Exhibit 4.2
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HOUSEHOLD AUTOMOBILE REVOLVING TRUST I
Issuer
INDENTURE
Dated as of October __, 1998
HOUSEHOLD FINANCE CORPORATION
Master Servicer
THE CHASE MANHATTAN BANK
Trustee and Trust Collateral Agent
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TABLE OF CONTENTS
Page
ARTICLE I. Definitions and Incorporation by Reference..............................................1
SECTION 1.1 Definitions...................................................................1
SECTION 1.2 Incorporation by Reference of the Trust Indenture Act.........................7
SECTION 1.3 Rules of Construction.........................................................7
SECTION 1.4 Action by or Consent of Noteholders and Certificateholders....................8
SECTION 1.5 Material Adverse Effect.......................................................8
SECTION 1.6 Conflict with TIA.............................................................8
SECTION 1.7 Certain References............................................................8
ARTICLE II. The Notes..............................................................................9
SECTION 2.1 Form; Amount Limited; Issuable in Series......................................9
SECTION 2.2 Execution, Authentication and Delivery........................................9
SECTION 2.3 Temporary Notes..............................................................10
SECTION 2.4 Registration; Registration of Transfer and Exchange..........................11
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes...................................13
SECTION 2.6 Persons Deemed Owner.........................................................14
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest........................14
SECTION 2.8 Cancellation.................................................................15
SECTION 2.9 Release of Collateral........................................................15
SECTION 2.10 Book-Entry Notes.............................................................16
SECTION 2.11 Notices to Clearing Agency...................................................17
SECTION 2.12 Definitive Notes.............................................................17
SECTION 2.13 Final Distribution...........................................................17
ARTICLE III. Covenants............................................................................18
SECTION 3.1 Payment of Principal and Interest............................................18
SECTION 3.2 Maintenance of Office or Agency..............................................19
SECTION 3.3 Money for Payments to be Held in Trust.......................................19
SECTION 3.4 Existence....................................................................20
SECTION 3.5 Protection of Trust Property.................................................21
SECTION 3.6 Opinions as to Trust Property................................................22
SECTION 3.7 Performance of Obligations; Servicing of Receivables.........................22
SECTION 3.8 Negative Covenants...........................................................23
SECTION 3.9 Annual Statement as to Compliance............................................24
SECTION 3.10 Issuer May Consolidate, Etc. Only on Certain Terms...........................25
SECTION 3.11 Successor or Transferee......................................................26
SECTION 3.12 No Other Business............................................................27
SECTION 3.13 No Borrowing.................................................................27
SECTION 3.14 Master Servicer's Obligations................................................27
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities............................27
SECTION 3.16 Capital Expenditures.........................................................27
SECTION 3.17 Compliance with Laws.........................................................27
SECTION 3.18 Restricted Payments..........................................................28
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SECTION 3.19 Notice of Events of Default..................................................28
SECTION 3.20 Further Instruments and Acts.................................................28
SECTION 3.21 Amendments of Master Sale and Servicing Agreement and Trust Agreement........28
SECTION 3.22 Income Tax Characterization..................................................28
SECTION 3.23 No Borrowing.................................................................29
SECTION 3.24 Guarantees, Loans, Advances and Other Liabilities............................29
SECTION 3.25 Capital Expenditures.........................................................29
SECTION 3.26 Restricted Payments..........................................................29
ARTICLE IV. Satisfaction and Discharge............................................................29
SECTION 4.1 Satisfaction and Discharge of Indenture......................................29
SECTION 4.2 Application of Trust Money...................................................30
SECTION 4.3 Repayment of Monies Held by Note Paying Agent................................31
ARTICLE V. Remedies...............................................................................31
SECTION 5.1 Events of Default............................................................31
SECTION 5.2 Collection of Indebtedness and Suits for Enforcement by Trustee..............31
SECTION 5.3 Limitation of Suits..........................................................33
SECTION 5.4 Unconditional Rights of Noteholders To Receive Principal and Interest........34
SECTION 5.5 Restoration of Rights and Remedies...........................................34
SECTION 5.6 Rights and Remedies Cumulative...............................................35
SECTION 5.7 Delay or Omission Not a Waiver...............................................35
SECTION 5.8 Control by Noteholders.......................................................35
SECTION 5.9 Waiver of Past Defaults......................................................35
SECTION 5.10 Undertaking for Costs........................................................36
SECTION 5.11 Waiver of Stay or Extension Laws.............................................36
SECTION 5.12 Action on Notes..............................................................36
SECTION 5.13 Performance and Enforcement of Certain Obligations...........................37
ARTICLE VI. The Trustee and the Trust Collateral Agent............................................37
SECTION 6.1 Duties of Trustee............................................................37
SECTION 6.2 Rights of Trustee and the Trust Collateral Agent.............................40
SECTION 6.3 Individual Rights of Trustee.................................................41
SECTION 6.4 Trustee's Disclaimer.........................................................41
SECTION 6.5 Notice of Defaults...........................................................41
SECTION 6.6 Reports by Trustee to Holders................................................42
SECTION 6.7 Compensation and Indemnity...................................................42
SECTION 6.8 Replacement of Trustee.......................................................43
SECTION 6.9 Successor Trustee by Merger..................................................44
SECTION 6.10 Appointment of Co-Trustee or Separate Trustee................................45
SECTION 6.11 Eligibility: Disqualification................................................46
SECTION 6.12 Preferential Collection of Claims Against Issuer.............................46
SECTION 6.13 Appointment and Powers.......................................................46
SECTION 6.14 Performance of Duties........................................................47
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SECTION 6.15 Limitation on Liability......................................................47
SECTION 6.16 Reliance Upon Documents......................................................48
SECTION 6.17 Successor Trust Collateral Agent.............................................48
SECTION 6.18 Compensation.................................................................50
SECTION 6.19 Representations and Warranties of the Trustee and the Trust
Collateral Agent..........................................................50
SECTION 6.20 Waiver of Setoffs............................................................50
ARTICLE VII. Noteholders' Lists and Reports.......................................................51
SECTION 7.1 Issuer To Furnish To Trustee Names and Addresses of Noteholders..............51
SECTION 7.2 Preservation of Information; Communications to Noteholders...................51
SECTION 7.3 Reports by Issuer............................................................51
SECTION 7.4 Reports by Trustee...........................................................52
ARTICLE VIII. Accounts, Disbursements and Releases................................................52
SECTION 8.1 Collection of Money..........................................................52
SECTION 8.2 Release of Trust Property....................................................53
SECTION 8.3 Opinion of Counsel...........................................................53
ARTICLE IX. Amendments; Series Supplements........................................................54
SECTION 9.1 Amendments Without Consent of Noteholders....................................54
SECTION 9.2 Amendments With Consent of Noteholders.......................................55
SECTION 9.3 Supplements Authorizing a Series of Notes....................................56
SECTION 9.4 Execution of Series Supplements..............................................57
SECTION 9.5 Effect of Series Supplement..................................................57
SECTION 9.6 Conformity With Trust Indenture Act..........................................57
SECTION 9.7 Reference in Notes to Series Supplements.....................................57
ARTICLE X. Reserved...............................................................................58
ARTICLE XI. Miscellaneous.........................................................................58
SECTION 11.1 Compliance Certificates and Opinions, etc....................................58
SECTION 11.2 Form of Documents Delivered to Trustee.......................................60
SECTION 11.3 Acts of Noteholders..........................................................61
SECTION 11.4 Notices, etc., to Trustee, Issuer and Rating Agencies........................61
SECTION 11.5 Notices to Noteholders; Waiver...............................................62
SECTION 11.6 Alternate Payment and Notice Provisions......................................62
SECTION 11.7 Conflict with Trust Indenture Act............................................63
SECTION 11.8 Effect of Headings and Table of Contents.....................................63
SECTION 11.9 Successors and Assigns.......................................................63
SECTION 11.10 Separability.................................................................63
SECTION 11.11 Benefits of Indenture........................................................63
SECTION 11.12 Legal Holidays...............................................................64
SECTION 11.13 GOVERNING LAW................................................................64
SECTION 11.14 Counterparts.................................................................64
SECTION 11.15 Recording of Indenture.......................................................64
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SECTION 11.16 Trust Obligation.............................................................64
SECTION 11.17 No Petition..................................................................65
SECTION 11.18 Inspection...................................................................65
SECTION 11.19 Limitation of Liability......................................................65
EXHIBIT 1 Form of Investment Letter
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INDENTURE dated as of October 1, 1998, between HOUSEHOLD AUTOMOBILE
REVOLVING TRUST I, a Delaware business trust (the "Issuer"), HOUSEHOLD FINANCE
CORPORATION, a Delaware corporation (the "Master Servicer") and THE CHASE
MANHATTAN BANK, a national banking association, as trustee (the "Trustee") and
Trust Collateral Agent (as defined below).
In consideration of the mutual agreements contained herein, and of
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
GRANTING CLAUSE
In order to secure the due and punctual payment of the principal of
and interest on the Notes of the related Series and all other Series Secured
Obligations of the related Series when and as the same shall become due and
payable, whether as scheduled, by declaration of acceleration, prepayment or
otherwise, according to the terms of this Indenture, the related Series
Supplement and the related Notes, the Issuer, pursuant to the related Series
Supplement, shall pledge the related Series Trust Estate to the Trustee, all for
the benefit of the Trustee for the benefit of the Holders of the related Series
and the other Series Secured Parties.
ARTICLE I.
Definitions and Incorporation by Reference
Definitions. Except as otherwise specified herein, the following
terms have the respective meanings set forth below for all purposes of this
Indenture.
"Act" has the meaning specified in Section 11.3(a).
"Authorized Officer" means, with respect to the Issuer and the Master
Servicer, any officer or agent acting pursuant to a power of attorney of the
Owner Trustee or the Master Servicer, as applicable, who is authorized to act
for the Owner Trustee or the Master Servicer, as applicable, in matters relating
to the Issuer and who is identified on the list of Authorized Officers delivered
by each of the Owner Trustee and the Master Servicer to the Trustee on the
Closing Date (as such list may be modified or supplemented from time to time
thereafter).
"Book Entry Notes" means any beneficial interest in the Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.10.
"Certificate of Trust" means the certificate of trust of the Issuer
substantially in the form of Exhibit B to the Trust Agreement.
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"Class" means, with respect to any Series, all the Notes of such
Series having the same specified payment terms and priority of payment.
"Class SV Preferred Stock" means the preferred stock of the Seller.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and Treasury Regulations promulgated thereunder.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered
which office at date of the execution of this Agreement is located at
_________________ __________________ _________, Attention:
______________________________ or at such other address as the Trustee may
designate from time to time by notice to the Noteholders, the Master Servicer
and the Issuer, or the principal corporate trust office of any successor Trustee
(the address of which the successor Trustee will notify the Noteholders and the
Issuer).
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Definitive Notes" has the meaning specified in Section 2.12.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
Executive Vice President, any Vice President, the Secretary or the Treasurer of
such corporation.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create, ▇▇▇▇▇ ▇ ▇▇▇▇ upon and a
security interest in and right of set-off against, deposit, set over and confirm
pursuant to this Indenture. A Grant of a Series Trust Estate or of any other
agreement or instrument shall include all rights, powers and options (but none
of the obligations) of the Granting party thereunder, including the immediate
and continuing right to claim for, collect, receive and give receipt for
principal and interest payments in respect of a Series Trust Estate and all
other monies payable thereunder, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights and
options, to bring proceedings
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in the name of the Granting party or otherwise and generally to do and receive
anything that the Granting party is or may be entitled to do or receive
thereunder or with respect thereto.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Note Register.
"Indebtedness" means, with respect to any Person at any time, (a)
indebtedness or liability of such Person for borrowed money whether or not
evidenced by bonds, debentures, notes or other instruments, or for the deferred
purchase price of property or services (including trade obligations); (b)
obligations of such Person as lessee under leases which should have been or
should be, in accordance with generally accepted accounting principles, recorded
as capital leases; (c) current liabilities of such Person in respect of unfunded
vested benefits under plans covered by Title IV of ERISA; (d) obligations issued
for or liabilities incurred on the account of such Person; (e) obligations or
liabilities of such Person arising under acceptance facilities; (f) obligations
of such Person under any guarantees, endorsements (other than for collection or
deposit in the ordinary course of business) and other contingent obligations to
purchase, to provide funds for payment, to supply funds to invest in any Person
or otherwise to assure a creditor against loss; (g) obligations of such Person
secured by any lien on property or assets of such Person, whether or not the
obligations have been assumed by such Person; or (h) obligations of such Person
under any interest rate or currency exchange agreement.
"Independent" means, when used with respect to any specified Person,
that the person (a) is in fact independent of the Issuer, any other obligor upon
the Notes, the Seller and any Affiliate of any of the foregoing persons, (b)
does not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Seller or any Affiliate of
any of the foregoing Persons and (c) is not connected with the Issuer, any such
other obligor, the Seller or any Affiliate of any of the foregoing Persons as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Trust Collateral Agent, if any, and the Trustee under the
circumstances described in, and otherwise complying with, the applicable
requirements of Section 11.1, prepared by an Independent appraiser or other
expert appointed pursuant to an Issuer Order and approved by the Trustee or the
Trust Collateral Agent, if any, in the exercise of reasonable care, and such
opinion or certificate shall state that the signer has read the definition of
"Independent" in this Indenture and that the signer is Independent within the
meaning thereof.
"Issuer Order" and "Issuer Request" means a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Trustee.
"Master Sale and Servicing Agreement" means the Master Sale and
8
Servicing Agreement dated as of March 1, 1998, among the Issuer, the Seller, the
Master Servicer, the Trustee and the Trust Collateral Agent, as the same may be
amended or supplemented from time to time.
"Note" means any Note authenticated and delivered under this
Indenture.
"Note Owner" means, with respect to a Book-Entry Note, the person who
is the owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with such Clearing
Agency (directly as a Clearing Agency Participant or as an indirect participant,
in each case in accordance with the rules of such Clearing Agency).
"Note Paying Agent" means the Trustee or any other Person that meets
the eligibility standards for the Trustee specified in Section 6.11 and is
authorized by the Issuer to make payments to and distributions from the Master
Collection Account and the Note Distribution Account, including payment of
principal of or interest on the Notes on behalf of the Issuer.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.4.
"Officer's Certificate" means a certificate signed by any Authorized
Officer of the Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1 and TIA ss. 314, and
delivered to the Trustee. Unless otherwise specified, any reference in this
Indenture to an Officer's Certificate shall be to an Officer's Certificate of
any Authorized Officer of the Issuer. Each certificate with respect to
compliance with a condition or covenant provided for in this Agreement shall
include (1) a statement that the Authorized Officer signing the certificate has
read such covenant or condition; (2) a brief statement as to the nature and
scope of the examination or investigation upon which the statements contained in
such certificate are based; (3) a statement that in the opinion of such person,
he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and (4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore canceled by the Note Registrar or delivered
to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Trustee or
any Note Paying Agent in trust for the Holders of such Notes
(provided, however, that if such Notes are to be redeemed, notice of
such redemption has been duly given
9
pursuant to a Series Supplement or provision therefor, satisfactory to
the Trustee, has been made); and
(iii) Notes in exchange for or in lieu of other Notes which have
been authenticated and delivered pursuant to this Indenture unless
proof satisfactory to the Trustee is presented that any such Notes are
held by a bona fide purchaser;
provided, however, that Notes which have been paid with proceeds of the related
Series Support shall continue to remain Outstanding for purposes of this
Indenture until the related Series Support Provider has been paid as subrogee
hereunder or reimbursed pursuant to any agreement relating to Series Support as
evidenced by a written notice from the related Series Support Provider delivered
to the Trustee, and the related Series Support Provider shall be deemed to be
the Holder thereof to the extent of any payments thereon made by the related
Series Support Provider; provided, further, that in determining whether the
Holders of the requisite Outstanding Amount of the Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or under
any Basic Document, Notes owned by the Issuer, any other obligor upon the Notes,
the Seller or any Affiliate of any of the foregoing Persons shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that a
Responsible Officer of the Trustee either actually knows to be so owned or has
received written notice thereof shall be so disregarded. Notes so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Notes and that the pledgee is not the Issuer, any other
obligor upon the Notes, the Seller or any Affiliate of any of the foregoing
Persons.
"Outstanding Amount" means the aggregate principal amount of all
Notes, or Class of Notes, as applicable, Outstanding at the date of
determination.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.5 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
"Record Date" means, with respect to a Distribution Date, the close of
business on the Business Day immediately preceding such Distribution Date.
"Registration Statement" has the meaning specified therefor in the
Securities Act.
"Responsible Officer" means, with respect to the Trustee or the Owner
10
Trustee (as defined in the Trust Agreement), any officer within the Corporate
Trust Office of the Trustee or the Owner Trustee, as the case may be, including
any Vice President, Assistant Vice President, Assistant Treasurer, Assistant
Secretary, Financial Services Officer or any other officer of the Trustee or the
Owner Trustee, as the case may be, customarily performing functions similar to
those performed by any of the above designated officers, and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Securities Act" means the Securities Act of 1933, as amended.
"Series Secured Obligations" with respect to a Series, has the meaning
specified therefor in the related Series Supplement.
"Series Secured Parties" with respect to a Series, has the meaning
ascribed in the related Series Supplement.
"Series Termination Date" with respect to a Series, has the meaning
ascribed in the related Series Supplement.
"State" means any one of the 50 states of the United States of America
or the District of Columbia.
"Support Default" with respect to a Series, shall have the meaning
assigned to such term and the related Series Supplement.
"Tranche" means all of the Notes of a Series (or a Class within a
Series) having the same date of authentication.
"Trust Collateral Agent" means, initially, The Chase Manhattan Bank,
but only if and to the extent that it is appointed as collateral agent on behalf
of the Noteholders of a Series and a related Series Support Provider, including
its successors-in-interest, until and unless a successor Person shall have
become the Trust Collateral Agent pursuant to Section 6.17 hereof, and
thereafter "Trust Collateral Agent" shall mean such successor Person.
"Trust Property" means all money, instruments, rights and other
property that are subject or intended to be subject to the lien and security
interest of this Indenture for the benefit of the Noteholders (including all
property and interests Granted to the Trustee or the Trust Collateral Agent, if
any), including all proceeds thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and as in force on the date hereof, unless otherwise specifically
provided.
"Trustee" means The Chase Manhattan Bank, a national banking
association, not in its individual capacity but as trustee under this Indenture,
or any
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successor trustee under this Indenture.
"Trustee Fee" means the fees due to the Trustee and the Trust
Collateral Agent, if any, as may be set forth in that certain fee letter, dated
as of the date hereof between the Master Servicer and The Chase Manhattan Bank.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from time
to time.
"Unregistered Note" means a Note which is not being offered for sale
hereunder pursuant to a Registration Statement.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Master Sale and Servicing Agreement or
the Trust Agreement.
Incorporation by Reference of the Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
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" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuer.
All other TIA terms used in this Indenture that are defined by the
TIA, or defined by Commission rule have the meaning assigned to them by such
definitions.
Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(iii) "or" is not exclusive;
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(iv) "including" means including without limitation; and
(v) words in the singular include the plural and words in the
plural include the singular.
Action by or Consent of Noteholders and Certificateholders.
Whenever any provision of this Agreement refers to action to be taken, or
consented to, by Noteholders or Certificateholders, such provision shall be
deemed to refer to the Certificateholder or Noteholder, as the case may be,
of record as of the Record Date immediately preceding the date on which such
action is to be taken, or consent given, by Noteholders or
Certificateholders. Solely for the purposes of any action to be taken, or
consented to, by Noteholders or Certificateholders, any Note or Certificate
registered in the name of Seller or any Affiliate thereof shall be deemed not
to be outstanding (except in the event that no Notes are outstanding and the
Seller or an Affiliate thereof then owns all outstanding Certificates and
there is no Series Support Provider); provided, however, that, solely for the
purpose of determining whether the Trustee or the Trust Collateral Agent, if
any, is entitled to rely upon any such action or consent, only Notes or
Certificates which the Owner Trustee or the Trustee, respectively, knows to
be so owned shall be so disregarded.
Material Adverse Effect. Whenever a determination is to be made
under this Agreement as to whether a given event, action, course of conduct
or set of facts or circumstances could or would have a material adverse
effect on the Securityholders (or any similar or analogous determination),
such determination shall be made without taking into account the funds
available from the related Series Support Provider.
Conflict with TIA. If this Indenture is qualified under the TIA,
and if any provision hereof limits, qualifies or conflicts with a provision
of the TIA that is required under the TIA to be part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the TIA that may be so
modified or excluded, the latter provisions shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
Certain References. In the event that no Trust Collateral Agent is
appointed to act as agent on behalf of a Series of Noteholders and a related
Series Support Provider, then all references hereunder to Trust Collateral
Agent shall refer to the Trustee (or if duplicative with respect to the
Trustee, shall be deleted), as agent of the Series Secured Parties of each
Series.
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ARTICLE II.
The Notes
Form; Amount Limited; Issuable in Series.
(a) Notes of each Series, together with the Trustee's certificate of
authentication, shall be in substantially the form set forth in the related
Series Supplement, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture or the
related Series Supplement and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in the related Series Supplement are part of the terms of
this Indenture.
(b) The aggregate principal amount of Notes which may be authenticated
and delivered and Outstanding at any time under this Indenture is not limited;
provided that any Series Supplement may so limit the aggregate principal amount
of Notes of the related Series. The Notes shall be issued in one or more Series,
and may be issued in Classes and/or Tranches within a Series (and Tranches
within a Class).
No Series of Notes shall be issued under this Indenture unless such
Notes have been authorized pursuant to a Series Supplement, and all conditions
precedent to the issuance thereof, as specified in the related Series
Supplement, shall have been satisfied.
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All Notes of each Series issued under this Indenture shall be in all
respects equally and ratably entitled to the benefits hereof and secured by the
related Series Trust Estate without preference, priority or distinction on
account of the actual time or times of authentication and delivery, all in
accordance with the terms and provisions hereof and the related Series
Supplement.
Execution, Authentication and Delivery. The Notes shall be executed
on behalf of the Issuer by any of its Authorized Officers. The signature of
any such Authorized Officer on the Notes may be original or facsimile.
Notes bearing the original or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of
this Indenture and the related Series Supplement, and upon satisfaction of all
the conditions set forth in the related Series Supplement, the Trustee shall,
upon receipt of an Issuer Order and an Officer's Certificate prepared and
delivered by the Master Servicer that all conditions precedent for such issuance
have been satisfied, deliver Notes of the related Series (including Notes of any
Class or Tranche within such Series.)
The Notes of a Series shall be issuable in the denominations specified
in the related Series Supplement.
No Note shall be entitled to any benefit under this Indenture or any
Series Supplement or be valid or obligatory for any purpose, unless there
appears attached to such Note a certificate of authentication substantially in
the form provided for herein executed by the Trustee by the manual signature of
one of its authorized signatories, and such certificate attached to any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
Temporary Notes. Pending the preparation of Definitive Notes of any
Series (or of any Class or Tranche within a Series), the Issuer may execute,
and upon receipt of an Issuer Order prepared and delivered by the Master
Servicer the Trustee shall authenticate and deliver, 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 not inconsistent with the terms of this Indenture as the
officers executing such Notes may determine, as evidenced by their execution
of such Notes.
If temporary Notes of any Series (or of any Class or Tranche within a
Series) are issued, the Issuer will cause Definitive Notes of such Series (or
Class or Tranche) to be prepared without unreasonable delay. After the
preparation of Definitive Notes of such Series (or Class or Tranche), the
temporary Notes shall be exchangeable for Definitive Notes of such Series (or
Class or Tranche) upon surrender of the temporary Notes at the office or agency
of the Issuer to be maintained as provided in Section 3.2, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the
Issuer shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of such Series (or Class or
Tranche) of authorized denominations. Until so exchanged, the temporary Notes of
any Series (or Class or Tranche) shall in all respects be entitled to the same
benefits under this Indenture and the related Series Supplement as Definitive
Notes of such Series (or Class or Tranche).
15
Registration; Registration of Transfer and Exchange. The Issuer
shall cause to be kept a register (the "Note Register") in which, subject to
such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The
Trustee shall be "Note Registrar" for the purpose of registering Notes and
transfers of Notes as herein provided. Upon any resignation of any Note
Registrar, the Issuer shall promptly appoint a successor or, if it elects not
to make such an appointment, assume the duties of Note Registrar.
If a Person other than the Trustee is appointed by the Issuer as Note
Registrar, the Issuer will give the Trustee prompt written notice of the
appointment of such Note Registrar and of the location, and any change in the
location, of the Note Register, and the Trustee shall have the right to inspect
the Note Register at all reasonable times and to obtain copies thereof. The
Trustee shall have the right to rely upon a certificate executed on behalf of
the Note Registrar by an Authorized Officer thereof as to the names and
addresses of the Holders of the Notes and the principal amounts and number of
such Notes.
Upon surrender for registration or transfer of any Note at the office
or agency of the Issuer to be maintained as provided in Section 3.2, and if the
requirements of Section 8-401(1) of the UCC are met, the Issuer shall execute
and cause the Trustee to authenticate one or more new Notes, in any authorized
denominations, of the same class and a like aggregate principal amount. A
Noteholder may also obtain from the Trustee, in the name of the designated
transferee or transferees one or more new Notes, in any authorized
denominations, of the same Class and Tranche, as applicable, and a like
aggregate principal amount. Such requirements shall not be deemed to create a
duty in the Trustee to monitor the compliance by the Issuer with Section 8-401
of the UCC.
At the option of the Holder, Notes of a Series (or Class or Tranche)
may be exchanged for other Notes of such Series (or Class or Tranche) in any
authorized denominations, of the same Class (and Tranche, if applicable) and a
like aggregate principal amount, upon surrender of the Notes to be exchanged at
such office or agency. Whenever any Notes are so surrendered for exchange, and
if the requirements of Section 8-401(1) of the UCC are met, the Issuer shall
execute and upon its request the Trustee shall authenticate the Notes which the
Noteholder making the exchange is entitled to receive. Such requirements shall
not be deemed to create a duty in the Trustee to monitor the compliance by the
Issuer with Section 8-401 of the UCC.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture and the related Series
Supplement, as the Notes surrendered upon such registration of transfer or
exchange.
Unless specified in a Series Supplement, every Note presented or
surrendered for registration of transfer or exchange shall, unless specified in
a Series
16
Supplement, be (i) duly endorsed by, or be accompanied by a written
instrument of transfer in the form attached as an Exhibit to the related Series
Supplement duly executed by the Holder thereof or such Holder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar which requirements
include membership or participation in Securities Transfer Agents Medallion
Program ("Stamp") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, Stamp,
all in accordance with the Exchange Act, and (ii) accompanied by such other
documents as the Note Registrar may require.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Note Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
Notwithstanding, the preceding provisions of this section, the Issuer
shall not be required to make, and the Note Registrar shall not register,
transfers or exchanges of Notes selected for redemption for a period of 15 days
preceding the Distribution Date.
Any Noteholder using the assets of (i) an employee benefit plan (as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")) that is subject to the provisions of Title I of ERISA,
(ii) a plan described in Section 4975(e)(1) of the Internal Revenue Code of
1986, as amended, or (iii) any entity whose underlying assets include plan
assets by reason of a plan's investment in the entity to purchase the Notes, or
to whom the Notes are transferred, will be deemed to have represented that the
acquisition and continued holding of the Notes will be covered by a U.S.
Department of Labor Class Exemption.
(a) No Holder of an Unregistered Note shall transfer its Note, unless
(i) such transfer is made in accordance with Rule 144A under the Securities Act
and the transferee of such Note executes the Investment Letter, attached as
Exhibit 1 hereto or in the Series Related Documents with respect thereto or (ii)
pursuant to an exemption from registration provided by Rule 144 under the
Securities Act (if available) and the registration and qualification
requirements under applicable state securities laws.
Each Unregistered Note issued hereunder will contain the following
legend limiting sales to "Qualified Institutional Buyers" within the meaning of
Rule 144A under the Securities Act:
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND HAS NOT BEEN
APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR
REGULATORY AUTHORITY OF ANY STATE. THIS NOTE HAS BEEN OFFERED AND SOLD
PRIVATELY.
17
THE HOLDER HEREOF ACKNOWLEDGES THAT THESE SECURITIES ARE "RESTRICTED
SECURITIES" THAT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT AND
AGREES FOR THE BENEFIT OF THE OBLIGORS AND ITS AFFILIATES THAT THESE
SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES
ACT IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (B) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION.
Mutilated, Destroyed, Lost or Stolen Notes. If (i) any mutilated
Note is surrendered to the Trustee, or the Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Note, and (ii) there is
delivered to each of the Issuer and the Trustee such security or indemnity as
may be required by it to hold the Issuer and the Trustee harmless, then, in
the absence of notice to the Issuer, the Note Registrar or the Trustee that
such Note has been acquired by a bona fide purchaser, and provided that the
requirements of Section 8-405 of the UCC are met, the Issuer shall execute
and upon its request the Trustee shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note of the same Series (or Class or Tranche) (such requirement
shall not be deemed to create a duty in the Trustee to monitor the compliance
by the Issuer with Section 8-405); provided, however, that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall have become
or within seven days shall be due and payable, or shall have been called for
redemption pursuant to the terms of the related Series Supplement, the Issuer
may, instead of issuing a replacement Note, direct the Trustee, in writing,
to pay such destroyed, lost or stolen Note when so due or payable or upon the
redemption date without surrender thereof. If, after the delivery of such
replacement Note or payment of a destroyed, lost or stolen Note pursuant to
the proviso to the preceding sentence, a bona fide purchaser of the original
Note in lieu of which such replacement Note was issued presents for payment
such original Note, the Issuer and the Trustee shall be entitled to recover
such replacement Note (or such payment) from the Person to whom it was
delivered or any Person taking such replacement Note from such Person to whom
such replacement Note was delivered or any assignee of such Person, except a
bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or
expense incurred by the Issuer or the Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer
18
may require the payment by the Holder of such Note of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other reasonable expenses (including the fees and expenses of the Trustee)
connected therewith.
Every replacement Note of any Series issued pursuant to this Section
in replacement of any mutilated, destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture and the
related Series Supplement equally and proportionately with any and all other
Notes of the same Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
Persons Deemed Owner. Prior to due presentment for registration of
transfer of any Note, the Issuer, the Trustee and any agent of Issuer or the
Trustee may treat the Person in whose name any Note is registered (as of the
Record Date) as the owner of such Note for the purpose of receiving payments
of principal of and interest, if any on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and none of the Issuer, the
Trustee nor any agent of the Issuer or the Trustee shall be affected by
notice to the contrary.
Payment of Principal and Interest; Defaulted Interest. (a) The
Notes shall accrue interest as provided in the form of Note set forth in the
related Series Supplement or in such Series Supplement and such interest
shall be due and payable on each Distribution Date as specified therein. Any
installment of interest or principal, if any, payable on any Note which is
punctually or duly provided for by the Issuer on the applicable Distribution
Date shall be paid, as provided in the related Series Supplement, or if not
so provided to the Person in whose name such Note (or one or more Predecessor
Notes) is registered on the Record Date, by check mailed first-class, postage
prepaid, to such Person's address as it appears on the Note Register on such
Record Date, except that, if the Notes of a Series are Book Entry Notes,
unless Definitive Notes have been issued for such Series pursuant to Section
2.12, with respect to Notes of such Series registered on the Record Date in
the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payment will be made by wire transfer in immediately available
funds to the account designated by such nominee and except for the final
installment of principal payable with respect to such Note on a Distribution
Date or on the Final Scheduled Distribution Date with respect to a Series as
set forth in the relevant Series Supplement which shall be payable as
provided below. The funds
19
represented by any such checks returned undelivered shall be held in accordance
with Section 3.3.
(b) The principal of each Note shall be payable in installments on
each Distribution Date as provided in the form of Note set forth in the related
Series Supplement or in such Series Supplement. Notwithstanding the foregoing,
the entire unpaid principal amount of the Notes shall be due and payable, if not
previously paid, on the date on which an Event of Default shall have occurred
and be continuing, if the Notes are declared to be immediately due and payable
in the manner provided in the related Series Supplement. Upon written notice
from the Master Servicer on behalf of the Issuer, the Trustee shall notify the
Person in whose name a Note is registered at the close of business on the Record
Date preceding the Distribution Date on which the Issuer expects that the final
installment of principal of and interest on such Note will be paid. Such notice
may be mailed or transmitted by facsimile prior to such final Distribution Date
and may specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such installment.
(c) If the Issuer defaults in a payment of interest on the Notes, the
Issuer shall pay defaulted interest (plus interest on such defaulted interest to
the extent lawful) at the applicable Interest Rate to the extent lawful. Unless
otherwise provided in the related Series Supplements, the Issuer may pay such
defaulted interest to the Persons who are Noteholders on a subsequent special
record date, which date shall be at least five Business Days prior to the
payment date. The Issuer shall fix or cause to be fixed any such special record
date and payment date, and, at least 15 days before any such special record
date, the Issuer shall mail to each Noteholder and the Trustee a notice that
states the special record date, the payment date and the amount of defaulted
interest to be paid.
(d) Promptly following the date on which all principal of and interest
on the Notes has been paid in full and the Notes have been surrendered to the
Trustee, the Trustee shall, upon written notice from the Master Servicer of the
amounts, if any, that the related Series Support Provider has paid in respect of
the Notes under the related Series Support or otherwise which has not been
reimbursed to it, deliver such surrendered Notes to the related Series Support
Provider to the extent not previously cancelled or destroyed.
Cancellation. Subject to Section 2.7(d), all Notes surrendered for
payment, registration of transfer, exchange or redemption shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by the Trustee in accordance with its
customary procedures. Subject to Section 2.7(d), the Issuer may at any time
deliver to the Trustee for cancellation any Notes previously authenticated
and delivered hereunder which the Issuer may have acquired in any manner
whatsoever, and all Notes so delivered shall be promptly canceled by the
Trustee in accordance with its customary procedures. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section, except as expressly permitted by this
20
Indenture. Subject to Section 2.7(d), all canceled Notes may be held or disposed
of by the Trustee in accordance with its standard retention or disposal policy
as in effect at the time.
Release of Collateral. The Trustee or the Trust Collateral Agent,
if any, shall, on or after a Series Termination Date, release any remaining
portion of the related Series Trust Estate from the lien created by this
Indenture and deposit in the applicable Series Collection Account any funds
then on deposit in any other Trust Account. The Trustee, or the Trust
Collateral Agent, if any, shall release property from the lien created by
this Indenture pursuant to this Section 2.9 only upon receipt of an Issuer
Request by it and the Trustee accompanied by an Officer's Certificate, an
Opinion of Counsel and (if required by the TIA) Independent Certificates in
accordance with TIA ▇▇.▇▇. 314(c) and 314(d)(1) meeting the applicable
requirements of Section 11.1.
Book-Entry Notes. The Notes, upon original issuance, may be issued
in the form of typewritten Notes representing the Book-Entry Notes, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by,
or on behalf of, the Issuer. Such Notes may initially be registered on the
Note Register in the name of Cede & Co., the nominee of the initial Clearing
Agency, and no Note Owner will receive a Definitive Note representing such
Note Owner's interest in such Note, except as provided in Section 2.12.
Unless and until definitive, fully registered Notes (the "Definitive Notes")
have been issued to Note Owners pursuant to Section 2.12:
(i) the provisions of this Section shall be in full force and
effect;
(ii) the Note Registrar and the 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;
(iii) to the extent that the provisions of this Section conflict
with any other provisions of this Indenture, the provisions of this
Section shall control;
(iv) the rights of Note Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law
and agreements between such Note Owners and the Clearing Agency and/or
the Clearing Agency Participants. Unless and until Definitive Notes
are issued pursuant to Section 2.12, the initial Clearing Agency will
make book-entry transfers among the Clearing Agency Participants and
receive and transmit payments of principal of and interest on the
Notes to such Clearing Agency Participants;
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of Notes
evidencing a specified percentage of the Outstanding
21
Amount of the Notes, the Clearing Agency shall be deemed to represent
such percentage only to the extent that it has received instructions
to such effect from Note Owners and/or Clearing Agency Participants
owning or representing, respectively, such required percentage of the
beneficial interest in the Notes or in the Notes of a Class, as the
case maybe, and has delivered such instructions to the Trustee; and
(vi) Note Owners may receive copies of any reports sent to
Noteholders pursuant to this Indenture, upon written request, together
with a certification that they are Note Owners and payment of
reproduction and postage expenses associated with the distribution of
such reports, from the Trustee at the Corporate Trust Office.
Notices to Clearing Agency. With respect to each Series of Notes
which are Book Entry Notes, whenever a notice or other communication to the
Noteholders of such Series is required under this Indenture, unless and until
Definitive Notes shall have been issued to Note Owners pursuant to Section
2.12, the Trustee shall give all such notices and communications specified
herein to be given to Holders of the Notes to the Clearing Agency, and shall
have no obligation to the Note Owners.
Definitive Notes. If the Notes of a Series are Book-Entry Notes and
if (i) the Master Servicer advises the Trustee in writing that the Clearing
Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Notes of such Series, and the Master
Servicer is unable to locate a qualified successor, (ii) the Master Servicer
at its option advises the 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 with respect to such Series, Note Owners representing
beneficial interests aggregating at least a majority of the Outstanding
Amount of the Notes advise the Trustee through 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 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 Trustee of the typewritten Note or Notes
representing the Book-Entry Notes by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the Trustee shall
authenticate the Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Note Registrar or the 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 Trustee shall recognize the Holders of the
Definitive Notes as Noteholders.
Final Distribution.
22
(a) The Master Servicer shall give the Trustee at least 15 days prior
notice of the Distribution Date on which the Noteholders of any Series or Class
may surrender their Notes for payment of the final distribution on and
cancellation of such Notes. Not later than the fifth day of the month in which
the final distribution in respect of such Series or Class is payable to
Noteholders, the Trustee shall provide notice to the Noteholders of such Series
or Class specifying (i) the date upon which final payment of such Series or
Class will be made upon presentation and surrender of Notes (if required) of
such Series or Class at the office or offices therein designated, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such payment date is not applicable, payments being made only upon
presentation and surrender of such Notes at the office or offices therein
specified. The Trustee shall give such notice to the Registrar and the Note
Paying Agent at the time such notice is given to Noteholders.
(b) Notwithstanding a final distribution to the Noteholders of any
Series or Class, except as otherwise provided in this paragraph, all funds then
on deposit in the Master Collection Account and any Series Trust Account
allocated to such Noteholders shall continue to be held in trust for the benefit
of such Noteholders, and the Note Paying Agent or the Trustee shall pay such
funds to such Noteholders upon surrender of their Notes. In the event that all
such Noteholders shall not surrender their Notes for cancellation within six
months after the date specified in the notice from the Trustee described in
paragraph (a), the Trustee shall give a second notice to the remaining such
Noteholders to surrender their Notes for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
all such Notes shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining such Noteholders concerning surrender of their Notes, and
the cost thereof shall be paid out of the funds in the account held for the
benefit of such Noteholders. The Trustee and the Note Paying Agent shall upon
written request pay to the related Issuer any moneys held by them for the
payment of principal or interest that remains unclaimed for two years. After
payment to the related Issuers, Noteholders entitled to the money must look to
the for payment as general unsecured creditors unless an applicable abandoned
property law designates another Person and all liability of the Trustee or such
Note Paying Agent with respect to such trust money shall thereupon cease.
(c) Any notice required or permitted to be given to a Holder of
Registered Notes shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Note Register.
ARTICLE III.
Covenants
Payment of Principal and Interest. The Issuer will duly and
punctually pay or cause to be paid the principal of and interest on the Notes
in accordance with the terms of the Notes, this Indenture and
23
the related Series Supplement. Amounts properly withheld under the Code by any
Person from a payment to any Noteholder of interest and/or principal shall be
considered as having been paid by the Issuer to such Noteholder for all purposes
of this Indenture.
Maintenance of Office or Agency. The Issuer will maintain in New
York an office or agency where Notes may be surrendered for registration,
transfer or exchange of the Notes, and where notices and demands to or upon
the Issuer in respect of the Notes and this Indenture may be served. The
Issuer hereby initially appoints the Trustee to serve as its agent for the
foregoing purposes. The Issuer will give prompt written notice to the Trustee
of the location, and of any change in the location, of any such office or
agency. If at any time the Issuer shall fail to maintain any such office or
agency or shall fail to furnish the Trustee with the address thereof, such
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and the Issuer hereby appoints the Trustee as its agent to receive
all such surrenders, notices and demands.
Money for Payments to be Held in Trust. On or before each
Distribution Date, the Issuer shall deposit or cause to be distributed from
the related Series Collection Account to the related Noteholders or to any
Person designated by such Noteholders to receive payments on their behalf an
aggregate sum sufficient to pay the amounts then becoming due under the
Notes, such sum to be held in trust for the benefit of the Persons entitled
thereto and (unless the Note Paying Agent is the Trustee) shall promptly
notify the Trustee of its action or failure so to act.
The Issuer will cause each Note Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Note Paying Agent
shall agree with the Trustee (and if the Trustee acts as Note Paying Agent with
respect to clauses (i) and (v), it hereby so agrees), subject to the provisions
of this Section, that such Note Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and pay such sums to such Persons as
herein provided;
(ii) give the Trustee written notice of any default by the Issuer
of which it has actual knowledge (or any other obligor upon the Notes)
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 Trustee, forthwith pay to the Trustee
all sums so held in trust by such Note Paying Agent;
(iv) immediately resign as a Note Paying Agent and forthwith pay
to the Trustee all sums held by it in
24
trust for the payment of Notes if at any time it ceases to meet the
standards required to be met by a Note Paying Agent at the time of its
appointment; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture and any Series Supplement or for
any other purpose, by Issuer Order direct any Note Paying Agent to pay to the
Trustee all sums held in trust by such Note Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which the sums were held by
such Note Paying Agent; and upon such a payment by any Note Paying Agent to the
Trustee, such Note Paying Agent shall be released from all further liability
with respect to such money.
The Trust hereby appoints The Chase Manhattan Bank as Certificate
Paying Agent to make payments to Certificateholders on behalf of the Issuer in
accordance with the provisions of the Certificates, this Agreement and the Trust
Agreement, and The Chase Manhattan Bank hereby accepts such appointment (subject
to removal in the event it not longer serves as Trustee pursuant to Section 6.8)
and further agrees that it will be bound by the provisions of the Trust
Agreement relating to the Certificate Paying Agent and will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Certificates 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 as provided in the Trust
Agreement and pay such sums to such Persons as herein and therein
provided;
(vi) give the Owner Trustee notice of any default by the Issuer
of which it has actual knowledge in the making of any payment required
to be made with respect to the Certificates;
(vii) at any time during the continuance of any such default,
upon the written request of the Owner Trustee forthwith pay to the
Owner Trustee on behalf of the Issuer all sums so held in Trust by
such Certificate Paying Agent;
(viii) immediately resign as a Certificate Paying Agent and
forthwith pay to the Owner Trustee on behalf of the Issuer all sums
held by it in trust for the payment of Certificates if at any time it
ceases to meet the standards required to be met by a Note Paying Agent
at the time of its appointment; and
(ix) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Certificates of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
Existence.
25
Except as otherwise permitted by the provisions of Section 3.10, the
Issuer will keep in full effect its existence, rights and franchises as a
business trust under the laws of the State of Delaware (unless it becomes, or
any successor Issuer hereunder is or becomes, organized under the laws of any
other state or of the United States of America, in which case the Issuer will
keep in full effect its existence, rights and franchises under the laws of such
other jurisdiction) and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Indenture, each
Series Supplement, the Notes and each other instrument or agreement included in
the related Series Trust Estate.
Protection of Trust Property. The Issuer intends the security
interest Granted pursuant to this Indenture and the related Series Supplement
in favor of the related Series Secured Parties to be prior to all other liens
in respect of the related Series Trust Estate, and the Issuer shall take all
actions necessary to obtain and maintain, in favor of the Trustee or the
Trust Collateral Agent, if any, for the benefit of the related Series Secured
Parties, a first lien on and a first priority, perfected security interest in
the related Series Trust Estate. The Issuer will from time to time prepare
(or shall cause to be prepared), execute and deliver all such supplements and
amendments hereto and all such financing statements, continuation statements,
instruments of further assurance and other instruments, and will take such
other action necessary or advisable to:
(i) Grant more effectively all or any portion of the related
Series Trust Estate;
(ii) maintain or preserve the lien and security interest (and the
priority thereof) in favor of the Trustee or the Trust Collateral
Agent, if any, for the benefit of the Series Secured Parties created
by this Indenture and the related Series Supplement or carry out more
effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture and the related Series
Supplement ;
(iv) enforce any of the related Series Trust Estate;
(v) preserve and defend title to the related Series Trust Estate
and the rights of the Trustee or the Trust Collateral Agent, if any,
in such Trust Property against the claims of all persons and parties;
and
(vi) pay all taxes or assessments levied or assessed upon the
related Series Trust Estate when due.
The Issuer hereby designates the Master Servicer its agent and attorney-in-fact
to execute any financing statement, continuation statement or other instrument
required by the Trustee or the Trust Collateral Agent, if any, pursuant to this
Section; provided that, such designation shall not be deemed to create a duty in
the Trustee to monitor the compliance of the Master Servicer with respect to its
duties under this Section 3.5 or the adequacy of
26
any financing statement, continuation statement or other instrument prepared by
the Master Servicer.
Opinions as to Trust Property.
(a) On the Closing Date, the Issuer shall furnish to the Trustee and
the Trust Collateral Agent, if any, 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, Series Supplement, 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 first priority lien and security interest in favor of the
Trustee or the Trust Collateral Agent, if any, for the benefit of the related
Series Secured Parties, created by this Indenture and the related Series
Supplement 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) Within 90 days after the beginning of each calendar year,
beginning with 2000, the Master Servicer on behalf of the Issuer shall furnish
to the Trustee and the Trust Collateral Agent, if any, 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 Series Supplement and any other requisite documents and with
respect to the execution and filing of any financing statements and continuation
statements as are necessary to maintain the lien and security interest created
by this Indenture and the related Series Supplement and reciting the details of
such action or stating that in the opinion of such counsel no such action is
necessary to maintain such lien and security interest. Such Opinion of Counsel
shall also describe the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite documents
and the execution and filing of any financing statements and continuation
statements that will, in the opinion of such counsel, be required to maintain
the lien and security interest of this Indenture and the related Series
Supplement until December 31 of the following calendar year.
Performance of Obligations; Servicing of Receivables.
(a) The Issuer will not take any action and will use its best efforts
not to permit any action to be taken by others that would release any Person
from any of such Person's material covenants or obligations under any instrument
or agreement included in the related Series 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 ordered by any bankruptcy or other court or as expressly provided in
this Indenture, the Basic Documents and the related Series Related Documents or
such other instrument or agreement.
27
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Trustee in an Officer's Certificate of the Issuer
shall be deemed to be action taken by the Issuer. Initially, the Issuer has
contracted with the Master Servicer to assist the Issuer in performing its
duties under this Indenture and each Series Supplement. The Master Servicer
hereby agrees to service the Receivables in each Series Trust Estate in the
manner set forth in the Master Sale and Servicing Agreement, this Indenture and
each Series Supplement and to perform its duties as may be set forth in the
Master Sale and Servicing Agreement, this Indenture and in each Series
Supplement.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents, all
Series Related Documents and in the instruments and agreements included in the
related Series Trust Estate, including, but not limited, to preparing (or
causing to be prepared) and filing (or causing to be filed) all UCC financing
statements and continuation statements required to be filed by the terms of this
Indenture, the related Series Supplement and the Master Sale and Servicing
Agreement in accordance with and within the time periods provided for herein and
therein. Except as otherwise expressly provided therein, the Issuer shall not
waive, amend, modify, supplement or terminate any Basic Document or any
provision thereof without the consent of the Trustee.
(d) If a Responsible Officer of the Owner Trustee shall have actual
knowledge of the occurrence of a Master Servicer Termination Event under the
Master Sale and Servicing Agreement, the Issuer shall promptly notify the
Trustee, the Trust Collateral Agent, if any, and the Rating Agencies thereof in
accordance with Section 11.4, and shall specify in such notice the action, if
any, the Issuer is taking in respect of such default. If a Master Servicer
Termination Event shall arise from the failure of the Master Servicer to perform
any of its duties or obligations under the Master Sale and Servicing Agreement
with respect to the Receivables, the Issuer shall take all reasonable steps
available to it to remedy such failure.
(e) The Issuer agrees that it will not waive timely performance or
observance by the Master Servicer or the Seller of their respective duties under
the Basic Documents without the prior written consent of the related Series
Secured Parties under any Series Related Documents if the effect thereof would
adversely affect the Holders of the Notes of the related Series.
Negative Covenants. So long as any Notes are Outstanding, the
Issuer shall not:
(i) except as expressly permitted by this Indenture or the Basic
Documents or the related Series Related Documents, sell, transfer,
exchange or otherwise dispose of any of the properties or assets of
the Issuer, including those included in the related Series Trust
Estate, unless directed to do so by the related Series Secured
Parties;
28
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes of a Series
(other than amounts properly withheld from such payments under the
Code) 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 related Series Trust Estate; or
(iii) (A) permit the validity or effectiveness of this Indenture
or any Series Supplement to be impaired, or permit the lien in favor
of the Trustee or the Trust Collateral Agent, as the case may be,
created by 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 or any Series Supplement except as may be expressly
permitted hereby, (B) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien of this
Indenture and the related Series Supplement) to be created on or
extend to or otherwise arise upon or burden the related Series 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), (C) permit the lien of this Indenture and the related Series
Supplement not to constitute a valid first priority (other than with
respect to any such tax, mechanics' or other lien) security interest
in the related Series Trust Estate, (D) except as expressly permitted
therein, amend, modify or fail to comply with the provisions of the
Basic Documents without the prior written consent of the Series
Secured Parties or (E) except as expressly permitted therein, amend,
modify or fail to comply with the provisions of the Series Related
Documents without the prior written consent of the related Series
Secured Parties.
Annual Statement as to Compliance. The Master Servicer on behalf of
the Issuer will deliver to the Trustee, within 90 days after the end of each
fiscal year of the Issuer (commencing with the fiscal year ended December 31,
1999), and otherwise in compliance with the requirements of TIA Section
314(a)(4) an Officer's Certificate stating, as to the Authorized Officer
signing such Officer's Certificate, that
(i) a review of the activities of the Issuer during such year and
of performance under this Indenture has been made under such
Authorized Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge, based on
such review, the Issuer has complied with all conditions and covenants
under this Indenture and each Series Supplement throughout such year,
or, if there has been a default in the compliance of any such
condition or covenant, specifying each such default known to such
Authorized Officer and the nature and status thereof.
Issuer May Consolidate, Etc. Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless
29
(i) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing
under the laws of the United States of America or any State and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of and interest on all Notes and
the performance or observance of every agreement and covenant of this
Indenture and each Series Supplement on the part of the Issuer to be
performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing
under any Series Supplement;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Trustee and the Owner
Trustee) to the effect that such transaction will not have any
material adverse tax consequence to the Trust, any Noteholder or any
Certificateholder;
(v) any action as is necessary to maintain the lien and security
interest created by this Indenture and each Series Supplement shall
have been taken; and
(vi) the Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such
consolidation or merger comply with this Article III and that all
conditions precedent herein provided for relating to such transaction
have been complied with (including any filing required by the Exchange
Act); and
(b) The Issuer shall not convey or transfer all or substantially all
of its properties or assets, including those included in each Series Trust
Estate, to any Person, unless
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of
which is hereby restricted shall (A) be a United States citizen or a
Person organized and existing under the laws of the United States of
America or any state, (B) expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture, each
Supplement, each of the Basic Documents and each of the Series Related
Documents on the part of the Issuer to be performed or observed, all
as provided herein, (C) expressly agree by means of such Indenture
Supplement that all right, title and interest so conveyed or
transferred shall be subject and subordinate to the rights of Holders
of the Notes, (D) unless otherwise provided in such Indenture
Supplement, expressly agree to indemnify, defend and hold harmless the
Issuer against and from any loss, liability or expense arising under
or related to this Indenture, each Series Supplement and the Notes and
(E) expressly agree by means of such Indenture Supplement that such
Person (or if a group of persons, then one specified Person) shall
prepare (or cause to be prepared) and make all filings with the
Commission (and any other appropriate Person) required by the Exchange
Act in
30
connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing
under any Series Supplement;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Trustee) to the effect that
such transaction will not have any material adverse tax consequence to
the Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and security
interest created by this Indenture and each Series Supplement shall
have been taken; and
(vi) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such Indenture Supplement complies with
this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act); and
Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.10(a), the Person formed by or surviving such consolidation or merger
(if other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture and each
Series Supplement with the same effect as if such Person had been named as each
Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer pursuant to Section 3.10 (b), Household Automobile Revolving Trust I
will be released from every covenant and agreement of this Indenture and each
Series Supplement to be observed or performed on the part of the Issuer with
respect to the Notes immediately upon the delivery of written notice to the
Trustee stating that Household Automobile Revolving Trust I is to be so
released.
No Other Business. The Issuer shall not engage in any business
other than financing, purchasing, owning, selling and managing the
Receivables and owning the Class SV Preferred Stock of the Seller in the
manner contemplated by this Indenture, the Basic Documents and each Series
Supplement and all Series Related Documents and activities incidental thereto.
31
No Borrowing. The Issuer shall not issue, incur, assume, guarantee
or otherwise become liable, directly or indirectly, for any Indebtedness
except for (i) the Notes, (ii) obligations owing from time to time to a
related Series Support Provider under the related agreement regarding Series
Support, if any and (iii) any other Indebtedness permitted by or arising
under the Basic Documents and each Series Supplement. The proceeds of the
Notes and the Certificates of a Series shall be used exclusively to fund the
Issuer's purchase of the Receivables of such Series and the related Other
Conveyed Property, to fund any spread account and to pay the Issuer's
organizational, transactional and start-up expenses.
Master Servicer's Obligations. The Issuer shall enforce the
provisions of Sections 4.9, 4.10 and 4.11 of the Master Sale and Servicing
Agreement with respect to the duties of Master Service thereunder.
Guarantees, Loans, Advances and Other Liabilities. Except as
contemplated by the Master Sale and Servicing Agreement or this Indenture or
any Series Supplement, the Issuer shall not make any loan or advance or
credit to, or guarantee (directly or indirectly or by an instrument having
the effect of assuring another's payment or performance on any obligation or
capability of so doing or otherwise), endorse or otherwise become continently
liable, directly or indirectly, in connection with the obligations, stocks or
dividends of, or own, purchase, repurchase or acquire (or agree continently
to do so) any stock, obligations, assets or securities of, or any other
interest in, or make any capital contribution to, any other Person.
Capital Expenditures. The Issuer shall not make any expenditure (by
long-term or operating lease or otherwise) for capital assets (either realty
or personally).
Compliance with Laws. The Issuer shall comply with the requirements
of all applicable laws, the non-compliance with which would, individually or
in the aggregate, materially and adversely affect the ability of the Issuer
to perform its obligations under the Notes, this Indenture, or any Basic
Document, any Series Supplement or any Series Related Document.
Restricted Payments. The Issuer shall not, directly or indirectly,
(i) pay any dividend or make any distribution (by reduction of capital or
otherwise), whether in cash, property, securities or a combination thereof,
to the Owner Trustee or any owner of a beneficial interest in the Issuer or
otherwise with respect to any ownership or equity interest or security in or
of the Issuer or to the Seller, (ii) redeem, purchase, retire or otherwise
32
acquire for value any such ownership or equity interest or security or (iii) set
aside or otherwise segregate any amounts for any such purpose; provided,
however, that the Issuer may make, or cause to be made, distributions to the
Seller, Master Servicer, the Owner Trustee, the Trustee, the Trust Collateral
Agent, if any, and the Certificateholders as permitted by, and to the extent
funds are available for such purpose under, the Master Sale and Servicing
Agreement or Trust Agreement. The Issuer will not, directly or indirectly, make
payments to or distributions from the Master Collection Account except in
accordance with this Indenture, the Basic Documents, any Series Supplement or
any Series Related Document.
Notice of Events of Default. Upon a Responsible Officer of the
Owner Trustee having actual knowledge thereof, the Issuer agrees to give the
Trustee and the Rating Agencies prompt written notice of each Event of
Default under any Series Supplement and each default on the part of the
Master Servicer or the Seller of its obligations under the Master Sale and
Servicing Agreement.
Further Instruments and Acts. Upon request of the Trustee, the
Issuer will execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out more effectively
the purpose of this Indenture.
Amendments of Master Sale and Servicing Agreement and Trust
Agreement. The Issuer shall not agree to any amendment to Section 13.1 of the
Master Sale and Servicing Agreement or Section 13.1 of the Trust Agreement to
eliminate the requirements thereunder that the Trustee or the Holders of the
Notes consent to amendments thereto as provided therein.
Income Tax Characterization. For purposes of federal income, state
and local income and franchise and any other income taxes, the Issuer, the
Noteholders, the Certificateholders and the Trustee will treat the Notes as
indebtedness and hereby instructs the Trustee to treat the Notes as
indebtedness for federal and state tax reporting purposes.
No Borrowing. The Issuer shall not issue, incur, assume, guarantee
or otherwise become liable, directly or indirectly, for any Indebtedness
except for (i) the Notes and (ii) any other Indebtedness permitted by or
arising under the Basic Documents.
Guarantees, Loans, Advances and Other Liabilities. Except as
contemplated by the Master Sale and Servicing Agreement or
33
this Indenture, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
Capital Expenditures. The Issuer shall not make any expenditure (by
long-term or operating lease or otherwise) for capital assets (either realty
or personalty).
Restricted Payments. The Issuer shall not, directly or indirectly,
(i) pay any dividend or make any distribution (by reduction of capital or
otherwise), whether in cash, property, securities or a combination thereof.
to the Owner Trustee or any owner of a beneficial interest in the Issuer or
otherwise with respect to any ownership or equity interest or security in or
of the Issuer or to the Servicer, (ii) redeem, purchase, retire or otherwise
acquire for value any such ownership or equity interest or security or (iii)
set aside or otherwise segregate any amounts for any such purpose; provided,
however, that the Issuer may make, or cause to be made, distributions to the
Servicer, the Owner Trustee, the Trustee and the Certificateholders as
permitted by, and to the extent funds are available for such purpose under
the Master Sale and Servicing Agreement or Trust Agreement.
ARTICLE IV.
Satisfaction and Discharge
Satisfaction and Discharge of Indenture. This Indenture shall cease
to be of further effect with respect to the Notes except as to (i) rights of
registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive
payments of principal thereof and interest thereon, (iv) Sections 3.3, 3.4,
3.5, 3.8, 3.10, 3.12, 3.13, 3.20, 3.21 and 3.22, (v) the rights and
immunities of the Trustee hereunder (including the rights of the Trustee
under Section 6.7 and the obligations of the Trustee under Section 4.2) and
(vi) the rights of Noteholders as beneficiaries hereof with respect to the
related Series Trust Estate so deposited with the Trustee payable to all or
any of them, and the Trustee, on demand of and at the expense of the Issuer,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to the Notes, when
(A) either
34
(1) all Notes theretofore authenticated and delivered (other than
(i) Notes that have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 2.5 and (ii) Notes for whose
payment money has theretofore been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 3.3) have been
delivered to the Trustee for cancellation and the related Series
Support, if any, has been returned to the related Series Support
Provider; or
(2) all Notes not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable,
(ii) will become due and payable at their respective Final
Scheduled Distribution Dates within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee or the Trust Collateral Agent, if any, cash or direct
obligations of or obligations guaranteed by the United States of
America (which will mature prior to the date such amounts are
payable), in trust for such purpose, in an amount sufficient to pay
and discharge the entire indebtedness on such Notes not theretofore
delivered to the Trustee for cancellation when due on the Final
Scheduled Distribution Date or tender date (if Notes shall have been
called for redemption or tender pursuant to the related Series
Supplement, as the case may be; and
(B) the Issuer has paid or caused to be paid all other amounts
owing to all Series Secured Parties.
Application of Trust Money. All monies deposited with the Trustee
pursuant to Section 4.1 hereof shall be held in trust and applied by it, in
accordance with the provisions of the Notes, this Indenture and the related
Series Supplement, to the payment, either directly or through any Note Paying
Agent, as the Trustee may determine, to the Holders of the particular Notes
for the payment or redemption of which such monies have been deposited with
the 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 Master Sale and Servicing Agreement or
required by law.
35
Repayment of Monies Held by Note Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to the Notes,
all monies then held by any Note Paying Agent other than the Trustee under
the provisions of this Indenture with respect to such Notes shall, upon
demand of the Issuer, be paid to the Trustee to be held and applied according
to Section 3.3 and thereupon such Note Paying Agent shall be released from
all further liability with respect to such monies.
ARTICLE V.
Remedies
Events of Default. The definition of "Event of Default" with
respect to a Series, together with certain rights and remedies consequent
thereto, shall be set forth in the related Series Supplement.
Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) Subject to the terms of the related Series Supplement, the Issuer
covenants that if (i) default is made in the payment of any interest on any Note
when the same becomes due and payable, and such default continues for a period
of five days, or (ii) default is made in the payment of the principal of or any
installment of the principal of any Note when the same becomes due and payable,
and such default continues for a period of five days, the Issuer will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of the Notes,
the whole amount then due and payable on such Notes for principal and interest,
with interest upon the overdue principal, and, to the extent payment at such
rate of interest shall be legally enforceable, upon overdue installments of
interest, at the applicable Interest Rate and in addition thereto such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee and its agents and outside counsel.
(b) Each Series Secured Party hereby irrevocably and unconditionally
appoints the Trustee as the true and lawful attorney-in-fact of such Series
Secured Party, with full power of substitution, to execute, acknowledge and
deliver any notice, document, certificate, paper, pleading or instrument in the
name, place and stead of such Series Secured Party such acts, things and deeds
for or on behalf of and in the name of such Series Secured Party under this
Indenture and the related Series Supplement and under the Basic Documents and
the Series Related Documents which such Series Secured Party could or might do
or which may be necessary, desirable or convenient to effect the purposes
contemplated hereunder, under the related Series Supplement, the Series Related
Documents and under the Basic Documents and, without limitation, following the
occurrence of an Event of Default, exercise full right, power and authority to
take, or defer from taking, any and all acts with respect to the administration,
maintenance or disposition of the related Series
36
Trust Estate.
(c) If an Event of Default occurs and is continuing with respect to a
Series, the Trustee may in its discretion and at the direction of the related
Series Secured Parties shall proceed to protect and enforce the rights of the
Noteholders of each Series by such appropriate Proceedings as the 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 the
related Series Supplement 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
Trustee by this Indenture, the related Series Supplement or by law.
(d) In case there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the related Series Trust Estate, proceedings under Title 11 of the
United States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Issuer or its property or
such other obligor or Person, or in case of any other comparable judicial
proceedings relative to the Issuer or other obligor upon the Notes of such
Series, or to the creditors or property of the Issuer or such other obligor, the
Trustee, irrespective of whether the principal of any Notes of such Series shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, by intervention in
such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of such Notes and
to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee against the
related Series Trust Estate (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and outside counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as
a result of negligence, bad faith or willful misconduct) 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 of such Series in any election of a
trustee, a standby trustee or person performing similar functions in
any such proceedings;
(iii) to collect and receive any monies or other property payable
or deliverable on any such claims and received with respect to the
related Series Trust Estate and to distribute all amounts received
with respect to the claims of the Noteholders and of the 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
Trustee or the Holders of Notes of such Series, in each case against
the related Series Trust Estate allowed in any judicial proceedings
relative to
37
the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Noteholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to the
making of payments directly to such Noteholders, to pay to the Trustee such
amounts as shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence or bad
faith.
(e) Nothing herein contained shall be deemed to authorize the 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
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,
the related Series Supplement or under any of the Notes, may be enforced by the
Trustee without the possession of any of the Notes or the production thereof in
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the 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 Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Notes.
(g) In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture or
the related Series Supplement), the Trustee shall be held to represent all the
Holders of the Notes, and it shall not be necessary to make any Noteholder a
party to any such proceedings.
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 the related Series Supplement, 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
Trustee of a continuing Event of Default with respect to the Notes of
the related Series;
(ii) the Holders of not less than 25% of the Outstanding Amount
of the Notes of the related Series have made written request to the
Trustee to institute such proceeding in respect of such Event of
Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to it
38
against the costs, expenses and liabilities to be incurred in
complying with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute such
Proceedings;
(v) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority of the Outstanding Amount of the Notes of such Series; and
(vi) if any Series Support secures such Series, a Support Default
shall have occurred and be continuing;
it being understood and intended that no 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 or to enforce any right under this Indenture, except in the manner
herein provided.
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, if any, on such Note on or
after the respective due dates thereof expressed in such Note or in this
Indenture or the related Series Supplement (or, in the case of redemption or
tender pursuant to any Series Supplement, on or after the related redemption
or tender 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.
Restoration of Rights and Remedies. If the Trustee or any
Noteholder has instituted any Proceeding to enforce any right or remedy under
this Indenture or the related Series Supplement and such Proceeding has been
discontinued or abandoned for any reason, then and in every such case the
Issuer, the Trustee, and the related Noteholders shall, subject to any
determination in such Proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Trustee, and the related Noteholders shall continue as though no such
proceeding had been instituted.
Rights and Remedies Cumulative. No right or remedy herein conferred
upon or reserved to the related 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.
39
Delay or Omission Not a Waiver. No delay or omission of the Trustee
or any Holder of any related Note to exercise any right or remedy accruing
upon any Default or Event of Default shall impair any such right or remedy or
constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by
law to the Trustee, the Trustee or to the related Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the related Noteholders, as the case may be.
Control by Noteholders. The Holders of a majority of the
Outstanding Amount of the Notes with respect to such Series shall have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee with respect to the Notes of such Series
or exercising any trust or power conferred on the Trustee; provided that
(i) such direction shall not be in conflict with any rule of law
or with this Indenture or with the related Series Supplement; and
(ii) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction;
provided, however, that, subject to Section 6.1, the Trustee need not take any
action that it determines might involve it in liability or might materially
adversely affect the rights of any Noteholders not consenting to such action.
Waiver of Past Defaults. Unless otherwise provided in the related
Series Related Documents, a majority of the Noteholders of a Series may waive
any past Default or Event of Default relating to such Series and its
consequences except a Default relating to such Series (a) in payment of
principal of or interest on any of the Notes of the related Series or (b) in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Note of the related Series. In the
case of any such waiver, the Issuer, the Trustee and the Holders of the Notes
of the related Series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture and the related Series Supplement; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereto.
40
Undertaking for Costs. All parties to this Indenture and the
related Series Supplement agree, and each Holder of any Note by such Holder's
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture and the related Series Supplement, or in any suit
against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to (a) any suit instituted by the Trustee, (b) any
suit instituted by any Noteholder, or group of Noteholders, in each case
holding in the aggregate more than 10% of the Outstanding Amount of the Notes
of the related Series or (c) any suit instituted by any Noteholder for the
enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture
and the related Series Supplement.
Waiver of Stay or Extension Laws. The Issuer covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit of, any stay
or extension law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture and the
related Series Supplement; and the Issuer (to the extent that it may lawfully
do so) hereby expressly waives all benefit of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Action on Notes. The Trustee's right to seek and recover judgment
on the Notes or under this Indenture or any Series Supplement shall not be
affected by the seeking, obtaining or application of any other relief under
or with respect to this Indenture or the related Series Supplement. Neither
the lien of this Indenture or the related Series Supplement nor any rights or
remedies of the Trustee or the Noteholders shall be impaired by the recovery
of any judgment by the Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the related Series Trust
Estate or upon any of the assets of the Issuer.
Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Trustee to do so and at the
Master Servicer's expense, the Issuer agrees to take all such lawful action as
the Trustee may request to
41
compel or secure the performance and observance by the Seller and the Master
Servicer, as applicable, of each of their obligations to the Issuer under or in
connection with the Master Sale and Servicing Agreement in accordance with the
terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the
Master Sale and Servicing Agreement to the extent and in the manner directed by
the Trustee, including the transmission of notices of default on the part of the
Seller or the Master Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Seller or the Master Servicer of each of their obligations under the Master Sale
and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing with respect
to a Series, the Trustee may, and, at the written direction of the Holders of
66-2/3% of the Outstanding Amount of the Notes of such Series shall, exercise
all rights, remedies, powers, privileges and claims of the Issuer against the
Seller or the Master Servicer under or in connection with the Master Sale and
Servicing Agreement, including the right or power to take any action to compel
or secure performance or observance by the Seller or the Master Servicer of each
of their obligations to the Issuer thereunder and to give any consent, request,
notice, direction, approval, extension or waiver under the Master Sale and
Servicing Agreement, and any right of the Issuer to take such action shall be
suspended.
ARTICLE VI.
The Trustee and the Trust Collateral Agent
Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
or the Trust Collateral Agent, if any, shall exercise the rights and powers
vested in it by this Indenture and the Basic Documents and use the same degree
of care and skill in its 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 with respect
to a Series:
(i) each of the Trustee and the Trust Collateral Agent, if any,
undertakes to perform with respect to such Series such duties and only
such duties as are specifically set forth in this Indenture and the
related Series Supplement and no implied covenants or obligations
shall be read into this Indenture or the related Series Supplement
against the Trustee and the Trust Collateral Agent, if any,
respectively; and
(ii) in the absence of bad faith on its part, each of the Trustee
and the Trust Collateral Agent, if any, 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
Trustee or the
42
Trust Collateral Agent, if any, as the case may be and conforming
to the requirements of this Indenture and the related Series
Supplement; however, the Trustee and the Trust Collateral Agent, if
any, shall examine the certificates and opinions to determine whether
or not they conform on their face to the requirements of this
Indenture or the related Series Supplement.
(c) Each of the Trustee and the Trust Collateral Agent, if
any, may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) each of the Trustee and the Trust Collateral Agent, if any,
shall not be liable for any error of judgment made in good faith by a
Responsible Officer unless it is proved that the Trustee or the Trust
Collateral Agent, if any, was negligent in ascertaining the pertinent
facts; and
(iii) each of the Trustee and the Trust Collateral Agent, if any,
shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction or received by it
pursuant to Section 5.8.
(d) The Trustee and the Trust Collateral Agent, if any, shall not be
liable for interest on any money received by it except as such Person may agree
in writing with the Issuer.
(e) Money held in trust by the Trustee or the Trust Collateral Agent,
if any, need not be segregated from other funds except to the extent required by
law or the terms of this Indenture, the related Series Supplement or the Master
Sale and Servicing Agreement.
(f) No provision of this Indenture or the related Series Supplement
shall require the Trustee or the Trust Collateral Agent, if any, 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 repayment of such funds or
indemnity reasonably satisfactory to it against such risk or liability is not
reasonably assured to it.
(g) Every provision of this Indenture and the related Series
Supplement relating to the conduct or affecting the liability of or affording
protection to the Trustee or the Trust Collateral Agent, if any, shall be
subject to the provisions of this Section and to the provisions of the TIA.
(h) The Trustee or the Trust Collateral Agent, if any, shall, upon
reasonable prior written notice to the Trustee or the Trust Collateral Agent, if
any, as the case may be, permit any representative of the related Series Secured
Parties, during the Trustee's or such Trust Collateral Agent, if any, as the
case may be, normal business hours, to examine all books of account, records,
reports and other papers of the Trustee or the Trust Collateral Agent, if any,
as the case may be, required to be maintained pursuant to this Indenture and the
Master Sale and Servicing Agreement, relating to the Notes or any Series Trust
Estate, to make copies and extracts therefrom and to discuss the Trustee's or
such Trust Collateral Agent's affairs and actions, as such affairs and actions
relate to the Trustee's or such Trust Collateral
43
Agent's duties with respect to the Notes or any Series Trust Estate, with the
Trustee's or such Trust Collateral Agent's officers and employees responsible
for carrying out the Trustee's or such Trust Collateral Agent's duties with
respect to the Notes.
(i) Each of the Trustee and the Trust Collateral Agent, if any, shall,
and hereby agrees that it will, perform all of the obligations and duties
required of it under the Master Sale and Servicing Agreement.
(j) The Trustee shall, and hereby agrees that it will, hold the
related Series Support in trust, and will hold any proceeds of any claim on the
related Series Support in trust solely for the use and benefit of the
Noteholders.
(k) Without limiting the generality of this Section 6.1, the Trustee
shall have no duty (i) to see to any recording, filing or depositing of this
Indenture, any Series Supplement or any agreement referred to herein or any
financing statement evidencing a security interest in the Financed Vehicles, or
to see to the maintenance of any such recording or filing or depositing or to
any recording, refiling or redepositing of any thereof, (ii) to see to any
insurance of the Financed Vehicles or Obligors or to effect or maintain any such
insurance, (iii) to see to the payment or discharge of any tax, assessment or
other governmental charge or any Lien or encumbrance of any kind owing with
respect to, assessed or levied against any part of the Trust, (iv) to confirm or
verify the contents of any reports or certificates delivered to the Trustee
pursuant to this Indenture, any Series Supplement or the Master Sale and
Servicing Agreement believed by the Trustee to be genuine and to have been
signed or presented by the proper party or parties, or (v) to inspect the
Financed Vehicles at any time or ascertain or inquire as to the performance of
observance of any of the Issuer's, the Seller's or the Master Servicer's
representations, warranties or covenants or the Master Servicer's duties and
obligations as Master Servicer and as custodian of the Receivable Files under
the Master Sale and Servicing Agreement.
(l) In no event shall The Chase Manhattan Bank, in any of its
capacities hereunder, be deemed to have assumed any duties of the Owner Trustee
under the Delaware Business Trust Statute, common law, or the Trust Agreement.
Rights of Trustee and the Trust Collateral Agent.
(a) The Trustee and the Trust Collateral Agent, if any, may rely on
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee and the Trust Collateral Agent, if any, need
not investigate any fact or matter stated in the document.
(b) Before the Trustee or the Trust Collateral Agent, if any, acts or
refrains from acting, it may require an Officer's Certificate or an Opinion of
Counsel. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on the Officer's Certificate
44
or Opinion of Counsel.
(c) The Trustee or the Trust Collateral Agent, if any, 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
Trustee or the Trust Collateral Agent, if any, shall not be responsible for any
misconduct or negligence on the part of, or for the supervision of the Master
Servicer or any other agent, attorney, custodian or nominee appointed with due
care by it hereunder.
(d) The Trustee or the Trust Collateral Agent, if any, 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
Trustee's or the Trust Collateral Agent's conduct does not constitute willful
misconduct, negligence or bad faith.
(e) The Trustee and the Trust Collateral Agent, if any, may consult
with counsel, and the advice or opinion of counsel with respect to legal matters
relating to this Indenture, the Basic Documents, any Series Supplement, any
Series Related Documents and the Notes shall be full and complete authorization
and protection from liability in respect to any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) The Trustee and the Trust Collateral Agent, if any, shall be under
no obligation to institute, conduct or defend any litigation under this
Indenture or any Series Supplement or in relation to this Indenture or any
Series Supplement, at the request, order or direction of any of the Holders of
Notes, pursuant to the provisions of this Indenture or any Series Supplement,
unless such Holders of Notes shall have offered to the Trustee and the Trust
Collateral Agent reasonable security or indemnity against the costs, expenses
and liabilities that may be incurred therein or thereby; provided, however, that
the Trustee and the Trust Collateral Agent, if any, shall, upon the occurrence
of an Event of Default (that has not been cured), exercise the rights and powers
vested in it by this Indenture and any Series Supplement with reasonable care
and skill customary for the care and skill exercised by trustees under similar
circumstances.
(g) The Trustee and the Trust Collateral Agent, if any, shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by the related Series Support Provider; provided,
however, that if the payment within a reasonable time to the Trustee and the
Trust Collateral Agent, if any, of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee or the Trust Collateral Agent, if any, not reasonably assured to the
Trustee or the Trust Collateral Agent by the security afforded to it by the
terms of this Indenture, any Series Supplement or the Master Sale and Servicing
Agreement, the Trustee or the Trust Collateral Agent, if any, may require
indemnity reasonably satisfactory to it against such cost, expense or liability
as a condition to so proceeding; the reasonable expense of every such
examination shall be paid by the Person making such request, or, if paid by the
Trustee or
45
the Trust Collateral Agent, if any, shall be reimbursed by the Person
making such request upon demand.
Individual Rights of Trustee. The Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Issuer or its Affiliates with the same rights it would have if
it were not Trustee. Any Note Paying Agent, Note Registrar, co-registrar or
co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 6.11 and 6.12.
Trustee's Disclaimer. Each of the Trustee and the Trust Collateral
Agent, if any, shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture, any Series Supplement, the
related Series Trust Estate or the Notes, it shall not be accountable for the
Issuer's use of the proceeds from the Notes, and it shall not be responsible
for any statement of the Issuer in the Indenture, in any Series Supplement or
in any document issued in connection with the sale of the Notes or in the
Notes other than the Trustee's certificate of authentication.
Notice of Defaults. If an Event of Default occurs and is continuing
and if it is either known by, or written notice of the existence thereof has
been delivered to, a Responsible Officer of the Trustee, the Trustee shall
mail to each Noteholder notice of the Default within 90 days after such
knowledge or notice occurs. Except in the case of a Default in payment of
principal of or interest on any Note, the 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.
Reports by Trustee to Holders. Upon written request, the Note
Paying Agent or the Master Servicer shall on behalf of the Issuer deliver to
each Noteholder such information as may be reasonably required to enable such
Holder to prepare its Federal and state income tax returns required by law.
Compensation and Indemnity.
(a) As payable in each Series Supplement, the Issuer shall, or shall
cause the Master Servicer to, pay to the Trustee and the Trust Collateral Agent,
if any, from time to time the Trustee Fee as compensation for its services. The
Trustee's and such Trust Collateral Agent's compensation shall not be limited by
any law on compensation of a trustee of an express
46
trust. The Issuer shall or shall cause the Master Servicer to reimburse the
Trustee and the Trust Collateral Agent, if any, 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 Trustee's and such
Trust Collateral Agent's agents, outside counsel, accountants and experts. The
Issuer shall or shall cause the Master Servicer to indemnify the Trustee, the
Trust Collateral Agent, if any, and their respective officers, directors,
employees and agents against any and all loss, liability or expense (including
attorneys' fees and expenses) incurred by each of them in connection with the
acceptance or the administration of this trust and the performance of its duties
hereunder. The Trustee or the Trust Collateral Agent, if any, shall notify the
Issuer and the Master Servicer promptly of any claim for which it may seek
indemnity. Failure by the Trustee or the Trust Collateral Agent, if any, to so
notify the Issuer and the Master Servicer shall not relieve the Issuer of its
obligations hereunder or the Master Servicer of its obligations under Article
XII of the Master Sale and Servicing Agreement. The Issuer shall defend or shall
cause the Master Servicer to defend any claim for indemnity that may arise
against the Trustee and the Trust Collateral Agent, if any, or the Trustee or
the Trust Collateral Agent, if any, may have separate counsel and the Issuer
shall or shall cause the Master Servicer to pay the fees and expenses of such
counsel. Neither the Issuer nor the Master Servicer need reimburse any expense
or indemnify against any loss, liability or expense incurred by the Trustee or
the Trust Collateral Agent, if any, through such Person's own willful
misconduct, negligence or bad faith.
(b) The Issuer's payment obligations to the Trustee pursuant to this
Section shall survive the discharge of this Indenture. When the Trustee incurs
expenses after the occurrence of an Insolvency Event with respect to the Issuer,
the expenses are intended to constitute expenses of administration under Title
11 of the United States Code or any other applicable federal or state
bankruptcy, insolvency or similar law. Notwithstanding anything else set forth
in this Indenture, the Basic Documents, any Series Supplement or any Series
Related Documents, the Trustee agrees that the obligations of the Issuer (but
not the Master Servicer) to the Trustee hereunder and under any Series
Supplement or any Series Related Documents, shall be recourse to the related
Series Trust Estate only and specifically shall not be recourse to the assets of
the Issuer or any Securityholder. In addition, the Trustee agrees that its
recourse to the Issuer, the related Series Trust Estate, the Seller and amounts
held pursuant to the related Series Support shall be limited to the right to
receive the distributions as provided for in the payment priority provisions of
the related Series Supplement.
Replacement of Trustee. The Trustee may, and in the circumstances
specified in subparagraph (i) shall, resign at any time upon 60 days' prior
written notice by so notifying the Issuer. Holders of a majority of
Outstanding Amount of the Notes and the Master Servicer may remove the
Trustee by so notifying the Trustee upon 60 days' written notice. The Issuer
may and, at the request of the Noteholders shall, remove the Trustee, if:
47
(i) the Trustee fails to comply with Section 6.11;
(ii) a court having jurisdiction in the premises in respect of
the Trustee in an involuntary case or proceeding under federal or
state banking or bankruptcy laws, as now or hereafter constituted, or
any other applicable federal or state bankruptcy, insolvency or other
similar law, shall have entered a decree or order granting relief or
appointing a receiver, liquidator, assignee, custodian, trustee,
conservator, sequestrator (or similar official) for the Trustee or for
any substantial part of the Trustee's property, or ordering the
winding-up or liquidation of the Trustee's affairs;
(iii) an involuntary case under the federal bankruptcy laws, as
now or hereafter in effect, or another present or future federal or
state bankruptcy, insolvency or similar law is commenced with respect
to the Trustee and such case is not dismissed within 60 days;
(iv) the Trustee commences a voluntary case under any federal or
state banking or bankruptcy laws, as now or hereafter constituted, or
any other applicable federal or state bankruptcy, insolvency or other
similar law, or consents to the appointment of or taking possession by
a receiver, liquidator, assignee, custodian, trustee, conservator,
sequestrator (or other similar official) for the Trustee or for any
substantial part of the Trustee's property, or makes any assignment
for the benefit of creditors or fails generally to pay its debts as
such debts become due or takes any corporate action in furtherance of
any of the foregoing;
(v) the Trustee otherwise becomes incapable of acting; or
(vi) the rating assigned to the long-term unsecured debt
obligations of the Trustee by the Rating Agencies shall be lowered
below the rating of "BBB", "Baa3" or equivalent rating or be withdrawn
by either of the Rating Agencies.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Issuer shall promptly deliver a notice of
such removal, resignation or vacancy to the Series Secured Parties and the
Master Servicer may appoint a successor Trustee. If the Master Servicer fails to
appoint such a successor Trustee, the Issuer may appoint a successor Trustee. If
the Trustee resigns or is removed, the Trustee shall also resign or be removed,
as the case may be, as Trust Collateral Agent and Certificate Paying Agent.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee, the Series Secured Parties and to the
Issuer. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the retiring Trustee under this Indenture and each Series
Supplement subject to satisfaction of the Rating Agency Condition. The successor
Trustee shall mail a notice of its succession to Noteholders. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee.
48
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Issuer may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 6.11, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor Trustee
pursuant to Section 6.8.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Issuer's and the Master Servicer's obligations under Section 6.7
shall continue for the benefit of the retiring Trustee.
Successor Trustee by Merger. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation or banking association, the
resulting, surviving or transferee entity without any further act shall be
the successor Trustee; provided that such corporation or banking association
shall otherwise be eligible under Section 6.11 hereof. The Trustee shall
provide the Rating Agencies with written notice of any such transaction as
soon as practical thereafter and the Series Secured Parties.
In case at the time such successor or successors by merger, conversion
or consolidation to the 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 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 Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Trustee shall have.
Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust may at the time be located, the 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 related Series Trust Estate, and to vest in
such Person or Persons, in such capacity and for the benefit of the
49
Noteholders, such title to the related Series Trust Estate, or any part hereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the 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 hereof.
(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 Trustee shall be conferred or imposed upon and
exercised or performed by the 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 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 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 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
Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder, including acts or
omissions of predecessor or successor trustees; and
(iii) the 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 Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VI. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the 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 Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
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
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, dissolve, become insolvent, 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 Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
50
Eligibility: Disqualification. The Trustee shall at all times:
satisfy TIA Section 310(a), 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 have a long-term debt rating of at ▇▇▇▇▇ "▇▇▇", "▇▇▇▇" or
equivalent rating from each of the Rating Agencies. The Trustee shall provide
copies of such reports of condition to the related Series Secured Parties
upon request. The Trustee shall comply with TIA Section 310(b), including the
optional provision permitted by the second sentence of TIA Section 310(b)(9);
provided, however, that there shall be excluded from the operation of TIA
Section 310(b)(1) any indenture or indentures under which other securities of
the Issuer are outstanding if the requirements for such exclusion set forth
in TIA Section 310(b)(1) are met.
Preferential Collection of Claims Against Issuer. The Trustee shall
comply with TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 311(b). A Trustee who has resigned or been removed shall be
subject to TIA Section 311(a) to the extent indicated.
Appointment and Powers. Subject to the terms and conditions hereof,
to the extent provided in a Series Supplement, each of the Series Secured
Parties under such Series Supplement appoints The Chase Manhattan Bank as the
Trustee or Trust Collateral Agent, as the case may be, with respect to the
Collateral specifically pledged to such Series, and The Chase Manhattan Bank
accepts such appointment and agrees to act as Trustee or Trust Collateral
Agent, as the case may be, with respect to each Series Trust Estate for such
Series Secured Parties, to maintain custody and possession of each Series
Trust Estate (except as otherwise provided hereunder) and to perform the
other duties of the Trustee or Trust Collateral Agent, as the case may be, in
accordance with the provisions of this Indenture, the other Basic Documents
any Series Supplement and any Series Related Documents. The Trustee or Trust
Collateral Agent, as the case may be, is authorized to take such action on
its behalf, and to exercise such rights, remedies, powers and privileges with
respect to each such Series Trust Estate, as the Series Secured Parties may
direct and as are specifically authorized to be exercised by the Trustee or
Trust Collateral Agent, as the case may be, by the terms hereof, together
with such actions, rights, remedies, powers and privileges as are reasonably
incidental thereto. The Trustee or Trust Collateral Agent, as applicable,
shall act upon and in compliance with the written instructions of the Series
Secured Parties delivered pursuant to this Indenture or the related Series
Supplement promptly following receipt of such written instructions; provided
that the Trustee or Trust Collateral Agent, as applicable, shall not act in
accordance with any instructions (i) which are not authorized by, or in
violation of the provisions of, this Indenture or the related Series
Supplement or (ii) for which the Trustee or Trust Collateral Agent, as
applicable, has not received reasonable indemnity. Receipt of such
instructions shall not be a condition to the exercise by the Trustee or Trust
51
ateral Agent, as applicable, of its express duties hereunder, except where
this Indenture or the related Series Supplement provides that the Trustee or
Trust Collateral Agent, as applicable, is permitted to act only following and in
accordance with such instructions.
Performance of Duties. The Trust Collateral Agent, if any, shall
have no duties or responsibilities except those expressly set forth in this
Indenture, the other Basic Documents, any Series Supplement and any Series
Related Documents to which the Trust Collateral Agent, if any, is a party or
as directed by the Noteholders in accordance with this Indenture or the
related Series Supplement. The Trust Collateral Agent, if any, shall not be
required to take any discretionary actions hereunder except at the written
direction and with the indemnification of the Noteholders. The Trust
Collateral Agent, if any, shall, and hereby agrees that it will, perform all
of the duties and obligations required of it under the Master Sale and
Servicing Agreement.
Limitation on Liability. Neither the Trust Collateral Agent, if
any, nor any of its directors, officers, employees and agents shall be liable
for any action taken or omitted to be taken by it or them hereunder, or in
connection herewith, except that the Trust Collateral Agent, if any, shall be
liable for its negligence, bad faith or willful misconduct; nor shall the
Trust Collateral Agent, if any, be responsible for the validity,
effectiveness, value, sufficiency or enforceability against the Issuer of
this Indenture, any Series Supplement or any Series Trust Estate (or any part
thereof). Notwithstanding any term or provision of this Indenture, or any
Series Supplement, the Trust Collateral Agent, if any, shall incur no
liability to the Issuer or the Series Secured Parties for any action taken or
omitted by the Trust Collateral Agent, if any, in connection with any Series
Trust Estate, except for the negligence, bad faith or willful misconduct on
the part of the Trust Collateral Agent, if any, and, further, shall incur no
liability to the related Series Secured Parties except for negligence, bad
faith or willful misconduct in carrying out its duties to the related Series
Secured Parties. Subject to Section 6.16, the Trust Collateral Agent, if any,
shall be protected and shall incur no liability to any such party in
conclusively relying upon the accuracy, acting in reliance upon the contents,
and assuming the genuineness of any notice, demand, certificate, signature,
instrument or other document reasonably believed by the Trust Collateral
Agent, if any, to be genuine and to have been duly executed by the
appropriate signatory, and (absent actual knowledge to the contrary) the
Trust Collateral Agent, if any, shall not be required to make any independent
investigation with respect thereto. The Trust Collateral Agent, if any, shall
at all times be free independently to establish to its reasonable
satisfaction, but shall have no duty to independently verify, the existence
or nonexistence of facts that are a condition to the exercise or enforcement
of any right or remedy hereunder, or under any of the Basic Documents under
any Series Supplement or any Series Related Documents. The Trust Collateral
Agent, if any, may consult with counsel, and shall not be liable for any
action taken or omitted to be taken by
52
it hereunder in good faith and in accordance with the advice of such
counsel. The Trust Collateral Agent, if any, shall not be under any obligation
to exercise any of the remedial rights or powers vested in it by this Indenture
and any Series Supplement or to follow any direction from Noteholders unless it
shall have received security or indemnity satisfactory to the Trust Collateral
Agent, if any, against the costs, expenses and liabilities which might be
incurred by it.
Reliance Upon Documents. In the absence of negligence, bad faith or
willful misconduct on its part, the Trust Collateral Agent, if any, shall be
entitled to rely on any communication, instrument, paper or other document
reasonably believed by it to be genuine and correct and to have been signed
or sent by the proper Person or Persons and shall have no liability in
acting, or omitting to act, where such action or omission to act is in
reasonable reliance upon any statement or opinion contained in any such
document or instrument.
Successor Trust Collateral Agent.
(a) Merger. Any Person into which the Trust Collateral Agent may be
converted or merged, or with which it may be consolidated, or to which it may
sell or transfer its trust business and assets as a whole or substantially as a
whole, or any Person resulting from any such conversion, merger, consolidation,
sale or transfer to which the Trust Collateral Agent is a party, shall (provided
it is otherwise qualified to serve as the Trust Collateral Agent hereunder) be
and become a successor Trust Collateral Agent hereunder and be vested with all
of the title to and interest in each Series Trust Estate and all of the trusts,
powers, discretions, immunities, privileges and other matters as was its
predecessor without the execution or filing of any instrument or any further
act, deed or conveyance on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, except to the extent, if any, that any
such action is necessary to perfect, or continue the perfection of, the security
interest of the related Series Secured Parties in the related Series Trust
Estate; provided that any such successor shall also be the successor Trustee
under Section 6.9.
(b) Resignation. The Trust Collateral Agent, if any, and any successor
Trust Collateral Agent may resign under this Indenture at any time upon 60 days'
prior written notice with the prior written consent of the Issuer; provided that
the Trust Collateral Agent shall not so resign unless it shall also resign as
Trustee hereunder; provided, however, that such resignation shall not be
effective until a Successor Trust Collateral Agent shall have accepted
appointment as Successor Trust Collateral Agent.
(c) Removal. The Trust Collateral Agent, if any, may be removed by the
Master Servicer at any time (and should be removed at any time that the Trustee
has been removed), with or without cause, by an instrument or concurrent
instruments in writing delivered to the Trust Collateral Agent, if any, each
Series Secured Party, the Issuer or the Master Servicer, as applicable. A
temporary successor may be removed at any time to allow a
53
successor Trust Collateral Agent to be appointed pursuant to subsection (d)
below. Any removal pursuant to the provisions of this subsection (c) shall take
effect only upon the date which is the latest of (i) the effective date of the
appointment of a successor Trust Collateral Agent and the acceptance in writing
by such successor Trust Collateral Agent of such appointment and of its
obligation to perform its duties hereunder in accordance with the provisions
hereof, and (ii) receipt of an Opinion of Counsel to the effect described in
Section 3.6.
(d) Acceptance by Successor. The Master Servicer shall have the sole
right to appoint each successor Trust Collateral Agent. Every temporary or
permanent successor Trust Collateral Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Trustee, each Series
Secured Party, Master Servicer and the Issuer an instrument in writing accepting
such appointment hereunder and the relevant predecessor shall execute,
acknowledge and deliver such other documents and instruments as will effectuate
the delivery of each Series Trust Estate to the successor Trust Collateral
Agent, whereupon such successor, without any further act, deed or conveyance,
shall become fully vested with all the estates, properties, rights, powers,
duties and obligations of its predecessor. Such predecessor shall, nevertheless,
on the written request of the Series Secured Parties or the Issuer, execute and
deliver an instrument transferring to such successor all the related estates,
properties, rights and powers of such predecessor hereunder. In the event that
any instrument in writing from the Issuer or the Series Secured Parties is
reasonably required by a successor Trust Collateral Agent to more fully and
certainly vest in such successor the related estates, properties, rights,
powers, duties and obligations vested or intended to be vested hereunder in the
Trust Collateral Agent, any and all such written instruments shall, at the
request of the temporary or permanent successor Trust Collateral Agent, be
forthwith executed, acknowledged and delivered by the Trustee or the Issuer, as
the case may be. The designation of any successor Trust Collateral Agent and the
instrument or instruments removing any Trust Collateral Agent and appointing a
successor hereunder, together with all other instruments provided for herein,
shall be maintained with the records relating to each Series Trust Estate and,
to the extent required by applicable law, filed or recorded by the successor
Trust Collateral Agent in each place where such filing or recording is necessary
to effect the transfer of each Series Trust Estate to the successor Trust
Collateral Agent or to protect or continue the perfection of the security
interests granted hereunder.
Compensation. The Trust Collateral Agent, if any, shall not be
entitled to any compensation for the performance of its duties hereunder
other than the Trustee Fee it is entitled to receive in its capacity as
Trustee.
Representations and Warranties of the Trustee and the Trust
Collateral Agent. Each of the Trust Collateral Agent, if any, and the Trustee
represents and
54
warrants to the Issuer and to each Series Secured Party as follows:
(a) Due Organization. The Trustee and the Trust Collateral Agent, if
any, is a national banking association, duly organized, validly existing and in
good standing under the laws of the United States and is duly authorized and
licensed under applicable law to conduct its business as presently conducted.
(b) Corporate Power. The Trustee and the Trust Collateral Agent, if
any, has all requisite right, power and authority to execute and deliver this
Indenture and each Series Supplement and to perform all of its duties as the
Trustee or Trust Collateral Agent, as the case may be, hereunder.
(c) Due Authorization. The execution and delivery by the Trust
Collateral Agent, if any, and the Trustee of this Indenture, each Series
Supplement and the other Series Related Transaction Documents to which it is a
party, and the performance by the Trust Collateral Agent and the Trustee of its
duties hereunder and thereunder, have been duly authorized by all necessary
corporate proceedings which are required for the valid execution and delivery by
the Trust Collateral Agent, if any, or the Trustee, or the performance by the
Trust Collateral Agent, if any, or the Trustee, of this Indenture, each Series
Supplement and such other Series Related Documents.
(d) Valid and Binding Indenture. Each of the Trustee and the Trust
Collateral Agent, if any, has duly executed and delivered this Indenture, each
Series Supplement, each other Basic Document and each Series Related Document to
which it is a party, and each of this Indenture, any Series Supplement, each
other Basic Document and each other Series Related Document constitutes the
legal, valid and binding obligation of the Trustee and the Trust Collateral
Agent, if any, enforceable against the Trustee and the Trust Collateral Agent,
if any, in accordance with its terms, except as (i) such enforceability may be
limited by bankruptcy, insolvency, reorganization and similar laws relating to
or affecting the enforcement of creditors' rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles of
general applicability.
Waiver of Setoffs. The Trustee and the Trust Collateral Agent, if
any, hereby expressly waives any and all rights of setoff that the Trustee or
the Trust Collateral Agent, if any, may otherwise at any time have under
applicable law with respect to any Trust Account and Series Trust Account and
agrees that amounts in the Trust Accounts and Series Trust Accounts shall at
all times be held and applied solely in accordance with the provisions hereof.
ARTICLE VII.
Noteholders' Lists and Reports
55
Issuer To Furnish To Trustee Names and Addresses of Noteholders.
The Issuer will furnish or cause to be furnished to the Trustee with respect
to each Series of Notes (a) not more than five days after the earlier of (i)
each Record Date with respect to such Series and (ii) three months after the
last Record Date, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders with respect to such Series as of
such Record Date, (b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than 10 days prior to
the time such list is furnished; provided, however, that so long as the
Trustee is the Note Registrar, no such list shall be required to be
furnished. The Trustee or, if the Trustee is not the Note Registrar, the
Issuer shall furnish to the related Series Support Provider in writing upon
their written request and at such other times as the related Series Support
Provider may request a copy of the list with respect to the related Series.
Preservation of Information; Communications to Noteholders. The
Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of the Holders contained in the most recent list
furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Note
Registrar. The Trustee may destroy any list furnished to it as provided in
such Section 7.1 upon receipt of a new list so furnished.
(a) Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or under
the Notes.
(b) The Issuer, the Trustee and the Note Registrar shall have the
protection of TIA Section 312(c).
Reports by Issuer.
If this Indenture is qualified under the TIA, the Issuer shall:
(i) file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual
reports and copies of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the Issuer
may be required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act;
(ii) file with the Trustee and the Commission in accordance with
rules and regulations prescribed from time to time by the Commission
such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to the Trustee (and the Trustee shall transmit by
mail to all Noteholders described in TIA Section 313(c)) such
summaries of any information, documents and reports required to be
filed by the Issuer pursuant to clauses (i) and (ii) of this
Section 7.3(a) as may be required by rules and
56
regulations prescribed from time to time by the Commission.
(a) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
(a) The Trustee shall not have any duty or obligation with respect to
any reports or other information delivered to it pursuant to this Section 7.3.
Reports by Trustee. If required by TIA Section 313(a), within 60
days after each March 31 beginning with March 31, 1999 the Trustee shall mail
to each Noteholder as required by TIA Section 313(c) a brief report dated as
of such date that complies with TIA Section 313(a). The Trustee also shall
comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Noteholders
shall be filed by the Trustee with the Commission and each stock exchange, if
any, on which the Notes are listed. The Issuer shall notify the Trustee if
and when the Notes are listed on any stock exchange.
ARTICLE VIII.
Accounts, Disbursements and Releases
Collection of Money. Except as otherwise expressly provided herein,
the 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
Trustee or the Trust Collateral Agent, if any, pursuant to this Indenture and
the Master Sale and Servicing Agreement. The Trustee shall apply all such
money received by it, or cause the Trust Collateral Agent, if any, to apply
all money received by it as provided in this Indenture and the respective
Series Supplements. Except as otherwise expressly provided in this Indenture
or in the Master Sale 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 related Series Trust Estate, the Trustee may take such action
as may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate proceedings. Any such action shall
be without prejudice to any right to claim a Default or Event of Default
under this Indenture and any right to proceed thereafter as provided in
Article V.
Release of Trust Property.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.7, the Trustee or the
57
Trust Collateral Agent, if any, may, and when required by the Issuer and the
provisions of this Indenture shall, execute instruments to release property from
the lien of this Indenture, in a manner and under circumstances that are not
inconsistent with the provisions of this Indenture. No party relying upon an
instrument executed by the Trustee or the Trust Collateral Agent, if any, as
provided in this Article VIII shall be bound to ascertain the Trustee's or such
Trust Collateral Agent's authority, inquire into the satisfaction of any
conditions precedent or see to the application of any monies.
(b) The Trustee or the Trust Collateral Agent, if any, shall, at
such time as there are no Notes outstanding and all sums due the Trustee
pursuant to Section 6.7 have been paid, release any remaining portion of the
related Series Trust Estate that secured the Notes from the lien of this
Indenture and release to the Issuer or any other Person entitled thereto any
funds then on deposit in the Trust Accounts. The Trustee shall release
property from the lien of this Indenture pursuant to this Section 8.2(b) only
upon receipt of an Issuer Request accompanied by an Officer's Certificate, an
Opinion of Counsel and (if required by the TIA) Independent Certificates in
accordance with TIA Sections 314(c) and 314(d)(1) meeting the applicable
requirements of Section 11.1.
Opinion of Counsel. The Trustee or the Trust Collateral Agent, if
any, shall receive at least seven days' notice when requested by the Issuer
to take any action pursuant to Section 8.2(a), accompanied by copies of any
instruments involved, and the Trustee shall also require as a condition to
such action, an Opinion of Counsel, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding
that all conditions precedent to the taking of such action have been complied
with and such action will not materially and adversely impair the security
for the Notes or the rights of the Noteholders in contravention of 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
related Series 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 Trustee in connection with
any such action.
ARTICLE IX.
Amendments; Series Supplements
Amendments Without Consent of Noteholders.
(a) Except as otherwise provided in the Series Supplement, without the
consent of the Holders of any Notes but with prior written notice to the Rating
Agencies, as evidenced to the Trustee and the Issuer, when authorized by an
Issuer Order, at any time and from time to time, may enter into one or more
Amendments hereto, in form satisfactory to the Trustee, for any of the following
purposes:
58
(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 Trustee or the Trust Collateral Agent, if
any, any property subject or required to be subjected to the lien of
this Indenture, or to subject to the lien of this Indenture additional
property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein
and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit of
the Holders of the Notes, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property
to or with the Trustee or the Trust Collateral Agent, if any;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any Series Supplement which may be inconsistent with any
other provision herein or in any Series Supplement or to make any
other provisions with respect to matters or questions arising under
this Indenture or in any Series Supplement; provided that such action
shall not adversely affect the interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes
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.
The Trustee is hereby authorized to join in the execution of any
amendment and to make any further appropriate agreements and stipulations that
may be therein contained.
(b) Except as otherwise provided in the Series Supplement, the Issuer
and the Trustee, when authorized by an Issuer Order, may, also without the
consent of any of the Holders of the Notes but with prior notice to the Rating
Agencies by the Issuer, as evidenced to the Trustee, enter into an amendment
hereto for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Holders of the Notes under this Indenture; 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.
Amendments With Consent of Noteholders. Except as otherwise
provided in a Series Supplement, the Issuer and the
59
Trustee, when authorized by an Issuer Order provided by the Master Servicer,
also may, upon satisfaction of the Rating Agency Condition and with the consent
of the Holders of not less than a majority of the Outstanding Amount of the
Notes, by Act of such Holders delivered to the Issuer and the Trustee, enter
into an amendment hereto for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this Indenture
or of modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however, that no such amendment shall, without the consent
of the Holder of each Outstanding Note affected thereby:
(i) change the date of payment of any installment of principal of
or interest on any Note, or reduce the principal amount thereof, the
interest rate thereon, change the provision of this Indenture relating
to the application of collections on, or the proceeds of the sale of,
any Series Trust Estate to payment of principal of or interest on the
Notes, or change any place of payment where, or the coin or currency
in which, any Note or the interest thereon is payable;
(ii) impair the right to institute suit for the enforcement of
the provisions of this Indenture requiring the application of funds
available therefor, as provided in Article V, to the payment of any
such amount due on the Notes on or after the respective due dates
thereof;
(iii) reduce the percentage of the Outstanding Amount of the
Notes, the consent of the Holders of which is required for any such
Series Supplement, or the consent of the Holders of which is required
for any waiver of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences provided for in
this Indenture;
(iv) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(v) reduce the percentage of the Outstanding Amount of the Notes
required to direct the Trustee to direct the Issuer to sell or
liquidate any Series Trust Estate pursuant to Section 5.4;
(vi) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture or the Basic Documents cannot be modified
or waived without the consent of the Holder of each Outstanding Note
affected thereby;
(vii) 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 to affect the rights of the Holders of Notes to the
benefit of any provisions for the mandatory redemption of the Notes
contained in the related Series Supplement; or
60
(viii) 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
a Series Trust Estate or, except as otherwise permitted or
contemplated herein or in the related Series Supplement or the related
Series related Documents, terminate the lien of this Indenture on any
property at any time subject hereto or deprive the Holder of any Note
of the security provided by the lien of this Indenture.
Except as otherwise provided in a Series Supplement, the Trustee may
determine whether or not any Notes would be adversely affected by any amendment
upon receipt of an Opinion of Counsel to that effect and any such determination
shall be conclusive upon the Holders of all Notes, whether theretofore or
thereafter authenticated and delivered hereunder. The Trustee shall not be
liable for any such determination made in good faith.
It shall not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed Series Supplement, but it
shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
Series Supplement pursuant to this Section, the Trustee shall mail to the
Holders of the Notes to which such Series Supplement relates a notice setting
forth in general terms the substance of such Series Supplement. Any failure of
the Trustee to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such Series Supplement.
Supplements Authorizing a Series of Notes.
(a) Each Series of Notes issued hereunder shall be issued pursuant to
a Series Supplement, which shall set forth the terms and provisions of such
Series.
(b) Amendments to Series Supplements shall be governed by the
provisions of the relevant Series Supplement. The Trustee may conclusively rely
on an Opinion of Counsel as to which Series Supplements relate to which Series,
or to this Indenture (and thus all Series) as a whole.
Execution of Series Supplements. In executing, or permitting the
additional trusts created by, any Series Supplement permitted by this Article
IX or the modifications thereby of the trusts created by this Indenture, the
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 (and, if
requested, an Officer's Certificate) stating that the execution of such
Series Supplement is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such Series Supplement
that affects the Trustee's own rights, duties, liabilities or
61
immunities under this Indenture or otherwise.
Effect of Series Supplement. Upon the execution of any Series
Supplement or Amendment pursuant to the provisions of such Series Supplement
or 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 Trustee, the Issuer and the
Holders of the Notes shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and
all the terms and conditions of any such Series Supplement or Amendment shall
be and be deemed to be part of the terms and conditions of this Indenture for
any and all purposes.
Conformity With Trust Indenture Act. Every amendment of this
Indenture and every Series Supplement executed pursuant to this Article IX
shall conform to the requirements of the Trust Indenture Act as then in
effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
Reference in Notes to Series Supplements. Notes authenticated and
delivered after the execution of any Series Supplement pursuant to this
Article IX may, and if required by the Issuer shall, bear a notation as to
any matter provided for in such Series Supplement. If the Issuer shall so
determine, new Notes so modified as to conform, in the opinion of the Issuer,
to any such Series Supplement may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
ARTICLE X.
Reserved
ARTICLE XI.
Miscellaneous
Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the Trustee or
the Trust Collateral Agent, if any, to take any action under any provision of
this Indenture or any Series Supplement, the Issuer shall furnish to the Trustee
or the Trust Collateral Agent, if any, as the case
62
may be, (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture or any Series Supplement relating to the
proposed action have been complied with, (ii) an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the applicable requirements of
this Section, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture or any Series Supplement, 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 or any Series Supplement
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 opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied with.
(b) Prior to the deposit of any property or securities with the
Trustee and the Trust Collateral Agent, if any, that is to be made the basis for
the release of any property or securities subject to the lien of this Indenture
and the related Series Supplement, the Issuer shall, in addition to any
obligation imposed in Section 11.1(a) or elsewhere in this Indenture or the
related Series Supplement, furnish to the Trustee or the Trust Collateral Agent,
if any, an Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days of such
deposit) to the Issuer of the property or securities to be so deposited.
(i) Whenever the Issuer is required to furnish to the Trustee or
the Trust Collateral Agent, if any, an Officer's Certificate
certifying or stating the opinion of any signer thereof as to the
matters described in clause (i) above, the Issuer shall also deliver
to the Trustee or the Trust Collateral Agent, if any, an Independent
Certificate as to the same matters, if the fair value to the Issuer of
the securities to be so deposited and of all other such securities
made the basis of any such withdrawal or release since the
commencement of the then-current fiscal year of the Issuer, as set
forth in the certificates delivered pursuant to clause (i) above and
this clause (ii), is 10% or more of the Outstanding Amount of the
Notes; provided, that such a certificate need not be furnished with
respect to any securities so
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deposited, if the fair value thereof to the Issuer as set forth in the
related Officer's Certificate is less than $25,000 or less than 1%
percent of the Outstanding Amount of the Notes.
(ii) Other than with respect to the release of any Repurchased
Receivables or Liquidated Receivables (as such terms are defined in
the Master Sale and Servicing Agreement), whenever any property or
securities are to be released from the lien of this Indenture and the
related Series Supplement, the Issuer shall also furnish to the
Trustee or the Trust Collateral Agent, if any, an Officer's
Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within 90 days of such release)
of the property or securities proposed to be released and stating that
in the opinion of such person the proposed release will not impair the
security under this Indenture and the related Series Supplement in
contravention of the provisions hereof.
(iii) Whenever the Issuer is required to furnish to the Trustee
an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (i) above, the
Issuer shall also furnish to the Trustee or the Trust Collateral
Agent, if any, an Independent Certificate as to the same matters if
the fair value of the property or securities and of all other property
other than Repurchased Receivables and Defaulted Receivables (as such
terms are defined in the Master Sale and Servicing Agreement), 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 (ii) above and this clause (iii),
equals 10% or more of the Outstanding Amount of the Notes; provided,
that 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 1
percent of the then Outstanding Amount of the Notes.
(iv) Notwithstanding Section 2.9 or any other provision of this
Section, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of Receivables as and to the extent permitted or required by
the Basic Documents and (B) make cash payments out of the Trust
Accounts as and to the extent permitted or required by the Basic
Documents.
Form of Documents Delivered to Trustee. In any case where several
matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the
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matters upon which his or her 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 Master Servicer, the Seller or
the Issuer, stating that the information with respect to such factual matters is
in the possession of the Master Servicer, the Seller or the Issuer, 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.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture or any Series Supplement, in connection
with any application or certificate or report to the Trustee, it is provided
that the Issuer shall deliver any document as a condition of the granting of
such application, or as evidence of the Issuer's compliance with any term
hereof, it is intended that the truth and accuracy, at the time of the granting
of such application or at the effective date of such certificate or report (as
the case may be), of the facts and opinions stated in such document shall in
such case be conditions precedent to the right of the Issuer to have such
application granted or to the sufficiency of such certificate or report. The
foregoing shall not, however, be construed to affect the Trustee's right to
conclusively rely upon the truth and accuracy of any statement or opinion
contained in any such document as provided in Article VI.
Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by 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 Trustee, and, where it is hereby expressly required, to the
Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.1) conclusive in
favor of the Trustee and the Issuer, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any customary manner of the Trustee.
(c) The ownership of Notes shall be proved by the Note Register.
65
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any 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
Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
Notices, etc., to Trustee, Issuer and Rating Agencies. Any request,
demand, authorization, direction, notice, consent, waiver or Act of
Noteholders or other documents provided or permitted by this Indenture or any
Series Supplement to be made upon, given or furnished to or filed with:
(a) The Trustee by any Noteholder or by the Issuer shall be sufficient
for every purpose hereunder if personally delivered, delivered by overnight
courier or mailed first-class and shall be deemed to have been duly given upon
receipt to the Trustee at its Corporate Trust Office, or
(b) The Issuer by the Trustee or by any Noteholder shall be sufficient
for every purpose hereunder if personally delivered, delivered by facsimile or
overnight courier or mailed first class, and shall deemed to have been duly
given upon receipt to the Issuer addressed to: Household Automobile Revolving
Trust I, in care of Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: Corporate Trust
Administration, or at any other address previously furnished in writing to the
Trustee by Issuer. The Issuer shall promptly transmit any notice received by it
from the Noteholders to the Trustee.
(c) The related Series Support Provider by the Issuer or the Trustee
shall be sufficient for any purpose hereunder if in writing and mailed by
first-class mail personally delivered or telexed or telecopied to the recipient
as follows:
Notices required to be given to the Rating Agencies by the Issuer, the
Trustee or the Owner Trustee shall be in writing, personally delivered,
delivered by overnight courier or first class or via facsimile to (i) in the
case of Moody's (in the event ▇▇▇▇▇'▇ is rating such Series), at the following
address: ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Fax No: (▇▇▇) ▇▇▇-▇▇▇▇ and (ii) in the case of S&P, at the following
address: Standard & Poor's Ratings Group (in the event Standard & Poor's is
rating such Series), ▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇), ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Asset Backed Surveillance Department, Fax No: (▇▇▇) ▇▇▇-▇▇▇▇; or as
to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
Notices to Noteholders; Waiver. Where this Indenture or any Series
Supplement provides for notice to Noteholders of any event, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class, postage prepaid to each
66
Noteholder affected by such event, at his address as it appears on the Note
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Noteholders is given by mail, neither the failure to mail such notice nor any
defect in any notice so mailed to any particular Noteholder shall affect the
sufficiency of such notice with respect to other Noteholders, and any notice
that is mailed in the manner herein provided shall conclusively be presumed to
have been duly given.
Where this Indenture or any Series Supplement 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 Trustee but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture or any Series Supplement provides for notice to
the Rating Agencies, failure to give such notice shall not affect any other
rights or obligations created hereunder, and shall not under any circumstance
constitute a Default or Event of Default.
Alternate Payment and Notice Provisions. Notwithstanding any
provision of this Indenture, any Series Supplement or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Trustee or any Note
Paying Agent to such Holder, that is different from the methods provided for
in this Indenture or the related Series Supplement for such payments or
notices, provided that such methods are reasonable and consented to by the
Trustee (which consent shall not be unreasonably withheld). The Issuer will
furnish to the Trustee a copy of each such agreement and the Trustee will
cause payments to be made and notices to be given in accordance with such
agreements.
Conflict with Trust Indenture Act. If this Indenture is qualified
under the Trust Indenture Act and 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 Trust Indenture Act, such
required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties
on any
67
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.
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.
Successors and Assigns. All covenants and agreements in this
Indenture and the Notes by the Issuer shall bind its successors and assigns,
whether so expressed or not. All agreements of the Trustee in this Indenture,
any Series Supplement shall bind its successors. All agreements of the Trust
Collateral Agent, if any, in this Indenture or any Series Supplement shall
bind its successors. All agreements of the Master Servicer in this Indenture
or any Series Supplement shall bind its successors and assigns.
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.
Benefits of Indenture. To the extent specified in the related
Series Supplement, the related Series Support Provider and its successors and
assigns shall be a third-party beneficiary to the provisions of this
Indenture and the related Series Supplement, and shall be entitled to rely
upon and directly to enforce such provisions of this Indenture so long as no
Support Default shall have occurred and be continuing. Nothing in this
Indenture or any Series Supplement or in the Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, and the Noteholders, and any other party secured hereunder, and
any other person with an ownership interest in any part of the related Series
Trust Estate, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Legal Holidays. In any case where the date on which any payment is
due shall not be a Business Day, then (notwithstanding any other provision of
the Notes, this Indenture or any Series Supplement) 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 an which nominally due, and no
interest shall accrue for the period from and after any such nominal date.
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GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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.
Recording of Indenture. If this Indenture or any Series Supplement
is subject to recording in any appropriate public recording offices, such
recording is to be effected by the Issuer and at its expense accompanied by
an Opinion of Counsel (which may be counsel to the Trust or any other counsel
reasonably acceptable to the 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 Trustee or the Trust Collateral Agent, if any, under this Indenture or
any Series Supplement.
Trust Obligation. No recourse may be taken, directly or indirectly,
with respect to the obligations of the Issuer, the Seller, the Master
Servicer, the Owner Trustee, the Trust Collateral Agent, if any, or the
Trustee on the Notes or under this Indenture or any Series Supplement or any
certificate or other writing delivered in connection herewith or therewith,
against (i) the Seller, the Master Servicer, the Trust Collateral Agent, if
any, the Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Seller, the
Master Servicer, the Trust Collateral Agent, if any, the Trustee or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in
the Issuer, the Seller, the Trust Collateral Agent, if any, the Master
Servicer, the Owner Trustee or the Trustee or of any successor or assign of
the Seller, the Master Servicer, the Trust Collateral Agent, if any, the
Trustee or the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed (it being understood that the Trustee, the
Trust Collateral Agent, if any, and the Owner Trustee have no such
obligations in their individual capacity) and except that any such owner or
beneficiary shall be fully liable, to the extent provided by applicable law,
for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all purposes
of this Indenture, in the performance of any duties or obligations of the
Issuer hereunder, the Owner Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Articles VI, VII and VIII of the
69
Trust Agreement.
No Petition. The Trustee and the Trust Collateral Agent, if any, by
entering into this Indenture, and each Noteholder, by accepting a Note,
hereby covenant and agree that they will not at any time institute against
the Seller, or the Issuer, or join in any institution against the Seller, or
the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States Federal
or state bankruptcy or similar law in connection with any obligations
relating to the Notes, this Indenture or any of the Basic Documents or any of
the Series Related Documents.
Inspection. The Issuer agrees that, on reasonable prior notice, it
will permit any representative of the Trustee or of the related Series
Support Provider, during the Issuer's normal business hours, to examine all
the books of account, records, reports, and other papers of the Issuer, to
make copies and extracts therefrom, to cause such books to be audited by
independent certified public accountants, and to discuss the Issuer's
affairs, finances and accounts with the Issuer's officers, employees, and
independent certified public accountants, all at such reasonable times and as
often as may be reasonably requested. The 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
Trustee may reasonably determine that such disclosure is consistent with its
Obligations hereunder.
Limitation of Liability. It is expressly understood and agreed by
the parties hereto that (a) this Agreement is executed and delivered by
Wilmington Trust Company, not individually or personally but solely as Owner
Trustee of the Issuer under the Trust Agreement, in the exercise of the
powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as personal representations, undertakings and
agreements by Wilmington Trust Company but is made and intended for the
purpose for binding only the Issuer, (c) nothing herein contained shall be
construed as creating any liability on Wilmington Trust Company individually
or personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties to
this Agreement and by any person claiming by, through or under them and (d)
under no circumstances shall Wilmington Trust Company be personally liable
for the payment of any indebtedness or expenses of the Issuer or be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaking by the Issuer under this Agreement or any
related documents.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the Issuer, the Master Servicer, the Trustee and
the Trust Collateral Agent have caused this Indenture to be duly executed by
their respective officers, hereunto duly authorized, all as of the day and year
first above written.
HOUSEHOLD AUTOMOBILE
REVOLVING TRUST I
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but solely as
Owner Trustee
By:
------------------------------
Name:
Title:
HOUSEHOLD FINANCE CORPORATION.
as Master Servicer
By:
------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Trustee and
Trust Collateral Agent
By:
------------------------------
Name:
Title:
[Signature Page for the Indenture]
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