the Purchase Agreement; provided, however, that, notwithstanding
the foregoing, no action specified in the proviso to Section 9.2(a) shall be
taken except in compliance with Section 9.2. If any such amendment,
modification, supplement or waiver shall be so consented to by the Indenture
Trustee or such Holders, as applicable, the Owner Trustee agrees, promptly
following a request by the Indenture Trustee to do so, to execute and
deliver, in its own name and at its own expense, such agreements,
instruments, consents and other documents as the Indenture Trustee may deem
necessary or appropriate in the circumstances.
SECTION III.8 Negative Covenants. So long as any Notes
are Outstanding, the Owner Trustee shall not:
(a) sell, transfer, exchange or otherwise dispose of any of the
properties or assets of the Owner Trust Estate, except the Owner Trustee may
(i) collect, liquidate, sell or otherwise dispose of Receivables (including
Warranty Receivables, Administrative Receivables and Liquidating
Receivables), (ii) make cash payments out of the Designated Accounts and the
Certificate Distribution Account and (iii) take other actions, in each case
as contemplated by the Basic Documents;
(b) claim any credit on, or make any deduction from the
principal or interest payable in respect of the Notes (other than amounts
properly withheld from such payments under the Code or applicable state law)
or assert any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Trust Estate;
(c) voluntarily commence any insolvency, readjustment of debt,
marshaling of assets and liabilities or other proceeding, or apply for an
order by a court or agency or supervisory authority for the winding-up or
liquidation of its affairs or any other event specified in Section 5.1(f); or
(d) either (i) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to
be released from any covenants or obligations with respect to the Notes under
this Indenture except as may be expressly permitted hereby, (ii) permit any
lien, charge, excise, claim, security interest, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or extend to or
otherwise arise upon or burden the Trust Estate or any part thereof or any
interest therein or the proceeds thereof (other than tax liens, mechanics'
liens and other liens that arise by operation of law, in each case on a
Financed Vehicle and arising solely as a result of an action or omission of
the related Obligor), or (iii) permit the lien of this Indenture not to
constitute a valid first priority security interest in the Trust Estate
(other than with respect to any such tax, mechanics' or other lien).
SECTION III.9 Annual Statement as to Compliance. The
Owner Trustee shall deliver to the Indenture Trustee, with a copy to each of
the Rating Agencies, on or before February 1 of each year, beginning February
1, 2002, an Officer's Certificate signed by an Authorized Officer, dated as
of the immediately preceding October 31, stating that:
(a) a review of the activities of the Trust during such fiscal
year and of performance by the Owner Trustee under this Indenture has been
made under such Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based
on such review, the Owner Trustee has fulfilled in all material respects all
of its obligations under this Indenture throughout such year, or, if there
has been a default in the fulfillment of any such obligation, specifying each
such default known to such Authorized Officer and the nature and status
thereof. A copy of such certificate may be obtained by any Noteholder by a
request in writing to the Owner Trustee addressed to the Corporate Trust
Office of the Indenture Trustee.
SECTION III.10 Consolidation, Merger, etc., of Owner Trustee;
Disposition of Trust Assets. The Owner Trustee may be merged with or into or
consolidated with another Person provided that such merger or consolidation
complies with the requirements of Section 6.11 of the Trust Agreement and the
surviving entity is eligible as the Owner Trustee under Section 6.13 of the
Trust Agreement.
SECTION III.11 Successor or Transferee.
(a) Upon any consolidation or merger of the Owner Trustee in
accordance with Section 3.10, the Person formed by or surviving such
consolidation or merger (if other than the Owner Trustee) shall succeed to,
and be substituted for, and may exercise every right and power of, the Owner
Trustee under this Indenture with the same effect as if such Person had been
named as the Owner Trustee herein.
(b) Upon the appointment of a successor trustee as Owner
Trustee under the Trust Agreement, such successor Owner Trustee shall succeed
to, and be substituted for, and may exercise every right and power of, the
Owner Trustee under this Indenture with the same effect as if such Person had
been named as the Owner Trustee herein.
SECTION III.12 No Other Business. The Owner Trustee shall not
engage in any business or activity other than acquiring, holding and managing
the Collateral and the proceeds therefrom in the manner contemplated by the
Basic Documents, issuing the Securities, making payments on the Securities
and such other activities that are necessary, suitable, desirable or
convenient to accomplish the foregoing or are incidental thereto, as set
forth in Section 2.3 of the Trust Agreement.
SECTION III.13 No Borrowing. The Owner Trustee shall not
issue, incur, assume, guarantee or otherwise become liable, directly or
indirectly, for any indebtedness for money borrowed other than indebtedness
for money borrowed in respect of the Notes or in accordance with the Basic
Documents.
SECTION III.14 Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by this Indenture or the other Basic
Documents, the Owner Trustee shall not make any loan or advance or credit to,
or guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of
so doing or otherwise), endorse or otherwise become contingently liable,
directly or indirectly, in connection 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 III.15 Servicer's Obligations. The Owner Trustee
shall use its best efforts to cause the Servicer to comply with its
obligations under Sections 3.10, 4.01 and 4.02 of the Pooling and Servicing
Agreement.
SECTION III.16 Capital Expenditures. The Owner Trustee shall
not make any expenditure of the funds of the Owner Trust Estate (whether by
long-term or operating lease or otherwise) for capital assets (either real,
personal or intangible property) other than the purchase of the Receivables
and other property and rights from the Seller pursuant to the Pooling and
Servicing Agreement.
SECTION III.17 Removal of Administrator. So long as any Notes
are Outstanding, the Owner Trustee shall not remove the Administrator without
cause unless the Rating Agency Condition for each class of Notes then
outstanding shall have been satisfied in connection with such removal.
SECTION III.18 Restricted Payments. Except for payments of
principal or interest on or redemption of the Notes, so long as any Notes are
Outstanding, the Owner Trustee shall not, directly or indirectly:
(a) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to any owner of a beneficial interest in the Trust or otherwise, in
each case with respect to any ownership or equity interest or similar
security in or of the Trust or to the Servicer;
(b) redeem, purchase, retire or otherwise acquire for value any
such ownership or equity interest or similar security; or
(c) set aside or otherwise segregate any amounts for any such
purpose;
provided, however, that the Owner Trustee may make, or cause to be made,
distributions to the Servicer, the Seller, the Indenture Trustee, the Owner
Trustee and the Certificateholders as permitted by, and to the extent funds
are available for such purpose under, the Pooling and Servicing Agreement,
the Trust Agreement or the other Basic Documents. The Owner Trustee shall
not, directly or indirectly, make payments to or distributions from the
Collection Account except in accordance with the Basic Documents.
SECTION III.19 Notice of Events of Default. The Owner Trustee
agrees to give the Indenture Trustee and the Rating Agencies prompt written
notice of each Event of Default hereunder, each Servicer Default, each
default on the part of the Seller of its obligations under the Pooling and
Servicing Agreement and each default on the part of NFC of its obligations
under the Purchase Agreement.
SECTION III.20 Further Instruments and Acts. Upon request of
the Indenture Trustee, the Owner Trustee shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary
or proper to carry out more effectively the purpose of this Indenture.
SECTION III.21 Indenture Trustee's Assignment of
Administrative Receivables and Warranty Receivables. Upon receipt of the
Administrative Purchase Payment or the Warranty Payment with respect to an
Administrative Receivable or a Warranty Receivable, as the case may be, the
Indenture Trustee shall release to the Servicer or the Warranty Purchaser, as
applicable, all of the Indenture Trustee's right, title and interest in and
to such repurchased Receivable, all monies due thereon, the security interest
in the related Financed Vehicle or Financed Vehicles and any accessions
thereto, the benefit of any lease assignment with respect to the related
Financed Vehicle or Financed Vehicles, proceeds arising thereafter from any
Insurance Policies with respect to such Receivable, proceeds arising
thereafter from any Dealer Liability on such Receivable, proceeds arising
thereafter of International Purchase Obligations with respect to such
Receivable, proceeds arising thereafter of any Guaranties with respect to
such Receivable and the interests of the Indenture Trustee in certain rebates
of premiums and other amounts relating to the Insurance Policies and any
documents relating thereto, and the Servicer or the Warranty Purchaser, as
applicable, shall thereupon own such Receivable, and all such security and
documents, free of any further obligation to the Indenture Trustee or the
Noteholders with respect thereto. If in any enforcement suit or legal
proceeding it is held that the Servicer may not enforce a Receivable on the
ground that it is not a real party in interest or a holder entitled to
enforce such Receivable, the Indenture Trustee shall, at the Servicer's
expense, take such steps as the Servicer deems necessary to enforce the
Receivable, including bringing suit in the Indenture Trustee's name or the
names of the Securityholders.
SECTION III.22 Representations and Warranties by the Owner
Trustee to the Indenture Trustee. The Owner Trustee (not in its individual
capacity, but solely as trustee under the Trust Agreement) hereby represents
and warrants to the Indenture Trustee as follows:
(a) Good Title. No Receivable has been sold, transferred,
assigned or pledged by the Owner Trustee to any Person other than the
Indenture Trustee; immediately prior to the conveyance of the Receivables
pursuant to this Indenture, the Owner Trustee had good and marketable title
thereto, free of any Lien (except for any Lien which may exist in accessions
to the Financed Vehicles not financed by NFC); and, upon execution and
delivery of this Indenture by the Owner Trustee, the Indenture Trustee shall
have all of the right, title and interest of the Owner Trustee in, to and
under the Collateral, free of any Lien (except for any Lien which may exist
in accessions to the Financed Vehicles not financed by NFC); and
(b) All Filings Made. All filings necessary under the UCC in
any jurisdiction to give the Indenture Trustee a first priority perfected
security interest in the Receivables and, to the extent constituting Code
Collateral, the other Collateral shall have been made. The Receivables
constitute Code Collateral.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION IV.1 Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect with respect to the Notes
except as to: (i) rights of registration of transfer and exchange;
(ii) substitution of mutilated, destroyed, lost or stolen Notes; (iii) rights
of Noteholders to receive payments of principal thereof and interest thereon;
(iv) Sections 3.2, 3.3, 3.4, 3.5, 3.8, 3.10, 3.11, 3.12, 3.13, 3.14, 3.16,
3.19 and 3.21; (v) the rights, obligations and immunities of the Indenture
Trustee hereunder (including the rights of the Indenture Trustee under
Section 6.7 and the obligations of the Indenture Trustee under Sections 4.2
and 4.4); and (vi) the rights of Noteholders as beneficiaries hereof with
respect to the property so deposited with the Indenture Trustee payable to
all or any of them, and the Indenture Trustee, on demand of and at the
expense of the Owner Trustee from the Owner Trust Estate, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to the Notes, if:
(a) either:
(1) all Notes theretofore authenticated and
delivered (other than (A) Notes that have been destroyed, lost or
stolen and that have been replaced or paid as provided in Section
2.5 and (B) Notes for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Owner
Trustee and thereafter repaid to the Owner Trustee or discharged
from such trust, as provided in Section 3.3) have been delivered
to the Indenture Trustee for cancellation; or
(2) all Notes not theretofore delivered to the
Indenture Trustee for cancellation:
(A) have become due and payable,
(B) will be due and payable respective Final
Scheduled Distribution Dates within one
year, or
(C) are to be called for redemption within
one year under arrangements satisfactory
to the Indenture Trustee for the giving of
notice of redemption by the Indenture
Trustee in the name, and at the expense,
of the Owner Trustee from the Owner Trust
Estate,
and the Owner Trustee, in the case of (A), (B) or (C) of subsection 4.1(a)(2)
above, has irrevocably deposited or caused to be irrevocably deposited with
the Indenture Trustee cash or direct obligations of or obligations guaranteed
by the United States of America (which will mature prior to the date such
amounts are payable), in trust for such purpose, in an amount sufficient to
pay and discharge the entire unpaid principal and accrued interest on such
Notes not theretofore delivered to the Indenture Trustee for cancellation
when due on the Final Scheduled Distribution Date for such Notes or the
Redemption Date for such Notes (if such Notes are to be called for redemption
pursuant to Section 10.1(a)), as the case may be;
(b) the Owner Trustee has paid or caused to be paid all other
sums payable hereunder by the Owner Trustee; and
(c) the Owner Trustee has delivered to the Indenture Trustee an
Officer's Certificate of the Owner Trustee, an Opinion of Counsel and (if
required by the TIA or the Indenture Trustee) an Independent Certificate from
a firm of certified public accountants, each meeting the applicable
requirements of Section 11.1(a) and each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
SECTION IV.2 Application of Trust Money. All monies
deposited with the Indenture Trustee pursuant to Section 4.1 shall be held in
trust and applied by it, in accordance with the provisions of the Notes and
this Indenture, to the payment, either directly or through any Paying Agent,
as the Indenture Trustee may determine, to the Holders of the particular
Notes for the payment or redemption of which such monies have been deposited
with the Indenture Trustee, of all sums due and to become due thereon for
principal and interest; but such monies need not be segregated from other
funds except to the extent required herein or in the Pooling and Servicing
Agreement or by applicable law.
SECTION IV.3 Repayment of Monies Held by Paying
Agent. In connection with the satisfaction and discharge of this Indenture
with respect to each class of Notes, all monies then held by any Paying Agent
other than the Indenture Trustee under the provisions of this Indenture with
respect to each such class of Notes shall, upon demand of the Owner Trustee,
be paid to the Indenture Trustee to be held and applied according to Section
3.3 and thereupon such Paying Agent shall be released from all further
liability with respect to such monies.
SECTION IV.4 Duration of Position of Indenture Trustee
for Benefit of Certificateholders. Notwithstanding (i) the earlier payment
in full of all principal and interest due to the Noteholders under the terms
of Notes of each class, (ii) the cancellation of such Notes pursuant to
Section 2.8 and (iii) the discharge of the Indenture Trustee's duties
hereunder with respect to such Notes, the Indenture Trustee shall continue to
act in the capacity as Indenture Trustee hereunder for the benefit of the
Certificateholders and the Indenture Trustee, for the benefit of the
Certificateholders, shall comply with its obligations under Sections 5.01,
8.02 and 8.03 of the Pooling and Servicing Agreement, as appropriate, until
such time as all distributions in respect of the Certificates have been paid
in full.
ARTICLE V
DEFAULT AND REMEDIES
SECTION V.1 Events of Default. For the purposes of this
Indenture, "Event of Default" wherever used herein, means any one of the
following events:
(a) failure to pay any interest on any Note as and when the
same becomes due and payable, and such default shall continue unremedied for
a period of five (5) days; or
(b) except as set forth in Section 5.1(c), failure to pay any
instalment of the principal of any Note as and when the same becomes due and
payable, and such default shall continue unremedied for a period of thirty
(30) days after there shall have been given, by registered or certified mail,
to the Owner Trustee and the Seller (or the Servicer, as applicable) by the
Indenture Trustee or to the Owner Trustee and the Seller (or the Servicer, as
applicable) and the Indenture Trustee by the Holders of at least 25% of the
Outstanding Amount of the Voting Notes, a written notice specifying such
default, demanding that it be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(c) failure to pay in full the outstanding principal balance of
any class of Notes by the Final Scheduled Distribution Date for such class;
or
(d) default in the observance or performance in any material
respect of any covenant or agreement of the Owner Trustee made in this
Indenture (other than a covenant or agreement, a default in the observance or
performance of which is specifically dealt with elsewhere in this Section
5.1) which failure materially and adversely affects the rights of the
Noteholders, and such default shall continue or not be cured for a period of
thirty (30) days after there shall have been given, by registered or
certified mail, to the Owner Trustee and the Seller (or the Servicer, as
applicable) by the Indenture Trustee or to the Owner Trustee and the Seller
(or the Servicer, as applicable) and the Indenture Trustee by the Holders of
at least 25% of the Outstanding Amount of the Voting Notes, a written notice
specifying such default, demanding that it be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Trust or the Owner
Trust Estate or any substantial part of the Owner Trust Estate in an
involuntary case under any applicable federal or state bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Trust or the Owner Trust Estate (other than as Owner Trustee) or for any
substantial part of the Trust Estate, or ordering the winding-up or
liquidation of the Trust's affairs, and such decree or order shall remain
unstayed and in effect for a period of sixty (60) consecutive days; or
(f) the commencement by the Owner Trustee, on behalf of the
Trust, of a voluntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or the consent by
the Owner Trustee, on behalf of the Trust, to the entry of an order for
relief in an involuntary case under any such law, or the consent by the Owner
Trustee, on behalf of the Trust, to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Trust or Owner Trust Estate or for any substantial part of
the Owner Trust Estate, or the making by the Owner Trustee, on behalf of the
Trust, of any general assignment of the Owner Trust Estate for the benefit of
creditors, or the failure by the Owner Trustee generally to pay the debts of
the Trust from the Owner Trust Estate as such debts become due, or the taking
of action by the Owner Trustee in furtherance of any of the foregoing.
The Owner Trustee shall deliver to the Indenture Trustee, within five (5)
Business Days after learning of the occurrence thereof, written notice in the
form of an Officer's Certificate of any Default under Section 5.1(d), its
status and what action the Owner Trustee is taking or proposes to take with
respect thereto.
SECTION V.2 Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default should occur and be continuing, then
and in every such case, unless the principal amount of the Notes shall have
already become due and payable, either the Indenture Trustee or the Holders
of Notes representing not less than a majority of the Outstanding Amount of
the Voting Notes may declare all the Notes to be immediately due and payable,
by a notice in writing to the Owner Trustee (and to the Indenture Trustee if
given by the Noteholders) setting forth the Event or Events of Default, and
upon any such declaration the unpaid principal amount of the Notes together
with accrued and unpaid interest thereon through the date of acceleration,
shall become immediately due and payable.
(b) At any time after such declaration of acceleration of
maturity of the Notes has been made and before a judgment or decree for
payment of the money due thereunder has been obtained by the Indenture
Trustee as hereinafter provided in this Article V, the Holders of Notes
representing not less than a majority of the Outstanding Amount of the Voting
Notes, by written notice to the Owner Trustee and the Indenture Trustee, may
rescind and annul such declaration and its consequences with respect to the
Notes; provided, that no such rescission and annulment shall extend to or
affect any subsequent or other Default or impair any right consequent
thereto; and provided further, that if the Indenture Trustee shall have
proceeded to enforce any right under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission and
annulment or for any other reason, or such proceedings shall have been
determined adversely to the Indenture Trustee, then and in every such case,
the Indenture Trustee, the Owner Trustee and the Noteholders, as the case may
be, shall be restored to their respective former positions and rights
hereunder, and all rights, remedies and powers of the Indenture Trustee, the
Owner Trustee and the Noteholders, as the case may be, shall continue as
though no such proceedings had been commenced.
SECTION V.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee.
(a) The Owner Trustee covenants that if there shall occur an
Event of Default under Sections 5.1(a), (b) or (c), the Owner Trustee shall,
upon demand of the Indenture Trustee, pay to the Indenture Trustee, for the
benefit of the Noteholders from the Owner Trust Estate in accordance with
their respective outstanding principal amounts, the entire amount then due
and payable on the Notes for principal and interest, with interest through
the date of such payment on the overdue principal amount of each class of
Notes, at the rate applicable to such class of Notes, and in addition thereto
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Indenture Trustee and its agents and counsel.
(b) If the Owner Trustee shall fail forthwith to pay such
amounts from the Owner Trust Estate upon such demand, the Indenture Trustee,
in its own name and as trustee of an express trust, may institute a
Proceeding for the collection of the sums so due and unpaid, and may
prosecute such Proceeding to judgment or final decree, and may enforce the
same against the Owner Trustee and the Owner Trust Estate or other obligor
upon such Notes and collect in the manner provided by law out of the property
of the Owner Trust Estate, wherever situated, the monies adjudged or decreed
to be payable.
(c) If an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders, by such appropriate Proceedings as the Indenture Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy or legal or equitable right vested in the Indenture Trustee by this
Indenture or by applicable law.
(d) If there shall be pending, relative to the Owner Trustee or
the Owner Trust Estate or any other obligor upon the Notes or any Person
having or claiming an ownership interest in the Trust Estate, Proceedings
under Title 11 of the United States Code or any other applicable federal or
state bankruptcy, insolvency or other similar law, or if a receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Trust or the Owner Trust Estate or such other Person, or in case of any other
comparable judicial Proceedings relative to the Owner Trustee or the Owner
Trust Estate, or to the creditors or property of the Owner Trust Estate, the
Indenture Trustee, irrespective of whether the principal of any Notes shall
then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Indenture Trustee shall have made any demand
pursuant to the provisions of this Section 5.3, shall be entitled and
empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the entire
amount of the unpaid principal and interest owing in respect of the
Notes and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee
(including any claim for reasonable compensation to the Indenture
Trustee and each predecessor trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Indenture Trustee
and each predecessor trustee, except as a result of negligence or bad
faith) and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations,
to vote on behalf of the Holders of Notes in any election of a trustee,
a standby trustee or Person performing similar functions in any such
Proceedings;
(iii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of the
Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee or the Holders of Notes allowed in any
judicial proceedings relative to the Owner Trustee or the Owner Trust
Estate, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, if the Indenture Trustee shall
consent to the making of payments directly to such Noteholders, to pay to the
Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor trustee and their
respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and
each predecessor trustee, except as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof or to authorize the Indenture Trustee to vote in respect of the claim
of any Noteholder in any such proceeding except, as aforesaid, to vote for
the election of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture
Trustee without the possession of any of the Notes or the production thereof
in any trial or other Proceedings relative thereto, and any such Proceedings
instituted by the Indenture Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor trustee and their respective agents and attorneys,
shall be applied in accordance with Section 5.4(b).
(g) In any Proceedings brought by the Indenture Trustee (and
also any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Noteholders, and it shall not be
necessary to make any Noteholder a party to any such Proceedings.
SECTION V.4 Remedies; Priorities.
(a) If an Event of Default shall have occurred and be
continuing and the Notes have been accelerated under Section 5.2(a), the
Indenture Trustee may do one or more of the following (subject to Section
5.5):
(i) institute Proceedings in its own name and as trustee
of an express trust for the collection of all amounts then due and
payable on the Notes or under this Indenture with respect thereto,
whether by declaration of acceleration or otherwise, enforce any
judgment obtained, and collect from the Owner Trustee or the Owner
Trust Estate and any other obligor upon such Notes monies adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to the
Trust Estate;
(iii) exercise any remedies of a secured party under the
UCC and take any other appropriate action to protect and enforce the
rights and remedies of the Indenture Trustee and the Noteholders; and
(iv) sell the Trust Estate or any portion thereof or
rights or interest therein, at one or more public or private sales
called and conducted in any manner permitted by law or elect to have
the Owner Trustee maintain possession of the Receivables and continue
to apply collections on such Receivables as if there had been no
declaration of acceleration; provided, however, that the Indenture
Trustee may not sell or otherwise liquidate the Trust Estate following
an Event of Default and acceleration of the Notes, unless (A) the
Holders of all of the aggregate Outstanding Amount of the Notes consent
thereto, (B) the proceeds of such sale or liquidation distributable to
the Noteholders are sufficient to discharge in full the principal of
and the accrued interest on the Notes, in each case as of the date of
such sale or liquidation or (C) (i) there has been an Event of Default
under Section 5.1(a), (b) or (c) or otherwise arising from a failure to
make a required payment of principal on any Notes, (ii) the Indenture
Trustee determines that the Trust Estate will not continue to provide
sufficient funds for the payment of principal of and interest on the
Notes as and when they would have become due if the Notes had not been
declared due and payable and (iii) the Indenture Trustee obtains the
consent of Holders of a majority of the aggregate Outstanding Amount of
the Voting Notes. In determining such sufficiency or insufficiency
with respect to clauses (B) and (C), the Indenture Trustee may, but
need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the feasibility
of such proposed action and as to the sufficiency of the Trust Estate
for such purpose.
(b) If the Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out or deposit such money or
property in the following order:
FIRST: to the Indenture Trustee for amounts due under
Section 6.7; and
SECOND: to the Collection Account, for distribution
pursuant to Section 9.02 of the Pooling and Servicing Agreement and Section
8.2(c).
SECTION V.5 Optional Preservation of the Trust Estate. If
the Notes have been declared to be due and payable under Section 5.2(a)
following an Event of Default and such declaration and its consequences have
not been rescinded and annulled in accordance with Section 5.2(b), the
Indenture Trustee may, but need not, elect to take and maintain possession of
the Trust Estate. It is the desire of the parties hereto and the Noteholders
that there be at all times sufficient funds for the payment of principal of
and interest on the Notes, and the Indenture Trustee shall take such desire
into account when determining whether or not to take and maintain possession
of the Trust Estate. In determining whether to take and maintain possession
of the Trust Estate, the Indenture Trustee may, but need not, obtain and rely
upon an opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as to
the sufficiency of the Trust Estate for such purpose.
SECTION V.6 Limitation of Suits. No Holder of any Note
shall have any right to institute any Proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to
the Indenture Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the Outstanding
Amount of the Voting Notes have made written request to the Indenture
Trustee to institute such Proceeding in respect of such Event of
Default in its own name as Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the Indenture
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt
of such notice, request and offer of indemnity has failed to institute
such Proceedings; and
(v) no direction inconsistent with such written request
has been given to the Indenture Trustee during such 60-day period by
the Holders of a majority of the Outstanding Amount of the Voting Notes;
it being understood and intended that no Holder or Holders of Notes shall
have any right in any manner whatsoever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Notes or to obtain or to seek to obtain priority or
preference over any other Holders of Notes or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable
(on the basis of the respective aggregate amount of principal and interest,
respectively, due and unpaid on the Notes held by each Noteholder) and common
benefit of all Noteholders. For the protection and enforcement of the
provisions of this Section 5.6, each and every Noteholder shall be entitled
to such relief as can be given either at law or in equity.
If the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Notes, each representing less than a majority of the Outstanding Amount of
the Voting Notes, the Indenture Trustee in its sole discretion may determine
what action, if any, shall be taken, notwithstanding any other provisions of
this Indenture.
SECTION V.7 Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest on such
Note on or after the respective due dates thereof expressed in such Note or
in this Indenture (or, in the case of redemption, if applicable, on or after
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
SECTION V.8 Restoration of Rights and Remedies. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce
any right or remedy under this Indenture and such Proceeding has been
discontinued or abandoned for any reason or has been determined adversely to
the Indenture Trustee or to such Noteholder, then and in every such case the
Owner Trustee, the Owner Trust Estate, the Indenture Trustee and the
Noteholders shall, subject to any determination in such Proceeding, be
restored severally to their respective former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the
Noteholders shall continue as though no such Proceeding had been instituted.
SECTION V.9 Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION V.10 Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee or any Holder of any Note to exercise any
right or remedy accruing upon any Default shall impair any such right or
remedy or constitute a waiver of any such Default or an acquiescence
therein. Every right and remedy given by this Article V or by law to the
Indenture Trustee or to the Noteholders may be exercised from time to time,
and as often as may be deemed expedient, by the Indenture Trustee or by the
Noteholders, as the case may be.
SECTION V.11 Control by Noteholders. The Holders of a
majority of the Outstanding Amount of the Voting Notes shall, subject to
provision being made for indemnification against costs, expenses and
liabilities in a form satisfactory to the Indenture Trustee, have the right
to direct the time, method and place of conducting any Proceeding for any
remedy available to the Indenture Trustee with respect to the Notes or
exercising any trust or power conferred on the Indenture Trustee; provided,
however, that:
(i) such direction shall not be in conflict with any rule
of law or with this Indenture;
(ii) subject to the express terms of Section 5.4, any
direction to the Indenture Trustee to sell or liquidate the Trust
Estate shall be by the Holders of Notes representing 100% of the
Outstanding Amount of the Notes;
(iii) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Trust Estate
pursuant to Section 5.5, then any direction to the Indenture Trustee by
Holders of Notes representing less than 100% of the Outstanding Amount
of the Notes to sell or liquidate the Trust Estate shall be of no force
and effect; and
(iv) the Indenture Trustee may take any other action
deemed proper by the Indenture Trustee that is not inconsistent with
such direction;
provided, however, that, subject to Section 6.1, the Indenture Trustee need
not take any action that it determines might cause it to incur any liability
(a) with respect to which the Indenture Trustee shall have reasonable grounds
to believe that adequate indemnity against such liability in not assured to
it and (b) which might materially adversely affect the rights of any
Noteholders not consenting to such action.
SECTION V.12 Waiver of Past Defaults.
(a) Prior to the declaration of the acceleration of the
maturity of the Notes as provided in Section 5.2(a), the Holders of not less
than a majority of the Outstanding Amount of the Voting Notes may waive any
past Default and its consequences except a Default (i) in the payment of
principal of or interest on any of the Notes or (ii) in respect of a covenant
or provision hereof which cannot be modified or amended without the consent
of the Holder of each Note. In the case of any such waiver, the Owner
Trustee, the Owner Trust Estate, the Indenture Trustee and the Noteholders
shall be restored to their respective former positions and rights hereunder;
but no such waiver shall extend to or affect any subsequent or other Default
or impair any right consequent thereto.
(b) Upon any such waiver, such Default shall cease to exist and
be deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this Indenture and for purposes of Section
8.01(b) of the Pooling and Servicing Agreement; but no such waiver shall
extend to or affect any subsequent or other Default or impair any right
consequent thereto.
SECTION V.13 Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Note by such Xxxxxx's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any Proceeding for the enforcement of any right or remedy under
this Indenture, or in any Proceeding against the Indenture Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such Proceeding of an undertaking to pay the costs of such
Proceeding, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in
such Proceeding, having due regard to the merits and good faith of the claims
or defenses made by such party litigant; but the provisions of this Section
5.13 shall not apply to:
(a) any Proceeding instituted by the Indenture Trustee;
(b) any Proceeding instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Voting Notes; or
(c) any Proceeding instituted by any Noteholder for the
enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture
(or, in the case of redemption, on or after the Redemption Date).
SECTION V.14 Waiver of Stay or Extension Laws. The Owner
Trustee covenants (to the extent that it may lawfully do so) that it shall
not at any time insist upon, or plead or in any manner whatsoever, claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, that may adversely affect the
covenants or the performance of this Indenture. The Owner Trustee (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not hinder, delay or
impede the execution of any power herein granted to the Indenture Trustee,
but shall suffer and permit the execution of every such power as though no
such law had been enacted.
SECTION V.15 Action on Notes. The Indenture Trustee's right
to seek and recover judgment on the Notes or under this Indenture shall not
be affected by the seeking, obtaining or application of any other relief
under or with respect to this Indenture. Neither the lien of this Indenture
nor any rights or remedies of the Indenture Trustee or the Noteholders shall
be impaired by the recovery of any judgment by the Indenture Trustee against
the Owner Trustee or the Owner Trust Estate or by the levy of any execution
under such judgment upon any portion of the Trust Estate or upon any of the
assets of the Owner Trust Estate. Any money or property collected by the
Indenture Trustee shall be applied in accordance with Section 5.4(b).
SECTION V.16 Performance and Enforcement of Certain
Obligations.
(a) Promptly following a request from the Indenture Trustee to
do so and at the Administrator's expense, the Owner Trustee agrees to take
all such lawful action as the Indenture Trustee may request to compel or
secure the performance and observance by the Seller and the Servicer of their
respective obligations to the Owner Trustee under or in connection with the
Pooling and Servicing Agreement and the Purchase Agreement or by NFC of its
obligations under or in connection with the Purchase Agreement in accordance
with the terms thereof, and to exercise any and all rights, remedies, powers
and privileges lawfully available to the Owner Trustee under or in connection
with the Pooling and Servicing Agreement and the Purchase Agreement to the
extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Seller, the Servicer or
NFC thereunder and the institution of legal or administrative actions or
proceedings to compel or secure performance by the Seller, the Servicer or
NFC of each of their respective obligations under the Pooling and Servicing
Agreement and the Purchase Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the Voting Notes shall,
exercise all rights, remedies, powers, privileges and claims of the Owner
Trustee against the Seller or the Servicer under or in connection with the
Pooling and Servicing Agreement and the Purchase Agreement, including the
right or power to take any action to compel or secure performance or
observance by the Seller or the Servicer of each of their obligations to the
Owner Trustee thereunder and to give any consent, request, notice, direction,
approval, extension or waiver under the Pooling and Servicing Agreement and
the Purchase Agreement, and any right of the Owner Trustee to take such
action shall be suspended.
(c) [Reserved.]
(d) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the Voting Notes shall,
exercise all rights, remedies, powers, privileges and claims of the Seller
against NFC under or in connection with the Purchase Agreement, including the
right or power to take any action to compel or secure performance or
observance by NFC of each of its obligations to the Seller thereunder and to
give any consent, request, notice, direction, approval, extension or waiver
under the Purchase Agreement, and any right of the Seller to take such action
shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION VI.1 Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this
Indenture and the Pooling and Servicing Agreement and no implied
covenants or obligations shall be read into this Indenture, the Pooling
and Servicing Agreement or any other Basic Document against the
Indenture Trustee; and
(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; provided, however,
that the Indenture Trustee shall examine the certificates and opinions
to determine whether or not they conform to any applicable requirements
of this Indenture.
(c) The Indenture Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act or its own
wilful misconduct, except that:
(i) this Section 6.1(c) does not limit the effect of
Section 6.1(b);
(ii) the Indenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer unless it
is proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 5.11.
(d) The Indenture Trustee shall not be liable for
interest on any money received by it except as the Indenture Trustee may
agree in writing with the Owner Trustee.
(e) Money held in trust by the Indenture Trustee need not
be segregated from other funds except to the extent required by law or the
terms of this Indenture or the Pooling and Servicing Agreement.
(f) No provision of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds to believe that repayments of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(g) The Indenture Trustee shall reimburse the Seller and any
director, officer, employee or agent of the Seller for any contractual
damages, liability or expense incurred by reason of the Indenture Trustee's
willful misfeasance, bad faith or gross negligence (except errors in
judgment) in the performance of its duties under any of the Further Transfer
and Servicing Agreements, or by reason of reckless disregard of its
obligations and duties under any of the Further Transfer and Servicing
Agreements.
(h) Every provision of this Indenture relating to the
Indenture Trustee shall be subject to the provisions of this Section 6.1 and
to the provisions of the TIA.
SECTION VI.2 Rights of Indenture Trustee.
(a) The Indenture Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the
proper Person. The Indenture Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Indenture Trustee acts or refrains from
acting, it may require an Officer's Certificate from the Owner Trustee or an
Opinion of Counsel that such action or omission is required or permissible
hereunder. The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such Officer's Certificate or
Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the Indenture
Trustee shall not be responsible for any misconduct or negligence on the part
of, or for the supervision of, any such agent, attorney, custodian or nominee
appointed with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any
action it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers; provided, however, that the
Indenture Trustee's conduct does not constitute wilful misconduct, negligence
or bad faith.
(e) The Indenture Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered
by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.
SECTION VI.3 Indenture Trustee May Own Notes. The
Indenture Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Owner Trustee, the
Servicer or any of their respective Affiliates with the same rights it would
have if it were not Indenture Trustee; provided, however, that the Indenture
Trustee shall comply with Sections 6.10 and 6.11. Any Paying Agent, Note
Registrar, co-registrar or co-paying agent may do the same with like rights.
SECTION VI.4 Indenture Trustee's Disclaimer. The
Indenture Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Owner Trustee's use of the proceeds from the Notes, and
it shall not be responsible for any statement of the Owner Trustee in the
Indenture or in any document issued in connection with the sale of the Notes
or in the Notes other than the Indenture Trustee's certificate of
authentication.
SECTION VI.5 Notice of Defaults. If a Default occurs
and is continuing and if it is known to a Responsible Officer of the
Indenture Trustee, the Indenture Trustee shall mail to each Noteholder notice
of the Default within 30 days after such Responsible Officer obtained
knowledge of such Default. Except in the case of a Default in payment of
principal of or interest on any Note, the Indenture Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of
Noteholders.
SECTION VI.6 Reports by Indenture Trustee to Holders.
The Indenture Trustee shall deliver to each Noteholder the information and
documents set forth in Article VII, and, in addition, all such information
with respect to the Notes as may be required, as specified by the Servicer,
to enable such Holder to prepare its federal and state income tax returns.
SECTION VI.7 Compensation; Indemnity.
(a) The Owner Trustee shall cause the Servicer pursuant to
the Pooling and Servicing Agreement to pay to the Indenture Trustee from time
to time such compensation for its services as shall be agreed upon in
writing. The Indenture Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Owner Trustee
shall cause the Servicer pursuant to the Pooling and Servicing Agreement to
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture
Trustee's agents, counsel, accountants and experts. The Owner Trustee shall
cause the Servicer pursuant to the Pooling and Servicing Agreement to
indemnify the Indenture Trustee in accordance with Section 7.01 of the
Pooling and Servicing Agreement.
(b) The Owner Trustee's obligations to the Indenture
Trustee pursuant to this Section 6.7 shall survive the discharge of this
Indenture. When the Indenture Trustee incurs expenses after the occurrence
of a Default specified in Section 5.1(e) or (f) the expenses are intended to
constitute expenses of administration under Title 11 of the United States
Code or any other applicable federal or state bankruptcy, insolvency or
similar law.
SECTION VI.8 Replacement of Indenture Trustee.
(a) The Indenture Trustee may at any time give notice of its
intent to resign by so notifying the Owner Trustee; provided, however, that
no such resignation shall become effective and the Indenture Trustee shall
not resign prior to the time set forth in Section 6.8(c). The Holders of a
majority in Outstanding Amount of the Voting Notes may remove the Indenture
Trustee by so notifying the Indenture Trustee and may appoint a successor
Indenture Trustee. Such resignation or removal shall become effective in
accordance with Section 6.8(c). The Owner Trustee shall remove the Indenture
Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge of
the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
(b) If the Indenture Trustee gives notice of its intent to
resign or is removed or if a vacancy exists in the office of the Indenture
Trustee for any reason (the Indenture Trustee in such event being referred to
herein as the retiring Indenture Trustee), the Owner Trustee shall promptly
appoint and designate a successor Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written
acceptance of its appointment and designation to the retiring Indenture
Trustee and to the Owner Trustee. Thereupon the resignation or removal of
the retiring Indenture Trustee shall become effective, and the successor
Indenture Trustee shall have all the rights, powers and duties of the
Indenture Trustee under this Indenture. The successor Indenture Trustee
shall mail a notice of its succession to Noteholders and to each of the
Rating Agencies. The retiring Indenture Trustee shall promptly transfer all
property held by it as Indenture Trustee to the successor Indenture Trustee.
(d) If a successor Indenture Trustee does not take office
within 60 days after the retiring Indenture Trustee gives notice of its
intent to resign or is removed, the retiring Trustee, the Owner Trustee or
the Holders of a majority of the Outstanding Amount of the Voting Notes may
petition any court of competent jurisdiction for the appointment and
designation of a successor Indenture Trustee.
(e) If the Indenture Trustee fails to comply with Section 6.11,
any Noteholder may petition any court of competent jurisdiction for the
removal of the Indenture Trustee and the appointment of a successor Indenture
Trustee.
(f) Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section 6.8, the Owner Trustee's obligations under Section
6.7 and the Servicer's corresponding obligations under the Pooling and
Servicing Agreement shall continue for the benefit of the retiring Indenture
Trustee.
SECTION VI.9 Merger or Consolidation of Indenture
Trustee.
(a) Any Person into which the Indenture Trustee may be merged
or with which it may be consolidated, or any Person resulting from any merger
or consolidation to which the Indenture Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Indenture
Trustee, shall be the successor of the Indenture Trustee under this
Indenture; provided, however, that such Person shall be eligible under the
provisions of Section 6.11, without the execution or filing of any instrument
or any further act on the part of any of the parties to this Indenture,
anything in this Indenture to the contrary notwithstanding. Following such
merger or consolidation, the successor Indenture Trustee shall mail a notice
of such merger or consolidation to each of the Rating Agencies.
(b) If at the time such successor or successors by merger or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture, any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such
Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any successor to the Indenture Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Indenture Trustee. In all such cases such
certificate of authentication shall have the same full force as is provided
anywhere in the Notes or herein with respect to the certificate of
authentication of the Indenture Trustee.
SECTION VI.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee.
(a) Notwithstanding any other provisions of this Indenture, at
any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Trust Estate or any Financed Vehicle
may at the time be located, the Indenture Trustee shall have the power and
may execute and deliver all instruments to appoint one or more Persons to act
as a co-trustee or co-trustees, or separate trustee or separate trustees, of
all or any part of the Trust Estate, and to vest in such Person or Persons,
in such capacity and for the benefit of the Noteholders and (only to the
extent expressly provided herein) the Certificateholders, such title to the
Trust Estate, or any part hereof, and, subject to the other provisions of
this Section 6.10, such powers, duties, obligations, rights and trusts as the
Indenture Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 6.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Indenture Trustee shall be conferred or imposed
upon and exercised or performed by the Indenture Trustee and such
separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately
without the Indenture Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular
act or acts are to be performed the Indenture Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Indenture
Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Indenture and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the
liability of, or affording protection to, the Indenture Trustee. Every such
instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee, its agent or attorney-in-fact with full
power and authority, to the extent not prohibited by law, to do any lawful
act under or in respect of this Indenture on its behalf and in its name. If
any separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Indenture Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
SECTION VI.11 Eligibility; Disqualification.
(a) The Indenture Trustee shall at all times satisfy the
requirements of TIAss. 310(a). The Indenture Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition and (unless waived by Moody's) it shall
have a long term unsecured debt rating of Baa3 or better by Xxxxx'x Investors
Service, Inc. The Indenture Trustee shall comply with TIAss. 310(b);
provided, however, that there shall be excluded from the operation of TIA
ss. 310(b)(1) any indenture or indentures under which other securities of the
Owner Trustee are outstanding if the requirements for such exclusion set
forth in TIAss. 310(b)(1) are met.
(b) If a Default occurs and is continuing, and the Indenture
Trustee is deemed to have a conflicting interest as a result of acting as
trustee for both the Class A Notes and the Class B Notes, the Owner Trustee
shall appoint a successor Indenture Trustee for one or both of such classes,
so that there will be separate Indenture Trustees for the Class A Notes and
the Class B Notes. No such event shall alter the voting rights of the Class
A Noteholders or Class B Noteholders under this Indenture or any other Basic
Document. However, so long as any amounts remain unpaid with respect to the
Class A Notes, only the Indenture Trustee for the Class A Noteholders will
have the right to exercise remedies under this Indenture (but subject to the
express provisions of Section 5.4 and to the right of the Class B Noteholders
to receive their share of any proceeds of enforcement, subject to the
subordination of the Class B Notes to the Class A Notes as described herein)
to make deposits to and withdrawals from the Designated Accounts, hold
Designated Account Property and to make distributions to Noteholders from the
Note Distribution Account. Upon repayment of the Class A Notes in full, all
rights to exercise remedies under the Indenture will transfer to the
Indenture Trustee for the Class B Notes.
(c) In the case of the appointment hereunder of a successor
Indenture Trustee with respect to any class of Notes, the Owner Trustee, the
retiring Indenture Trustee and the successor Indenture Trustee with respect
to such class of Notes shall execute and deliver an indenture supplemental
hereto wherein the successor Indenture Trustee shall accept such appointment
and which (i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, the successor Indenture
Trustee all the rights, powers, trusts and duties of the retiring Indenture
Trustee with respect to the Notes of the class to which the appointment of
such successor Indenture Trustee relates, (ii) if the retiring Indenture
Trustee is not retiring with respect to all classes of Notes, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Indenture Trustee with
respect to the Notes of each class as to which the retiring Indenture Trustee
is not retiring shall continue to be vested in the retiring Indenture
Trustee, and (iii) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Indenture Trustee, it
being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that
each such Indenture Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Indenture Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Indenture
Trustee shall become effective to the extent provided therein.
SECTION VI.12 Preferential Collection of Claims Against Owner
Trustee. The Indenture Trustee shall comply with TIAss. 311(a), excluding any
creditor relationship listed in TIAss. 311(b). A trustee who has resigned or
been removed shall be subject to TIAss. 311(a) to the extent indicated.
SECTION VI.13 Representations and Warranties of Indenture
Trustee. The Indenture Trustee represents and warrants as of the Closing
Date that:
(a) the Indenture Trustee is a New York banking corporation
duly organized, validly existing and in good standing under the laws of the
State of New York and the eligibility requirements set forth in Section 6.11
are satisfied with respect to the Indenture Trustee;
(b) the Indenture Trustee has full power, authority and legal
right to execute, deliver and perform this Indenture, and has taken all
necessary action to authorize the execution, delivery and performance by it
of this Indenture;
(c) the execution, delivery and performance by the Indenture
Trustee of this Indenture (i) shall not violate any provision of any law or
regulation governing the banking and trust powers of the Indenture Trustee or
any order, writ, judgment or decree of any court, arbitrator, or governmental
authority applicable to the Indenture Trustee or any of its assets, (ii)
shall not violate any provision of the corporate charter or by-laws of the
Indenture Trustee or (iii) shall not violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or result in the
creation or imposition of any lien on any properties included in the Trust
Estate pursuant to the provisions of any mortgage, indenture, contract,
agreement or other undertaking to which it is a party, which violation,
default or lien could reasonably be expected to have a materially adverse
effect on the Indenture Trustee's performance or ability to perform its
duties under this Indenture or on the transactions contemplated in this
Indenture;
(d) the execution, delivery and performance by the Indenture
Trustee of this Indenture shall not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any governmental authority or
agency regulating the banking and corporate trust activities of the Indenture
Trustee; and
(e) this Indenture has been duly executed and delivered by the
Indenture Trustee and constitutes the legal, valid and binding agreement of
the Indenture Trustee, enforceable in accordance with its terms.
SECTION VI.14 Indenture Trustee May Enforce Claims Without
Possession of Notes. All rights of action and claims under this Indenture or
the Notes may be prosecuted and enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Indenture Trustee
shall be brought in its own name as Indenture Trustee. Any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee,
its agents and counsel, be for the ratable benefit of the Noteholders and
(only to the extent expressly provided herein) the Certificateholders in
respect of which such judgment has been obtained.
SECTION VI.15 Suit for Enforcement. If an Event of Default
shall occur and be continuing, the Indenture Trustee in its discretion may,
subject to the provisions of Section 6.1, proceed to protect and enforce its
rights and the rights of the Noteholders under this Indenture by a Proceeding
whether for the specific performance of any covenant or agreement contained
in this Indenture or in aid of the execution of any power granted in this
Indenture or for the enforcement of any other legal, equitable or other
remedy as the Indenture Trustee, being advised by counsel, shall deem most
effectual to protect and enforce any of the rights of the Indenture Trustee
or the Noteholders.
SECTION VI.16 Rights of Noteholders to Direct Indenture
Trustee. Holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Voting Notes shall have the right to direct in
writing the time, method and place of conducting any Proceeding for any
remedy available to the Indenture Trustee or exercising any trust or power
conferred on the Indenture Trustee; provided, however, that subject to
Section 6.1, the Indenture Trustee shall have the right to decline to follow
any such direction if the Indenture Trustee being advised by counsel
determines that the action so directed may not lawfully be taken, or if the
Indenture Trustee in good faith shall, by a Responsible Officer, determine
that the proceedings so directed would be illegal or subject it to personal
liability or be unduly prejudicial to the rights of Noteholders not parties
to such direction; and provided, further, that nothing in this Indenture
shall impair the right of the Indenture Trustee to take any action deemed
proper by the Indenture Trustee and which is not inconsistent with such
direction by the Noteholders.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION VII.1 Owner Trustee To Furnish Indenture
Trustee Names and Addresses of Noteholders. The Owner Trustee shall furnish
or cause to be furnished by the Servicer to the Indenture Trustee (a) not
more than five days before each Distribution Date, a list, in such form as
the Indenture Trustee may reasonably require, of the names and addresses of
the Holders of Notes as of the close of business on the Record Date, and
(b) at such other times as the Indenture Trustee may request in writing,
within 14 days after receipt by the Owner Trustee of any such request, a list
of similar form and content as of a date not more than 10 days prior to the
time such list is furnished; provided, however, that so long as the Indenture
Trustee is the Note Registrar, no such list shall be required to be furnished.
SECTION VII.2 Preservation of Information,
Communications to Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as
provided in Section 7.1 and the names and addresses of Holders of Notes
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIAss. 312(b) with
other Noteholders with respect to their rights under this Indenture or under
the Notes.
(c) The Owner Trustee, the Indenture Trustee and the Note
Registrar shall have the protection of TIAss. 312(c).
SECTION VII.3 Reports by Owner Trustee.
(a) The Owner Trustee shall:
(i) file with the Indenture Trustee, within 15 days after
the Owner Trustee is required to file the same with the Commission,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Owner Trustee may be required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by
the Commission such additional information, documents and reports with
respect to compliance by the Owner Trustee with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA
ss. 313(c)) such summaries of any information, documents and reports
required to be filed by the Owner Trustee pursuant to clauses (i) and
(ii) of this Section 7.3(a) as may be required by rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Owner Trustee otherwise determines, the fiscal
year of the Trust shall end on October 31 of each year.
SECTION VII.4 Reports by Indenture Trustee.
(a) If required by TIAss. 313(a), within 60 days after each
February 1, beginning with February 1, 2001, the Indenture Trustee shall mail
to each Noteholder as required by TIAss. 313(c) a brief report dated as of
such date that complies with TIAss.313(a). The Indenture Trustee also shall
comply with TIAss. 313(b). A copy of any report delivered pursuant to this
Section 7.4(a) shall, at the time of its mailing to Noteholders, be filed by
the Indenture Trustee with the Commission and each stock exchange, if any, on
which the Notes are listed. The Owner Trustee shall notify the Indenture
Trustee if and when the Notes are listed on any stock exchange.
(b) On each Distribution Date, the Indenture Trustee shall
include with each payment to each Noteholder a copy of the statement for the
related Monthly Period as required pursuant to Section 4.09 of the Pooling
and Servicing Agreement.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION VIII.1 Collection of Money. Except as otherwise
expressly provided herein, the Indenture Trustee may demand payment or
delivery of, and shall receive and collect, directly and without intervention
or assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall apply all such money received by it
as provided in this Indenture and the Pooling and Servicing Agreement.
Except as otherwise expressly provided in this Indenture or in Article III of
the Pooling and Servicing Agreement, if any default occurs in the making of
any payment or performance under any agreement or instrument that is part of
the Trust Estate, the Indenture Trustee may take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate Proceedings. Any such action shall be without
prejudice to any right to claim an Event of Default under this Indenture and
any right to proceed thereafter as provided in Article V.
SECTION VIII.2 Designated Accounts; Payments.
(a) On or prior to the Closing Date, the Owner Trustee shall
cause the Servicer to establish and maintain, in the name of the Indenture
Trustee, for the benefit of the Securityholders, the Designated Accounts as
provided in Articles IV and V of the Pooling and Servicing Agreement.
(b) Before each Distribution Date, the Indenture Trustee shall
cause all withdrawals, deposits, transfers and distributions provided for in
Section 4.06(b) of the Pooling and Servicing Agreement to be made. Before
each Distribution Date, the Indenture Trustee shall make the distributions
from the Collection Account provided for in Section 4.06(c) of the Pooling
and Servicing Agreement. Notwithstanding the preceding sentence, to the
extent permitted and as provided by Section 4.08 of the Pooling and Servicing
Agreement, deposits may be netted against amounts owing to the depositor.
(c) On each Distribution Date, the Indenture Trustee shall
distribute all amounts on deposit in the Note Distribution Account, subject
to the Certificateholder's rights under Section 5.05 of the Pooling and
Servicing Agreement to Investment Earnings, to the Noteholders to the extent
of amounts due and unpaid on the Notes for principal and interest, in the
following amounts, and in the following order of priority:
(i) (A) first, to accrued and unpaid interest on the
Class A Notes; provided, however, that if there are not sufficient
funds in the Note Distribution Account to pay the entire amount of
accrued and unpaid interest then due on the Class A Notes, the amount
in the Note Distribution Account shall be applied to the payment of
such interest on each Note of each class of the Class A Notes pro rata
on the basis of the respective aggregate amount of interest due on each
such class of Class A Notes; and (B) second, unless otherwise provided
in clause (iv) below, to accrued and unpaid interest on the Class B
Notes; provided, however, that if there are not sufficient funds in the
Note Distribution Account (after the payment of all accrued and unpaid
interest on the Class A Notes) to pay the entire amount of accrued and
unpaid interest then due on the Class B Notes, the amount in the Note
Distribution Account shall be applied to the payment of such interest
on each of the Class B Notes pro rata on the basis of the aggregate
amount of interest due on each such Class B Note;
(ii) unless otherwise provided in clause (iii), (iv) or
(v) below, the Principal Payment Amount shall be applied on each
Distribution Date, as follows:
(A) first, 100% of the Principal Payment Amount
shall be applied to pay the principal of the Class A-1 Notes
until the Class A-1 Notes are paid in full;
(B) thereafter, 96.25% of the Principal Payment
Amount (in the case of the Distribution Date on which the Class
A-1 Notes are paid in full, 96.25% of the remaining Principal
Payment Amount) shall be applied to pay the principal of the
other Class A Notes (all of which shall be applied to pay the
principal of the Class A-2 Notes until paid in full, then shall
be applied to pay the principal of the Class A-3 Notes until paid
in full, and then shall be applied to pay the principal of the
Class A-4 Notes until paid in full) and 3.75% of the Principal
Payment Amount (in the case of the Distribution Date on which the
Class A-1 Notes are paid full, 3.75% of the remaining Principal
Payment Amount) shall be applied to pay the principal of the
Class B Notes until the Class A Notes are paid in full; and
(C) thereafter, 100% of the Principal Payment
Amount (in the case of the Distribution Date on which the Class A
Notes are paid in full, the remaining Principal Payment Amount)
to the Class B Notes until the Class B Notes are paid in full;
(iii) if the amount on deposit in the Reserve Account on
any Distribution Date would be, after giving effect to the application
of the Principal Payment Amount in accordance with the foregoing
priorities, less than 1.0% of the Initial Aggregate Receivables
Balance, then on each Distribution Date thereafter until either the
Class A Notes are paid in full or the amount on deposit in the Reserve
Account equals or exceeds the Specified Reserve Account Balance, 100%
of the Principal Payment Amount shall be applied on each Distribution
Date to pay the principal of the Class A Notes (all of which shall be
applied to pay the principal of the Class A-1 Notes until paid in full,
then shall be applied to pay the principal of the Class A-2 Notes until
paid in full, then shall be applied to pay the principal of Class A-3
Notes until paid in full, and then shall be applied to pay the
principal of the Class A-4 Notes until paid in full). When principal
payments on the Class B Notes resume in accordance with the preceding
sentence, the Principal Payment Amount for such Distribution Date shall
be applied in accordance with Section 8.2(c)(ii) hereof until the Class
A Notes have been paid in full, and thereafter 100% of the Principal
Payment Amount for such Distribution Date shall be applied to pay the
principal of the Class B Notes until the Class B Notes are paid in full;
(iv) if the Notes have been declared immediately due and
payable as provided in Section 5.2(a) following the occurrence of an
Event of Default specified in Section 5.1(a), (b) or (c) until such
time as the Class A Notes have been paid in full and this Indenture has
been discharged with respect to the Class A Notes any amounts remaining
in the Note Distribution Account after the application described in
Section 8.2(c)(i) (A) shall be applied in the following priority: (1)
to the repayment of principal of each of the Class A Notes pro rata on
the basis of the respective unpaid principal amount of each such Class
A Note; (2) to the repayment of interest on each of the Class B Notes
pro rata on the basis of the amount of interest due and unpaid on each
such Class B Note and (3) to the repayment of principal on each of the
Class B Notes pro rata on the basis of the unpaid principal amount of
each such Class B Note; and
(v) if the Notes have been declared immediately due and
payable as provided in Section 5.2(a) following the occurrence of an
Event of Default specified in Section 5.1(d), (e) or (f) until such
time as the Class A Notes have been paid in full and this Indenture has
been discharged with respect to the Class A Notes, 100% of the
Principal Payment Amount shall be applied on each Distribution Date to
the payment of principal of each class of the Class A Notes (on the
basis of their respective unpaid principal balances), and, thereafter,
100% of the Principal Payment Amount shall be applied on each
Distribution Date to the payment of principal of the Class B Notes pro
rata on the basis of the respective unpaid principal amount of each
such Class B Note.
SECTION VIII.3 General Provisions Regarding Accounts.
(a) Subject to Section 6.1(c), the Indenture Trustee shall not
in any way be held liable by reason of any insufficiency in any of the
Designated Accounts resulting from any loss on any Eligible Investment
included therein except for losses attributable to the Indenture Trustee's
failure to make payments on such Eligible Investments issued by the Indenture
Trustee, in its commercial capacity as principal obligor and not as trustee,
in accordance with their terms.
(b) If (i) the Servicer shall have failed to give investment
directions for any funds on deposit in the Designated Accounts to the
Indenture Trustee by 11:00 a.m., New York City time (or such other time as
may be agreed by the Servicer and the Indenture Trustee) on any Business Day;
or (ii) a Default shall have occurred and be continuing with respect to the
Notes but the Notes shall not have been declared due and payable pursuant to
Section 5.2(a), or, if such Notes shall have been declared due and payable
following an Event of Default, but amounts collected or receivable from the
Trust Estate are being applied in accordance with Section 5.5 as if there had
not been such a declaration; then the Indenture Trustee shall, to the fullest
extent practicable, invest and reinvest funds in the Designated Accounts in
one or more Eligible Investments selected by the Indenture Trustee.
SECTION VIII.4 Release of Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.7, the Indenture Trustee may, and when required by the provisions
of this Indenture shall, execute instruments to release property in the Trust
Estate from the lien of this Indenture, or convey the Indenture Trustee's
interest in the same, in a manner and under circumstances that are consistent
with the provisions of this Indenture. No party relying upon an instrument
executed by the Indenture Trustee as provided in this Article VIII shall be
bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
monies.
(b) The Indenture Trustee shall, at such time as there are no
Notes Outstanding and all sums due to the Indenture Trustee pursuant to
Section 6.7 have been paid, notify the Owner Trustee thereof in writing and
upon receipt of an Issuer Request, release any remaining portion of the Trust
Estate that secured the Notes from the lien of this Indenture and release to
the Owner Trustee or any other Person entitled thereto any funds then on
deposit in the Note Distribution Account. The Indenture Trustee shall (i)
release any remaining portion of the Trust Estate that secured the
Certificates from the lien of this Indenture and (ii) deposit in the
Certificate Distribution Account any funds then on deposit in the Reserve
Account or the Collection Account only at such time as (y) there are no Notes
Outstanding and (z) all sums due to the Indenture Trustee pursuant to Section
6.7 have been paid.
SECTION VIII.5 Opinion of Counsel.
The Indenture Trustee shall receive at least seven days' notice when requested
by the Owner Trustee to take any action pursuant to Section 8.4(a), accompanied
by copies of any instruments involved, and the Indenture Trustee shall also
require as a condition to such action, an Opinion of Counsel, in form and
substance satisfactory to the Indenture Trustee, stating the legal effect of any
such action, outlining the steps required to complete the same, and concluding
that all conditions precedent to the taking of such action have been complied
with and such action shall not materially and adversely impair the security
for the Notes or the rights of the Noteholders in contravention of the
provisions of this Indenture; provided, however, that such Opinion of Counsel
shall not be required to express an opinion as to the fair value of the Trust
Estate. Counsel rendering any such opinion may rely, without independent
investigation, on the accuracy and validity of any certificate or other
instrument delivered to the Indenture Trustee in connection with any such
action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION IX.1 Supplemental Indentures Without Consent
of Noteholders.
(a) Without the consent of the Holders of any Notes but with
prior notice to the Rating Agencies, the Owner Trustee and the Indenture
Trustee, when authorized by an Issuer Order, at any time and from time to
time, may enter into one or more indentures supplemental hereto (which shall
conform to the provisions of the TIA as in force at the date of the execution
thereof), in form satisfactory to the Indenture Trustee, for any of the
following purposes:
(i) to correct or amplify the description of any property
at any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject
additional property to the lien of this Indenture;
(ii) to evidence the succession, in compliance with
Section 3.11 and the applicable provisions hereof, of another Person to
the Owner Trustee, and the assumption by any such successor of the
covenants of the Owner Trustee contained herein and in the Notes;
(iii) to add to the covenants of the Owner Trustee for the
benefit of the Securityholders, or to surrender any right or power
herein conferred upon the Owner Trustee;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity or to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein, in any supplemental
indenture or in any other Basic Document;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor or additional Indenture Trustee
with respect to the Notes or any class thereof and to add to or change
any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA, and the
Indenture Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate
agreements and stipulations that may be therein contained.
(b) The Owner Trustee and the Indenture Trustee, when
authorized by an Issuer Order, may, also without the consent of any of the
Noteholders but with prior notice to the Rating Agencies, at any time and
from time to time enter into one or more indentures supplemental hereto for
the purpose of adding any provisions to, changing in any manner, or
eliminating any of the provisions of, this Indenture or modifying in any
manner the rights of the Noteholders under this Indenture; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Noteholder.
SECTION IX.2 Supplemental Indentures With Consent of Noteholders.
(a) The Owner Trustee and the Indenture Trustee, when
authorized by an Issuer Order, also may, with prior notice to the Rating
Agencies and with the consent of the Holders of not less than a majority of
the Outstanding Amount of the Voting Notes, by Act of such Holders delivered
to the Owner Trustee and the Indenture Trustee, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to,
changing in any manner, or eliminating any of the provisions of, this
Indenture or modifying in any manner the rights of the Noteholders under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Note affected thereby:
(i) change the due date of any instalment of principal of
or interest on any Note, or reduce the principal amount thereof, the
interest rate applicable thereto, or the Redemption Price with respect
thereto, change any place of payment where, or the coin or currency in
which, any Note or any interest thereon is payable, or impair the right
to institute suit for the enforcement of the provisions of this
Indenture requiring the application of funds available therefor, as
provided in Article V, to the payment of any such amount due on the
Notes on or after the respective due dates thereof (or, in the case of
redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of
the Voting Notes, the consent of the Holders of which is required for
(a) any such supplemental indenture, (b) any waiver of compliance with
certain provisions of this Indenture, certain defaults hereunder and
their consequences as provided for in this Indenture or (c) any action
described in Sections 2.12, 3.7(e), 5.2, 5.6, 5.11, 5.12(a), 6.8, or
6.16;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of
the Notes required to direct the Indenture Trustee to sell or liquidate
the Trust Estate pursuant to Section 5.4 if the proceeds of such sale
would be insufficient to pay the principal amount of and accrued but
unpaid interest on the Outstanding Notes;
(v) modify any provision of this Section 9.2 to decrease
the required minimum percentage necessary to approve any amendments to
any provisions of this Indenture or any of the Basic Documents;
(vi) modify any of the provisions of this Indenture in
such manner as to affect the calculation of the amount of any payment
of interest or principal due on any Note on any Distribution Date
(including the calculation of any of the individual components of such
calculation), or modify or alter the provisions of the Indenture
regarding the voting of Notes held by the Owner Trustee, the Seller or
any Affiliate of either of them; or
(vii) permit the creation of any Lien ranking prior to or
on a parity with the lien of this Indenture with respect to any part of
the Trust Estate or, except as otherwise permitted or contemplated
herein, terminate the lien of this Indenture on any property at any
time subject to the lien of this Indenture or deprive the Holder of any
Note of the security afforded by the lien of this Indenture.
(b) The Indenture Trustee may in its discretion determine
whether or not any Notes would be affected (such that the consent of each
Noteholder would be required) by any supplemental indenture proposed pursuant
to this Section 9.2 and any such determination shall be conclusive and
binding upon all of the Noteholders, whether authenticated and delivered
thereunder before or after the date upon which such supplemental indenture
becomes effective. The Indenture Trustee shall not be liable for any such
determination made in good faith.
(c) It shall be sufficient if an Act of Noteholders approves
the substance, but not the form, of any proposed supplemental indenture.
(d) Promptly after the execution by the Owner Trustee and the
Indenture Trustee of any supplemental indenture pursuant to this Section 9.2,
the Indenture Trustee shall mail to the Noteholders to which such amendment
or supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture
Trustee to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION IX.3 Execution of Supplemental Indentures. In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture, the Indenture Trustee shall be entitled to
receive, and subject to Sections 6.1 and 6.2, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and that
all conditions precedent to such execution have been satisfied. The
Indenture Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Indenture Trustee's own rights,
duties, liabilities or immunities under this Indenture or otherwise.
SECTION IX.4 Effect of Supplemental Indenture. Upon
the execution of any supplemental indenture pursuant to the provisions
hereof, this Indenture shall be and be deemed to be modified and amended in
accordance therewith with respect to the Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities
and immunities under this Indenture of the Indenture Trustee, the Owner
Trustee and the Noteholders shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
SECTION IX.5 Conformity with Trust Indenture Act.
Every amendment of this Indenture and every supplemental indenture executed
pursuant to this Article IX shall conform to the requirements of the TIA as
then in effect so long as this Indenture shall then be qualified under the
TIA.
SECTION IX.6 Reference in Notes to Supplemental
Indentures. Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article IX may, and if required by
the Indenture Trustee shall, bear a notation in form approved by the
Indenture Trustee as to any matter provided for in such supplemental
indenture. If the Owner Trustee or the Indenture Trustee shall so determine,
new Notes so modified as to conform, in the opinion of the Indenture Trustee
and the Owner Trustee, to any such supplemental indenture may be prepared and
executed by the Owner Trustee and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes of the same class.
ARTICLE X
REDEMPTION OF NOTES
SECTION X.1 Redemption.
(a) The Class A-4 Notes and Class B Notes are subject to
redemption in whole, but not in part, upon the exercise by the Servicer of
its option to purchase the Receivables pursuant to Section 9.01 of the
Pooling and Servicing Agreement. Such redemption shall occur on any
Distribution Date after all Class A-1 Notes, Class A-2 Notes and Class A-3
Notes have been paid in full. The purchase price for the Class A-4 Notes and
Class B Notes to be redeemed shall be equal to the applicable Redemption
Price, provided the Owner Trustee has available funds in the Owner Trust
Estate sufficient to pay such amount. The Owner Trustee shall furnish the
Rating Agencies notice of such redemption. If the Class A-4 Notes and Class
B Notes are to be redeemed pursuant to this Section 10.1(a), the Owner
Trustee shall furnish notice thereof to the Indenture Trustee not later than
25 days prior to the Redemption Date and the Owner Trustee shall deposit into
the Note Distribution Account, before the Redemption Date, the aggregate
Redemption Price of the Class A-4 Notes and Class B Notes to be redeemed,
whereupon all such Notes shall be due and payable on the Redemption Date.
(b) [Reserved.]
(c) Within sixty days after the redemption in full pursuant to
this Section 10.1 of any class of Notes, the Indenture Trustee shall provide
each of the Rating Agencies with written notice stating that all of such
Notes have been redeemed.
SECTION X.2 Form of Redemption Notice.
(a) Notice of redemption of the Class A-4 Notes and Class B
Notes under Section 10.1(a) shall be given by the Indenture Trustee by
first-class mail, postage prepaid, mailed not less than five days prior to
the applicable Redemption Date to each Holder of the Class A-4 Notes and
Class B Notes of record, respectively, at such Noteholder's address appearing
in the Note Register.
(b) All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where Class A-4 Notes and Class B Notes are
to be surrendered for payment of the Redemption Price (which shall be the
Agency Office of the Indenture Trustee to be maintained as provided in
Section 3.2); and
(iv) CUSIP numbers.
(c) Notice of redemption of the Class A-4 Notes and Class B
Notes shall be given by the Indenture Trustee in the name and at the expense
of the Owner Trustee out of the Owner Trust Estate. Failure to give notice
of redemption, or any defect therein, to any Holder of any Class A-4 Note or
Class B Note to be redeemed shall not impair or affect the validity of the
redemption of any other Class A-4 Note or Class B Note to be redeemed.
(d) [Reserved.]
SECTION X.3 Notes Payable on Redemption Date.
The Class A-4 Notes or Class B Notes to be redeemed shall,
following notice of redemption as required by Section 10.2, on the Redemption
Date cease to be Outstanding for purposes of this Indenture and shall
thereafter represent only the right to receive the applicable Redemption
Price and (unless the Owner Trustee shall default in the payment of such
Redemption Price) no interest shall accrue on such Redemption Price for any
period after the date to which accrued interest is calculated for purposes of
calculating such Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION XI.1 Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Owner Trustee to the
Indenture Trustee to take any action under any provision of this Indenture,
the Owner Trustee shall furnish to the Indenture Trustee: (i) an Officer's
Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with,
(ii) an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with and (iii) (if
required by the TIA) an Independent Certificate from a firm of certified
public accountants meeting the applicable requirements of this Section 11.1,
except that, in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of
this Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate
or opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the judgment of each such
signatory, such signatory has made such examination or investigation as
is necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit with the Indenture Trustee of
any Collateral or other property or securities that is to be made the basis
for the release of any property or securities subject to the lien of this
Indenture, the Owner Trustee shall, in addition to any obligation imposed in
Section 11.1(a) or elsewhere in this Indenture, furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
Person signing such certificate as to the fair value (within 60 days of such
deposit) to the Owner Trustee of the Collateral or other property or
securities to be so deposited.
(ii) Whenever the Owner Trustee is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signer thereof as to the matters described in clause
(b)(i) above, the Owner Trustee shall also deliver to the Indenture
Trustee an Independent Certificate as to the same matters, if the fair
value to the Owner Trust Estate of the securities to be so deposited
and of all other such securities made on the basis of any such
withdrawal or release since the commencement of the then current fiscal
year of the Trust, as set forth in the certificates delivered pursuant
to clause (b)(i) above and this clause (b)(ii), is 10% or more of the
Outstanding Amount of the Notes, but such a certificate need not be
furnished with respect to any securities so deposited if the fair value
thereof to the Owner Trust Estate as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent of the
Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any
Warranty Receivables, Administrative Receivables or Liquidating
Receivables, whenever any property or securities are to be released
from the lien of this Indenture, the Owner Trustee shall also furnish
to the Indenture Trustee an Officer's Certificate certifying or stating
the opinion of each Person signing such certificate as to the fair
value (within 60 days of such release) of the property or securities
proposed to be released and stating that in the opinion of such Person
the proposed release will not impair the security under this Indenture
in contravention of the provisions hereof.
(iv) Whenever the Owner Trustee is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signatory thereof as to the matters described in
clause (b)(iii) above, the Owner Trustee shall also furnish to the
Indenture Trustee an Independent Certificate as to the same matters if
the fair value of the property or securities and of all other property,
other than Warranty Receivables, Administrative Receivables and
Liquidating Receivables, or securities released from the lien of this
Indenture since the commencement of the then current calendar year, as
set forth in the certificates required by clause (b)(iii) above and
this clause (b)(iv), equals 10% or more of the Outstanding Amount of
the Notes, but such certificate need not be furnished in the case of
any release of property or securities if the fair value thereof as set
forth in the related Officer's Certificate is less than $25,000 or less
than one percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of
this Section 11.1, the Owner Trustee may (A) collect, liquidate, sell
or otherwise dispose of Receivables as and to the extent permitted or
required by the Basic Documents, (B) make cash payments out of the
Designated Accounts and the Certificate Distribution Account as and to
the extent permitted or required by the Basic Documents and (C) take
any other action not inconsistent with the TIA.
SECTION XI.2 Form of Documents Delivered to Indenture Trustee.
(a) In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
(b) Any certificate or opinion of an Authorized Officer of the
Owner Trustee may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such
certificate of an Authorized Officer or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Servicer, the Seller,
the Owner Trustee or the Administrator, stating that the information with
respect to such factual matters is in the possession of the Servicer, the
Seller, the Owner Trustee or the Administrator, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
(d) Whenever in this Indenture, in connection with any
application or certificate or report to the Indenture Trustee, it is provided
that the Owner Trustee shall deliver any document as a condition of the
granting of such application, or as evidence of the Owner Trustee's
compliance with any term hereof, it is intended that the truth and accuracy,
at the time of the granting of such application or at the effective date of
such certificate or report (as the case may be), of the facts and opinions
stated in such document shall in such case be conditions precedent to the
right of the Owner Trustee to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however,
be construed to affect the Indenture Trustee's right to rely upon the truth
and accuracy of any statement or opinion contained in any such document as
provided in Article VI.
SECTION XI.3 Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Noteholders or a class of Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except
as herein otherwise expressly provided such action shall become effective
when such instrument or instruments are delivered to the Indenture Trustee,
and, where it is hereby expressly required, to the Owner Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Noteholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 6.1) conclusive in
favor of the Indenture Trustee and the Owner Trustee, if made in the manner
provided in this Section 11.3.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner that the Indenture
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Notes (or any one or
more predecessor Notes) shall bind the Holder of every Note issued upon the
registration thereof or in exchange therefor or in lieu thereof, in respect
of anything done, omitted or suffered to be done by the Indenture Trustee or
the Owner Trustee in reliance thereon, whether or not notation of such action
is made upon such Note.
SECTION XI.4 Notices, etc., to Indenture Trustee, Owner
Trustee and Rating Agencies. Any request, demand, authorization, direction,
notice, consent, waiver or Act of Noteholders or other documents provided or
permitted by this Indenture to be made upon, given or furnished to or filed
with the Indenture Trustee, the Owner Trustee or the Rating Agencies under
this Indenture shall be made upon, given or furnished to or filed with such
party as specified in Appendix B to the Pooling and Servicing Agreement.
SECTION XI.5 Notices to Noteholders; Waiver.
(a) Where this Indenture provides for notice to Noteholders of
any condition or event, such notice shall be given as specified in Appendix B
to the Pooling and Servicing Agreement.
(b) Where this Indenture provides for notice in any manner,
such notice may be waived in writing by any Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Noteholders shall be filed
with the Indenture Trustee but such filing shall not be a condition precedent
to the validity of any action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular mail
service as a result of a strike, work stoppage or similar activity, it shall
be impractical to mail notice of any event of Noteholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture
Trustee shall be deemed to be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance
constitute an Event of Default.
SECTION XI.6 Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the
Notes to the contrary, the Owner Trustee may enter into any agreement with
any Holder of a Note providing for a method of payment, or notice by the
Indenture Trustee or any Paying Agent to such Holder, that is different from
the methods provided for in this Indenture for such payments or notices. The
Owner Trustee shall furnish to the Indenture Trustee a copy of each such
agreement and the Indenture Trustee shall cause payments to be made and
notices to be given in accordance with such agreements.
SECTION XI.7 Conflict with Trust Indenture Act.
(a) If any provision hereof limits, qualifies or conflicts with
another provision hereof that is required to be included in this Indenture by
any of the provisions of the TIA, such required provision shall control.
(b) The provisions of TIA §§310 through 317 that impose duties
on any Person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION XI.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION XI.9 Successors and Assigns.
(a) All covenants and agreements in this Indenture and the
Notes by the Owner Trustee shall bind its successors and assigns, whether so
expressed or not.
(b) All covenants and agreements of the Indenture Trustee in
this Indenture shall bind its successors and assigns, whether so expressed or
not.
SECTION XI.10 Separability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION XI.11 Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the Noteholders and the Note Owners and (only to the extent
expressly provided herein) the Certificateholders, any other party secured
hereunder and any other Person with an ownership interest in any part of the
Trust Estate, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION XI.12 Legal Holidays.
If the date on which any payment is due shall not be a Business
Day, then (notwithstanding any other provision of the Notes or this
Indenture) payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date
on which nominally due, and no interest shall accrue for the period from and
after any such nominal date.
SECTION XI.13 Governing Law.
This Indenture shall be construed in accordance with the laws of
the State of Illinois, without reference to its conflict of law provisions,
except that the obligations, rights and remedies of the Indenture Trustee
hereunder shall be determined in accordance with the internal laws of the
State of New York, without reference to its conflict of law provisions.
SECTION XI.14 Counterparts.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
SECTION XI.15 Recording of Indenture.
If this Indenture is subject to recording in any appropriate
public recording offices, such recording is to be effected by the Owner
Trustee and at its expense accompanied by an Opinion of Counsel (which may be
counsel to the Indenture Trustee or any other counsel reasonably acceptable
to the Indenture Trustee) to the effect that such recording is necessary
either for the protection of the Noteholders or any other Person secured
hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
SECTION XI.16 No Recourse. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Owner Trustee
or the Indenture Trustee on the Notes or under this Indenture or any
certificate or other writing delivered in connection herewith or therewith,
against:
(i) the Indenture Trustee or the Owner Trustee in its
individual capacity;
(ii) any owner of a beneficial interest in the trust created by
the Trust Agreement; or
(iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee in
their individual capacities, any holder of a beneficial interest in the
Trust, the Owner Trustee or the Indenture Trustee or of any successor
or assign of the Indenture Trustee or the Owner Trustee in their
individual capacities (or any of their successors or assigns), except
as any such Person may have expressly agreed (it being understood that
the Indenture Trustee and the Owner Trustee have no such obligations in
their individual capacities) and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any instalment or call owing to such
entity. For all purposes of this Indenture, in the performance of any
duties or obligations of the Owner Trustee hereunder, the Owner Trustee
shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles VI, VII and VIII of the Trust Agreement.
SECTION XI.17 No Petition.
The Indenture Trustee, by entering into this Indenture, and each
Noteholder and Note Owner, by accepting a Note (or interest therein) issued
hereunder, hereby covenant and agree that they shall not, prior to the date
which is one year and one day after the termination of this Indenture with
respect to the Owner Trustee pursuant to Section 4.1, acquiesce, petition or
otherwise invoke or cause the Seller or the Owner Trustee to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Seller or the Owner Trustee or the Owner Trust
Estate under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Seller, the Owner Trust Estate or the Owner
Trustee or any substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Seller, the Owner Trust Estate or the
Owner Trustee.
SECTION XI.18 Inspection.
The Owner Trustee agrees that, on reasonable prior notice, it
shall permit any representative of the Indenture Trustee, during the Owner
Trustee's normal business hours, to examine all the books of account,
records, reports and other papers of the Owner Trustee (not in its individual
capacity, but solely as trustee under the Trust Agreement), to make copies
and extracts therefrom, to cause such books to be audited by Independent
certified public accountants, and to discuss the Owner Trustee's (not in its
individual capacity, but solely as trustee under the Trust Agreement)
affairs, finances and accounts with the Owner Trustee's officers, employees
and Independent certified public accountants, all at such reasonable times
and as often as may be reasonably requested. The Indenture Trustee shall and
shall cause its representatives to hold in confidence all such information
except to the extent disclosure may be required by law (and all reasonable
applications for confidential treatment are unavailing) and except to the
extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder.
================================================================================
IN WITNESS WHEREOF, the Owner Trustee and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized, all as of the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
not in its individual capacity but solely as Owner Trustee
By:/s/Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK,
as Indenture Trustee
By:/s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Assistant Treasurer
--------------------------------------------------------------------------------
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
BEFORE ME, the undersigned authority, a Notary Public in and
for said county and state, on this day personally appeared Xxxx X. Xxxxxx,
known to me to be the person and officer whose name is subscribed to the
foregoing instrument and acknowledged to me that the same was the act of
Chase Manhattan Bank USA, National Association, a national banking
association, not in its individual capacity, but solely as trustee under
the Trust Agreement and that he executed the same as the act of said
national banking association for the purpose and consideration therein
expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 1st day of
November, 2000.
Notary Public in and for the State of Illinois.
My commission expires:
____________________________
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
BEFORE ME, the undersigned authority, a Notary Public in and
for said county and state, on this day personally appeared Xxxxx Xxxxxxx,
known to me to be the person and officer whose name is subscribed to the
foregoing instrument and acknowledged to me that the same was the act of
the said The Bank of New York, a New York banking corporation, and that he
executed the same as the act of said New York banking corporation for the
purpose and consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 1st day of
November, 2000.
Notary Public in and for the State of Illinois.
My Commission expires:
_________________________________
--------------------------------------------------------------------------------
EXHIBIT A
LOCATIONS OF
SCHEDULE OF RECEIVABLES
The Schedule of Receivables is on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. Navistar Financial Corporation
4. Navistar Financial Retail Receivables Corporation
--------------------------------------------------------------------------------
1
EXHIBIT B
FORM OF CLASS A-1 ASSET BACKED NOTE
REGISTERED $____________1
No. R- _______
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO.___________
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Owner Trustee or its agent for
registration of transfer, exchange or payment, and any Note
issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
Not in its Individual Capacity but Solely as Owner
Trustee Under the Trust Agreement Dated as of
November 1, 2000
CLASS A-1 6.73% ASSET BACKED NOTES
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, not in its
individual capacity, but solely as trustee (the "Owner Trustee") under
that certain Trust Agreement, dated as of November 1, 2000, between Chase
Manhattan Bank USA, National Association (not in its individual capacity,
but solely as trustee) and Navistar Financial Retail Receivables
Corporation creating the Navistar Financial 2000-B Owner Trust (the
"Trust"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of _______________ DOLLARS
($_________) payable in accordance with the Indenture, prior to the
occurrence of an Event of Default and a declaration that the Notes are due
and payable, on each Distribution Date in an amount equal to the result
obtained by multiplying (i) a fraction, the numerator of which is the
initial principal amount hereof and the denominator of which is [aggregate
principal amount for class] by (ii) the aggregate amount, if any, payable
from the Note Distribution Account in respect of principal on such class
of the Notes pursuant to Sections 2.7, 3.1 and 8.2 of the Indenture;
provided, however, that the entire unpaid principal amount of this Note
shall be due and payable on November 15, 2001 (the "Final Scheduled
Distribution Date"). The Owner Trustee shall pay interest on this Note at
the rate per annum shown above on each Distribution Date until the
principal of this Note is paid or made available for payment, on the
principal amount of this Note outstanding on the preceding Distribution
Date (after giving effect to all payments of principal made on the
preceding Distribution Date). Interest on this Note will accrue for each
Distribution Date from and including the most recent Distribution Date on
which interest has been paid to but excluding the then current
Distribution Date or, if no interest has yet been paid, from November 1,
2000. Interest on this Note will be calculated on the basis of the actual
number of days elapsed since the Closing Date or the preceding
Distribution Date divided by 360. Such principal of and interest on this
Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America which, at the time of
payment, is legal tender for payment of public and private debts. All
payments made by the Owner Trustee with respect to this Note shall be
applied first to interest due and payable on this Note as provided above
and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof or be valid or obligatory for
any purpose.
-------------------------------------------------------------------------------
IN WITNESS WHEREOF, the Owner Trustee has caused this
instrument to be signed, manually or in facsimile, by its Authorized
Officer.
Date: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner
Trustee under the Trust Agreement
By: /s/Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
--------------------------------------------------------------------------------
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Indenture Trustee
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Assistant Treasurer
-------------------------------------------------------------------------------
REVERSE OF NOTE
This Note is one of a duly authorized issue of CHASE MANHATTAN
BANK USA, NATIONAL ASSOCIATION, not in its individual capacity, but solely
as trustee (the "Owner Trustee") under that certain Trust Agreement, dated
as of November 1, 2000, between Chase Manhattan Bank USA, National
Association, as Owner Trustee, and Navistar Financial Retail Receivables
Corporation creating the Navistar Financial 2000-B Owner Trust (the
"Trust") designated as its Class A-1 6.73% Asset Backed Notes (herein
called the "Class A-1 Notes"), all issued under an Indenture, dated as of
November 1, 2000 (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Owner Trustee and The Bank of New
York, a New York banking corporation, as trustee (the "Indenture Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights and obligations thereunder of the
Owner Trustee, the Indenture Trustee and the Noteholders. The Notes are
governed by and subject to all terms of the Indenture (which terms are
incorporated herein and made a part hereof), to which Indenture the holder
of this Note by virtue of acceptance hereof assents and by which such
holder is bound. All capitalized terms used and not otherwise defined in
this Note that are defined in the Indenture, as supplemented or amended,
shall have the meanings assigned to them in or pursuant to the Indenture.
The Indenture secures (a) first, the payment of principal and
interest on, and any other amounts owing in respect of the Class A Notes,
equally and ratably without prejudice, priority or distinction and (b)
second, the payment of principal of and interest on, and any other amounts
owing in respect of the Class B Notes, equally and ratably without
prejudice, priority or distinction, and to secure compliance with the
provisions of the Indenture, as provided therein.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect
to the obligations of the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered
in connection therewith, against (i) the Indenture Trustee or the Owner
Trustee in their individual capacities, (ii) any owner of a beneficial
interest in the Trust or (iii) any partner, owner, beneficiary, agent,
officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, any holder of a beneficial
interest in the Trust, the Owner Trustee or the Indenture Trustee or of
any successor or assign of the Indenture Trustee or the Owner Trustee in
their individual capacities, except as any such Person may have expressly
agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacities) and
except that any such partner, owner or beneficiary shall be fully liable,
to the extent provided by applicable law, for any unpaid consideration for
stock, unpaid capital contribution or failure to pay any instalment or
call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that by accepting the benefits of the Indenture such Noteholder
will not, prior to the date which is one year and one day after the
termination of this Indenture with respect to the Owner Trustee,
acquiesce, petition or otherwise invoke or cause the Seller or the Owner
Trustee to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Seller, the Owner
Trust Estate or the Owner Trustee under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller,
the Owner Trust Estate or the Owner Trustee or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Seller, the Owner Trust Estate or the Owner Trustee.
Each Noteholder, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, unless otherwise required by
appropriate taxing authorities, agrees to treat the Notes as indebtedness
secured by the Receivables for the purpose of federal income taxes, state
and local income and franchise taxes, and any other taxes imposed upon,
measured by or based upon gross or net income.
Prior to the due presentment for registration of transfer of
this Note, the Owner Trustee, the Indenture Trustee and any agent of the
Owner Trustee or the Indenture Trustee may treat the Person in whose name
this Note (as of the day of determination or as of such other date as may
be specified in the Indenture) is registered as the owner hereof for all
purposes, whether or not this Note shall be overdue, and neither the Owner
Trustee, the Indenture Trustee nor any such agent shall be affected by
notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Owner Trustee and the rights of the Noteholders under
the Indenture at any time by the Owner Trustee with the consent of the
Holders of Notes representing a majority of the Outstanding Amount of all
the Voting Notes. The Indenture also contains provisions permitting the
Holders of Notes representing specified percentages of the Outstanding
Amount of the Voting Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Owner Trustee with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note (or
any one of more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or
in lieu hereof whether or not notation of such consent or waiver is made
upon this Note. The Indenture also permits the Indenture Trustee to amend
or waive certain terms and conditions set forth in the Indenture without
the consent of the Noteholders.
The term "Owner Trustee" as used in this Note includes any
successor to the Owner Trustee under the Indenture.
The Owner Trustee is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of Illinois, without reference to its conflict
of law provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws,
except that the obligations, rights and remedies of the Indenture Trustee
hereunder shall be determined in accordance with the internal laws of the
State of New York.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Owner
Trustee, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither the Seller, the
Servicer, the Indenture Trustee nor the Owner Trustee in their respective
individual capacities, any owner of a beneficial interest in the Trust,
nor any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns, shall be personally liable
for, nor shall recourse be had to any of them for, the payment of
principal of or interest on, or performance of, or omission to perform,
any of the covenants, obligations or indemnifications contained in this
Note or the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Owner Trustee
solely as the Owner Trustee. The Holder of this Note by the acceptance
hereof agrees that, except as expressly provided in the Basic Documents,
in the case of an Event of Default under the Indenture, the Holder shall
have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the Owner Trust
Estate for any and all liabilities, obligations and undertakings contained
in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________________________________________
______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________________________________, as
attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated:__________________ __________________________________1
Signature Guaranteed:
_________________________ __________________________________
___________________
1 NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
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EXHIBIT C
FORM OF CLASS A-2, CLASS A-3, CLASS A-4 AND
CLASS B ASSET BACKED NOTE
REGISTERED $______________1
No. R- CUSIP No. ___________
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Owner Trustee or its agent for
registration of transfer, exchange or payment, and any Note
issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
Not in its Individual Capacity but Solely as
Owner Trustee Under the Trust Agreement
Dated as of November 1, 2000
CLASS ____ _____% ASSET BACKED NOTES
-------------------------------------------------------------------------------
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION not in its
individual capacity, but solely as trustee (the "Owner Trustee") under
that certain Trust Agreement, dated as of November 1, 2000 between Chase
Manhattan Bank USA, National Association, (not in its individual capacity,
but solely as trustee) and Navistar Financial Retail Receivables
Corporation creating the Navistar Financial 2000-B Owner Trust (the
"Trust") for value received, hereby promises to pay to Cede &Co., or
registered assigns, the principal sum of _______________ DOLLARS
($_________) payable in accordance with the Indenture, prior to the
occurrence of an Event of Default and a declaration that the Notes are due
and payable, on each Distribution Date in an amount equal to the result
obtained by multiplying (i) a fraction, the numerator of which is the
initial principal amount hereof and the denominator of which is [aggregate
principal amount for class] by (ii) the aggregate amount, if any, payable
from the Note Distribution Account in respect of principal on such class
of the Notes pursuant to Sections 2.7, 3.1 and 8.2 of the Indenture;
provided, however, that the entire unpaid principal amount of this Note
shall be due and payable on [the earlier of] _______________ (the "Final
Scheduled Distribution Date") [and the Redemption Date, if any, pursuant
to Section 10.1(a) of the Indenture]. The Owner Trustee shall pay
interest on this Note at the rate per annum shown above on each
Distribution Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on
the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date). Interest on this Note
will accrue for each Distribution Date from and including the most recent
Distribution Date on which interest has been paid to but excluding the
then current Distribution Date or, if no interest has yet been paid, from
November 1, 2000. Interest on this Note will be computed on the basis of
a 360-day year of twelve 30-day months (or, in the case of the initial
Distribution Date, 14/30ths of a month). Such principal of and interest
on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America which, at the time of
payment, is legal tender for payment of public and private debts. All
payments made by the Owner Trustee with respect to this Note shall be
applied first to interest due and payable on this Note as provided above
and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof or be valid or obligatory for
any purpose.
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the Owner Trustee has caused this
instrument to be signed, manually or in facsimile, by its Authorized
Officer.
Date: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner
Trustee under the Trust Agreement
By: /s/Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
--------------------------------------------------------------------------------
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Indenture Trustee
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Assistant Treasurer
--------------------------------------------------------------------------------
REVERSE OF NOTE
This Note is one of a duly authorized issue of CHASE MANHATTAN
BANK USA, NATIONAL ASSOCIATION, not in its individual capacity, but solely
as trustee (the "Owner Trustee") under that certain Trust Agreement, dated
as of November 1, 2000, between Chase Manhattan Bank USA, National
Association, as Owner Trustee, and Navistar Financial Retail Receivables
Corporation creating the Navistar Financial 2000-B Owner Trust (the
"Trust") designated as its Class % Asset Backed Notes
(herein called the "Class Notes"), all issued under an Indenture,
dated as of November 1, 2000 (such Indenture, as supplemented or amended,
is herein called the "Indenture"), between the Owner Trustee and The Bank
of New York, a New York banking corporation, as trustee (the "Indenture
Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights and obligations
thereunder of the Owner Trustee, the Indenture Trustee and the
Noteholders. The Notes are governed by and subject to all terms of the
Indenture (which terms are incorporated herein and made a part hereof), to
which Indenture the holder of this Note by virtue of acceptance hereof
assents and by which such holder is bound. All capitalized terms used and
not otherwise defined in this Note that are defined in the Indenture, as
supplemented or amended, shall have the meanings assigned to them in or
pursuant to the Indenture.
The Indenture secures (a) first, the payment of principal and
interest on, and any other amounts owing in respect of the Class A Notes,
equally and ratably without prejudice, priority or distinction and (b)
second, the payment of principal of and interest on, and any other amounts
owing in respect of the Class B Notes, equally and ratably without
prejudice, priority or distinction, and to secure compliance with the
provisions of the Indenture, as provided therein.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect
to the obligations of the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered
in connection therewith, against (i) the Indenture Trustee or the Owner
Trustee in their individual capacities, (ii) any owner of a beneficial
interest in the Trust or (iii) any partner, owner, beneficiary, agent,
officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, any holder of a beneficial
interest in the Trust, the Owner Trustee or the Indenture Trustee or of
any successor or assign of the Indenture Trustee or the Owner Trustee in
their individual capacities, except as any such Person may have expressly
agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacities) and
except that any such partner, owner or beneficiary shall be fully liable,
to the extent provided by applicable law, for any unpaid consideration for
stock, unpaid capital contribution or failure to pay any instalment or
call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that by accepting the benefits of the Indenture such Noteholder
will not, prior to the date which is one year and one day after the
termination of this Indenture with respect to the Owner Trustee,
acquiesce, petition or otherwise invoke or cause the Seller or the Owner
Trustee to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Seller, the Owner
Trust Estate or the Owner Trustee under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller,
the Owner Trust Estate or the Owner Trustee or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Seller, the Owner Trust Estate or the Owner Trustee.
Each Noteholder, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, unless otherwise required by
appropriate taxing authorities, agrees to treat the Notes as indebtedness
secured by the Receivables for the purpose of federal income taxes, state
and local income and franchise taxes, and any other taxes imposed upon,
measured by or based upon gross or net income.
Prior to the due presentment for registration of transfer of
this Note, the Owner Trustee, the Indenture Trustee and any agent of the
Owner Trustee or the Indenture Trustee may treat the Person in whose name
this Note (as of the day of determination or as of such other date as may
be specified in the Indenture) is registered as the owner hereof for all
purposes, whether or not this Note shall be overdue, and neither the Owner
Trustee, the Indenture Trustee nor any such agent shall be affected by
notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Owner Trustee and the rights of the Noteholders under
the Indenture at any time by the Owner Trustee with the consent of the
Holders of Notes representing a majority of the Outstanding Amount of all
the Voting Notes. The Indenture also contains provisions permitting the
Holders of Notes representing specified percentages of the Outstanding
Amount of the Voting Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Owner Trustee with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note (or
any one of more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or
in lieu hereof whether or not notation of such consent or waiver is made
upon this Note. The Indenture also permits the Indenture Trustee to amend
or waive certain terms and conditions set forth in the Indenture without
the consent of the Noteholders.
The term "Owner Trustee" as used in this Note includes any
successor to the Owner Trustee under the Indenture.
The Owner Trustee is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of Illinois, without reference to its conflict
of law provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws,
except that the obligations, rights and remedies of the Indenture Trustee
hereunder shall be determined in accordance with the internal laws of the
State of New York.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Owner
Trustee, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither the Seller, the
Servicer, the Indenture Trustee nor the Owner Trustee in their respective
individual capacities, any owner of a beneficial interest in the Trust,
nor any of their respective partners, beneficiaries, agents, officers,
directors, employees or successors or assigns, shall be personally liable
for, nor shall recourse be had to any of them for, the payment of
principal of or interest on, or performance of, or omission to perform,
any of the covenants, obligations or indemnifications contained in this
Note or the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Owner Trustee
solely as Owner Trustee. The Holder of this Note by the acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the
case of an Event of Default under the Indenture, the Holder shall have no
claim against any of the foregoing for any deficiency, loss or claim
therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the Owner Trust Estate
for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Note.
--------------------------------------------------------------------------------
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
____________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________________________________, as
attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated: __________________ __________________________________1
Signature Guaranteed:
__________________ __________________________________
_
1 NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
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EXHIBIT D
FORM OF NOTE DEPOSITORY AGREEMENT
-------
1 Denominations of $1,000 and integral multiples thereof (except, if
applicable, for one Note representing a residual portion of such class which
may be issued in a different denomination).
1 Denominations of $1,000 and integral multiples thereof (except, if
applicable, for one Note representing a residual portion of such class which
may be issued in a different denomination).