Exhibit 4.1
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BMW VEHICLE LEASE TRUST 2000-A
[ ]% Asset Backed Notes, Class A-1
[ ]% Asset Backed Notes, Class A-2
[ ]% Asset Backed Notes, Class A-3
[ ]% Asset Backed Notes, Class A-4
THE CHASE MANHATTAN BANK,
as Indenture Trustee,
and
BMW VEHICLE LEASE TRUST 2000-A,
as Issuer
INDENTURE
Dated as of November 1, 2000
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TRUST INDENTURE ACT CROSS-REFERENCE CHART
(this chart is not a part of this Indenture)
TIA Section Indenture Reference
----------- -------------------
310(a)(1)..............................................................................................6.08, 6.11
310(a)(2)..............................................................................................6.11
310(a)(3)..............................................................................................6.10(b)
310(a)(4)..............................................................................................Not Applicable
310(a)(5)..............................................................................................6.11
310(b).................................................................................................6.11
310(c).................................................................................................Not Applicable
311(a).................................................................................................6.15
311(b).................................................................................................6.15
311(c).................................................................................................Not Applicable
312(a).................................................................................................7.01, 7.02(a)
312(b).................................................................................................7.02(b)
312(c).................................................................................................7.02(c)
313(a).................................................................................................7.03
313(b).................................................................................................7.03
313(c).................................................................................................7.03
313(d).................................................................................................7.03
314(a).................................................................................................3.09
314(b).................................................................................................3.06
314(c)(1)..............................................................................................11.01(a)
314(c)(2)..............................................................................................11.01(a)
314(c)(3)..............................................................................................Not Applicable
314(d).................................................................................................3.09(a), 8.06, 11.01(a)
314(e).................................................................................................11.01(a)
315(a).................................................................................................6.01(b)
315(b).................................................................................................6.05
315(c).................................................................................................6.01(a)
315(d).................................................................................................6.01(c)
315(d)(1)..............................................................................................6.01(b), 6.01(c)(i)
315(d)(2)..............................................................................................6.01(c)(ii)
315(d)(3)..............................................................................................6.01(c)(iii)
315(e).................................................................................................5.13
316(a).................................................................................................5.11; 5.12
316(a)(1)(A)...........................................................................................5.11
316(a)(1)(B)...........................................................................................5.12
316(a)(2)..............................................................................................Not Applicable
316(b).................................................................................................5.07
316(c).................................................................................................5.06(b)
317(a)(1)..............................................................................................5.03(a), 5.03(b)
317(a)(2)..............................................................................................5.03(d)
317(b).................................................................................................3.03
318(a).................................................................................................11.19
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS
Section 1.01 Definitions.............................................................................1
Section 1.02 Interpretive Provisions................................................................12
ARTICLE TWO
THE SENIOR NOTES
Section 2.01 Form...................................................................................13
Section 2.02 Execution, Authentication and Delivery.................................................13
Section 2.03 Temporary Senior Notes.................................................................14
Section 2.04 Registration; Registration of Transfer and Exchange....................................14
Section 2.05 Mutilated, Destroyed, Lost or Stolen Senior Notes......................................15
Section 2.06 Persons Deemed Owners..................................................................16
Section 2.07 Cancellation...........................................................................16
Section 2.08 Release of Collateral..................................................................17
Section 2.09 Book-Entry Notes.......................................................................17
Section 2.10 Notices to Clearing Agency.............................................................18
Section 2.11 Definitive Notes.......................................................................18
Section 2.12 Authenticating Agents..................................................................18
ARTICLE THREE
COVENANTS
Section 3.01 Payment of Principal and Interest......................................................19
Section 3.02 Maintenance of Office or Agency........................................................19
Section 3.03 Money for Payments to be Held in Trust.................................................20
Section 3.04 Existence..............................................................................21
Section 3.05 Protection of Trust Estate.............................................................21
Section 3.06 Opinions as to Trust Estate............................................................22
Section 3.07 Performance of Obligations; Administration of the 2000-A SUBI Assets...................22
Section 3.08 Negative Covenants.....................................................................23
Section 3.09 Issuer Certificates and Reports........................................................24
i
TABLE OF CONTENTS
(CONTINUED)
Section 3.10 Restrictions on Certain Other Activities...............................................25
Section 3.11 Notice of Defaults.....................................................................25
Section 3.12 Further Instruments and Acts...........................................................25
Section 3.13 Delivery of 2000-A Vehicle SUBI Certificate............................................26
Section 3.14 Delivery of the Subordinated Notes.....................................................26
Section 3.15 Compliance with Laws...................................................................26
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture................................................26
Section 4.02 Application of Trust Money.............................................................27
Section 4.03 Repayment of Monies Held by Paying Agent...............................................27
ARTICLE FIVE
INDENTURE DEFAULT
Section 5.01 Indenture Defaults.....................................................................27
Section 5.02 Acceleration of Maturity; Waiver of Indenture Default..................................29
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee..............30
Section 5.04 Remedies; Priorities...................................................................32
Section 5.05 Optional Preservation of the 2000-A SUBI Assets........................................33
Section 5.06 Limitation of Suits....................................................................34
Section 5.07 Unconditional Rights of Senior Noteholders to Receive Principal and Interest...........35
Section 5.08 Restoration of Rights and Remedies.....................................................35
Section 5.09 Rights and Remedies Cumulative.........................................................35
Section 5.10 Delay or Omission Not a Waiver.........................................................35
Section 5.11 Control by Senior Noteholders..........................................................35
Section 5.12 Waiver of Past Defaults................................................................36
Section 5.13 Undertaking for Costs..................................................................36
Section 5.14 Waiver of Stay or Extension Laws.......................................................37
Section 5.15 Action on Senior Notes.................................................................37
ii
TABLE OF CONTENTS
(CONTINUED)
Section 5.16 Performance and Enforcement of Certain Obligations.....................................37
Section 5.17 Sale of Trust Estate...................................................................38
ARTICLE SIX
THE INDENTURE TRUSTEE
Section 6.01 Duties of Indenture Trustee............................................................38
Section 6.02 Rights of Indenture Trustee............................................................39
Section 6.03 Individual Rights of Indenture Trustee.................................................41
Section 6.04 Indenture Trustee's Disclaimer.........................................................41
Section 6.05 Notice of Defaults.....................................................................41
Section 6.06 Reports by Indenture Trustee to Senior Noteholders.....................................41
Section 6.07 Compensation and Indemnity.............................................................41
Section 6.08 Replacement of Indenture Trustee.......................................................42
Section 6.09 Successor Indenture Trustee by Merger..................................................43
Section 6.10 Appointment of Co-Trustee or Separate Trustee..........................................44
Section 6.11 Eligibility; Disqualification..........................................................45
Section 6.12 Trustee as Holder of 2000-A Vehicle SUBI Certificate...................................45
Section 6.13 Representations and Warranties of Indenture Trustee....................................46
Section 6.14 Furnishing of Documents................................................................46
Section 6.15 Preferential Collection of Claims Against the Issuer...................................46
ARTICLE SEVEN
SENIOR NOTEHOLDERS' LISTS AND REPORTS
Section 7.01 Issuer to Furnish Indenture Trustee Senior Noteholder Names and Addresses..............46
Section 7.02 Preservation of Information; Communications to Senior Noteholders......................46
Section 7.03 Reports by Indenture Trustee...........................................................47
ARTICLE EIGHT
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01 Collection of Money....................................................................47
Section 8.02 Accounts...............................................................................47
iii
TABLE OF CONTENTS
(CONTINUED)
Section 8.03 Payment Date Certificate...............................................................48
Section 8.04 Disbursement of Funds..................................................................49
Section 8.05 General Provisions Regarding Accounts..................................................54
Section 8.06 Release of Trust Estate................................................................54
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Senior Noteholders..........................55
Section 9.02 Supplemental Indentures With Consent of Senior Noteholders.............................56
Section 9.03 Execution of Supplemental Indentures...................................................57
Section 9.04 Effect of Supplemental Indenture.......................................................57
Section 9.05 Reference in Senior Notes to Supplemental Indentures...................................58
ARTICLE TEN
REDEMPTION OF SENIOR NOTES
Section 10.01 Redemption.............................................................................58
Section 10.02 Form of Redemption Notice..............................................................59
Section 10.03 Senior Notes Payable on Redemption Date................................................59
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01 Compliance Certificates and Opinions...................................................59
Section 11.02 Form of Documents Delivered to Indenture Trustee.......................................61
Section 11.03 Acts of Senior Noteholders.............................................................62
Section 11.04 Notices................................................................................62
Section 11.05 Notices to Senior Noteholders; Waiver..................................................63
Section 11.06 Effect of Headings and Table of Contents...............................................63
Section 11.07 Successors and Assigns.................................................................63
Section 11.08 Severability...........................................................................63
Section 11.09 Benefits of Indenture..................................................................63
Section 11.10 Legal Holidays.........................................................................63
Section 11.11 Governing Law..........................................................................64
Section 11.12 Counterparts...........................................................................64
iv
TABLE OF CONTENTS
(CONTINUED)
Section 11.13 Recording of Indenture.................................................................64
Section 11.14 Trust Obligation.......................................................................64
Section 11.15 No Petition............................................................................64
Section 11.16 No Recourse............................................................................65
Section 11.17 Inspection.............................................................................65
Section 11.18 Limitation of Liability of Owner Trustee...............................................65
Section 11.19 TIA Incorporation and Conflicts........................................................66
EXHIBITS
Exhibit A Form of Senior Note........................................................................................A-1
Exhibit B Form of Depository Agreement...............................................................................B-1
v
INDENTURE
This Indenture, dated as of November 1, 2000, is between the BMW
Vehicle Lease Trust 2000-A, a Delaware business trust (the "Issuer"), and The
Chase Manhattan Bank, a national banking association, as trustee (the Indenture
Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the holders of the Issuer's [ ]% Asset
Backed Notes, Class A-1 (the "Class A-1 Notes"), [ ]% Asset Backed Notes, Class
A-2 (the "Class A-2 Notes"), [ ]% Asset Backed Notes, Class A-3 (the "Class A-3
Notes"), [ ]% Asset Backed Notes, Class A-4 (the "Class A-4 Notes" and, together
with the Class A-1 Notes, Class A-2 Notes and Class A-3 Notes, the "Senior
Notes"):
GRANTING CLAUSE
The Issuer, to secure the payment of principal of and interest on,
and any other amounts owing in respect of, the Senior Notes, equally and ratably
without prejudice, priority or distinction except as set forth herein, and to
secure compliance with the provisions of this Indenture, hereby Grants in trust
to the Indenture Trustee on the Closing Date, as trustee for the benefit of the
Senior Noteholders, all of the Issuer's right, title and interest, whether now
owned or hereafter acquired, in and to (i) the Trust Estate and (ii) all present
and future claims, demands, causes and choses in action in respect of any or all
of the foregoing and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments, securities, financial assets and other
property that at any time constitute all or part of or are included in the
proceeds of any of the foregoing (collectively, the "Collateral"), in each case
as such terms are defined herein.
The Indenture Trustee, as trustee on behalf of the Senior
Noteholders, acknowledges the foregoing Grant, accepts the trusts under this
Indenture in accordance with the provisions of this Indenture and agrees to
perform its duties required in this Indenture to the best of its ability to the
end that the interests of the Senior Noteholders may be adequately and
effectively protected.
ARTICLE ONE
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the SUBI Trust Agreement or
the Servicing Agreement, as the case may be. Whenever used herein, unless the
context otherwise requires, the following words and phrases have the following
meanings:
"Accounts" means the Note Distribution Account and the Reserve Fund.
1
"Accrual Period" means, with respect to any Payment Date, the period
from and including the 25th day of the month in which the preceding Payment Date
occurred (or, in the case of the first Payment Date or if no interest has yet
been paid, from and including the Closing Date) to but excluding the 25th day of
the month in which such Payment Date occurs.
"Act" has the meaning set forth in Section 11.03(a).
"Administrator" means BMW FS, or any successor Administrator under
the Issuer Administration Agreement.
"Aggregate Securitization Value" means for any date the amount
calculated as of the close of business on such date equal to the sum of the
Securitization Values of all Leases (the Securitization Values of Defaulted
Leases, Early Termination Leases and Matured Leases will equal zero for the
purpose of the calculation of the Principal Distribution Amount).
"Authenticating Agent" means any Person authorized by the Indenture
Trustee to act on behalf of the Indenture Trustee to authenticate and deliver
the Senior Notes.
"Authorized Newspaper" means a newspaper of general circulation in
The City of New York, printed in the English language and customarily published
on each Business Day, whether or not published on Saturdays, Sundays and
holidays.
"Authorized Officer" means, with respect to the Issuer, (i) any
officer of the Owner Trustee who is authorized to act for the Owner Trustee in
matters relating to the Issuer and who is identified on the list of Authorized
Officers delivered by the Owner Trustee to the Indenture Trustee on the Closing
Date and (ii) so long as the Issuer Administration Agreement is in effect, any
of the following officers of the Administrator, each of whom is authorized to
act for the Administrator in matters relating to the Issuer pursuant to the
Issuer Administration Agreement: the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary and any Assistant Secretary.
"Available Funds" means, for any Payment Date and the related
Collection Period, the sum of the following amounts: (i) SUBI Collections, (ii)
Advances required to be made by the Servicer and (iii) in the case of an
Optional Purchase, the Optional Purchase Price.
"Available Funds Shortfall Amount" means, for any Payment Date and
the related Collection Period, the amount by which Securityholder Available
Funds is less than the amount necessary to make the distributions in clauses (i)
through (vi) of Section 8.04(a), except that the Principal Distribution Amount
rather than the Monthly Principal Distribution Amount shall be used for purposes
of clause (vi).
"Available Principal Distribution Amount" means an amount equal to
the sum of (i) the amount of Available Funds remaining after the Servicer has
been paid the Payment Date Advance Reimbursement and the Servicing Fee, together
with any unpaid Servicing Fees in respect of one or more Collection Periods and
after accrued interest has been paid on the Securities, and (ii) the Reserve
Fund Draw Amount, if any, remaining after accrued interest has been paid on the
Securities.
2
"Basic Servicing Agreement" means that certain Servicing Agreement,
dated as of August 30, 1995, among the UTI Beneficiary, BMW FS, as servicer, and
Chase Manhattan Bank Delaware (predecessor in interest to the Chase Manhattan
Bank USA, N.A.), as trustee.
"BMW FS" means BMW Financial Services NA, LLC., and its successors.
"Book-Entry Notes" means a beneficial interest in the Senior Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.09.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in the states of Delaware, New Jersey, Ohio or New
York are authorized or obligated by law, executive order or government decree to
be closed.
"Certificate Balance" has the meaning set forth in the Trust
Agreement.
"Certificate Distribution Amount" means, as of any Payment Date, the
amount being distributed to the Trust Certificateholders on such Payment Date.
"Certificate Factor" has the meaning set forth in the Trust
Agreement.
"Certificate Rate" has the meaning set forth in the Trust Agreement.
"Class" means a group of Senior Notes whose form is identical except
for variation in denomination, principal amount or owner, and references to
"each Class" thus mean each of the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes.
"Class A-1 Interest Rate" means [ ]% per annum (computed on the basis
of the actual number of days elapsed, but assuming a 360-day year of twelve
30-day months).
"Class A-2 Interest Rate" means [ ]% per annum (computed on the basis
of a 360-day year of twelve 30-day months).
"Class A-3 Interest Rate" means [ ]% per annum (computed on the basis
of a 360-day year of twelve 30-day months).
"Class A-4 Interest Rate" means [ ]% per annum (computed on the basis
of a 360-day year of twelve 30-day months).
"Class A-1 Note Balance" means, as of any date, the Initial Class A-1
Note Balance reduced by all payments of principal made on or prior to such date
on the Class A-1 Notes.
"Class A-2 Note Balance" means, as of any date, the Initial Class A-2
Note Balance reduced by all payments of principal made on or prior to such date
on the Class A-2 Notes.
"Class A-3 Note Balance" means, as of any date, the Initial Class A-3
Note Balance reduced by all payments of principal made on or prior to such date
on the Class A-3 Notes.
3
"Class A-4 Note Balance" means, as of any date, the Initial Class A-4
Note Balance reduced by all payments of principal made on or prior to such date
on the Class A-4 Notes.
"Clearing Agency " means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act and shall initially be DTC.
"Clearing Agency Participant" means a broker, dealer, bank or other
financial institution or other Person for which from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means November [ ], 2000.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning set forth in the Granting Clause.
"Commission" means the U.S. Securities and Exchange Commission.
"Corporate Trust Office" means the office of the Indenture Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the date of the execution of this Indenture is located at [ ];
or at such other address as the Indenture Trustee may designate from time to
time by notice to the Senior Noteholders and the Issuer, or the principal
corporate trust office of any successor Indenture Trustee (the address of which
the successor Indenture Trustee shall notify the Senior Noteholders and the
Issuer).
"Default" means any occurrence that is, or with notice or lapse of
time or both would become, an Indenture Default.
"Definitive Note" means a definitive fully registered Senior Note.
"Deposit Date" means the Business Day immediately preceding the
related Payment Date.
"Depository Agreement" means the agreement among the Issuer, the
Indenture Trustee and DTC, as the initial Clearing Agency, dated as of the
Closing Date, substantially in the form of Exhibit B.
"Disposition Expenses" means expenses and other amounts reasonably
incurred by the Servicer in connection with the sale or other disposition of a
Matured Vehicle or a Defaulted Vehicle, including but not limited to sales
commissions, and expenses incurred in connection with making claims under any
Contingent and Excess Liability Insurance or other applicable insurance
policies. Disposition Expenses will be reimbursable to the Servicer.
"DTC" means The Depository Trust Company, and its successors.
"Eligible Account" means an account maintained with a depository
institution or trust company (i) (a) the short-term unsecured debt obligations
of which have the Required Deposit Rating or (b) having a long-term unsecured
4
debt rating acceptable to each Rating Agency and corporate trust powers and (ii)
which is maintained in a segregated trust account in the corporate trust
department of such depository institution or trust company.
"Excess Amounts" means the amount remaining after the distributions
from the 2000-A SUBI Collection Account provided for in clauses (i) through (vi)
of Section 8.04(a), in the amount and priority set forth therein, have been
made.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any (i) corporation or
depository institution, 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 or depository
institution, and (ii) any partnership, any general partner thereof.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create and xxxxx x xxxx upon and a
security interest in and right of set-off against, deposit, set over and confirm
pursuant to this Indenture, and, with respect to the Collateral or 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 the Collateral 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 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.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indenture Default" has the meaning set forth in Section 5.01.
"Independent" means, when used with respect to any specified Person,
that such Person (i) is in fact independent of the Issuer, any other obligor
upon the Senior Notes, the Administrator and any Affiliate of any of the
foregoing Persons, (ii) does not have any direct financial interest or any
material indirect financial interest in the Issuer, any such other obligor, the
Administrator or any Affiliate of any of the foregoing Persons and (iii) is not
connected with the Issuer, any such other obligor, the Administrator 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 Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.0 1 (b),
made by an Independent appraiser or other expert appointed by an Issuer Order,
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.
"Initial Class A-1 Note Balance" means $180,000,000.
5
"Initial Class A-2 Note Balance" means $600,000,000.
"Initial Class A-3 Note Balance" means $300,000,000.
"Initial Class A-4 Note Balance" means $390,160,000.
"Initial Securities Balance" has the meaning set forth in the Trust
Agreement.
"Initial Senior Note Balance" means the sum of the Initial Class A-1
Note Balance, the Initial Class A-2 Note Balance, the Initial Class A-3 Note
Balance and the Initial Class A-4 Note Balance.
"Interest Rate" means the Class A-1 Interest Rate, Class A-2 Interest
Rate, Class A-3 Interest Rate, Class A-4 Interest Rate or the Overdue Interest
Rate, as applicable.
"Issuer" means the BMW Vehicle Lease Trust 2000-A, until a successor
replaces it and, thereafter, means the successor and, for purposes of any
provision contained herein, each other obligor on the Senior Notes.
"Issuer Administration Agreement" means that certain issuer
administration agreement, dated as of the date hereof, among the Administrator,
the Issuer, the Transferor and the Indenture Trustee.
"Issuer SUBI Certificate Transfer Agreement" means that certain
issuer SUBI certificate transfer agreement, dated as of November 1, 2000,
between the Transferor, as transferor, and the Issuer, as transferee, as amended
or supplemented from time to time.
"Issuer Order" and "Issuer Request" means a written order or request
of the Issuer signed in the name of the Issuer by any one of its Authorized
Officers and delivered to the Indenture Trustee.
"Monthly Principal Distribution Amount" means an amount equal to the
lesser of (i) the Principal Distribution Amount and (ii) the Available Principal
Distribution Amount.
"Note Distribution Account" means the trust account established by
the Transferor pursuant to Section 8.02, into which amounts released from the
2000-A SUBI Collection Account and the Reserve Fund for distribution to Senior
Noteholders shall be deposited and from which all distributions to Senior
Noteholders shall be made.
"Note Factor" means, with respect to the Senior Notes on any Payment
Date, the seven digit decimal equivalent of a fraction the numerator of which is
the Senior Note Balance on such Payment Date (after giving effect to any payment
of principal on such Payment Date) and the denominator of which is the Initial
Senior Note Balance.
"Officer's Certificate" means a certificate signed by an Authorized
Officer of the Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01, and delivered to,
the Indenture Trustee.
6
"Opinion of Counsel" means one or more written opinions of counsel
who may, except as otherwise expressly provided in this Indenture, be employees
of or counsel to the Issuer or the Administrator, and who shall be satisfactory
to the Indenture Trustee, and which opinion or opinions shall be addressed to
the Indenture Trustee, comply with any applicable requirements of Section 11.01
and be in form and substance satisfactory to the Indenture Trustee. Opinions of
Counsel need address matters of law only, and may be based upon stated
assumptions as to relevant matters of fact.
"Optional Purchase Price" has the meaning set forth in Section
10.01(a).
"Outstanding" means, as of any date, all Senior Notes (or all Senior
Notes of an applicable Class) theretofore authenticated and delivered under this
Indenture except:
(i) Senior Notes (or Senior Notes of an applicable Class)
theretofore cancelled by the Senior Note Registrar or delivered to
the Senior Note Registrar for cancellation;
(ii) Senior Notes (or Senior Notes of an applicable Class)
or portions thereof the payment for which money in the necessary
amount has been theretofore deposited with the Indenture Trustee or
any Paying Agent in trust for the related Senior Noteholders
(provided, however, that if such Senior Notes are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor, satisfactory to the Indenture
Trustee, has been made); and
(iii) Senior Notes (or Senior Notes of an applicable Class)
in exchange for or in lieu of other Senior Notes (or Senior Notes of
such Class) that have been authenticated and delivered pursuant to
this Indenture unless proof satisfactory to the Indenture Trustee is
presented that any such Senior Notes are held by a bona fide
purchaser;
provided, that in determining whether Senior Noteholders holding the requisite
Outstanding Amount have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or under any Basic Document, Senior Notes
owned by the Issuer, the Transferor, the Administrator or any of their
respective Affiliates shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Indenture Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Senior Notes that a Responsible Officer knows to be so owned
shall be so disregarded. Senior Notes so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee thereof establishes to the
satisfaction of the Indenture Trustee such pledgee's right so to act with
respect to such Senior Notes and that such pledgee is not the Issuer, the
Transferor, the Administrator or any of their respective Affiliates.
"Outstanding Amount" means, as of any date, the aggregate principal
amount of the applicable Senior Notes Outstanding, reduced by all payments of
principal made in respect thereof on or prior to such date.
"Overdue Interest Rate" means, with respect to any Class, the
Interest Rate applicable to such Class.
7
"Paying Agent" means the Indenture Trustee or any other Person that
meets the eligibility standards for the Indenture Trustee set forth in Section
6.11 and is authorized by the Issuer to make the payments to and distributions
from the Note Distribution Account, including the payment of principal of or
interest on the Senior Notes on behalf of the Issuer.
"Payment Date Certificate" has the meaning set forth in Section
8.03(a).
"Person" means any individual, corporation, estate, partnership,
joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Note" means, with respect to any particular Senior Note,
every previous Senior Note evidencing all or a portion of the same debt as that
evidenced by such particular Senior Note; and, for the purpose of this
definition, any Senior Note authenticated and delivered under Section 2.05 in
lieu of a mutilated, destroyed, lost or stolen Senior Note shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Senior Note.
"Principal Distribution Amount" means, for any Payment Date, the
excess of the unpaid aggregate amount of principal payable on the Securities,
over the Aggregate Securitization Value as of the last day of the related
Collection Period. Notwithstanding the above, the Principal Distribution Amount
shall not exceed the outstanding Securities Balance.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Program Operating Lease" means that certain program operating lease,
dated as of November 1, 2000, between the Transferor and the Issuer.
"Rating Agency Condition" means, with respect to any action, that
each Rating Agency shall have been given ten Business Days (or such shorter
period as is acceptable to each Rating Agency) prior notice thereof and that
each Rating Agency shall not have notified the Transferor, the Administrator and
the Issuer in writing that such action will result in a Rating Event.
"Rating Event" means the qualification, reduction or withdrawal by
one of the Rating Agency of its then-current rating of the Senior Notes or the
Trust Certificates.
"Record Date" means, with respect to a Payment Date or Redemption
Date, the close of business on the Business Day immediately preceding such
Payment Date or Redemption Date.
"Redemption Date" means in the case of a redemption of the Senior
Notes pursuant to Section 10.01, the Payment Date specified by the Administrator
or the Issuer pursuant to Section 10.01.
"Redemption Price" means an amount equal to the unpaid principal
amount of the Senior Notes redeemed plus accrued and unpaid interest thereon at
the applicable Interest Rate for the Senior Notes being so redeemed, up to but
excluding the Redemption Date.
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"Registered Holder" means the Person in whose name a Senior Note is
registered on the Senior Note Register on the related Record Date.
"Repayment Price" has the meaning set forth in the Trust Agreement.
"Reserve Fund" has the meaning set forth in the Trust Agreement.
"Reserve Fund Deposit Amount" means, with respect to any Payment
Date, an amount equal to the sum of (i) all payments in respect of interest on
and principal of the Subordinated Notes, (ii) any Excess Amounts with respect to
the related Collection Period and (iii) net income realized on the investment of
funds on deposit in the 2000-A SUBI Collection Account and the Reserve Fund.
"Reserve Fund Draw Amount" means, for any Payment Date, the amount
withdrawn from the Reserve Fund, equal to the lesser of (a) the Available Funds
Shortfall Amount, if any, and (b) the amount on deposit in the Reserve Fund
after giving effect to all deposits thereto on the related Deposit Date or such
Payment Date.
"Reserve Fund Property" has the meaning set forth in the Trust
Agreement.
"Reserve Fund Requirement" means (i) on any Payment Date other than a
Payment Date described in clause (ii), an amount equal to 6.25% of the current
Securities Balance or (ii) on any Payment Date occurring on or after the earlier
to occur of the date on which the last remaining Specified Lease terminated or
the date on which the Program Operating Lease is terminated following a Program
Operating Lease Default, zero.
"Residual Note" has the meaning set forth in Section 2.02.
"Responsible Officer" means, with respect to the Indenture Trustee,
any officer within Corporate Trust (or any successor group of the Indenture
Trustee), including any Vice President, Assistant Secretary or other officer or
assistant officer of the Indenture Trustee customarily performing functions
similar to those performed by the people who at such time shall be officers, or
to whom any corporate trust matter is referred within Corporate Trust because of
his knowledge of and familiarity with the particular subject.
"Securities" means the Trust Certificates, the Subordinated Notes and
the Senior Notes, collectively.
"Securities Balance" has the meaning set forth in the Trust
Agreement.
"Secured Obligations" has the meaning set forth in the Issuer SUBI
Certificate Transfer Agreement.
"Securityholder Available Funds" means on each Payment Date, all
remaining Available Funds after giving effect to the payment to the Servicer
pursuant to Section 2.4 of the Servicing Agreement of (i) the Payment Date
Advance Reimbursement and (ii) the Administration Fee, together with any unpaid
Administration Fees in respect of one or more Collection Periods.
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"Senior Note" means a Class A-1 Note, Class A-2 Note, Class A-3 Note
or Class A-4 Note, in each case substantially in the form of Exhibit A hereto.
"Senior Note Balance" means the sum of the Class A-1 Note Balance,
the Class A-2 Note Balance, the Class A-3 Note Balance and the Class A-4 Note
Balance.
"Senior Note Distribution Amount" means, as of any Payment Date, the
amount being distributed to the Senior Noteholders on such Payment Date.
"Senior Note Final Scheduled Payment Date" means, with respect to (i)
a Class A-1 Note, October 2001; (ii) a Class A-2 Note, February 2003; (iii) a
Class A-3 Note, May 2003; and (iv) a Class A-4 Note, October 2003.
"Senior Noteholder" means, as of any date, the Person in whose name a
Senior Note is registered on the Senior Note Register on such date.
"Senior Note Owner" means, with respect to a Book-Entry Note, the
Person who is the beneficial owner of such Book-Entry Note, as reflected on the
books of the Clearing Agency or 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).
"Senior Note Register" and "Senior Note Registrar" have the
respective meanings set forth in Section 2.04.
"Servicing Agreement" means the Basic Servicing Agreement as
supplemented by that certain 2000-A Supplement, dated as of November 1, 2000,
among the parties to the Basic Servicing Agreement, as amended or supplemented
from time to time with respect to the 2000-A SUBI.
"SUBI Trust Agreement" means the Vehicle Trust Agreement as
supplemented by that certain supplement, dated as of November 1, 2000, among the
parties to the Vehicle Trust Agreement, as amended or supplemented from time to
time.
"Subordinated Note" has the meaning set forth in the Trust Agreement.
"Subordinated Note Rate" has the meaning set forth in the Trust
Agreement.
"Subordinated Note Redemption Price" has the meaning set forth in the
Trust Agreement.
"TIA" means the Trust Indenture Act of 1939, as amended and as in
force on the date hereof, unless otherwise specifically provided.
"Trust Agreement" means that certain trust agreement, as amended and
restated as of November 1, 2000, between the Transferor and the Owner Trustee.
"Trust Certificate" has the meaning set forth in the Trust Agreement.
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"Trust Estate" means all money, accounts, chattel paper, general
intangibles, goods, instruments, investment property and other property subject
or intended to be subject to the lien and security interest of this Indenture
for the benefit of the Senior Noteholders (including the Collateral Granted to
the Indenture Trustee), including (i) the 2000-A Vehicle SUBI Certificate
(transferred pursuant to the Issuer SUBI Certificate Transfer Agreement),
evidencing the beneficial interest in the 2000-A Vehicle SUBI Assets, including
the right to payments thereunder from certain Sales Proceeds on deposit in the
2000-A SUBI Collection Account and investment earnings, net of losses and
investment expenses, on amounts on deposit in the 2000-A SUBI Collection
Account, (ii) the rights of the Issuer under the Program Operating Lease, (iii)
the rights of the Trust as pledgee of the 2000-A Lease SUBI Certificate, (iv)
the rights of the Issuer to the funds on deposit from time to time in the Note
Distribution Account and any other account or accounts established pursuant to
the Indenture and all cash, investment property and other property from time to
time credited thereto and all proceeds thereof, (v) the rights of the
Transferor, as transferee under the SUBI Certificate Transfer Agreement, (vi)
the rights of the Issuer, as transferee under the Issuer SUBI Certificate
Transfer Agreement, (vii) the security interest of the Issuer in the
Subordinated Notes and in the Reserve Fund (including investment earnings, net
of losses and investment expenses, on amounts on deposit therein) and (viii) all
proceeds of the foregoing.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code as in effect in the relevant jurisdiction, as amended from time
to time.
"United States" means the United States of America.
"UTI Beneficiary" means BMW Manufacturing LP, in its capacity as
initial Beneficiary of the Vehicle Trust, and its permitted successors and
assigns.
"Vehicle Trust" means Financial Services Vehicle Trust.
"Vehicle Trust Agreement" means that certain amended and restated
trust agreement, dated as of September 27, 1996, as further amended as of May
25, 2000 between BMW Manufacturing LP, as grantor and initial beneficiary and
Chase Manhattan Bank USA, N.A., as trustee, as amended.
"Vehicle Trustee" means Chase Manhattan Bank USA, N.A., in its
capacity as Trustee of the Vehicle Trust.
Section 1.02 Interpretive Provisions.
(a) For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires, (i) terms used in this
Indenture include, as appropriate, all genders and the plural as well as the
singular, (ii) references to words such as "herein", "hereof" and the like shall
refer to this Indenture as a whole and not to any particular part, Article or
Section within this Indenture, (iii) the term "include" and all variations
thereof shall mean "include without limitation" and (iv) the term "proceeds"
shall have the meaning set forth in the applicable UCC.
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(b) As used in this Indenture and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Indenture or in any such certificate or other document, and
accounting terms partly defined in this Indenture or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Indenture or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Indenture or in any such certificate or other document shall control.
ARTICLE TWO
THE SENIOR NOTES
Section 2.01 Form. The Senior Notes, together with the Indenture
Trustee's certificate of authentication, shall be in substantially the form set
forth as Exhibit A hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may, consistently herewith,
be determined by the officers executing such Senior Notes, as evidenced by their
execution of such Senior Notes. Any portion of the text of any Senior Note may
be set forth on the reverse thereof, with an appropriate reference thereto on
the face of such Senior Note.
The terms of the Senior Notes set forth in Exhibit A hereto are part
of the terms of this Indenture.
Section 2.02 Execution, Authentication and Delivery. The Senior Notes
shall be executed by the Owner Trustee on behalf of the Issuer. The signature of
any authorized officer of the Owner Trustee on the Senior Notes may be manual or
by facsimile. Senior Notes bearing the manual or facsimile signature of
individuals who were at any time authorized officers of the Owner Trustee shall
bind the Issuer, notwithstanding that any such individuals have ceased to hold
such offices prior to the authentication and delivery of such Senior Notes or
did not hold such offices at the date of such Senior Notes.
The Indenture Trustee shall, upon Issuer Order, authenticate and
deliver for original issue the following aggregate principal amounts of the
Senior Notes: (i) $180,000,000 of Class A-1 Notes, (ii) $600,000,000 of Class
A-2 Notes, (iii) $300,000,000 of Class A-3 Notes and (iv) $390,160,000 of Class
A-4 Notes. The aggregate principal amount of Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes and Class A-4 Notes outstanding at any time may not exceed such
respective amounts, except as provided in Section 2.05.
Each Senior Note shall be dated the date of its authentication. The
Senior Notes shall be issuable as registered notes in book-entry form in minimum
denominations of $1,000 and in integral multiples of $1,000 in excess thereof;
provided, however, that on the Closing Date, one Class A-1 Note, one Class A-2
Note, one Class A-3 Note and one Class A-4 Note may be issued in a denomination
that includes any remaining portion of the Initial Class A-1 Note Balance, the
Initial Class A-2 Note Balance, the Initial Class A-3 Note Balance and the
Initial Class A-4 Note Balance, respectively (each, a "Residual Note").
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No Senior Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Senior
Note a certificate of authentication substantially in the form provided for
herein executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Senior Note shall be
conclusive evidence, and the only evidence, that such Senior Note has been duly
authenticated and delivered hereunder.
Section 2.03 Temporary Senior Notes. Pending the preparation of
Definitive Notes, the Owner Trustee may execute, on behalf of the Issuer, and
upon receipt of an Issuer Order, the Indenture Trustee shall authenticate and
deliver, temporary Senior Notes that are printed, lithographed, typewritten,
mimeographed or otherwise produced, substantially 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 Senior Notes may
determine, as evidenced by their execution of such Senior Notes.
If temporary Senior Notes are issued, the Issuer shall cause
Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the temporary Senior Notes shall be
exchangeable for Definitive Notes upon surrender of such temporary Senior Notes
at the office or agency of the Issuer to be maintained as provided in Section
3.02, without charge to the related Senior Noteholder. Upon surrender for
cancellation of any one or more temporary Senior Notes, the Owner Trustee shall
execute, on behalf of the Issuer, and the Indenture Trustee shall authenticate
and deliver in exchange therefor, a like principal amount of Definitive Notes of
authorized denominations. Until so exchanged, such temporary Senior Notes shall
in all respects be entitled to the same benefits under this Indenture as
Definitive Notes.
Section 2.04 Registration; Registration of Transfer and Exchange. The
Issuer shall cause to be kept a register (the "Senior Note Register") in which,
subject to such reasonable regulations as it may prescribe, the Issuer shall
provide for the registration of Senior Notes and the registration of transfers
of Senior Notes. The Indenture Trustee is hereby appointed the "Senior Note
Registrar" for the purpose of registering Senior Notes and transfers of Senior
Notes as herein provided. Upon any resignation of any Senior Note Registrar, the
Issuer shall promptly appoint a successor or, if it elects not to make such an
appointment, assume the duties of Senior Note Registrar.
If a Person other than the Indenture Trustee is appointed by the
Issuer as Senior Note Registrar, the Issuer shall give the Indenture Trustee
prompt written notice of such appointment and the location, and any change in
such location, of the Senior Note Register, and the Indenture Trustee shall have
the right to inspect the Senior Note Register at all reasonable times and to
obtain copies thereof, and the Indenture Trustee shall have the right to rely
upon a certificate executed on behalf of the Senior Note Registrar by an
Executive Officer as to the names and addresses of the Senior Noteholders and
the principal amounts and number of such Senior Notes.
Upon surrender for registration of transfer of any Senior Note at the
office or agency of the Issuer to be maintained as provided in Section 3.02, if
the requirements of Section 8-401 of the UCC are met, the Owner Trustee shall
execute, on behalf of the Issuer, and the Indenture Trustee shall authenticate
and the related Senior Noteholder shall obtain from the Indenture Trustee, in
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the name of the designated transferee, one or more new Senior Notes in any
authorized denominations, of a like aggregate principal amount.
At the option of the related Senior Noteholder, Senior Notes may be
exchanged for other Senior Notes in any authorized denominations, of a like
aggregate principal amount, upon surrender of such Senior Notes at such office
or agency. Whenever any Senior Notes are so surrendered for exchange, if the
requirements of Section 8-401 of the UCC are met, the Owner Trustee shall
execute, on behalf of the Issuer, the Indenture Trustee shall authenticate and
the Senior Noteholder shall obtain from the Indenture Trustee the Senior Notes
that the Senior Noteholder making such exchange is entitled to receive.
Every Senior Note presented or surrendered for registration of
transfer or exchange shall (if so required by the Issuer or the Indenture
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form and substance satisfactory to the Issuer and the Indenture Trustee, duly
executed by the Senior Noteholder thereof or its attorney-in-fact duly
authorized in writing.
All Senior Notes issued upon any registration of transfer or exchange
of Senior Notes shall be the valid obligations of the Issuer, evidencing the
same debt and entitled to the same benefits under this Indenture as the Senior
Notes surrendered upon such registration of transfer or exchange.
No service charge shall be made to a Senior Noteholder for any
registration of transfer or exchange of Senior Notes, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith, other than exchanges pursuant to
Sections 2.03 or 9.05 not involving any transfer.
The preceding provisions of this Section notwithstanding, the Issuer
shall not be required to make, and the Senior Note Registrar need not register,
transfers or exchanges of any Senior Note (i) selected for redemption or (ii)
for a period of 15 days preceding the due date for any payment with respect to
such Senior Note.
Section 2.05 Mutilated, Destroyed, Lost or Stolen Senior Notes. If
(i) any mutilated Senior Note is surrendered to the Indenture Trustee, or the
Indenture Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Senior Note and (ii) there is delivered to the Indenture Trustee
such security or indemnity as may be required by it to hold the Issuer, the
Owner Trustee and the Indenture Trustee harmless, then, in the absence of notice
to the Owner Indenture Trustee, the Senior Note Registrar or the Indenture
Trustee that such Senior Note has been acquired by a "protected purchaser" (as
contemplated by Article Eight of the UCC), and provided that the requirements of
Section 8-405 of the UCC are met, the Owner Trustee shall execute, on behalf of
the Issuer, and upon Issuer Request the Indenture Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Senior Note, a replacement Senior Note; provided, however, that if any
such destroyed, lost or stolen Senior Note (but not a mutilated Senior Note)
shall have become or within seven days shall become due and payable, or shall
have been called for redemption, instead of issuing a replacement Senior Note,
the Issuer may pay such destroyed, lost or stolen Senior Note when so due or
payable or upon the Redemption Date without the surrender thereof. If, after the
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delivery of such replacement Senior Note or payment of a destroyed, lost or
stolen Senior Note pursuant to the proviso to the preceding sentence, a
"protected purchaser" (as contemplated by Article Eight of the UCC) of the
original Senior Note in lieu of which such replacement Senior Note was issued
presents for payment such original Senior Note, the Issuer and the Indenture
Trustee shall be entitled to recover such replacement Senior Note (or such
payment) from the Person to whom it was delivered or any Person taking such
replacement Senior Note from such Person to whom such replacement Senior Note
was delivered or any assignee of such Person, except a "protected purchaser" (as
contemplated by Article Eight of the UCC), and shall be entitled to recover upon
the security or indemnity provided therefor to the extent of any loss, damage,
cost or expense incurred by the Issuer or the Indenture Trustee in connection
therewith.
Upon the issuance of any replacement Senior Note under this Section,
the Issuer or the Indenture Trustee may require the payment by the related
Senior Noteholder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Indenture Trustee or the Senior Note
Registrar) connected therewith.
Every replacement Senior Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Senior Note shall
constitute an original additional contractual obligation of the Issuer, whether
or not the mutilated, destroyed, lost or stolen Senior Note shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Senior Notes duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Senior Notes.
Section 2.06 Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Senior Note, the Issuer, the Indenture Trustee
and their respective agents may treat the Person in whose name any Senior Note
is registered (as of the date of determination) as the owner of such Senior Note
for the purpose of receiving payments of principal of and interest, if any, on
such Senior Note and for all other purposes whatsoever, whether or not such
Senior Note be overdue, and neither the Issuer, the Indenture Trustee nor any of
their respective agents shall be affected by notice to the contrary.
Section 2.07 Cancellation. All Senior Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Senior Notes
previously authenticated and delivered hereunder that the Issuer may have
acquired in any manner whatsoever, and all Senior Notes so delivered shall be
promptly cancelled by the Indenture Trustee. No Senior Notes shall be
authenticated in lieu of or in exchange for any Senior Notes cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Senior Notes may be held or disposed of by the Indenture Trustee in
accordance with its standard retention or disposal policy as in effect at the
time unless the Issuer shall direct by an Issuer Order that they be destroyed or
15
returned to it; provided, that such Issuer Order is timely and that such Senior
Notes have not been previously disposed of by the Indenture Trustee.
Section 2.08 Release of Collateral. Subject to Section 11.01 and the
terms of the Basic Documents, the Indenture Trustee shall release property from
the lien of this Indenture only upon receipt of an Issuer Request.
Section 2.09 Book-Entry Notes. Unless otherwise specified, the Senior
Notes (except for any Residual Notes), upon original issuance, will be issued in
the form of one or more typewritten Senior Notes representing the Book-Entry
Notes, to be delivered to the Indenture Trustee, as agent for DTC, the initial
Clearing Agency, by, or on behalf of, the Issuer. One fully registered Senior
Note shall be issued with respect to each $400 million in principal amount of
each Class of Senior Notes or such lesser amount as necessary. Such Senior Notes
shall initially be registered on the Senior Note Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Senior Note Owner shall
receive a Definitive Note representing such Senior Note Owner's interest in such
Senior Note except as provided in Section 2.11. Unless and until Definitive
Notes have been issued to Senior Note Owners pursuant to Section 2.11:
(a) the provisions of this Section shall be in full force and effect;
(b) the Senior Note Registrar and the Indenture Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Indenture (including the payment of principal of and interest on the
Senior Notes and the giving of instructions or directions hereunder) as
the sole Senior Noteholder, and shall have no obligation to Senior Note
Owners;
(c) to the extent that the provisions of this Section conflict with any
other provisions of this Indenture, the provisions of this Section
shall control;
(d) the rights of Senior Note Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law
and agreements between or among such Senior Note Owners and the
Clearing Agency or Clearing Agency Participants; pursuant to the
Depository Agreement, unless and until Definitive Notes are issued
pursuant to Section 2.11, 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 Senior Notes
to such Clearing Agency Participants; and
(e) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Senior Noteholders evidencing
a specified percentage of the Outstanding Amount, the Clearing Agency
shall be deemed to represent such percentage only to the extent that it
has received instructions to such effect from Senior Note Owners or
Clearing Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in the Senior Notes and
has delivered such instructions to the Indenture Trustee.
Section 2.10 Notices to Clearing Agency. Whenever a notice or other
communication to Senior Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Senior Note Owners pursuant to
Section 2.11, the Indenture Trustee shall give all such notices and
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communications specified herein to be given to Senior Noteholders to the
Clearing Agency, and shall have no obligation to the Senior Note Owners.
Section 2.11 Definitive Notes. If (i) (A) the Administrator advises
the Indenture Trustee in writing that the Clearing Agency is no longer willing
or able to properly discharge its responsibilities as described in the
Depository Agreement and (B) the Indenture Trustee or the Administrator is
unable to locate a qualified successor, (ii) the Administrator at its option
advises the Indenture Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after an Indenture
Default, Senior Note Owners representing in the aggregate not less than 51 % of
the Outstanding Amount advise the Indenture Trustee through the Clearing Agency
and its Participants in writing that the continuation of a book-entry system
through the Clearing Agency or its successor is no longer in the best interest
of Senior Note Owners, the Indenture Trustee shall be required to notify all
Senior Note Owners, through the Clearing Agency, of the occurrence of such event
and the availability through the Clearing Agency of Definitive Notes to Senior
Note Owners requesting the same. Upon surrender to the Indenture Trustee by the
Clearing Agency of the Senior Note or Senior Notes representing the Book-Entry
Notes and the receipt of instructions for re-registration, the Indenture Trustee
shall issue Definitive Notes to Senior Note Owners, who thereupon shall become
Senior Noteholders for all purposes of this Indenture. None of the Owner
Trustee, the Senior Note Registrar or the Indenture Trustee shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions.
The Indenture Trustee shall not be liable if the Indenture Trustee or
the Administrator is unable to locate a qualified successor Clearing Agency. The
Definitive Notes shall be typewritten, printed, lithographed or engraved or
produced by any combination of such methods (with or without steel engraved
borders), all as determined by the officers executing such Senior Notes, as
evidenced by their execution of such Senior Notes.
If Definitive Notes are issued and the Indenture Trustee is not the
Senior Note Registrar, the Owner Trustee shall furnish or cause to be furnished
to the Indenture Trustee a list of the names and addresses of the Senior
Noteholders (i) as of each Record Date, within five days thereafter and (ii) as
of not more than ten days prior to the time such list is furnished, within 30
days after receipt by the Owner Trustee of a written request therefor.
Section 2.12 Authenticating Agents. Upon the request of the Issuer,
the Indenture Trustee shall, and if the Indenture Trustee so chooses the
Indenture Trustee may, appoint one or more Authenticating Agents with power to
act on its behalf and subject to its direction in the authentication of Senior
Notes in connection with issuance, transfers and exchanges under Sections 2.02,
2.04, 2.05 and 9.05, as fully to all intents and purposes as though each such
Authenticating Agent had been expressly authorized by such Sections to
authenticate such Senior Notes. For all purposes of this Indenture, the
authentication of Senior Notes by an Authenticating Agent pursuant to this
Section shall be deemed to be the authentication of Senior Notes by the
Indenture Trustee.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
17
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, without the execution or filing of any further act on the part of the
parties hereto or such Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Indenture Trustee and the Issuer. The Indenture
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and the
Issuer. Upon receiving such notice of resignation or upon such termination, the
Indenture Trustee shall promptly appoint a successor Authenticating Agent and
shall give written notice of such appointment to the Issuer.
The Indenture Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services and reimbursement for its
reasonable expenses relating thereto. The provisions of Sections 2.07 and 6.04
shall be applicable to any Authenticating Agent.
ARTICLE THREE
COVENANTS
Section 3.01 Payment of Principal and Interest. The Issuer shall duly
and punctually pay the principal of and interest on the Senior Notes in
accordance with the terms of the Senior Notes and this Indenture. Without
limiting the foregoing, subject to Section 8.04, the Issuer shall cause to be
distributed all amounts on deposit in the Note Distribution Account on each
Payment Date that have been deposited therein for the benefit of the Senior
Notes as set forth in Section 8.04. Amounts properly withheld under the Code by
any Person from a payment to any Senior Noteholder of interest or principal
shall be considered to have been paid by the Issuer to such Senior Noteholder
for all purposes of this Indenture.
Section 3.02 Maintenance of Office or Agency. The Senior Note
Registrar, on behalf of the Issuer, shall maintain at the Corporate Trust Office
or at such other location in the Borough of Manhattan, The City of New York,
chosen by the Senior Note Registrar, acting for the Issuer, an office or agency
where Senior Notes may be surrendered for registration of transfer or exchange,
and where notices to and demands upon the Issuer in respect of the Senior Notes
and this Indenture may be served. The Issuer hereby appoints the Indenture
Trustee as its agent to receive all such surrenders, notices and demands. The
Issuer shall give prompt written notice to the Indenture Trustee of the
location, and of any change in the location, of any such office or agency. If at
any time the Issuer shall fail to maintain any such office or agency or shall
fail to furnish the Indenture Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Corporate Trust Office, and the
Issuer hereby appoints the Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
Section 3.03 Money for Payments to be Held in Trust. As provided in
Sections 8.04 and 5.04(b), all payments of amounts due and payable with respect
to any Senior Notes that are to be made from amounts withdrawn from the Note
Distribution Account shall be made on behalf of the Issuer by the Indenture
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Trustee or by another Paying Agent, and no amounts so withdrawn therefrom for
payments on Senior Notes shall be paid over to the Issuer except as provided in
this Section.
On each Payment Date and Redemption Date, the Issuer shall deposit or
cause to be deposited into the Note Distribution Account an aggregate sum
sufficient to pay the amounts then becoming due under the Senior Notes, and the
Paying Agent shall hold such sum in trust for the benefit of the Persons
entitled thereto and (unless the Paying Agent is the Indenture Trustee) shall
promptly notify the Indenture Trustee of any failure by the Issuer to effect
such deposit.
The Issuer shall cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees to the extent relevant),
subject to the provisions of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of amounts due with
respect to the Senior 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;
(b) give the Indenture Trustee notice of any default by the Issuer of
which it has actual knowledge (or any other obligor upon the Senior
Notes) in the making of any payment required to be made with respect to
the Senior Notes;
(c) at any time during the continuance of any such default, upon the
written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(d) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of
Senior Notes if at any time it ceases to meet the standards required to
be met by a Paying Agent at the time of its appointment; and
(e) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Senior Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which such sums were held by such Paying Agent;
and upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any
money held by the Indenture Trustee or any Paying Agent in trust for the payment
of any amount due with respect to any Senior Note and remaining unclaimed for
two years after such amount has become due and payable shall be discharged from
such trust and deposited by the Indenture Trustee into the 2000-A SUBI
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Collection Account, and the related Senior Noteholder shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof, and all
liability of the Indenture Trustee or such Paying Agent with respect to such
trust money shall thereupon cease; provided, however, that the Indenture Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Issuer cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in The City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which date shall not be less
than 30 days from the date of such publication, any unclaimed balance of such
money then remaining shall be paid to the Administrator. The Indenture Trustee
shall also adopt and employ, at the expense of the Issuer, any other reasonable
means of notification of such repayment (including mailing notice of such
repayment to Senior Noteholders the Senior Notes of which have been called but
not surrendered for redemption or whose right to or interest in monies due and
payable but not claimed is determinable from the records of the Indenture
Trustee or any Paying Agent at the last address of record for each such Senior
Noteholder).
Section 3.04 Existence. The Issuer shall keep in full effect its
existence, rights and franchises as a 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, in which
case the Issuer shall keep in full effect its existence, rights and franchises
under the laws of such other jurisdiction) and shall obtain and preserve its
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Indenture, the Senior Notes, the Collateral and each other instrument or
agreement included in the Trust Estate.
Section 3.05 Protection of Trust Estate. The Issuer intends the
security interest Granted pursuant to this Indenture in favor of the Indenture
Trustee on behalf of the Senior Noteholders to be prior to all other liens in
respect of the Trust Estate, and the Issuer shall take all actions necessary to
obtain and maintain, for the benefit of the Indenture Trustee on behalf of the
Senior Noteholders, a first lien on and a first priority, perfected security
interest in the Trust Estate. The Issuer shall from time to time execute and
deliver all such supplements and amendments hereto and all such financing
statements, continuation statements, instruments of further assurance and other
instruments, all as prepared by the Administrator and delivered to the Issuer,
and shall take such other action necessary or advisable to:
(a) Grant more effectively all or any portion of the Trust Estate;
(b) maintain or preserve the lien and security interest (and the
priority thereof) created by this Indenture or carry out more
effectively the purposes hereof;
(c) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(d) enforce any of the Collateral;
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(e) preserve and defend title to the Trust Estate and the rights of the
Indenture Trustee and the Senior Noteholders in the Trust Estate
against the claims of all Persons; or
(f) pay all taxes or assessments levied or assessed upon the Trust
Estate when due. The Issuer hereby designates the Indenture Trustee its
agent and attorney-in-fact to execute all financing statements,
continuation statements or other instruments required to be executed
pursuant to this Section.
Section 3.06 Opinions as to Trust Estate.
(a) On the Closing Date, the Issuer shall furnish or cause to be
furnished to the Indenture Trustee, an Opinion of Counsel to the effect that, in
the opinion of such counsel, either (i) all financing statements and
continuation statements have been executed and filed that are necessary to
create and maintain the lien and security interest of the Indenture Trustee in
the SUBI Certificates and reciting the details of such action, or (ii) no such
action is necessary to create and maintain such lien and security interest.
(b) On or before April 30th of each calendar year, beginning with
April 30, 2001, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel to the effect that in the opinion of such counsel, either (i) all
financing statements and continuation statements have been executed and filed
that are necessary to continue the lien and security interest of the Indenture
Trustee in the SUBI Certificates and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are given, or (ii)
no such action is necessary to continue such lien and security interest.
Section 3.07 Performance of Obligations; Administration of the 2000-A
SUBI Assets.
(a) The Issuer shall not take any action and shall use its best
efforts not to permit any action to be taken by others, including the
Administrator, that would release any Person from any of such Person's material
covenants or obligations under any instrument or agreement included in the Trust
Estate or that would result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of, any
such instrument or agreement, except as expressly provided in the Basic
Documents or such other instrument or agreement.
(b) The Issuer may contract with other Persons, to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer. Initially, the
Issuer has contracted with the Administrator, and the Administrator has agreed,
to assist the Issuer in performing its duties under this Indenture.
(c) The Issuer shall, and, shall cause the Administrator and the
Servicer to, punctually perform and observe all of its obligations and
agreements contained in this Indenture, the other Basic Documents and the
instruments and agreements included in the Trust Estate, including filing or
causing to be filed all UCC financing statements and continuation statements
required to be filed by the terms of this Indenture and the other Basic
Documents in accordance with and within the time periods provided for herein and
therein. Except as otherwise expressly provided therein, the Issuer, as a party
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to the Basic Documents and as Holder of the 2000-A Vehicle SUBI Certificate and
pledgee of the 2000-A Lease SUBI Certificate, shall not, and shall cause each of
the Servicer and the Administrator not to, modify, amend, supplement, waive or
terminate any Basic Document to which it is a party or any provision thereof
without satisfying the Rating Agency Condition and each other condition as may
be specified in the particular provision or Basic Document.
(d) Servicer Defaults may occur with respect to the Indenture Trustee
as assignee of the Issuer. If the Issuer or the Indenture Trustee shall have
knowledge of the occurrence and continuation of a Servicer Default, such entity
shall promptly notify the other entity and each Rating Agency thereof, and shall
specify in such notice the action, if any, the action the other entity is taking
in respect of such default. If a Servicer Default shall arise from the failure
of the Servicer to perform any of its duties or obligations under the Servicing
Agreement with respect to the 2000-A SUBI Assets, the Issuer shall take all
reasonable steps available to it to remedy such failure. Upon the occurrence and
continuation of a Servicer Default with respect to the 2000-A SUBI, the
Indenture Trustee may terminate all of the rights and obligations of the
Servicer with respect to the 2000-A SUBI only, and a successor Servicer shall be
appointed pursuant to the Servicing Agreement.
(e) Upon any termination of the Servicer's rights and powers or
resignation of the Servicer pursuant to the Servicing Agreement, the Issuer or
the Indenture Trustee shall promptly, but in any event within two Business Days
of such termination or resignation, notify the other entity thereof. As soon as
a successor Servicer is appointed pursuant to the Servicing Agreement, the
Issuer or the Indenture Trustee shall notify the other entity of such
appointment, specifying in such notice the name and address of such successor
Servicer.
Section 3.08 Negative Covenants. So long as any Senior Notes are
Outstanding, the Issuer shall not:
(a) engage in any activities other than financing, acquiring, owning,
leasing (subject to the lien of this Indenture), pledging and managing
the 2000-A SUBI Certificates as contemplated by this Indenture and the
other Basic Documents;
(b) other than the lease of the 2000-A Vehicle SUBI Certificate
pursuant to the Program Operating Lease, which lease is subject to the
lien of this Indenture, and except as expressly permitted herein, in
the Program Operating Lease and in the other Basic Documents, sell,
transfer, exchange or otherwise dispose of any of the assets of the
Issuer;
(c) claim any credit on or make any deduction from the principal or
interest payable in respect of the Senior Notes (other than amounts
properly withheld from such payments under the Code or applicable state
law) or assert any claim against any present or former Senior
Noteholder by reason of the payment of the taxes levied or assessed
upon any part of the Trust Estate;
(d) (i) permit the validity or effectiveness of this Indenture to be
impaired, permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged or permit any
Person to be released from any covenants or obligations under this
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Indenture, except as may be expressly permitted hereby, (ii) permit any
lien, charge, excise, claim, security interest, mortgage or other
encumbrance (other than the lien of this Indenture) to be created on or
extend to or otherwise arise upon or burden the Trust Estate, 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 any 2000-A SUBI Asset and arising solely as a result of
an action or omission of the related Lessee) or (iii) except as
otherwise provided in the Basic Documents, permit the lien of this
Indenture not to constitute a valid first priority (other than with
respect to any such tax, mechanics' or other lien) security interest in
the Trust Estate;
(e) incur, assume or guarantee any indebtedness other than indebtedness
incurred in accordance with the Basic Documents; or
(f) except as otherwise permitted by the Basic Documents, dissolve or
liquidate in whole or in part.
Section 3.09 Issuer Certificates and Reports.
(a) The Issuer shall deliver to the Indenture Trustee and each Rating
Agency, within 120 days after the end of each calendar year (commencing with the
year ending December 31, 2000), 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
its 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 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.
(b) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the Issuer is
required (if at all) to file the same with the Commission, copies of
the annual reports and such other information, documents and reports
(or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) as the Issuer
may be required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in accordance
with rules and regulations prescribed from time to time by the
Commission such other 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
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(iii) supply to the Indenture Trustee (and the Indenture Trustee shall
transmit by mail to all Senior Noteholders as required by 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 3.09(b) as may be required pursuant to rules and
regulations prescribed from time to time by the Commission.
(c) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
Section 3.10 Restrictions on Certain Other Activities. Except as
otherwise provided in the Basic Documents, the Issuer shall not: (i) engage in
any activities other than financing, acquiring, owning, leasing (subject to the
lien of this Indenture), pledging and managing the 2000-A SUBI Certificates in
the manner contemplated by the Basic Documents; (ii) issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness; (iii) make any loan, advance or credit to, 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, 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; or (iv) make any expenditure (by long-term or
operating lease or otherwise) for capital assets (either realty or personalty).
Section 3.11 Notice of Defaults. The Issuer agrees to give the
Indenture Trustee and each Rating Agency prompt written notice of each Indenture
Default hereunder on the part of the Administrator and each Program Operating
Lease Default on the part of the Transferor as lessee under the Program
Operating Lease.
Section 3.12 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer shall execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purposes of this Indenture.
Section 3.13 Delivery of 2000-A Vehicle SUBI Certificate. On the
Closing Date, the Issuer shall deliver or cause to be delivered to the Indenture
Trustee as security for its obligations hereunder, the 2000-A Vehicle SUBI
Certificate and the pledged 2000-A Lease SUBI Certificate. The Indenture Trustee
shall take possession of the 2000-A SUBI Certificates in New York and shall at
all times during the period of this Indenture maintain custody of the 2000-A
SUBI Certificates in New York.
Section 3.14 Delivery of the Subordinated Notes. Pursuant to Section
2.01 of the Issuer SUBI Certificate Transfer Agreement, the Transferor shall
pledge all payments in respect of the Subordinated Notes to the Reserve Fund as
security for the Secured Obligations and upon the issuance of the Subordinated
Notes to the Transferor, the Issuer shall deliver the Subordinated Notes
directly to the Indenture Trustee as security for its obligations hereunder. The
Indenture Trustee shall take possession of the Subordinated Notes in New York
and shall at all times during the period of the Indenture maintain custody of
the Subordinated Notes in New York.
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Section 3.15 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 Senior Notes, this Indenture or
any other Basic Document.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture. This Indenture
shall discharge with respect to the Collateral securing the Senior Notes except
as to (a) rights of registration of transfer and exchange, (b) substitution of
mutilated, destroyed, lost or stolen Senior Notes, (c) rights of Senior
Noteholders to receive payments of principal thereof and interest thereon, (d)
Sections 3.03, 3.04, 3.05, 3.08, 3.10, 3.11, 3.13 and 3.14, (e) the rights,
obligations and immunities of the Indenture Trustee hereunder (including the
rights of the Indenture Trustee under Section 6.07 and the obligations of the
Indenture Trustee under Section 4.02) and (f) the rights of Senior Noteholders
as beneficiaries hereof with respect to the property so deposited with the
Indenture Trustee payable to all or any of them, and the Indenture Trustee, on
demand and at the expense and on behalf of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(i) either (A) all Senior Notes theretofore authenticated and delivered
(other than (1) Senior Notes that have been mutilated, destroyed, lost
or stolen and that have been replaced or paid as provided in Section
2.05) and (2) Senior Notes for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Issuer and
thereafter paid to the Persons entitled thereto or discharged from such
trust, as provided in Section 3.03) have been delivered to the
Indenture Trustee for cancellation; or (B) all Senior Notes not
theretofore delivered to the Indenture Trustee for cancellation (1)
have become due and payable, (2) will become due and payable on the
applicable Senior Note Final Scheduled Payment within one year or (3)
are to be called for redemption within one year under arrangements
satisfactory to the Indenture Trustee for the giving of notice of
redemption by the Indenture Trustee in the name, and at the expense, of
the Issuer, and the Issuer, in the case of clauses (1), (2) or (3)
above, has irrevocably deposited or caused to be irrevocably deposited
with the Indenture Trustee cash or direct obligations of or obligations
guaranteed by the United States (that 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 Senior
Notes (including interest and any fees due and payable to the Owner
Trustee or the Indenture Trustee) not theretofore delivered to the
Indenture Trustee for cancellation, when due, to the applicable Senior
Note Final Scheduled Payment for each Class, or to the Redemption Date
(if Senior Notes shall have been called for redemption pursuant to
Section 10.01), as the case may be;
(ii) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
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(iii) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel, each meeting the applicable
requirements of Section 11.01 and, subject to Section 11.02, each
stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been complied
with (and, in the case of an Officer's Certificate, stating that the
Rating Agency Condition has been satisfied).
Section 4.02 Application of Trust Money. All monies deposited with
the Indenture Trustee pursuant to Section 4.01 shall be held in trust and
applied by it, in accordance with the provisions of the Senior Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Senior Noteholders of the particular
Senior Notes for the payment or redemption of which such monies have been
deposited with the Indenture Trustee of all sums due and to become due thereon
for principal and interest. Such monies need not be segregated from other funds
of the Indenture Trustee except to the extent required herein or in the
Servicing Agreement or as required by law.
Section 4.03 Repayment of Monies Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Senior
Notes, all monies then held by any Paying Agent other than the Indenture Trustee
under the provisions of this Indenture with respect to such Senior Notes shall,
upon demand of the Issuer, be paid to the Indenture Trustee to be held and
applied according to Section 3.03 and such Paying Agent shall thereupon be
released from all further liability with respect to such monies.
ARTICLE FIVE
INDENTURE DEFAULT
Section 5.01 Indenture Defaults. The occurrence and continuation of
any one of the following events (whatever the reason for such Indenture Default
and whether it shall be voluntary or involuntary or effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) shall constitute a
default under this Indenture (each, an "Indenture Default"):
(a) default in the payment of any interest on any Senior Note when the
same becomes due and payable, and such default shall continue for a
period of 5 days or more;
(b) default in the payment of principal of any Senior Note at the
Senior Note Final Scheduled Payment Date or the Redemption Date;
(c) the occurrence of a Program Operating Lease Default;
(d) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture (other than a covenant
or agreement, a default in the observance or performance of which is
elsewhere in this Section specifically dealt with), or any
representation or warranty of the Issuer made in this Indenture or in
any certificate or other writing delivered pursuant hereto or in
connection herewith proving to have been incorrect in any material
respect as of the time when the same shall have been made, and such
default shall continue or not be cured, or the circumstance or
condition in respect of which such misrepresentation or warranty was
26
incorrect shall not have been eliminated or otherwise cured, for a
period of 30 days after there shall have been given, by registered or
certified mail, to the Issuer by the Indenture Trustee or to the Issuer
and the Indenture Trustee by Senior Noteholders representing at least
50% of the Outstanding Amount, a written notice specifying such default
or incorrect representation or warranty and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
(e) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any
substantial part of the Trust Estate in an involuntary case under any
applicable federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Issuer or for any substantial part of the Trust Estate, or ordering the
winding up or liquidation of the Issuer's affairs, and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(f) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect or the consent by the Issuer to the entry of
an order for relief in an involuntary case under any such law, the
consent by the Issuer to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the Trust
Estate, the making by the Issuer of any general assignment for the
benefit of creditors, the failure by the Issuer generally to pay its
debts as such debts become due or the taking of action by the Issuer in
furtherance of any of the foregoing.
The Issuer shall promptly deliver to the Indenture Trustee, each
Rating Agency and each Senior Noteholder written notice in the form of an
Officer's Certificate of any Indenture Default, its status and what action the
Issuer is taking or proposes to take with respect thereto.
Subject to the provisions herein relating to the duties of the
Indenture Trustee, if an Indenture Default occurs and is continuing, the
Indenture Trustee shall be under no obligation to exercise any of the rights or
powers under this Indenture at the request or direction of any Senior
Noteholder, if the Indenture Trustee reasonably believes that it will not be
adequately indemnified against the costs, expenses and liabilities that might be
incurred by it in complying with such request. Subject to such provisions for
indemnification and certain limitations contained herein, Senior Noteholders
holding not less than a majority of the Outstanding Amount shall have the right
to direct the time, method and place of conducting any proceeding or any remedy
available to the Indenture Trustee or exercising any trust power conferred on
the Indenture Trustee, and Senior Noteholders holding not less than a majority
of the Outstanding Amount may, in certain cases, waive any default with respect
thereto, except a default in the payment of principal or interest or a default
in respect of a covenant or provision of the Indenture that cannot be modified
without the waiver or consent of all of the holders of the Outstanding Senior
Notes.
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Section 5.02 Acceleration of Maturity; Waiver of Indenture Default.
If an Indenture Default should occur and be continuing, the Indenture Trustee or
Senior Noteholders representing a majority of the Outstanding Amount may declare
the principal of the Senior Notes to be immediately due and payable. Upon such
declaration, the Indenture Trustee shall promptly provide written notice to each
Rating Agency. Such declaration may be rescinded by Senior Noteholders holding a
majority of the Outstanding Amount before a judgment or decree for payment of
the amount due has been obtained by the Indenture Trustee if (a) the Issuer has
deposited with the Indenture Trustee an amount sufficient to pay (i) all
interest on and principal of the Senior Notes as if the Indenture Default giving
rise to such declaration had not occurred and (ii) all amounts advanced by the
Indenture Trustee and its costs and expenses and (b) all Indenture Defaults
(other than the nonpayment of principal of the Senior Notes that has become due
solely by such acceleration) have been cured or waived.
At any time prior to the declaration of the acceleration of the
maturity of the Senior Notes, Senior Noteholders holding not less than a
majority of the Outstanding Amount, by written notice to the Issuer and the
Indenture Trustee, may waive such Indenture Default and its consequences, except
a default (i) in payment of principal of or interest on the Senior Notes or (ii)
in respect of any covenant or provision in this Indenture that cannot be
modified or amended without the unanimous consent of the Senior Noteholders. No
such waiver shall affect any subsequent default or impair any right consequent
thereto.
If the Senior Notes have been declared due and payable following an
Indenture Default, the Indenture Trustee may institute proceedings to collect
amounts due, exercise remedies as a secured party (including foreclosure or sale
of the Trust Estate) or elect to maintain the Trust Estate and continue to apply
the proceeds from the Trust Estate as if there had been no declaration of
acceleration. Any sale of the Trust Estate by the Indenture Trustee will be
subject to the terms and conditions of Section 5.04.
Section 5.03 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.
(a) The Issuer covenants that if there is a default in the payment of
(i) any interest on the Senior Notes when the same becomes due and payable, and
such default continues for a period of five days or (ii) the principal of the
Senior Notes at the Senior Note Final Scheduled Payment or the Redemption Date,
the Issuer shall, upon demand of the Indenture Trustee, pay to the Indenture
Trustee, for the benefit of such Senior Noteholders, the entire amount then due
and payable on such Senior Notes for principal and interest, with interest on
the overdue principal, and, to the extent payment at such rate of interest shall
be legally enforceable, upon overdue installments of interest, at the Overdue
Interest Rate and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents, attorneys and counsel.
(b) In case the Issuer shall fail forthwith to pay amounts described
in Section 5.03(a) upon demand, the Indenture Trustee, in its own name and as
trustee of an express trust, may institute a Proceeding for the collection of
the sums so due and unpaid, and may prosecute such Proceeding to judgment or
final decree, and may enforce the same against the Issuer or other obligor upon
28
such Senior Notes and collect in the manner provided by law out of the property
of the Issuer or other obligor upon such Senior Notes, wherever situated, the
monies adjudged or decreed to be payable.
(c) If an Indenture Default occurs and is continuing, the Indenture
Trustee may, in its discretion, proceed to protect and enforce its rights and
the rights of the Senior Noteholders, by such appropriate Proceedings as the
Indenture Trustee shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any
other obligor upon the Senior Notes or any Person having or claiming an
ownership interest in the Trust Estate, Proceedings under Title 11 of the United
States Code or any other applicable federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee 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 Senior Notes, or to the
property of the Issuer or such other obligor, the Indenture Trustee,
irrespective of whether the principal of any Senior Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Indenture Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, by intervention in
such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Senior Notes
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee
(including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances and disbursements made, by
the Indenture Trustee and each predecessor Indenture Trustee, except as
a result of negligence or bad faith) and of the Senior Noteholders
allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Senior Noteholders in any election of a trustee, a
standby trustee or Person performing similar functions in any such
Proceedings; to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Senior Noteholders and the
Indenture Trustee on their behalf; and
(iii) to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Indenture
Trustee or the Senior Noteholders allowed in any judicial proceedings
relative to the Issuer, its creditors and its property;
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and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each Senior Noteholder to make
payments to the Indenture Trustee and, in the event the Indenture Trustee shall
consent to the making of payments directly to such Senior Noteholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred and all advances and disbursements made by the Indenture
Trustee and each predecessor Indenture Trustee except as a result of negligence
or bad faith, and any other amounts due the Indenture Trustee under Section
6.07.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Senior Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Senior Notes or the rights of any Senior
Noteholder or to vote in respect of the claim of any Senior Noteholder in any
such proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under the Senior Notes, may be enforced by the Indenture Trustee
without the possession of the Senior Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such action or Proceedings
instituted by the Indenture Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment, subject to the payment of the
expenses, advances, disbursements and compensation of the Indenture Trustee,
each predecessor Indenture Trustee and their respective agents, attorneys and
counsel shall be for the ratable benefit of the Senior Noteholders in respect of
which such judgment has been recovered.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Senior Noteholders, and it shall not be necessary to
make any Senior Noteholder a party to any such Proceedings.
Section 5.04 Remedies; Priorities.
(a) If an Indenture Default shall have occurred and be continuing,
the Indenture Trustee may do one or more of the following (subject to Sections
5.02 and 5.05):
(i) institute Proceedings in its own name and as trustee of an express
trust for the collection of all amounts then payable on the Senior
Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer and any other obligor upon such Senior Notes monies
adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC and take
any other appropriate action to protect and enforce the rights and
remedies of the Indenture Trustee and the Senior Noteholders; and
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(iv) subject to Section 5.17, after an acceleration of the maturity of
the Senior Notes pursuant to Section 5.02, sell the Trust Estate or any
portion thereof or rights or interest therein, at one or more public or
private sales called and conducted in any manner permitted by law;
provided, however, that unless directed to sell the Trust Estate in accordance
with Section 9.02 of the Trust Agreement, the Indenture Trustee may not sell or
otherwise liquidate the Trust Estate following an Indenture Default, other than
an Indenture Default described in Section 5.01 (a) or (b), unless (A) Senior
Noteholders holding 100% of the Outstanding Amount consent thereto, (B) the
proceeds of such sale are sufficient to discharge in full all amounts then due
and unpaid upon all outstanding Securities (other than Transferor Trust
Certificate) or (C) the Indenture Trustee determines that the Trust Estate will
not continue to provide sufficient funds for the payment of principal of and
interest on the Senior Notes as they would have become due if the Senior Notes
had not been declared due and payable and the Indenture Trustee obtains the
consent of Senior Noteholders holding not less than 66 2/3% of the Outstanding
Amount; and provided further, that the Indenture Trustee may not sell the Trust
Estate, other than a sale resulting from the bankruptcy, insolvency or
termination of the Transferor pursuant to Section 9.02 of the Trust Agreement,
unless it shall first have obtained an Opinion of Counsel that such sale will
not cause the Vehicle Trust or an interest therein or portion thereof to be
classified as an association (or a publicly traded partnership) taxable as a
corporation for federal income tax purposes. In determining such sufficiency or
insufficiency with respect to clauses (B) and (C) of the preceding sentence, the
Indenture Trustee may but need not obtain (at the expense of the Issuer) and
rely upon an opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant
to this Article Five upon sale of the Trust Estate, it shall pay out such money
or property held as Collateral (including available monies on deposit in the
Reserve Fund) and deposited in the Note Distribution Account pursuant to Section
12.05(b) of the SUBI Trust Agreement after giving effect to the distributions
set forth in Section 12.05(b) of the SUBI Trust Agreement, for the benefit of
the Securityholders in the following order:
(i) to Senior Noteholders for the payments of interest which is due and
unpaid on the Senior Notes (including any overdue interest, and to the
extent permitted under applicable law, interest on any overdue interest
at the Overdue Interest Rate) in respect of which or for the benefit of
which such money has been collected;
(ii) to the Subordinated Noteholder (which amounts shall be deposited
into the Reserve Fund), for the payment of interest that is due and
unpaid (including any overdue interest and, to the extent permitted
under applicable law, interest on any overdue interest at the
Subordinated Note Rate) on the Subordinated Notes;
(iii) to the Certificate Distribution Account for the payment of
interest which is due and unpaid (including any overdue interest and,
to the extent permitted under applicable law, interest on any overdue
interest at the Certificate Rate) on the Certificates;
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(iv) to the Senior Noteholders in payment of the principal amount due
and unpaid on the Senior Notes;
(v) to the Subordinated Noteholder (which amounts shall be deposited
into the Reserve Fund) and to the Certificate Distribution Account for
distribution to the Trust Certificateholders, for amounts due and
unpaid in respect of the principal amount due and unpaid on the
Subordinated Notes and the Trust Certificates, respectively, ratably,
without preference or priority of any kind, according to the amounts
due and payable to the Subordinated Noteholder and the Trust
Certificateholders;
(vi) to the Transferor, in its capacity as the Subordinated Noteholder,
up to the amount deposited into the Reserve Fund in respect of the
Subordinated Notes on or prior to the date of the preceding
distributions; and
(vii) any remaining amounts, shall be paid to the Transferor, in its
capacity as Subordinated Noteholder.
(c) The Indenture Trustee may fix a record date and payment date for
any payment to Senior Noteholders pursuant to this Section. At least 15 days
before such record date, the Issuer shall mail to each Senior Noteholder and the
Indenture Trustee a notice that states the record date, the payment date and the
amount to be paid.
Section 5.05 Optional Preservation of the 2000-A SUBI Assets. If the
Senior Notes have been declared to be due and payable under Section 5.02
following an Indenture Default and such declaration and its consequences have
not been rescinded and annulled, the Indenture Trustee may, unless directed to
sell pursuant to Section 9.02 of the Trust Agreement, but need not, elect to
maintain possession of the Trust Estate and continue to apply the proceeds
thereof in accordance with Section 3.01 and 8.04. It is the intent of the
parties hereto and the Senior Noteholders that there be at all times sufficient
funds for the payment of principal of and interest on the Senior Notes, and the
Indenture Trustee shall take such intent into account when determining whether
or not to maintain possession of the Trust Estate. In determining whether to
maintain possession of the Trust Estate, the Indenture Trustee may but need not
obtain (at the expense of the Issuer) and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
Section 5.06 Limitation of Suits.
(a) No holder of any Senior Note shall have any right to institute
any Proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless: (i) such Senior Noteholder previously has given to the Indenture Trustee
written notice of a continuing Indenture Default, (ii) Senior Noteholders
holding not less than 25% of the Outstanding Amount have made written request to
the Indenture Trustee to institute such Proceeding in respect of such Indenture
Default in its own name as Indenture Trustee, (iii) such Senior Noteholder has
offered the Indenture Trustee reasonable indemnity against the costs, expenses
and liabilities to be incurred in complying with such request, (iv) the
Indenture Trustee has for 60 days failed to institute such Proceedings and (v)
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no direction inconsistent with such written request has been given to the
Indenture Trustee during such 60 day period by Senior Noteholders holding a
majority of the Outstanding Amount.
No Senior Noteholder or group of Senior Noteholders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Senior
Noteholders or to obtain or to seek to obtain priority or preference over any
other Senior Noteholder or to enforce any right under this Indenture, except in
the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Senior
Noteholders, each representing less than a majority of the Outstanding Amount,
the Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
(b) No Senior Noteholder shall have any right to vote except as
provided pursuant to this Indenture and the Senior Notes, nor any right in any
manner to otherwise control the operation and management of the Issuer. However,
in connection with any action as to which Senior Noteholders are entitled to
vote or consent under this Indenture and the Senior Notes, the Issuer may set a
record date for purposes of determining the identity of Noteholders entitled to
vote or consent in accordance with TIA Section 316(c).
Section 5.07 Unconditional Rights of Senior Noteholders to Receive
Principal and Interest. Notwithstanding any other provision in this Indenture,
any Senior Noteholder shall have the right, which is absolute and unconditional,
to receive payment of the principal of and interest on, if any, such Senior Note
on or after the respective due dates thereof expressed in such Senior Note or
this Indenture (or, in the case of redemption, on or after the Redemption Date)
and to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Senior Noteholder.
Section 5.08 Restoration of Rights and Remedies. If the Indenture
Trustee or any Senior Noteholder has instituted any Proceeding to enforce any
right or remedy under this Indenture and such Proceeding has been discontinued
or abandoned for any reason or has been determined adversely to the Indenture
Trustee or such Senior Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Senior Noteholders shall, subject to any determination
in such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Senior Noteholders shall continue as though no such Proceeding
had been instituted.
Section 5.09 Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Indenture Trustee or the Senior
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, 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.
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Section 5.10 Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee or any Senior Noteholder to exercise any right or remedy
accruing upon any Default or Indenture Default shall impair any such right or
remedy or constitute a waiver of any such Default or Indenture Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Indenture Trustee or the Senior Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Senior Noteholders, as the case may be.
Section 5.11 Control by Senior Noteholders. Subject to the provisions
of Sections 5.06, 6.02(d) and 6.02(e), Senior Noteholders holding not less than
a majority of the Outstanding Amount shall have the right to direct the time,
method and place of conducting any Proceeding for any remedy available to the
Indenture Trustee with respect to the Senior Notes or with respect to the
exercise of any trust or power conferred on the Indenture Trustee, provided
that:
(a) such direction shall not be in conflict with any rule of law or
this Indenture;
(b) subject to Section 5.04, any direction to the Indenture Trustee to,
sell or liquidate the Trust Estate shall be made by Senior Noteholders
holding not less than 100% of the Outstanding Amount;
(c) if the conditions set forth in Section 5.05 have been satisfied and
the Indenture Trustee elects to retain the Trust Estate pursuant to
such Section, and except in the case of a sale of the Trust Estate
pursuant to Section 9.02 of the Trust Agreement, then any direction to
the Indenture Trustee by Senior Noteholders holding less than 100% of
the Outstanding Amount to sell or liquidate the Trust Estate shall be
of no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Senior Noteholders set forth in this
Section, subject to Section 6.01, the Indenture Trustee need not take any action
it determines might expose it to personal liability or might materially
adversely affect or unduly prejudice the rights of any Senior Noteholders not
consenting to such action.
Section 5.12 Waiver of Past Defaults. Prior to the acceleration of
the maturity of the Senior Notes as provided in Section 5.02, Senior Noteholders
holding not less than a majority of the Outstanding Amount may waive any past
Indenture Default and its consequences except an Indenture Default (i) in
payment of principal of or interest on the Senior Notes or (ii) in respect of a
covenant or provision hereof that cannot be modified or amended without the
consent of each Senior Noteholder. In the case of any such waiver, the Issuer,
the Indenture Trustee and the Senior Noteholders shall be restored to their
former positions and rights hereunder, respectively, but no such waiver shall
extend to any subsequent or other Indenture Default or impair any right
consequent thereto.
Upon any such waiver, such Indenture Default shall cease to exist and
be deemed to have been cured and not to have occurred, and any Indenture Default
arising therefrom shall be deemed to have been cured and not to have occurred
34
for every purpose of this Indenture, but no such waiver shall extend to any
subsequent or other Indenture Default or impair any right consequent thereto.
Section 5.13 Undertaking for Costs. All parties to this Indenture
agree, and each Senior Noteholder by such Senior Noteholder's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Indenture Trustee for any action taken, suffered or omitted
by it as Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable 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 (i) any suit instituted by the
Indenture Trustee, (ii) any suit instituted by any Senior Noteholder or group of
Senior Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount or (iii) any suit instituted by any Senior Noteholder for the
enforcement of the payment of principal of or interest on any Senior Note on or
after the related due dates expressed in such Senior Note and in this Indenture
(or, in the case of redemption, on or after the Redemption Date).
Section 5.14 Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture, and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 5.15 Action on Senior Notes. The Indenture Trustee's right to
seek and recover judgment on the Senior Notes or under this Indenture shall not
be affected by the seeking, obtaining or application of any other relief under
or with respect to this Indenture. Neither the lien of this Indenture nor any
rights or remedies of the Indenture Trustee or the Senior Noteholders shall be
impaired by the recovery of any judgment by the Indenture Trustee against the
Issuer or by the levy of any execution under such judgment upon any portion of
the Trust Estate or upon any of the assets of the Issuer. Any money or property
collected by the Indenture Trustee shall be applied in accordance with Section
5.04(b).
Section 5.16 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so,
the Issuer shall take all such lawful action as the Indenture Trustee may
request to compel or secure the performance and observance by the Transferor and
the Servicer, as applicable, of each of their obligations to the Issuer under or
in connection with the Program Operating Lease and the Servicing Agreement,
respectively, 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 each such agreement to the extent and in the manner
directed by the Indenture Trustee, including the transmission of notices of
default on the part of the Servicer thereunder and the institution of legal or
35
administrative actions or proceedings to compel or secure performance by the
Servicer of its obligations under the Servicing Agreement. Upon the occurrence
and continuation of a Program Operating Lease Default, the Indenture Trustee, as
assignee of the rights of the Issuer in the Program Operating Lease pursuant to
the Indenture Trustee's security interest in the Trust Estate, shall be entitled
to terminate the Program Operating Lease in accordance with the terms thereof.
Upon such termination, the Issuer shall directly receive all distributions with
respect to the 2000-A Vehicle SUBI Certificate and to apply the funds received
in respect thereof to pay interest on and principal of the Securities.
(b) If an Indenture Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in writing
or by telephone (confirmed in writing promptly thereafter)) of Senior
Noteholders holding not less than a majority of the Outstanding Amount, shall,
exercise all rights, remedies, powers, privileges and claims of the Issuer
against the Transferor, the Vehicle Trustee and the Servicer under or in
connection with the Program Operating Lease, the Servicing Agreement and the
Administration Supplement, respectively, including the right or power to take
any action to compel or secure performance or observance by the Servicer of its
obligations to the Issuer thereunder and to give any consent, request, notice,
direction, approval, extension or waiver under the Servicing Agreement, and any
right of the Issuer to take such action shall be suspended.
Section 5.17 Sale of Trust Estate. If the Indenture Trustee acts to
sell the Trust Estate or any part thereof, pursuant to Section 5.04(a), the
Indenture Trustee shall publish a notice in an Authorized Newspaper stating that
the Indenture Trustee intends to effect such a sale in a commercially reasonable
manner and on commercially reasonable terms, which shall include the
solicitation of competitive bids. Following such publication, the Indenture
Trustee shall, unless otherwise prohibited by applicable law from any such
action, sell the Trust Estate or any part thereof, in such manner and on such
terms as provided above to the highest bidder, provided, however, that the
Indenture Trustee may from time to time postpone any sale by public announcement
made at the time and place of such sale. The Indenture Trustee shall give notice
to the Transferor and Servicer of any proposed sale, and the Transferor and
Servicer shall be permitted to bid for the Trust Estate at any such sale. The
Indenture Trustee may obtain a prior determination from a conservator, receiver
or trustee in bankruptcy of the Issuer that the terms and manner of any proposed
sale are commercially reasonable. The power to effect any sale of any portion of
the Trust Estate pursuant to Section 5.04 and this Section 5.17 shall not be
exhausted by any one or more sales as to any portion of the Trust Estate
remaining unsold, but shall continue unimpaired until the entire Trust Estate
shall has been sold or all amounts payable on the Senior Notes shall have been
paid.
ARTICLE SIX
THE INDENTURE TRUSTEE
Section 6.01 Duties of Indenture Trustee.
(a) If an Indenture Default has occurred and is continuing, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and in the same degree of care and skill in their exercise as a
36
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 Indenture Default:
(i) the Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; however, the Indenture Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture and the other Basic
Documents to which the Indenture Trustee is a party.
(c) The Indenture Trustee shall 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);
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.11.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to paragraphs (a), (b) and (c).
(e) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing with
the Issuer.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds of the Indenture Trustee except to the extent
required by law or the terms of this Indenture or the Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayments of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section.
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(i) The Indenture Trustee shall not be deemed to have knowledge of
any Indenture Default or other event unless a Responsible Officer has actual
knowledge thereof or has received written notice thereof in accordance with the
provisions of this Indenture.
(j) Nothing contained herein shall be deemed to authorize the
Indenture Trustee to engage in any business operations or any activities other
than those set forth in this Indenture. Specifically, the Indenture Trustee
shall have no authority to engage in any business operations, acquire any assets
other than those specifically included in the Trust Estate under this Indenture
or otherwise vary the assets held by the Issuer. Similarly, the Indenture
Trustee shall have no discretionary duties other than performing those
ministerial acts set forth above necessary to accomplish the purpose of the
Issuer as set forth in this Indenture.
Section 6.02 Rights of Indenture Trustee.
(a) Except as provided by the second succeeding sentence, the
Indenture Trustee may conclusively rely and shall be protected in acting upon or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, note, direction, demand,
election or other paper or document reasonably believed by it to be genuine and
to have been signed or presented by the proper person. The Indenture Trustee
need not investigate any fact or matter stated in the document. Notwithstanding
the foregoing, the Indenture Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Indenture Trustee that shall be specifically
required to be furnished pursuant to any provision of this Indenture, shall
examine them to determine whether they comply as to form to the requirements of
this Indenture.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate (with respect to factual matters) or an Opinion
of Counsel, as applicable. The Indenture Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officer's
Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, the Administrator, any co-trustee or separate trustee appointed
in accordance with the provisions of Section 6.10 or any other such agent,
attorney, custodian or nominee appointed with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or within its
rights or powers; provided, however, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice of
such counsel or any Opinion of Counsel with respect to legal matters relating to
this Indenture and the Senior 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.
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(f) The Indenture Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture or to institute,
conduct or defend any litigation under this Indenture or in relation to this
Indenture or to honor the request or direction of any of the Senior Noteholders
pursuant to this Indenture unless such Senior Noteholders shall have offered to
the Indenture Trustee reasonable security or indemnity against the reasonable
costs, expenses, disbursements, advances and liabilities that might be incurred
by it, its agents and its counsel in compliance with such request or direction;
provided, however, that the Indenture Trustee 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 with reasonable care and skill.
(g) The Indenture Trustee 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 holders of Senior Notes evidencing not less than 50% of the Outstanding
Amount; provided, however, that if the payment within a reasonable time to the
Indenture Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the Indenture
Trustee, not reasonably assured to the Indenture Trustee by the security
afforded to it by the terms of this Indenture, the Indenture Trustee may require
reasonable indemnity against such cost, expense or liability as a condition to
so proceeding. The reasonable expense of each such investigation shall be paid
by the Person making such request, or, if paid by the Indenture Trustee, shall
be reimbursed by the Person making such request upon demand.
(h) Any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request.
Section 6.03 Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Senior Notes and may otherwise deal with the Issuer or its Affiliates with
the same rights it would have if it were not Indenture Trustee. Any Paying
Agent, Senior Note Registrar, co-registrar, co-paying agent, co-trustee or
separate trustee may do the same with like rights. The Indenture Trustee must,
however, comply with Section 6.11.
Section 6.04 Indenture Trustee's Disclaimer. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture, the Trust Estate or the Senior Notes, shall not be
accountable for the Issuer's use of the proceeds from the Senior Notes and shall
not be responsible for any statement in the Indenture or in any document issued
in connection with the sale of the Senior Notes or in the Senior Notes, all of
which shall be taken as the statements of the Issuer, other than the Indenture
Trustee's certificate of authentication.
Section 6.05 Notice of Defaults. If an Indenture Default occurs and
is continuing, and if it is known to a Responsible Officer of the Indenture
Trustee, the Indenture Trustee shall mail to each Senior Noteholder and each
Rating Agency notice of such Indenture Default within 90 days after it occurs.
Except in the case of an Indenture Default with respect to payment of principal
of or interest on any Senior Note (including payments pursuant to the redemption
of Senior Notes), the Indenture Trustee may withhold such notice if and so long
as a committee of its Responsible Officers in good faith determines that
39
withholding such notice is in the interests of the Senior Noteholders; provided,
however, that in the case of any Indenture Default of the character specified in
Section 5.01(e), no such notice shall be given until at least 30 days after the
occurrence thereof.
Section 6.06 Reports by Indenture Trustee to Senior Noteholders. The
Indenture Trustee, at the expense of the Issuer, shall deliver to each Senior
Noteholder, not later than the latest date permitted by law, such information as
may be reasonably requested (and reasonably available to the Indenture Trustee)
to enable such holder to prepare its federal and state income tax returns.
Section 6.07 Compensation and Indemnity. The Servicer shall, or shall
cause the Administrator to, (i) pay to the Indenture Trustee from time to time
reasonable compensation for its services, (ii) reimburse the Indenture Trustee
for all reasonable expenses, advances and disbursements reasonably incurred and
(iii) indemnify the Indenture Trustee for, and hold it harmless against, any and
all loss, liability or expense (including reasonable attorneys' fees) incurred
by it in connection with the administration of the Trust or the performance of
its duties. The Indenture Trustee's compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Indenture Trustee shall
notify the Issuer and the Administrator promptly of any claim for which it may
seek indemnity. Failure by the Indenture Trustee to so notify the Issuer and the
Administrator shall not relieve the Issuer or the Administrator of its
obligations hereunder. The Issuer shall, or shall cause the Administrator to,
defend any such claim, and the Indenture Trustee may have separate counsel and
the Issuer shall, or shall cause the Administrator to, pay the fees and expenses
of such counsel. The Indenture Trustee shall not be indemnified by the Servicer
against any loss, liability or expense incurred by it through its own willful
misconduct, negligence or bad faith, except that the Indenture Trustee shall not
be liable (i) for any error of judgment made by it in good faith unless it is
proved that the Indenture Trustee was negligent in ascertaining the pertinent
facts, (ii) with respect to any action it takes or omits to take in good faith
in accordance with a direction received by it from the Senior Noteholders in
accordance with the terms of this Indenture and (iii) for interest on any money
received by it except as the Indenture Trustee and the Issuer may agree in
writing. The Indenture Trustee shall not be deemed to have knowledge of any
event unless an officer of the Indenture Trustee has actual knowledge thereof or
has received written notice thereof.
The Issuer's payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default set forth in Section
5.01(e) or (f) 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.
Section 6.08 Replacement of Indenture Trustee. The Indenture Trustee
may resign at any time by so notifying the Issuer, the Servicer and each Rating
Agency. The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
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(ii) a court having jurisdiction in the premises in respect of the
Indenture 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 Indenture
Trustee or for any substantial part of the Indenture Trustee's
property, or ordering the winding-up or liquidation of the Indenture
Trustee's affairs, provided any such decree or order shall have
continued unstayed and in effect for a period of 30 consecutive days;
(iii) the Indenture 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
Indenture Trustee or for any substantial part of the Indenture
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;
or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
Upon the resignation or required removal of the Indenture Trustee, or
the failure of the Senior Noteholders to appoint a successor Indenture Trustee
following the removal without cause of the Indenture Trustee (the Indenture
Trustee in any such event being referred to herein as the retiring Indenture
Trustee), the Issuer shall be required promptly to appoint a successor Indenture
Trustee. Any successor Indenture Trustee must at all times have a combined
capital and surplus of at least $50,000,000, a long-term debt rating of "A" or
better by or is otherwise acceptable to, each Rating Agency and satisfy the
requirements of Section 310(a) of the TIA. Additionally, prior to the
appointment of any successor Indenture Trustee, the Rating Agency Condition must
be satisfied with respect to such successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee and to the Issuer. Thereupon
the resignation or removal of the retiring Indenture Trustee shall become
effective and the successor Indenture Trustee, without any further act, deed or
conveyance, shall have all the rights, powers and duties of the Indenture
Trustee under this Indenture, subject to satisfaction of the Rating Agency
Condition. The successor Indenture Trustee shall mail a notice of its succession
to Senior Noteholders. The retiring Indenture Trustee shall promptly transfer
all property held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 45 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or Senior Noteholders holding not less than a
majority of the Outstanding Amount may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
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If the Indenture Trustee fails to comply with Section 6.11, any
Senior Noteholder may petition any court of competent jurisdiction for the
removal of the Indenture Trustee and the appointment of a successor Indenture
Trustee.
Any resignation or removal of the Indenture Trustee and appointment
of a successor Indenture Trustee pursuant to any of the provisions of this
Section shall not become effective until acceptance of appointment by the
successor Indenture Trustee pursuant to this Section and payment of all fees and
expenses owed to the outgoing Indenture Trustee. Notwithstanding the replacement
of the Indenture Trustee pursuant to this Section, the retiring Indenture
Trustee shall be entitled to payment or reimbursement of such amounts as such
Person is entitled pursuant to Section 6.07.
Section 6.09 Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to another corporation
or depository institution the resulting, surviving or transferee corporation,
without any further act, shall be the successor Indenture Trustee; provided,
that such corporation or depository institution shall be otherwise qualified and
eligible under Section 6.11. The Indenture Trustee shall provide each Rating
Agency prior written notice of any such transaction.
In case at the time such successor or successors by merger,
conversion or consolidation to the Indenture Trustee shall succeed to the trusts
created by this Indenture, the Senior Notes shall have been authenticated but
not delivered, any such successor to the Indenture Trustee may adopt the
certificate of authentication of any predecessor trustee and deliver such Senior
Notes so authenticated, and in case at that time the Senior Notes shall not have
been authenticated, any successor to the Indenture Trustee may authenticate such
Senior Notes either in the name of any predecessor hereunder or in the name of
the successor to the Indenture Trustee, and in all such cases such certificates
shall have the full force that it is anywhere in the Senior Notes or in this
Indenture provided that the certificate of the Indenture Trustee shall have.
Section 6.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust Estate may at the time be located, the Indenture
Trustee and the Administrator acting jointly shall have the power and may
execute and deliver all instruments to appoint one or more Persons to act as a
co-trustee or co-trustees, or separate trustee or separate trustees, of all or
any part of the Collateral, and to vest in such Person or Persons, in such
capacity and for the benefit of the Senior Noteholders, such title to the Trust
Estate or any part hereof and, subject to the other provisions of this Section,
such powers, duties, obligations, rights and trusts as the Indenture Trustee and
the Administrator may consider necessary or desirable. If the Administrator
shall not have joined in such appointment within 15 days after it received a
request that it so join, the Indenture Trustee alone shall have the power to
make such appointment. 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 Senior Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.08.
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(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being intended that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to
be performed, the Indenture Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Collateral or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Indenture Trustee;
(ii) no separate trustee or co-trustee hereunder shall be personally
liable by reason of any act or omission of any other trustee hereunder;
and
(iii) the Indenture Trustee and the Administrator may at any time
accept the resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then-separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Indenture
Trustee or separately, as may be provided therein, subject to all the provisions
of this Indenture and specifically including every provision of this Indenture
relating to the conduct of, affecting the liability of or affording protection
to the Indenture Trustee. Every such instrument shall be filed with the
Indenture Trustee and a copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, then all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee to the extent permitted by law, without the
appointment of a new or successor trustee. Notwithstanding anything to the
contrary in this Indenture, the appointment of any separate trustee or
co-trustee shall not relieve the Indenture Trustee of its obligations and duties
under this Indenture.
Section 6.11 Eligibility; Disqualification. The Indenture Trustee
shall at all times satisfy the requirements of Section 310(a) of the TIA and
shall in addition 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 a
long-term debt rating of "A" or better by, or be otherwise acceptable to, each
Rating Agency. The Indenture Trustee shall satisfy the requirements of Section
310(b) of the TIA. The Transferor, the Administrator, the Servicer and their
respective Affiliates may maintain normal commercial banking relationships with
43
the Indenture Trustee and its Affiliates, but neither the Issuer nor any
Affiliate of the Issuer may serve as Indenture Trustee.
Section 6.12 Trustee as Holder of 2000-A Vehicle SUBI Certificate.
Following the occurrence and continuation of an Indenture Default, to the extent
that the Owner Trustee or Issuer has rights as a Holder of the 2000-A Vehicle
SUBI Certificate, including rights to distributions and notice, or is entitled
to consent to any actions taken by the Transferor, the Owner Trustee or Issuer
may initiate such action or grant such consent only with consent of the
Indenture Trustee. Following the occurrence and continuation of an Indenture
Default, the Indenture Trustee shall exercise rights as a Holder of the 2000-A
Vehicle SUBI Certificate or the right to consent or withhold consent with
respect to actions taken by the Transferor, the Owner Trustee or Issuer, upon
the written direction of holders of a majority of the Outstanding Amount;
provided, however, that subject to Section 3.07, any direction to the Indenture
Trustee to remove or replace the Servicer upon a Servicer Default shall be made
by Senior Noteholders holding not less than 66 2/3% of the Outstanding Amount
and with respect to Section 11.15, such direction shall require the written
direction of Senior Noteholders holding 100% of the Outstanding Amount.
Section 6.13 Representations and Warranties of Indenture Trustee. The
Indenture Trustee hereby makes the following representations and warranties on
which the Issuer and Senior Noteholders shall rely:
(i) the Indenture Trustee is a banking company duly organized, validly
existing and in good standing under the laws of New York; and
(ii) the Indenture Trustee has full power, authority and legal right to
execute, deliver, and, perform this Indenture and shall have taken all
necessary action to authorize the execution, delivery and performance
by it of this Indenture.
Section 6.14 Furnishing of Documents. The Indenture Trustee shall
furnish to any Senior Noteholder promptly upon receipt of a written request by
such Senior Noteholder (at the expense of the requesting Senior Noteholder)
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates and any other instruments furnished to the Indenture Trustee under
the Basic Documents.
Section 6.15 Preferential Collection of Claims Against the Issuer.
The Indenture Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). Any 2000-A Indenture Trustee
who has resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated therein.
ARTICLE SEVEN
SENIOR NOTEHOLDERS' LISTS AND REPORTS
Section 7.01 Issuer to Furnish Indenture Trustee Senior Noteholder
Names and Addresses. The Issuer shall furnish or cause to be furnished to the
Indenture Trustee (i) not more than five days after each Record Date a list, in
such form as the Indenture Trustee may reasonably require, of the names and
44
addresses of the Senior Noteholders as of such Record Date and (ii) at such
other times as the Indenture Trustee may request in writing, within 30 days
after receipt by the Issuer of any such request, a list of similar form and
content as of a date not more than ten days prior to the time such list is
furnished; provided, however, that so long as the Indenture Trustee is the
Senior Note Registrar or the Senior Notes are issued as Book-Entry Notes, no
such list shall be required to be furnished to the Indenture Trustee.
Section 7.02 Preservation of Information; Communications to Senior
Noteholders.
(a) The Indenture Trustee shall preserve in as current a form as is
reasonably practicable the names and addresses of the Senior Noteholders
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.01 and the names and addresses of Senior Noteholders received by
the Indenture Trustee in its capacity as Senior Note Registrar. The Indenture
Trustee may destroy any list furnished to it as provided in Section 7.01 upon
receipt of a new list so furnished; provided, however, that so long as the
Indenture Trustee is the Senior Note Registrar or the Senior Notes are issued as
Book-Entry Notes, no such list shall be required to be preserved or maintained.
(b) The Senior Noteholders may communicate pursuant to TIA Section
312(b) with other Senior Noteholders regarding their rights under this Indenture
or under the Senior Notes.
(c) The Issuer, the Indenture Trustee and the Senior Note Registrar
shall have the protection of TIA Section 312(c).
Section 7.03 Reports by Indenture Trustee. If required by TIA ss.
313(a), within 60 days after each March 31, beginning with March 31, 2001, the
Indenture Trustee shall mail to each Senior Noteholder as required by TIA ss.
313(c) a brief report dated as of such date that complies with TIA ss. 313(a).
The Indenture Trustee also shall comply with TIA ss. 313(b).
ARTICLE EIGHT
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01 Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the Trust Estate, the Indenture Trustee may take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
without prejudice to any right to claim an Indenture Default under this
Indenture and any right to proceed thereafter as provided in Article Five.
Section 8.02 Accounts.
(a) Pursuant to Section 5.01 of the Trust Agreement, there has been
established and there shall be maintained an Eligible Account (initially at The
Chase Manhattan Bank) in the name of the Indenture Trustee until the Outstanding
45
Amount is reduced to zero, and thereafter, in the name of the Owner Trustee,
which is designated as the "Reserve Fund." The Reserve Fund shall be held for
the benefit of the Securityholders, and shall bear a designation clearly
indicating that the funds on deposit therein are held for the benefit of the
Securityholders. The Reserve Fund shall be under the sole dominion and control
of the Indenture Trustee until the Outstanding Amount has been reduced to zero,
and thereafter under the sole dominion and control of the Owner Trustee.
(b) The Transferor shall, prior to the Closing Date, establish and
maintain an Eligible Account in the name of the Indenture Trustee on behalf of
the Senior Noteholders, which shall be designated as the "Note Distribution
Account". The Note Distribution Account shall be held in trust for the benefit
of the Senior Noteholders. The Note Distribution Account shall be under the sole
dominion and control of the Indenture Trustee.
(c) All monies deposited from time to time in the Accounts pursuant
to this Indenture or the Administration Supplement shall be held by the
Indenture Trustee as part of the Collateral and shall be applied to the purposes
herein provided. If any Account shall cease to be an Eligible Account, the
Indenture Trustee, until the Outstanding Amount has been reduced to zero, and
thereafter with respect to the Reserve Fund, the Owner Trustee shall, as
necessary, assist the Servicer in causing each Account to be moved to an
institution at which it shall be an Eligible Account.
Section 8.03 Payment Date Certificate.
(a) On the second Business Day preceding each Payment Date prior to
11:00 a.m., New York City time, the Issuer shall cause the Servicer, to deliver
to the Indenture Trustee, the Owner Trustee and each Paying Agent hereunder or
under the Trust Agreement, a certificate (the "Payment Date Certificate")
including, among other things, the following information with respect to such
Payment Date and the related Collection Period and Accrual Period:
(i) SUBI Collections for such Collection Period and the amounts
allocable to the interest represented by the 2000-A SUBI Certificates;
(ii) Available Funds, including amounts with respect to each of items
(i) through (iv) of the definition thereof;
(iii) the amount of interest accrued during such Accrual Period on each
Class of the Senior Notes;
(iv) the amount of interest accrued during such Accrual Period on the
Subordinated Notes;
(v) the amount of interest accrued during such Accrual Period on the
Certificate Balance (stated separately for the Transferor Trust
Certificate);
(vi) Class A-1 Note Balance, the Class A-2 Note Balance, the Class A-3
Note Balance, the Class A-4 Note Balance, the Outstanding Amount (as
defined in the Trust Agreement) of the Subordinated Notes and the
46
Certificate Balance, in each case on the day immediately preceding such
Payment Date;
(vii) the aggregate amount of SUBI Collections deposited into the Note
Distribution Account and the Certificate Distribution Account,
respectively;
(viii) (A) the amount on deposit in the Reserve Fund and the Reserve
Fund Requirement, each as of the beginning and end of the related
Collection Period and as of the previous Payment Date, (B) the Reserve
Fund Deposit Amount, if any, (C) the Reserve Fund Draw Amount, if any,
(D) the balance on deposit in the Reserve Fund on such Payment Date
after giving effect to withdrawals therefrom and deposits thereto in
respect of such Payment Date and (E) the change in such balance from
the immediately preceding Payment Date;
(ix) the Senior Note Distribution Amount for each Class of the Senior
Notes, the Certificate Distribution Amount and the amount allocable to
interest for each;
(x) the Monthly Principal Distribution Amount and the Principal
Distribution Amount and any Principal Shortfall Amount for each Class
of the Senior Notes, the Subordinated Notes and the Trust Certificates;
(xi) the Note Factor and Certificate Factor for each Class of the
Senior Notes and the Trust Certificates (other than the Transferor
Trust Certificate), respectively;
(xii) the aggregate amount of Residual Value Losses for such Collection
Period;
(xiii) the amount of Sales Proceeds Advances and Monthly Payment
Advances included in Available Funds;
(xiv) any Payment Date Advance Reimbursement for such Accrual Period;
(xv) amounts released to the Transferor, as Subordinated Noteholder and
as holder of the Transferor Trust Certificate; and
(xvi) the Servicing Fee for such Collection Period.
Each amount set forth pursuant to clauses (iii), (iv), (v), (vi),
(ix) and (xi) above shall be expressed in the aggregate and as a dollar amount
per $1,000 of original principal balance of a Senior Note, Subordinated Note or
Trust Certificate, as applicable.
(b) The Indenture Trustee shall have no duty or obligation to verify
or confirm the accuracy of any of the information or numbers set forth in the
Payment Date Certificate delivered to the Indenture Trustee in accordance with
this Section, and the Indenture Trustee shall be fully protected in relying upon
such Payment Date Certificate.
Section 8.04 Disbursement of Funds.
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(a) On each Payment Date, prior to 11:00 a.m., New York City time,
the Vehicle Trustee (acting through the Trust Agent) shall, in accordance with
the related Payment Date Certificate and pursuant to the instructions of the
Servicer, transfer from the 2000-A SUBI Collection Account all Securityholder
Available Funds and apply such amount, in accordance with the following
priorities:
(i) to the Servicer, the Payment Date Advance Reimbursement;
(ii) to the Servicer, the Servicing Fee, together with any unpaid
Servicing Fees in respect of one or more prior Collection Periods;
(iii) to the Note Distribution Account, for payment to each respective
Class of Senior Noteholders, an amount equal to the interest accrued at
the applicable Interest Rate for such Class of Senior Notes during the
related Accrual Period on the applicable Outstanding Amount for such
Class (and, to the extent permitted by applicable law, interest on any
overdue interest at the Overdue Interest Rate);
(iv) to the Reserve Fund, an amount equal to the interest accrued at
the Subordinated Note Rate during the related Accrual Period on the
outstanding Subordinated Notes (and, to the extent permitted by
applicable law, interest on any overdue interest at the Subordinated
Note Rate);
(v) to the Certificate Distribution Account, an amount equal to the
interest accrued on the Certificate Balance at the Certificate Rate
(and, to the extent permitted by applicable law, interest on any
overdue interest at the Certificate Rate);
(vi) to the related Distribution Account or, in the case of the
Subordinated Notes, to the Reserve Fund, as payments of principal, the
remaining Monthly Principal Distribution Amount attributable to each
Class of the Senior Notes, the Trust Certificates and the Subordinated
Notes, in the following order of priority:
(A) on any Payment Date (so long as the maturity of the Senior
Notes has not been accelerated pursuant to Section 5.02), to
each Class of the Senior Notes, the Subordinated Notes and the
Trust Certificates, sequentially:
1. to each Class of the Senior Noteholders
sequentially, so that no principal will be paid on
any Class of Senior Notes until each Class of Senior
Notes with a lower numerical designation shall have
been paid in full (i.e., until the principal on the
Class A-1 Notes shall have been paid in full, no
principal will be paid on the Class X-0, X-0 or A-4
Notes; then until the principal on the Class A-2
Notes shall have been paid in full, no principal will
be paid on the Class A-3 or A-4 Notes; then until the
principal on the Class A-3 Notes shall have been paid
in full, no principal will be paid on the Class A-4
Notes;) until all Classes of the Senior Notes have
been paid in full;
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2. to the Subordinated Noteholder until the
Subordinated Notes have been paid in full (which
amounts shall be deposited into the Reserve Fund);
and
3. to the Trust Certificateholders pro rata, until
the Trust Certificates have been paid in full; and
(B) on any Payment Date after the maturity of the Senior Notes
has been accelerated pursuant to Section 5.02:
1. first, to the Class A-1 Senior Noteholders (until
the Class A-1 Notes have been paid in full) and
second, to each other Class of the Senior Noteholders
pro rata (based on the Outstanding Amount of each
Class on such Payment Date), until all Classes of the
Senior Notes have been paid in full;
2. to the Subordinated Noteholder (which amounts
shall be deposited into the Reserve Fund) and to the
Certificate Distribution Account for distribution to
the Trust Certificateholders, for amounts due and
unpaid in respect of the principal amount due and
unpaid on the Subordinated Notes and the Trust
Certificates, respectively, ratably, without
preference or priority of any kind, according to the
amounts due and payable to the Subordinated
Noteholder and the Trust Certificateholders; and
(vii) to the Transferor, in its capacity as Transferor Trust
Certificateholder and Subordinated Noteholder, any remaining funds.
(b) On each Payment Date, after taking into account amounts to be
distributed to Securityholders from the 2000-A SUBI Collection Account, the
Servicer will allocate the Reserve Fund Draw Amount, if any, reflected in the
Payment Date Certificate, with respect to the related Collection Period and will
instruct the Indenture Trustee to make the following deposits and distributions
in the following amounts and order of priority, prior to 11:00 a.m., New York
City time:
(i) to the Note Distribution Account, to pay any remaining interest due
on the outstanding Senior Notes on such Payment Date (and, to the
extent permitted under applicable law, interest on any overdue interest
at the Overdue Interest Rate);
(ii) to the Reserve Fund, an amount equal to any remaining interest due
on the outstanding Subordinated Notes on such Payment Date (and, to the
extent permitted under applicable law, interest on any overdue interest
at the Subordinated Note Rate);
(iii) to the Certificate Distribution Account, an amount equal to any
remaining interest accrued on the Certificates with respect to such
Payment Date (and, to the extent permitted under applicable law,
interest on any overdue interest at the Certificate Rate); and
49
(iv) to the related Distribution Account or, in the case of the
Subordinated Notes, to the Reserve Fund (and thereafter, in the event
of any remaining shortfall in amounts required to pay the Monthly
Principal Distribution Amount with respect to the Certificates to the
Certificate Distribution Account), the remaining Monthly Principal
Distribution Amount, which will be allocated to pay principal on the
Senior Notes, the Subordinated Notes and the Certificates in the
amounts and order of priority set forth in Section 8.04(a)(vi).
(c) If on any Payment Date, after giving effect to all deposits to
and withdrawals from the Reserve Fund, the amount on deposit in the Reserve Fund
exceeds the Reserve Fund Requirement, the Indenture Trustee shall distribute any
such excess (i) up to the aggregate amount deposited into the Reserve Fund in
respect of the Subordinated Notes on or prior to the related Payment Date to the
Transferor, in its capacity as the Subordinated Noteholder, and (ii) any
additional excess amounts shall be paid to the Transferor in its capacity as
Subordinated Noteholder. Upon any such distributions to the Transferor, the
Securityholders will have no further rights in, or claims to such amounts.
Amounts deposited in the Reserve Fund in accordance with clauses (a)(ii) and
(iv) and clauses (b)(ii) and (iv) above shall be deemed to have been distributed
to the Subordinated Noteholder as payments in respect of interest (and overdue
interest) or principal, as applicable, and the Subordinated Noteholder shall not
be entitled to any further interest on such amounts after the related Payment
Date.
(d) On each Payment Date or Redemption Date, from the amounts on
deposit in the Note Distribution Account, the Indenture Trustee shall duly and
punctually distribute payments of principal and interest on the Senior Notes due
and by check mailed to the Person whose name appears as the registered holder of
a Senior Note (or one or more Predecessor Notes) on the Senior Note Register as
of the close of business on the related Record Date, except that with respect to
Senior Notes registered on the Record Date in the name of the nominee of DTC
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Senior Note Register as of the
applicable Record Date without requiring that the Senior Note be submitted for
notation of payment. Any reduction in the principal amount of any Senior Note
(or any one or more Predecessor Notes) affected by any payments made on any
Payment Date or Redemption Date shall be binding upon all future holders of any
Senior Note issued upon the registration of transfer thereof or in exchange
hereof or in lieu hereof, whether or not noted thereon. Amounts properly
withheld under the Code by any Person from payment to any Senior Noteholder of
interest or principal shall be considered to have been paid by the Indenture
Trustee to such Senior Noteholder for purposes of this Indenture. If funds are
expected to be available, pursuant to the notice delivered to the Indenture
Trustee, for payment in full of the remaining unpaid principal amount of the
Senior Notes on a Payment Date or Redemption Date, then the Indenture Trustee,
in the name of and on behalf of the Issuer, will notify each Person who was the
registered holder of a Senior Note as of the Record Date preceding the most
recent Payment Date or Redemption Date by notice mailed within 30 days of such
Payment Date or Redemption Date and the amount then due and payable shall be
payable only upon presentation and surrender of the Senior Note at the Corporate
Trust Office of the Indenture Trustee or at the office of the Indenture
Trustee's agent appointed for such purposes located in The City of New York.
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(e) On each Payment Date, the Indenture Trustee shall send by first
class mail an unaudited report (which may be or may be based upon the Payment
Date Certificate prepared by the Servicer) to each Person that was a Senior
Noteholder as of the close of business on the related Record Date (which shall
be Cede as the nominee of DTC unless Definitive Notes are issued under the
limited circumstances described herein), and each Rating Agency setting forth
the following information with respect to such Payment Date or the related
Deposit Date or Collection Period, as the case may be:
(i) SUBI Collections allocable to the 2000-A SUBI Certificates, for
such Collection Period;
(ii) the Senior Note Distribution Amount for each Class of Senior
Notes;
(iii) for each Class of Senior Notes, the amount of the Senior Note
Distribution Amount allocable to interest, the Monthly Principal
Distribution Amount and the Principal Distribution Amount for such
Class;
(iv) the amount of Available Funds;
(v) the amount of Sales Proceeds Advances and Monthly Payment Advances
included in Available Funds;
(vi) the aggregate amount of Residual Value Losses for such Collection
Period;
(vii) the Reserve Fund Draw Amount, if any, the balance on deposit in
the Reserve Fund on such Payment Date after giving effect to
withdrawals therefrom and deposits thereto in respect of such Payment
Date, and the change in such balance from the immediately preceding
Payment Date;
(viii) the Outstanding Amount for each Class of Senior Notes (before
giving effect to any distributions in respect of the related Payment
Date);
(ix) the Note Factor for each Class of the Senior Notes;
(x) the Payment Date Advance Reimbursement for such Accrual Period; and
(xi) the Servicing Fee for such Collection Period.
Each amount set forth pursuant to clauses (ii), (iii), (viii) and
(xi) above shall be expressed in the aggregate and as a dollar amount per $1,000
of original principal balance of a Senior Note, Subordinated Note or Trust
Certificate, as applicable. Senior Note Owners may obtain copies of such reports
upon a request in writing to the Indenture Trustee at the Corporate Trust
Office.
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Section 8.05 General Provisions Regarding Accounts.
(a) For so long as no Default or Indenture Default shall have
occurred and be continuing, all of the funds in the Reserve Fund shall be
invested and reinvested by the Indenture Trustee, until the Outstanding Amount
has been reduced to zero and thereafter by the Owner Trustee, at the direction
of the Servicer in Permitted Investments as set forth in Section 4.02(a) of the
Vehicle Trust Agreement, which mature no later than the Deposit Date succeeding
the date of such investment, including those offered by the Indenture Trustee or
an Affiliate thereof. No such investment shall be sold prior to maturity. Any
investment earnings on the Reserve Fund will be taxable to the Transferor in its
capacity as Subordinated Noteholder. On each Payment Date, net investment
earnings on the Reserve Fund shall be deposited in the Reserve Fund.
(b) Subject to Section 6.01(c), the Indenture Trustee shall not in
any way be held liable by reason of any insufficiency in the Reserve Fund
resulting from any loss on any Permitted Investment included therein, except for
losses attributable to the Indenture Trustee's failure to make payments on any
such Permitted Investments issued by the Indenture Trustee in its commercial
capacity as principal obligor and not as trustee, in accordance with their
terms.
(c) If (i) the Servicer shall have failed to give investment
directions for any funds on deposit in the Reserve Fund to the Indenture Trustee
by 11:00 a.m., New York City time (or such other time as may be agreed by the
Administrator and Indenture Trustee), on any Business Day or (ii) a Default or
Indenture Default shall have occurred and be continuing with respect to the
Senior Notes but the Senior Notes shall not have been declared due and payable
pursuant to Section 5.02 or (iii) if the Senior Notes shall have been declared
due and payable following an Indenture Default and amounts collected or
receivable from the Trust Estate are being applied in accordance with Section
5.05 as if there had not been such a declaration, then the Indenture Trustee
shall, to the fullest extent practicable, invest and reinvest funds in
investments that are Permitted Investments as set forth in paragraph (vi) of the
definition thereof.
Section 8.06 Release of Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.07, the Indenture Trustee may, and when required by the provisions of
this Indenture shall, execute instruments to release property from the lien of
this Indenture, or convey the Indenture Trustee's interest in the same, in a
manner and under circumstances that are not inconsistent with the provisions of
this Indenture. No party relying upon an instrument executed by the Indenture
Trustee as provided in this Article shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any monies.
(b) The Indenture Trustee shall, at such time as there are no Senior
Notes Outstanding and all sums due the Indenture Trustee pursuant to Section
6.07 have been paid, release any remaining portion of the Trust Estate that
secured the Senior 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. Such release shall include delivery to the Issuer or its
designee of the 2000-A SUBI Certificates and the Subordinated Notes and delivery
to the Securities Intermediary under the Control Agreement of a certificate
evidencing the release of the lien of this Indenture and transfer of dominion
and control over the Reserve Fund to the Owner Trustee. The Indenture Trustee
52
shall release property from the lien of this Indenture pursuant to this Section
only upon receipt of an Issuer Request.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Senior
Noteholders.
(a) Without the consent of the Senior Noteholders, but with prior
notice to each Rating Agency and subject to the satisfaction of the Rating
Agency Condition, the Issuer and the Indenture Trustee, when so requested by an
Issuer Request, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Indenture Trustee,
for any of the following purposes:
(i) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey or
confirm unto the Indenture Trustee any property subject or required to
be subjected to the lien of this Indenture, or to subject additional
property to the lien of this Indenture;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another Person to the Issuer and the assumption
by any such successor of the covenants of the Issuer contained herein
and in the Senior Notes;
(iii) to add to the covenants of the Issuer for the benefit of the
Senior Noteholders or to surrender any right or power herein conferred
upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to or
with the Indenture Trustee;
(v) to cure any ambiguity, correct or supplement any provision herein
or in any supplemental indenture that may be defective or inconsistent
with any other provision herein or in any supplemental indenture or
make any other provisions with respect to matters or questions arising
under this Indenture or in any supplemental indenture that shall not be
inconsistent with the provisions of this Indenture; provided that such
other provisions shall not adversely affect the interests of the Senior
Noteholders; or
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Senior Notes or 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 Six.
The Indenture Trustee is hereby authorized to join in the execution
of any such supplemental indenture and to make any further appropriate
agreements and stipulations as may be therein contained.
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(b) The Issuer and the Indenture Trustee, when requested by an Issuer
Request, may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or for the purpose of modifying in any
manner (other than the modifications set forth in Section 9.02, which require
consent of the Holder of each Senior Note affected thereby) the rights of the
Senior Noteholders under this Indenture; provided, however, that (i) such action
shall not materially adversely affect the interests of any Senior Noteholder,
(ii) the Rating Agency Condition shall have been satisfied with respect to such
action, and (iii) such action shall not, as evidenced by an Opinion of Counsel,
(A) affect the treatment of the Senior Notes as debt for federal income tax
purposes, (B) be deemed to cause a taxable exchange of the Senior Notes for
federal income tax purposes or (C) cause the Issuer, the Transferor or the
Vehicle Trust to be taxable as an association (or a publicly traded partnership)
taxable as a corporation for federal income tax purposes.
Section 9.02 Supplemental Indentures With Consent of Senior
Noteholders. The Issuer and the Indenture Trustee, when requested by an Issuer
Request, also may, with the consent of Senior Noteholders holding not less than
a majority of the Outstanding Amount, by Act of such Senior Noteholders
delivered to the Issuer and the Indenture Trustee, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this Indenture
or of modifying in any manner the rights of the Senior Noteholders under this
Indenture subject to the satisfaction of the Rating Agency Condition and
provided that no such supplemental indenture shall, without the consent of the
Senior Noteholder of each Outstanding Senior Note affected thereby:
(a) change the Senior Note Final Scheduled Payment Date of or the
date of payment of any installment of principal of or interest on any Senior
Note, or reduce the principal amount thereof, the interest rate thereon or the
Redemption Price with respect thereto, change the provision of this Indenture
relating to the application of collections on, or the proceeds of the sale of,
the Trust Estate to payment of principal of or interest on the Senior Notes, or
change any place of payment where, or the coin or currency in which, any Senior
Note or the interest thereon is payable, or impair the right to institute suit
for the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article Five, to the
payment of any such amount due on the Senior Notes on or after the respective
due dates thereof (or, in the case of redemption, on or after the Redemption
Date);
(b) reduce the percentage of the Outstanding Amount, the consent of
the Senior Noteholders of which is required for any such supplemental indenture
or the consent of the Senior Noteholders of which is required for any waiver of
compliance with provisions of this Indenture or Indenture Defaults hereunder and
their consequences provided for in this Indenture;
(c) modify or alter the provisions of the proviso to the definition
of the term "Outstanding";
(d) reduce the percentage of the Outstanding Amount required to
direct the Indenture Trustee to direct the Owner Trustee to sell the Trust
Estate pursuant to Section 5.04, if the proceeds of such sale would be
insufficient to pay the Outstanding Amount plus accrued but unpaid interest on
the Senior Notes;
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(e) 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 other Basic Documents cannot be modified or waived without
the consent of the Senior Noteholder of each Outstanding Senior Note affected
thereby;
(f) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the Trust Estate or,
except as otherwise permitted or contemplated herein, terminate the lien of this
Indenture on any property at any time subject hereto or deprive any Senior
Noteholder of the security provided by the lien of this Indenture; or
(g) impair the right to institute suit for the enforcement of payment
as provided in Section 5.07.
Any such supplemental indenture shall be executed only upon delivery
of an Opinion of Counsel to the same effect as in Section 9.01(b)(iii). The
Indenture Trustee may in its discretion determine whether or not any Senior
Notes would be affected by any supplemental indenture and any such determination
shall be conclusive upon all Senior Noteholders, whether theretofore or
thereafter authenticated and delivered hereunder. The Indenture Trustee shall
not be liable for any such determination made in good faith.
It shall not be necessary for any Act of Senior Noteholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Promptly after the execution by the Issuer and the Indenture Trustee
of any supplemental indenture pursuant to this Section, the Indenture Trustee
shall mail to the Senior Noteholders to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
Section 9.03 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Indenture Trustee shall be entitled to receive, and subject
to Sections 6.01 and 6.02, shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may but shall
not be obligated to enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or indemnities under this
Indenture or otherwise.
Section 9.04 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and shall be deemed to be modified and amended in accordance therewith
with respect to the Senior Notes affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Issuer, the Owner Trustee and the
Senior Noteholders shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and shall
55
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
Section 9.05 Reference in Senior Notes to Supplemental Indentures.
Senior Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and if required by the Indenture Trustee
shall, bear a notation in form approved by the Indenture Trustee as to any
matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new Senior Notes so modified as to
conform, in the opinion of the Indenture Trustee and the Issuer, to any such
supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Indenture Trustee in exchange for Outstanding
Senior Notes.
ARTICLE TEN
REDEMPTION OF SENIOR NOTES
Section 10.01 Redemption.
(a) Pursuant to Section 9.01 of the Trust Agreement, the Transferor
shall be permitted at its option to purchase the interest in the 2000-A SUBIs
evidenced by the 2000-A Vehicle SUBI Certificate from the Issuer on any Payment
Date if, either before or after giving effect to any payment of principal
required to be made on such Payment Date, the Senior Note Balance is less than
or equal to 10% of the Initial Securities Balance. The purchase price for the
2000-A Vehicle SUBI Certificate shall equal the unpaid principal balances of the
Securities, together with accrued interest thereon to the Redemption Date (the
"Optional Purchase Price"), which amount shall be deposited by the Transferor
into the 2000-A SUBI Collection Account on the Deposit Date relating to the
Redemption Date. In connection with an Optional Purchase, the Senior Notes shall
be redeemed on the Redemption Date in whole, but not in part, for the Redemption
Price and thereupon the pledge of the 2000-A Lease SUBI shall be discharged and
released and the 2000-A Lease SUBI Certificate shall be returned to the Issuer.
(b) If the Transferor exercises the Optional Purchase, on the
Redemption Date, prior to 11:00 a.m., New York City time, the Vehicle Trustee
(acting through the Trust Agent) shall transfer the Optional Purchase Price as
part of the Available Funds from the 2000-A SUBI Collection Account as follows:
(i) to the Note Distribution Account, the Redemption Price, (ii) to the
Subordinated Noteholders, the Subordinated Note Redemption Price and (iii) to
the Certificate Distribution Account, the Repayment Price.
(c) If the Senior Notes are to be redeemed pursuant to this Section,
the Administrator or the Issuer shall provide at least 45 days' prior notice of
the redemption of the Senior Notes to the Indenture Trustee and the Owner
Trustee, and the Indenture Trustee shall provide at least 30 days' notice
thereof to the Senior Noteholders.
Section 10.02 Form of Redemption Notice. Notice of redemption under
Section 10.01 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, mailed to each holder of Senior Notes as of the close of
business on the Record Date preceding the applicable Redemption Date at such
holder's address appearing in the Senior Note Register. In addition, the
56
Administrator shall notify each Rating Agency upon the redemption of the Senior
Notes, pursuant to the Issuer Administration Agreement.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the place where the Senior Notes to be redeemed are to be
surrendered for payment of the Redemption Price (which shall be the
office or agency of the Issuer to be maintained as provided in Section
3.02); and
(d) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Senior Note and that interest thereon shall
cease to accrue from and after the Redemption Date.
Notice of redemption of the Senior Notes shall be given by the
Indenture Trustee in the name and at the expense of the Issuer. Failure to give
notice of redemption (or any defect therein) to any Senior Noteholder shall not
impair or affect the validity of the redemption of any other Senior Note.
Section 10.03 Senior Notes Payable on Redemption Date. The Senior
Notes to be redeemed shall, following notice of redemption as required by
Section 10.02, become due and payable on the Redemption Date at the Redemption
Price and (unless the Issuer shall default in the payment of the Redemption
Price) no interest shall accrue on the Redemption Price for any period after the
date to which accrued interest is calculated for purposes of calculating the
Redemption Price.
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01 Compliance Certificates and Opinions.
(a) Upon any application or request by the Issuer to the Indenture
Trustee to take any action under any provision of this Indenture, the Issuer
shall furnish to the Indenture Trustee and each Rating Agency (i) an Officer's
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
57
(i) a statement that each signatory of such certificate or opinion has
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) In addition to any obligation imposed in Section 11.01(a) or
elsewhere in this Indenture:
(i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for
the release of any property or securities subject to the lien of this
Indenture, the Issuer shall furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each Person
signing such certificate as to the fair value (within 90 days of such
deposit) to the Issuer of the Collateral or other property or
securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (i) above, the
Issuer shall also deliver to the Indenture Trustee an Independent
Certificate as to the same matters, if the fair value of the property
or 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 calendar year of the Issuer, as set forth in the
certificates delivered pursuant to clause (i) above and this clause, is
10% or more of the Outstanding Amount, but such a certificate need not
be furnished with respect to any securities so deposited, if the fair
value thereof to the Issuer as set forth in the related Officer's
Certificate is less than $25,000 or less than 1% of the Outstanding
Amount.
(iii) Other than with respect to any release described in clause (A) or
(B) of Section 11.01(b)(v), whenever any property or securities are to
be released from the lien of this Indenture, the Issuer shall also
furnish to the Indenture Trustee an Officer's Certificate certifying or
stating the opinion of each Person signing such certificate as to the
fair value (within 90 days of such release) of the property or
securities proposed to be released and stating that in the opinion of
such Person, the proposed release will not impair the security under
this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (iii) above,
the Issuer shall also furnish to the Indenture Trustee an Independent
58
Certificate as to the same matters, if the fair value of the property
or securities and of all other property, or securities (other than
property described in clauses (A) or (B) of Section 11.01(b)(v))
released from the lien of this Indenture since the commencement of the
then current calendar year, as set forth in the Officer's Certificates
required by clause (iii) above and this clause, equals 10% or more of
the Outstanding Amount, but such Officer's 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% of the Outstanding Amount.
(v) Notwithstanding Section 2.08 or any other provision of this
Section, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of the Collateral as and to the extent permitted or required by
the Basic Documents and (B) make cash payments out of the Accounts as
and to the extent permitted or required by the Basic Documents.
Section 11.02 Form of Documents Delivered to Indenture Trustee. In
any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel. 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
Administrator, the Transferor or the Issuer, stating that the information with
respect to such factual matters is in the possession of the Administrator, the
Transferor or the Issuer.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any terms hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article Six.
Section 11.03 Acts of Senior Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by Senior
Noteholders may be embodied in and evidenced by one or more instruments of
59
substantially similar tenor signed by such Senior Noteholders in person or by
agents duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Indenture Trustee, and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Senior 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 6.01)
conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Senior Notes shall be proved by the Senior Note
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the holder of any Senior Note shall bind the holder of
every Senior Note issued upon the registration thereof or in exchange therefor
or in lieu thereof, in respect of anything done, omitted or suffered to be done
by the Indenture Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Senior Note.
Section 11.04 Notices. All demands, notices and communications
hereunder shall be in writing and shall be delivered or mailed by registered or
certified first-class United States mail, postage prepaid, hand delivery,
prepaid courier service, or by telecopier, and addressed in each case as
follows: (i) if to the Issuer c/o the Owner Trustee, at 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (telecopier no. (302) [______]), Attention:
Corporate Trust Department with a copy to the Administrator, at 000 Xxxxxxxx
Xxxxx Xxxx, Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000 (telecopier no. (201) [_____]),
Attention: General Counsel, with a copy (which shall not constitute notice) to
Xxxxxx X. Xxxxx, Esq., Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (telecopier no. (000) 000-0000); (ii) if to the Indenture
Trustee, at [ ] (telecopier no. [________]), Attention: [____________]; (iii) if
to Moody's, to 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ABS
Monitoring Group; (iv) if to S&P, to Standard & Poor's Ratings Services, 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telecopier no. (212) [_________]),
Attention: Asset Backed Monitoring Group; (v) if to Fitch, Fitch IBCA, Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telecopier no. (212) [___________]); or
(vi) at such other address as shall be designated by any of theforegoing in a
written notice to the other parties hereto. Delivery shall occur only upon
receipt or reported tender of such communication by an officer of the recipient
entitled to receive such notices located at the address of such recipient for
notices hereunder.
Section 11.05 Notices to Senior Noteholders; Waiver. Where this
Indenture provides for notice to Senior 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 Senior Noteholder
affected by such event, at his address as it appears on the Senior Note
Register, not later than the latest and not earlier than the earliest date
prescribed for the giving of such notice. In any case where notice to Senior
Noteholders is given by mail, neither the failure to mail such notice nor any
defect in any notice so mailed to any particular Senior Noteholder shall affect
60
the sufficiency of such notice with respect to other Senior Noteholders, and any
notice that is mailed in the manner herein provided shall conclusively be
presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Senior Noteholders shall be filed with the
Indenture Trustee but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event of Senior Noteholders when such notice is required
to be given pursuant to any provision of this Indenture, then any manner of
giving such notice as shall be satisfactory to the Indenture Trustee shall be
deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to each Rating Agency,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute an Indenture
Default.
Section 11.06 Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 11.07 Successors and Assigns. All covenants and agreements in
this Indenture and the Senior Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind its successors.
Section 11.08 Severability. In case any provision in this Indenture
or in the Senior Notes shall be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 11.09 Benefits of Indenture. Nothing in this Indenture or in
the Senior Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the Senior Noteholders (and, with
respect to Sections 8.03 and 8.04, the Trust Certificateholders), any other
party secured hereunder and any other Person with an ownership interest in any
part of the Trust Estate, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 11.10 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 Senior Notes or this Indenture) payment need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date on which nominally due, and no interest
shall accrue for the period from and after any such nominal date.
61
Section 11.11 Governing Law. This Indenture shall be construed in
accordance with the laws of the State of New York, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 11.12 Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 11.13 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer accompanied by an Opinion of Counsel (who may be counsel
to the Indenture Trustee or any other counsel reasonably acceptable to the
Indenture Trustee) to the effect that such recording is necessary either for the
protection of the Senior Noteholders or any other Person secured hereunder or
for the enforcement of any right or remedy granted to the Indenture Trustee
under this Indenture.
Section 11.14 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Senior Notes or under this Indenture or any
certificate or other writing delivered in connection herewith or therewith,
against (i) the Indenture Trustee or the Owner Trustee in its individual
capacity, (ii) any Trust Certificateholder, (iii) any owner of a beneficial
interest in the Issuer or (iv) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Indenture Trustee or the Owner Trustee in its
individual capacity, any Trust Certificateholder, the Owner Trustee or the
Indenture Trustee of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacity) and except that
any such partner, owner or beneficiary 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 Six, Seven and
Ten of the Trust Agreement.
Section 11.15 No Petition. The Indenture Trustee, by entering into
this Indenture, and each Senior Noteholder or Note Owner, by accepting a Senior
Note or in the case of a Note Owner, a beneficial interest in a Senior Note,
hereby covenants and agree that they will not institute, or join in instituting,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
Proceeding, or other Proceeding under federal or State bankruptcy or similar
laws for a period of one year and a day after:
(a) payment in full of all amounts due to each Holder in respect of the
UTI, the 2000-A SUBIs or any Other SUBIs, against any UTI Beneficiary
(or any general partner of any UTI Beneficiary which is a partnership),
the Vehicle Trust and the Vehicle Trustee, without the consent of 100%
of the Holders of the 2000-A SUBIs and any Others (excluding the UTI
Beneficiaries, the Transferor or any of their respective Affiliates);
and
62
(b) payment in full of the Offered Securities, against the Transferor
or the Issuer; provided, however, that 100% of the Senior Noteholders,
or, if no Senior Notes are then outstanding, the Subordinated
Noteholder and if no Subordinated Notes are then outstanding, 100% of
the Trust Certificateholders (in each case excluding the Transferor and
any of its Affiliates) may at any time institute or join in instituting
any bankruptcy, reorganization, insolvency or liquidation proceeding
against the Transferor or the Issuer.
Section 11.16 No Recourse. Each Senior Noteholder or Senior Note
Owner, by acceptance of a Senior Note or, in the case of a Senior Note Owner, a
beneficial interest in a Senior Note, covenants and agrees that no recourse may
be taken, directly or indirectly, with respect to the obligations of the Issuer,
the Owner Trustee or the Indenture Trustee on the Senior Notes or under the
Indenture or any certificate or other writing delivered in connection therewith
against (i) the Indenture Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director or employee of the
Indenture Trustee or the Owner Trustee in its individual capacity or any holder
of a beneficial interest in the Issuer, the Owner Trustee or the Indenture
Trustee or of any successor or assign of the Indenture Trustee or the Owner
Trustee in its individual capacity, except as any such Person may have expressly
agreed and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law, for any unpaid consideration
for stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity.
Section 11.17 Inspection. The Issuer agrees that on reasonable prior
notice it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information, except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing) and except to
the extent the Indenture Trustee may reasonably determine that such disclosure
is consistent with its obligations hereunder.
Section 11.18 Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this instrument has
been countersigned by Wilmington Trust Company not in its individual capacity
but solely in its capacity as Owner Trustee of the Issuer and in no event shall
Wilmington Trust Company in its individual capacity or any beneficial owner of
the Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder, as to all of which
recourse shall be had solely to the assets of the Issuer. 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 Six, Seven and Ten of the Trust
Agreement. Notwithstanding anything herein to the contrary, Section 2.07 of the
Trust Agreement shall remain in full force and effect.
63
Section 11.19 TIA Incorporation and Conflicts. The provisions of TIA
Sections 310 through 317 that impose duties on any Person (including the
provisions automatically deemed included herein unless expressly excluded by
this Indenture) are a part of and govern this Indenture, whether or not
physically contained herein. If any provision hereof limits, qualifies or
conflicts with another provision hereof that is required to be included in this
Indenture by any of the provisions of the TIA, such required provision shall
control.
Section 11.20 Intent. It is the intent of the Issuer that the Senior
Notes constitute indebtedness for all financial accounting and tax purposes and
the Issuer agrees and each purchaser of a Senior Note (by virtue of the
acquisition of such Note of an interest therein) shall be deemed to have agreed,
to treat the Senior Notes as indebtedness for all financial accounting and tax
purposes.
64
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized, all as of the day and year first above written.
BMW VEHICLE LEASE TRUST 2000-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By:
--------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By:
--------------------------------------------
Name:
Title:
Receipt of this original counterpart of this Agreement is hereby
acknowledged on this [ ]th day of November, 2000.
CHASE MANHATTAN BANK USA, N.A.,
as Vehicle Trustee
By:
--------------------------------------------
Name:
Title:
65
STATE OF ___________________ )
) ss
COUNTY OF _________________ )
On before me, ,
-------------- ---------------------------------------
[insert date] [Here insert name and title of notary]
personally appeared ,
-----------------------------------------------
( ) personally known to me, or
( ) proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to
the within instrument,
and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ties), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which such
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[Seal] Signature ___________________________
STATE OF ___________________ )
) ss
COUNTY OF _________________ )
On before me, ,
-------------- ---------------------------------------
[insert date] [Here insert name and title of notary]
personally appeared ,
-----------------------------------------------
( ) personally known to me, or
( ) proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to
the within instrument,
and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ties), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which such
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[Seal] Signature ___________________________
STATE OF ___________________ )
) ss
COUNTY OF _________________ )
On before me, ,
-------------- ---------------------------------------
[insert date] [Here insert name and title of notary]
personally appeared ,
-----------------------------------------------
( ) personally known to me, or
( ) proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to
the within instrument,
and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ties), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which such
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[Seal] Signature ___________________________
EXHIBIT A
FORM OF SENIOR NOTE
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS SENIOR NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SENIOR
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
TRANSFERS OF THE NOTES MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE
TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE
INDENTURE.
THE HOLDER, BY ACCEPTANCE OF THIS NOTE, SHALL BE DEEMED TO HAVE
AGREED TO TREAT THE NOTES AS DEBT SOLELY OF THE ISSUER FOR UNITED STATES FEDERAL
AND STATE INCOME TAX PURPOSES.
BMW VEHICLE LEASE TRUST 2000-A
[_____] % ASSET BACKED SENIOR NOTE, CLASS [A-1] [A-2] [A-3] [A-4]
REGISTERED $[_________]
No. R-[___] CUSIP NO. [_________]
BMW Vehicle Lease Trust 2000-A, a business trust organized and
existing under the laws of the State of Delaware (including any permitted
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, the principal sum of
[______________________________] Dollars ($[__________]) in monthly installments
on the 25th of each month, or if such day is not a Business Day, on the
immediately succeeding Business Day, commencing on November 27, 2000 (each, a
"Payment Date") until the principal of this Senior Note is paid or made
available for payment, and to pay interest on each Payment Date on the Class
[A-1] [A--2] [A-3] [A-4] Note Balance as of the preceding Payment Date (after
giving effect to all payments of principal made on the preceding Payment Date),
A-1
or as of the Closing Date in the case of the first Payment Date or if no
interest has yet been paid, at the rate per annum shown above (the "Interest
Rate"), in each case as and to the extent described below; provided, however,
that the entire Class [A-1] [A-2] [A-3 ] [A-4] Note Balance shall be due and
payable on the earlier of [___________], 200[__] (the "Senior Note Final
Scheduled Payment") and the Redemption Date, if any, pursuant to Section 10.01
of the Indenture. The Issuer shall pay interest on overdue installments of
interest at the Interest Rate to the extent lawful. Such principal of and
interest on this Senior Note shall be paid in the manner specified on the
reverse hereof.
The principal of and interest on this Senior Note are payable in such
coin or currency of the United States as at the time of payment is legal tender
for payment of public and private debts. All payments made by the Issuer with
respect to this Senior Note shall be applied first to interest due and payable
on this Senior Note as provided above and then to the unpaid principal of this
Senior Note.
Reference is made to the further provisions of this Senior Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Senior Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee the name of which appears below by manual signature, this
Senior Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or by facsimile, by its Authorized Officer as of the date set
forth below.
Dated: _______________, 2000
BMW VEHICLE LEASE TRUST 2000-A,
By: WILMINGTON TRUST COMPANY,
as Owner Trustee
By:
----------------------------------
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes designated above and referred to in
the within-mentioned Indenture.
Dated: _______________, 2000
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By:
----------------------------------
Name:
Title:
A-3
[REVERSE OF SENIOR NOTE]
This Senior Note is one of a duly authorized issue of Senior Notes of
the Issuer, designated as its " [_______]% Asset Backed Senior Notes, Class
[A-1] [A-2] [A-3] [A-4]" (herein called the "Senior Notes") issued under an
Indenture, dated as of November 1, 2000 (such indenture, as supplemented or
amended, is herein called the "Indenture"), between the Issuer and The Chase
Manhattan Bank, as trustee (the "Indenture Trustee", which term includes any
successor Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Senior Noteholders. The Senior Notes are subject to all terms of
the Indenture. All terms used in this Senior Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes are and will be equally and ratably secured by the Collateral
pledged as security therefor as provided in the Indenture. However, to the
extent provided in the Indenture, each Class will receive principal payment
sequentially so no principal payments shall be made in respect of the Class A-2
Notes until the Class A-1 Notes have been paid in full, no principal payments
shall be made in respect of the Class A-3 Notes until the Class A-2 Notes have
been paid in full, and no principal payments shall be made in respect of the
Class A-4 Notes until the Class A-3 Notes have been paid in full.
Principal payable on the Senior Notes will be paid on each Payment
Date in the amount specified in the Indenture. As described above, the entire
unpaid principal amount of this Senior Note will be payable on the earlier of
the Senior Note Final Scheduled Payment and the Redemption Date, if any,
selected pursuant to the Indenture. Notwithstanding the foregoing, under certain
circumstances, the entire unpaid principal amount of the Senior Notes shall be
due and payable following the occurrence and continuance of an Indenture
Default, as described in the Indenture. In such an event, principal payments on
the Class A-1 Notes shall be made first and principal payments on the remaining
Classes of Senior Notes shall be made pro rata to the Senior Noteholders
entitled thereto.
Payments of principal and interest on this Senior Note due and
payable on each Payment Date or Redemption Date shall be made by check mailed to
the Person whose name appears as the registered holder of this Senior Note (or
one or more Predecessor Notes) on the Senior Note Register as of the close of
business on the related Record Date, except that with respect to Senior Notes
registered on the Record Date in the name of the nominee of The Depository Trust
Company (initially, such nominee to be Cede & Co.), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Senior Note Register as of the
applicable Record Date without requiring that this Senior Note be submitted for
notation of payment. Any reduction in the principal amount of this Senior Note
(or any one or more Predecessor Notes) affected by any payments made on any
Payment Date or Redemption Date shall be binding upon all future holders of this
Senior Note and of any Senior Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If
funds are expected to be available, as provided in the Indenture, for payment in
full of the remaining unpaid principal amount of this Senior Note on a Payment
A-4
Date or Redemption Date, then the Indenture Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the registered holder
hereof as of the Record Date preceding such Payment Date or Redemption Date by
notice mailed within five days of such Payment Date or Redemption Date and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Corporate Trust Office of the Indenture Trustee or
at the office of the Indenture Trustee's agent appointed for such purposes
located in The City of New York.
As provided in the Indenture, the Transferor will be permitted at its
option to purchase the interest in the 2000-A SUBI evidenced by the 2000-A
Vehicle SUBI Certificate from the Issuer on any Payment Date if, either before
or after giving effect to any payment of principal required to be made on such
Payment Date, the Senior Note Balance is less than or equal to 10% of the
Initial Securities Balance. The purchase price for the 2000-A Vehicle SUBI
Certificate shall equal the unpaid principal balances of the Securities,
together with accrued interest thereon to the Redemption Date and certain other
amounts (the "Optional Purchase Price"), which amount shall be deposited by the
Transferor into the 2000-A SUBI Collection Account on the Deposit Date relating
to the Payment Date fixed for redemption. In connection with an Optional
Purchase, the Senior Notes will be redeemed on such Payment Date in whole, but
not in part, for the Redemption Price and thereupon the pledge of the 2000-A
Lease SUBI shall be discharged and released and the 2000-A Lease SUBI
Certificate shall be returned to the Transferor.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Senior Note may be registered on the Senior
Note Register upon surrender of this Senior Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture. No
service charge will be charged for any registration of transfer or exchange of
this Senior Note, but the transferor may be required to pay a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any such registration of transfer or exchange.
Each Senior Noteholder or Senior Note Owner, by acceptance of a
Senior Note or, in the case of a Senior Note Owner, a beneficial interest in a
Senior Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Senior Notes or under the Indenture or any
certificate or other writing delivered in connection therewith against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Indenture Trustee or
the Owner Trustee in its individual capacity, any holder of a beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any
successor or assign of the Indenture Trustee or the Owner Trustee in its
individual capacity, except as any such Person may have expressly agreed and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing to
such entity.
It is the intent of the Issuer that the Senior Notes constitute
indebtedness for all financial accounting and tax purposes and the Issuer agrees
and each purchaser of a Senior Note (by virtue of the acquisition of such Note
of an interest therein) shall be deemed to have agreed, to treat the Senior
Notes as indebtedness for all financial accounting and tax purposes.
A-5
The Senior Notes represent obligations of the Issuer only and do not
represent interests in, recourse to or obligations of the Transferor, the UTI
Beneficiaries or any of their respective Affiliates.
Each Senior Noteholder, or in the case of a Senior Note Owner, by
acceptance of a Senior Note, in the case of a Senior Note Owner, a beneficial
interest in the Senior Note, hereby covenants and agree that they will not
institute, or join in instituting, any bankruptcy, reorganization, arrangement,
insolvency or liquidation Proceeding, or other Proceeding under federal or State
bankruptcy or similar laws for a period of one year and a day after:
(a) payment in full of all amounts due to each Holder in respect of the
UTI, the 2000-A SUBIs or any Other SUBIs, against any UTI Beneficiary
(or any general partner of any UTI Beneficiary which is a partnership),
the Vehicle Trust and the Vehicle Trustee, without the consent of 100%
of the Holders of the 2000-A SUBIs and any Other SUBIs (excluding the
UTI Beneficiaries, the Transferor or any of their respective
Affiliates); and
(b) payment in full of the Offered Securities, against the Transferor
or the Issuer; provided, however, that 100% of the Senior Noteholders,
or, if no Senior Notes are then outstanding, the Subordinated
Noteholder or, if no Subordinated Notes are outstanding, 100% of the
Trust Certificateholders (in each case excluding the Transferor and any
of its Affiliates) may at any time institute or join in instituting any
bankruptcy, reorganization, insolvency or liquidation proceeding
against the Transferor or the Issuer.
Prior to the due presentment for registration of transfer of this
Senior Note, the Owner Trustee, the Indenture Trustee and any agent of the Owner
Trustee or the Indenture Trustee may treat the Person in whose name this Senior
Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the owner hereof for all purposes,
whether or not this Senior Note be overdue, and neither the Owner Trustee, the
Indenture Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Senior Noteholders under the Indenture at any time
by the Issuer with the consent of Senior Noteholders representing not less than
a majority of the Outstanding Amount. The Indenture also contains provisions
permitting Senior Noteholders representing specified percentages of the
Outstanding Amount, on behalf of all Senior Noteholders, to waive compliance by
the Issuer with certain provisions of the Indenture and certain past Defaults
under the Indenture and their consequences. Any such consent or waiver by the
Senior Noteholder of this Senior Note (or any one of more Predecessor Notes)
shall be conclusive and binding upon such Senior Noteholder and upon all future
Senior Noteholders of this Senior Note and of any Senior Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Senior Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of the Senior
Noteholders.
A-6
The Senior Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Senior Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this Senior
Note or the Indenture shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Senior Note at the times, place and rate and in the coin or currency herein
prescribed.
A-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee:
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(name and address of assignee)
the within Senior Note and all rights thereunder, and hereby
irrevocably constitutes and appoints attorney, to transfer said Senior Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: (1)
Signature Guaranteed:
------------------------------------
-------------------
(1) The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Senior Note in every
particular, without alteration, enlargement or any change whatsoever.
A-8
EXHIBIT B
FORM OF DEPOSITORY AGREEMENT
B-1
