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EXHIBIT 10.107
EXECUTION COPY
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INDENTURE
BETWEEN
BXG RECEIVABLES OWNER TRUST 2000,
AS ISSUER
AND
U.S. BANK TRUST NATIONAL ASSOCIATION,
AS INDENTURE TRUSTEE
DATED AS OF SEPTEMBER 1, 2000
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ARTICLE I Definitions and Incorporation by Reference.............................................................1
SECTION 1.1. Definitions....................................................................................1
SECTION 1.2. Rules of Construction..........................................................................1
ARTICLE II The Notes ............................................................................................2
SECTION 2.1. Form...........................................................................................2
SECTION 2.2. Execution, Authentication and Delivery.........................................................2
SECTION 2.3. Temporary Notes................................................................................3
SECTION 2.4. Registration: Registration of Transfer and Exchange............................................3
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes.....................................................4
SECTION 2.6. Persons Deemed Owner...........................................................................5
SECTION 2.7. Payment of Principal and Interest - Defaulted Interest.........................................5
SECTION 2.8. Cancellation...................................................................................6
SECTION 2.9. Release of Collateral..........................................................................6
SECTION 2.10. Definitive Notes...............................................................................6
SECTION 2.11. Transfer Restrictions..........................................................................6
SECTION 2.12. CUSIP Numbers.................................................................................10
ARTICLE III Covenants; Representations and Warranties...........................................................10
SECTION 3.1. Payment of Principal and Interest.............................................................10
SECTION 3.2. Maintenance of Office or Agency...............................................................10
SECTION 3.3. Money for Payments To Be Held in Trust........................................................10
SECTION 3.4. Existence.....................................................................................12
SECTION 3.5. Protection of the Collateral..................................................................12
SECTION 3.6. Intentionally Omitted.........................................................................12
SECTION 3.7. Performance of Obligations; Servicing of Receivables..........................................12
SECTION 3.8. Negative Covenants............................................................................14
SECTION 3.9. Issuer May Consolidate, etc., Only on Certain Terms...........................................15
SECTION 3.10. Successor or Transferee.......................................................................16
SECTION 3.11. No Other Business.............................................................................17
SECTION 3.12. No Borrowing..................................................................................17
SECTION 3.13. Servicer's Obligations........................................................................17
SECTION 3.14. Guarantees, Loans, Advances and Other Liabilities.............................................17
SECTION 3.15. Capital Expenditures..........................................................................17
SECTION 3.16. Notice of Defaults and Events of Default......................................................17
SECTION 3.17. Further Instruments and Acts..................................................................17
SECTION 3.18. Compliance with Laws..........................................................................17
SECTION 3.19. Tax Treatment.................................................................................18
SECTION 3.20. Investment Company Act........................................................................18
SECTION 3.21. Conduct of Business...........................................................................18
SECTION 3.22. Annual Statement as to Compliance.............................................................18
SECTION 3.23. Representations and Warranties of the Issuer..................................................19
ARTICLE IV Satisfaction and Discharge...........................................................................19
SECTION 4.1. Satisfaction and Discharge of Indenture.......................................................19
SECTION 4.2. Application of Trust Money....................................................................21
SECTION 4.3. Repayment of Moneys Held by Paying Agent......................................................21
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ARTICLE V Events of Default; Remedies...........................................................................21
SECTION 5.1. Events of Default.............................................................................21
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment............................................23
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Indenture
Trustee...........................................................................23
SECTION 5.4. Remedies; Priorities..........................................................................25
SECTION 5.5. Optional Preservation of the Receivables......................................................26
SECTION 5.6. Limitation of Suits...........................................................................26
SECTION 5.7. Unconditional Rights of Noteholders To Receive Principal and Interest.........................27
SECTION 5.8. Restoration of Rights and Remedies............................................................27
SECTION 5.9. Rights and Remedies Cumulative................................................................27
SECTION 5.10. Delay or Omission Not a Waiver...............................................................27
SECTION 5.11. Control by Noteholders.......................................................................28
SECTION 5.12. Waiver of Past Defaults......................................................................28
SECTION 5.13. Undertaking for Costs........................................................................28
SECTION 5.14. Waiver of Stay or Extension Laws.............................................................29
SECTION 5.15. Action on Notes..............................................................................29
SECTION 5.16. Performance and Enforcement of Certain Obligations...........................................29
ARTICLE VI The Indenture Trustee................................................................................30
SECTION 6.1. Duties of the Indenture Trustee...............................................................30
SECTION 6.2. Rights of Indenture Trustee...................................................................31
SECTION 6.3. Individual Rights of the Indenture Trustee....................................................32
SECTION 6.4. Indenture Trustee's Disclaimer................................................................32
SECTION 6.5. Notice of Defaults............................................................................32
SECTION 6.6. Reports by Indenture Trustee to the Holders...................................................32
SECTION 6.7. Compensation and Indemnity....................................................................33
SECTION 6.8. Replacement of the Indenture Trustee..........................................................33
SECTION 6.9. Successor Indenture Trustee by Merger.........................................................34
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee................................................34
SECTION 6.11. Eligibility; Disqualification................................................................36
SECTION 6.12. Representations and Warranties of Indenture Trustee..........................................36
ARTICLE VII Noteholders' Lists and Reports......................................................................37
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders........................37
SECTION 7.2. Preservation of Information: Communications to Noteholders....................................37
ARTICLE VIII Accounts, Disbursements and Releases...............................................................37
SECTION 8.1. Collection of Money...........................................................................37
SECTION 8.2. Trust Accounts................................................................................37
SECTION 8.3. General Provisions Regarding Accounts.........................................................38
SECTION 8.4. Release of Collateral.........................................................................38
ARTICLE IX Supplemental Indentures..............................................................................39
SECTION 9.1. Supplemental Indentures Without Consent of Noteholders........................................39
SECTION 9.2. Supplemental Indentures With Consent Noteholders..............................................39
SECTION 9.3. Execution of Supplemental Indentures..........................................................41
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SECTION 9.4. Effect of Supplemental Indenture..............................................................41
SECTION 9.5. Reference in Notes to Supplemental Indentures.................................................41
ARTICLE X Redemption of Notes...................................................................................41
SECTION 10.1. Redemption...................................................................................41
SECTION 10.2. Form of Redemption Notice....................................................................42
SECTION 10.3. Notes Payable on Redemption Date.............................................................42
ARTICLE XI Miscellaneous 42
SECTION 11.1. Compliance Certificates and Opinions, etc....................................................42
SECTION 11.2. Form of Documents Delivered to Indenture Trustee.............................................43
SECTION 11.3. Acts of Noteholders..........................................................................44
SECTION 11.4. Notices, etc., to the Indenture Trustee, Issuer, the Facility Administrator..................44
SECTION 11.5. Notices to Noteholders; Waiver...............................................................45
SECTION 11.6. Alternate Payment and Notice Provisions......................................................45
SECTION 11.7. Effect of Headings and Table of Contents.....................................................45
SECTION 11.8. Successors and Assigns.......................................................................45
SECTION 11.9. Severability.................................................................................45
SECTION 11.10. Benefits of Indenture.......................................................................45
SECTION 11.11. Legal Holiday...............................................................................46
SECTION 11.12. Governing Law; Waiver of Jury Trial.........................................................46
SECTION 11.13. Counterparts................................................................................46
SECTION 11.14. Recording of Indenture......................................................................46
SECTION 11.15. Trust Obligation............................................................................46
SECTION 11.16. No Petition.................................................................................47
SECTION 11.17. Inspection..................................................................................47
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EXHIBITS
EXHIBIT A-1 Form of Class A Notes
EXHIBIT A-2 Form of Class B Notes
EXHIBIT B Form of Section 3.22 Officer's Certificate
EXHIBIT C Form of Purchaser Representation Letter
EXHIBIT D Form of Seller Representation Letter
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INDENTURE, dated as of September 1, 2000, between BXG Receivables Owner
Trust 2000, a Delaware business trust (the "ISSUER"), and U.S. Bank Trust
National Association, a national banking association, as trustee and not in its
individual capacity (the "INDENTURE TRUSTEE").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Issuer's Class A Notes (each
a "CLASS A NOTE") and Class B Notes (each a "CLASS B NOTE" and together with the
Class A Notes, the "NOTES").
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date,
on behalf of and for the benefit of the Noteholders, all of the Issuer's right,
title and interest in, to and under the following, whether now existing or
hereafter arising or acquired (collectively, the "COLLATERAL"):
(a) the Trust Assets;
(b) all rights of the Issuer under the Sale and Servicing
Agreement;
(c) all present and future claims, demands, causes and choses
in action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of the
conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind
and other forms of obligations and receivables, instruments and other
property that at any time constitute all or part of or are included in
the proceeds of any and all of the foregoing.
The foregoing Grant is made in trust to secure (x) the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, as provided herein and (y) to secure compliance with this Indenture.
The Indenture Trustee, on behalf of the Noteholders, (1) acknowledges
such Grant, and (2) accepts the trusts and the Grant of the Collateral under
this Indenture in accordance with 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 Noteholders may be adequately and effectively protected.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. DEFINITIONS. Capitalized terms used but not otherwise
defined herein are defined in the Definitions Annex.
SECTION 1.2. RULES OF CONSTRUCTION. Unless the context otherwise
requires: (i) a term has the meaning assigned to it; (ii) an accounting term not
otherwise defined has the meaning assigned to it in accordance with generally
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accepted accounting principles as in effect on the date hereof, (iii) "or" is
not exclusive; (iv) "including" means "including, without limitation"; and (v)
words in the singular include the plural and words in the plural include the
singular.
ARTICLE II
THE NOTES
SECTION 2.1. FORM. The Class A Notes and Class B Notes, together with
the Indenture Trustee's certificate of authentication, shall be in substantially
the forms set forth in EXHIBIT A-1 and EXHIBIT A-2, respectively, 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
Notes, as evidenced by their execution of the Notes. Any portion of the text of
any Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note.
The Notes shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods (with or without steel engraved
borders), all as determined by the officers executing such Notes, as evidenced
by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in EXHIBIT A-1 and EXHIBIT A-2 are part of the terms of this
Indenture.
SECTION 2.2. EXECUTION, AUTHENTICATION AND DELIVERY. The Notes shall be
executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who were
at the time of signature Authorized Officers of the Issuer shall bind the
Issuer, notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Notes or did not
hold such offices at the date of such Notes.
The Indenture Trustee shall upon an Issuer Order authenticate and
deliver Class A Notes for original issue in an aggregate principal amount of up
to $64,422,000 and (b) Class B Notes for original issue in an aggregate
principal amount of up to $25,578,000. The Outstanding Amount of Notes at any
time may not exceed the aggregate of such amounts except as provided in SECTION
2.5.
The Notes shall be issuable as registered Notes in the minimum
denomination of $100,000 and in greater whole-dollar denominations in excess
thereof.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate of authentication shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
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SECTION 2.3. TEMPORARY NOTES. Pending the preparation of Definitive
Notes, the Issuer may execute, and upon receipt of an Issuer Order, the
Indenture Trustee shall authenticate and deliver, temporary Notes that are
printed, lithographed, typewritten, mimeographed or otherwise produced, of the
tenor of the Definitive Notes in lieu of which they are issued and with such
variations not inconsistent with this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer will cause Definitive Notes
to be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of the Issuer to be
maintained as provided in SECTION 3.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as if they were Definitive
Notes.
SECTION 2.4. REGISTRATION: REGISTRATION OF TRANSFER AND EXCHANGE. The
Issuer shall cause to be kept a register (the "NOTE REGISTER") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The
Indenture Trustee shall be the "NOTE REGISTRAR" for the purpose of registering
Notes and transfers of Notes as herein provided. Upon any resignation of any
Note Registrar, the Issuer shall promptly appoint a successor or, if it elects
not to make such an appointment, assume the duties of the Note Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer
as the Note Registrar, the Issuer will give the Indenture Trustee and the
Facility Administrator prompt written notice of the appointment of such Note
Registrar and of the location, and any change in the location, of the Note
Register, and the Indenture Trustee and the Facility Administrator shall have
the right to inspect the Note Register at all reasonable times, to obtain copies
thereof and to rely upon a certificate executed on behalf of the Note Registrar
by a Responsible Officer thereof as to the names and addresses of the Holders of
the Notes and the principal amounts and number of such Notes.
Subject to the terms and conditions of this Indenture, upon surrender
for registration of transfer of any Note at the office or agency of the Issuer
to be maintained as provided in SECTION 3.2, if the requirements of SECTION
8-401(1) of the UCC are met, the Issuer shall execute, the Indenture Trustee
shall authenticate and the Noteholder shall obtain from the Indenture Trustee,
in the name of the designated transferee or transferees, one or more new Notes
in any authorized denominations of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other new Notes
of the same Class in any authorized denominations of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Subject to the terms and conditions of this Indenture, whenever any Notes are so
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surrendered for exchange, if the requirements of SECTION 8-401(1) of the UCC are
met, the Issuer shall execute, the Indenture Trustee shall authenticate and the
Noteholder shall obtain from the Indenture Trustee, the Notes that the
Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer, evidencing the same debt and
entitled to the same benefits under this Indenture as the Notes surrendered upon
such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee and the Issuer and duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the "Securities Transfer Agent's Medallion
Program" ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP.
No service charge shall be made to a Holder for any registration of
transfer or exchange of 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 with any registration of transfer or exchange of Notes, other than
exchanges pursuant to SECTION 2.3 or 2.5 not involving any transfer.
Notwithstanding anything else to the contrary contained herein, the
obligation of the Issuer to pay the principal of and interest on the Notes is
not a general obligation of the Issuer or any other Person, but is limited
solely to the Collateral pledged hereunder.
SECTION 2.5. MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by the Indenture Trustee and the Issuer to hold the
Indenture Trustee and the Issuer, respectively, harmless, then, in the absence
of notice to the Issuer, the Note Registrar or the Indenture Trustee that such
Note has been acquired by a bona fide purchaser, and provided that the
requirements of SECTION 8-405 of the UCC are met, the Issuer shall execute, and
upon its written request the Indenture Trustee shall authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Note, a replacement Note; PROVIDED, HOWEVER, that if any such destroyed, lost or
stolen Note, but not a mutilated Note, shall have become, or within fifteen days
shall be, due and payable, or shall have been called for redemption, instead of
issuing a replacement Note, the Issuer may pay such destroyed, lost or stolen
Note when so due or payable or upon the Redemption Date without surrender
thereof. If, after the delivery of such replacement Note (or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence), a bona fide purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Issuer
and the Indenture Trustee shall be entitled to recover such replacement Note (or
such payment) from the Person to whom it was delivered or any Person taking such
replacement Note from such Person to whom such replacement Note was delivered
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(or payment made) or any assignee of such Person, except a bona fide purchaser,
and shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense (including
reasonable attorneys' fees and costs) incurred by the Issuer or the Indenture
Trustee in connection therewith.
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other 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 Notes.
SECTION 2.6. PERSONS DEEMED OWNER. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
of their respective agents may treat the Person in whose name any Note is
registered (as of the day of determination) as the owner of such Note for the
purpose of receiving payments of principal of and interest, if any, on such Note
and for all other purposes whatsoever, whether or not such Note be overdue, and
neither the Issuer, the Indenture Trustee nor any agent thereof shall be
affected by notice to the contrary.
SECTION 2.7. PAYMENT OF PRINCIPAL AND INTEREST - DEFAULTED INTEREST.
(a) The Class A Notes shall accrue interest at the Class A Note Rate and the
Class B Notes shall accrue interest at the Class B Note Rate, and such interest
shall be payable on each Payment Date, subject to SECTION 3.1. Any installment
of interest or principal, if any, payable on any Note that is punctually paid or
duly provided for by or on behalf of the Issuer on the applicable Payment Date
shall be paid to the Person in whose name such Note (or one or more Predecessor
Notes) is registered on the Record Date, by wire transfer of immediately
available funds, or (if such Person has not delivered to the Indenture Trustee
in writing instructions with respect to effecting a wire transfer to such
Person) by check mailed first-class, postage prepaid, to such Person's address
as it appears on the Note Register on such Record Date. Notwithstanding the
above, the final installment of principal payable with respect to the Notes (and
except for the Redemption Price for any Note called for redemption pursuant to
SECTION 10.1) shall be payable as provided in SECTION 2.7(B)(II). The funds
represented by any such checks returned undelivered shall be held in accordance
with SECTION 3.3.
(b) (i) The principal of each Note shall be payable on each Payment
Date as and to the extent provided in this Indenture and SECTION 2.11 of the
Sale and Servicing Agreement. Not in limitation of the foregoing, (A) the entire
Outstanding Amount of the Notes shall be due and payable on the date following
the occurrence and during the continuance of an Event of Default on which the
Notes have been declared due and payable in the manner provided in SECTION 5.2;
(B) the entire Outstanding Amount of the Class A Notes, if any, shall be due and
payable on and after the Class A Note Final Scheduled Maturity Date; and (C) the
entire Outstanding Amount of the Class B Notes, if any, shall be due and payable
on and after the Class B Note Final Scheduled Maturity Date. All principal
payments on each Class of Notes shall be made in accordance with Section 2.11 of
the Sale and Servicing Agreement.
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(ii) The Indenture Trustee shall notify the Person in whose
name a Note is registered at the close of business on the Record Date
preceding the Payment Date on which the Issuer expects that the final
installment of principal of and interest on such Note will be paid.
Such notice shall be mailed no later than five days prior to such final
Payment Date and shall specify that such final installment will be
payable only upon presentation and surrender of such Note and shall
specify the place where such Note may be presented and surrendered for
payment of such installment. Notices in connection with redemptions of
Notes shall be mailed to Noteholders as provided in SECTION 10.2.
(c) If the Issuer defaults in a payment of interest on the Notes, the
Issuer shall pay, in any lawful manner, defaulted interest (plus interest on
such defaulted interest to the extent lawful) at the applicable interest rate
from the Payment Date for which such payment is in default. The Issuer may pay
such defaulted interest to the Persons who are Noteholders on a subsequent
Payment Date. The Indenture Trustee is not personally liable for any amounts
payable by the Issuer under this Indenture.
SECTION 2.8. CANCELLATION. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall be delivered to the
Indenture Trustee and shall be promptly canceled by the Indenture Trustee. The
Issuer may at any time deliver to the Indenture Trustee for cancellation any
Notes previously authenticated and delivered hereunder that the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be promptly
canceled by the Indenture Trustee. No Notes shall be authenticated in lieu of or
in exchange for any Notes canceled as provided in this Section except as
expressly permitted by this Indenture. All canceled Notes may be held or
disposed of by the Indenture Trustee in accordance with its standard retention
or disposal policy as in effect at the time unless the Issuer shall direct by an
Issuer Order that they be returned to it; PROVIDED, that such Issuer Order is
timely and the Notes have not been previously disposed of by the Indenture
Trustee.
SECTION 2.9. RELEASE OF COLLATERAL. Subject to SECTION 11.1 and the
Transaction Documents, the Indenture Trustee shall release property from the
Lien of this Indenture only (i) upon receipt of an Issuer Request accompanied by
an Officer's Certificate and (ii) with the consent of the Facility
Administrator.
SECTION 2.10. DEFINITIVE NOTES. The Notes, upon original issuance,
shall be issued in definitive, fully registered form ("DEFINITIVE NOTES").
SECTION 2.11. TRANSFER RESTRICTIONS. (a) Each Noteholder, by its
acceptance of the Notes (or the obligations evidenced thereby), will be deemed
to have acknowledged, represented to and agreed with the Issuer, Bluegreen, the
Trust Depositor and their respective Affiliates as follows:
(i) Its Note is being acquired for investment purposes and
without any view to, or for resale in connection with, the distribution
thereof (or any interest therein) in violation of the Securities Act or
any applicable blue sky laws (as defined below). Such Noteholder is
either (i) a "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act) or (ii) an "accredited investor" (as defined
in Regulation D under the Securities Act). It understands and
acknowledges that the Notes have not been registered under the
Securities Act or any other applicable securities law of any state or
other jurisdiction ("BLUE SKY LAWS"), and may not be offered, sold or
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otherwise transferred except in compliance with the registration
requirements of the Securities Act or any other applicable blue sky
laws, pursuant to an exemption therefrom or in a transaction not
subject thereto. Further, it understands and acknowledges that the
Issuer in connection with the initial sale of the Notes, is relying on
the exemption from registration provided in Section 4(2) of the
Securities Act, the availability of which depends on the investment
intent of the purchaser.
(ii) It is a sophisticated investor and has such knowledge and
experience in financial and business matters so as to be capable of
evaluating the merits and risks of such investment, is able to incur a
complete loss of such investment and is able to bear the economic risk
of such investment for an indefinite period of time. It acknowledges
that neither the Issuer nor the Indenture Trustee nor any person
representing or affiliated with any of the foregoing has made any
representation to it with respect to the Issuer or any affiliate
thereof or the offering or sale of any Notes; it acknowledges that it
has had access to financial and other information concerning the Issuer
or any affiliate thereof, the Collateral and the Notes, including an
opportunity to ask questions of and request information from the
Issuer, the Servicer and the Indenture Trustee.
(iii) In the case of resale transactions:
(A) (i) The prospective purchaser is a "qualified
institutional buyer" as defined in Rule 144A under the
Securities Act (a "QIB"), and is purchasing for its own
account (and not for the account of others) or as a fiduciary
or agent for others (which others also are QIBs) and has
executed a certificate substantially in the form attached as
EXHIBIT C. Due to the restrictions on transfer, it is aware
that it (or any account for which it is purchasing) may be
required to bear the economic risk of an investment in the
Notes for an indefinite period, and it (or such account) is
able to bear such risk for an indefinite period. It
acknowledges that it has received the information specified in
paragraph (d)(4) of Rule 144A under the Securities Act; or
(ii) the prospective purchaser is an "accredited investor"
within the meaning of Regulation D under the Securities Act,
and is purchasing the Note for investment purposes and without
any view to, or for resale in connection with, the
distribution thereof in violation of the Securities Act and
has executed a certificate substantially in the form attached
as EXHIBIT C.
(B) If such transaction is not made in reliance on
Rule 144A, the transferor has delivered a certificate
substantially in the form attached as EXHIBIT D.
(iv) No resale, pledge or other transfer of any Note may be
made by any person unless either (i) so long as the Notes are eligible
for resale pursuant to Rule 144A under the Securities Act, such resale,
pledge or other transfer is made to a Person whom the seller reasonably
believes after due inquiry is a QIB acting for its own account (and not
for the account of others) or as a fiduciary or agent for others (which
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others also are QIBs) to whom notice is given that the resale, pledge
or transfer is being made in reliance on Rule 144A under the Securities
Act and the transaction is in compliance with and exempt from
registration under Rule 144A or (ii) such resale, pledge or other
transfer is made in a transaction exempt from the registration
requirements of the Securities Act and all applicable blue sky laws in
which case the Indenture Trustee will require (a) that both the
prospective transferor and the prospective transferee certify to the
Issuer and the Indenture Trustee in writing the facts surrounding such
transfer, which certification shall be in form and substance
satisfactory to the Issuer, and (b) a written opinion of counsel (which
shall not be at the expense of the Issuer, the Servicer or the
Indenture Trustee) satisfactory to the Indenture Trustee and the Issuer
to the effect that such transfer will not violate the Securities Act or
any applicable blue sky laws.
The foregoing representations shall also be applicable to any sale, pledge or
other transfer of a beneficial or other interest in any Note.
(b) Each Noteholder by its acquisition of any Notes (or a beneficial or
other interest therein) shall be deemed to have represented and warranted for
the benefit of the Issuer, the Trust Depositor, the Servicer, the Indenture
Trustee and the Noteholders, that the Notes (or a beneficial or other interest
therein) are not being acquired by or for the account of (i) an "employee
benefit plan" (as defined in SECTION 3(3) of ERISA), that is subject to Title I
of ERISA, (ii) a "plan" as defined in SECTION 4975(E)(1) of the Internal Revenue
Code or (iii) any entity whose underlying assets include plan assets by reason
of a plan's investment in the entity (each, a "BENEFIT PLAN") unless the
purchase and holding of the Notes will not give rise to a nonexempt prohibited
transaction under ERISA or the Internal Revenue Code.
(c) The Notes will bear the following legends:
"THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION ("BLUE SKY LAWS") OF THE UNITED
STATES. BY ITS ACCEPTANCE OF THIS NOTE THE HOLDER OF THIS NOTE IS
DEEMED TO REPRESENT TO THE INDENTURE TRUSTEE, THE ISSUER AND THE
SERVICER THAT IT (i) IS A "QUALIFIED INSTITUTIONAL BUYER" WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QIB") AND IS
ACQUIRING SUCH NOTE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF
OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE
QIBS) TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A OR (ii) IS OTHERWISE ACQUIRING THIS NOTE IN A
TRANSACTION EXEMPT FROM THE SECURITIES ACT AND APPLICABLE BLUE SKY
LAWS.
NO RESALE, PLEDGE OR OTHER TRANSFER OF THIS NOTE (OR ANY INTEREST
THEREIN) MAY BE MADE BY ANY PERSON UNLESS (i) SO LONG AS THIS NOTE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT,
SUCH RESALE, PLEDGE OR OTHER TRANSFER IS MADE TO A PERSON WHOM THE
TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A QIB ACTING FOR
ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY
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OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBs) TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A AND, IN ANY CASE, IN TRANSACTIONS UNDER AND IN COMPLIANCE
WITH RULE 144A OR (ii) SUCH RESALE, PLEDGE OR OTHER TRANSFER IS
OTHERWISE MADE IN A TRANSFER EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND APPLICABLE BLUE SKY LAWS, IN WHICH CASE THE
INDENTURE TRUSTEE SHALL REQUIRE (A) THAT BOTH THE PROSPECTIVE
TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY TO THE ISSUER IN
WRITING THE FACTS SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION SHALL
BE IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER, AND (B) A WRITTEN
OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE ISSUER,
THE SERVICER OR THE INDENTURE TRUSTEE) SATISFACTORY TO THE INDENTURE
TRUSTEE AND THE ISSUER TO THE EFFECT THAT SUCH TRANSFER WILL NOT
VIOLATE THE SECURITIES ACT OR APPLICABLE BLUE SKY LAWS. ANY ATTEMPTED
TRANSFER IN CONTRAVENTION OF THE IMMEDIATELY PRECEDING RESTRICTIONS
WILL BE VOID AB INITIO AND THE PURPORTED TRANSFEROR WILL CONTINUE TO BE
TREATED AS THE OWNER OF THE NOTES FOR ALL PURPOSES. THE PROSPECTIVE
TRANSFEROR AND PROSPECTIVE TRANSFEREE, JOINTLY AND SEVERALLY, AGREE TO
INDEMNIFY THE ISSUER, THE INDENTURE TRUSTEE, BLUEGREEN CORPORATION, THE
TRUST DEPOSITOR AND THEIR RESPECTIVE AFFILIATES AGAINST ANY LIABILITY
SUCH PERSON MAY SUFFER AS A RESULT OF A TRANSFER OF A NOTE NOT IN
COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS.
THIS NOTE (AND ANY INTEREST HEREIN) MAY NOT BE ACQUIRED BY OR FOR THE
ACCOUNT OF (i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3)
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED,
("ERISA")), THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii)
A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE OR (iii) ANY ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S
INVESTMENT IN THE ENTITY UNLESS THE PURCHASE AND HOLDING OF THE NOTE
WILL NOT GIVE RISE TO A NONEXEMPT PROHIBITED TRANSACTION UNDER ERISA OR
THE CODE. BY ACCEPTING AND HOLDING THIS NOTE (OR ANY INTEREST HEREIN),
THE HOLDER HEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED
THAT EITHER (A) IT IS NOT A BENEFIT PLAN OR (B) SUCH PURCHASE AND
HOLDING WILL NOT RE'▇▇▇▇ IN A NONEXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406(A) OF ERISA OR SECTION 4975 OF THE CODE."
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SECTION 2.12. CUSIP NUMBERS. The Issuer in issuing the Notes may use
"CUSIP" or "private placement" numbers (if then generally in use), and, if so,
the Indenture Trustee shall indicate the "CUSIP" or "private placement" numbers
of the Notes in notices of redemption and related materials as a convenience to
Holders of Notes; provided that any such notice may state that no representation
is made as to the correctness of such numbers either as printed on the Notes or
as contained in any notice of redemption and related materials.
ARTICLE III
COVENANTS; REPRESENTATIONS AND WARRANTIES
SECTION 3.1. PAYMENT OF PRINCIPAL AND INTEREST. The Indenture Trustee
will duly and punctually pay the principal and interest, if any, on the Notes in
accordance with the terms of SECTION 2.11 of the Sale and Servicing Agreement
and this Indenture. Without limiting the foregoing, the Issuer will cause to be
distributed all Available Amounts on deposit in the Collection Account on a
Payment Date deposited therein in accordance with the terms of the Sale and
Servicing Agreement. Amounts properly withheld under the Code or any applicable
state law by the Issuer, the Indenture Trustee or any other Paying Agent from a
payment to any Noteholder of interest and/or principal shall be paid over to the
applicable Governmental Authority and shall be considered as having been paid by
the Issuer to such Noteholder for all purposes of this Indenture.
SECTION 3.2. MAINTENANCE OF OFFICE OR AGENCY. The Issuer will maintain
in St. ▇▇▇▇, Minnesota, an office or agency where Notes may be surrendered for
registration of transfer or exchange, and where notices and demands to or upon
the Issuer in respect of the Notes and this Indenture may be served. The Issuer
hereby initially appoints the Indenture Trustee to serve as its agent for the
foregoing purposes and the Indenture Trustee accepts such appointment. The
Issuer will give prompt written notice to the Indenture Trustee and the Facility
Administrator 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 and the Facility
Administrator 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 and the Indenture Trustee accepts such appointment.
SECTION 3.3. MONEY FOR PAYMENTS TO BE HELD IN TRUST. As provided in
SECTION 8.2, all payments of amounts due and payable with respect to any Notes
that are to be made from amounts withdrawn from the Collection Account pursuant
to SECTION 8.2 shall be made on behalf of the Issuer by the Indenture Trustee or
by another Paying Agent, and no amounts so withdrawn from the Collection Account
for payments of Notes shall be paid over to the Issuer except as provided in
this Section and SECTION 2.11 of the Sale and Servicing Agreement.
On or before each Payment Date and Redemption Date, the Issuer shall
deposit or cause the Servicer to deposit in the Collection Account to the extent
of Available Amounts, an aggregate sum sufficient to pay the amounts then
becoming due under the Notes as and to the extent required by SECTION 2.11 of
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the Sale and Servicing Agreement, such sum to be held in trust for the benefit
of the Persons entitled thereto, and shall promptly notify in writing the
Facility Administrator and the Indenture Trustee (unless the Paying Agent is the
Indenture Trustee) of its action or failure so to act.
The Issuer will cause each Paying Agent other than the Indenture
Trustee, if any, to execute and deliver to the Facility Administrator and the
Indenture Trustee an instrument in which such Paying Agent shall agree with the
Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it hereby
so agrees), subject to the provisions of this Section, that such Paying Agent
will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee and the Facility Administrator
notice of any default by the Issuer of which it has actual knowledge in
the making of any payment required to be made with respect to the
Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the payment of
Notes if at any time it ceases to meet the standards required to be met
by a Paying Agent; and
(v) comply with all requirements of the Code and any
applicable state law with respect to the withholding from any payments
made by it on any Notes of any applicable withholding taxes imposed
thereon and with respect to any applicable payment and 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 terms as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed for two years
after such amount has become due and payable shall be discharged from such trust
and be paid to the Issuer on Issuer Request; and the Holder of such Note shall
thereafter, as an unsecured general creditor and subject to all defenses
available to the Issuer under all applicable laws, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease.
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SECTION 3.4. EXISTENCE. The Issuer will keep in full effect its
existence, rights and franchises as a business trust under the laws of the
jurisdiction of its organization and will obtain and preserve its qualification
to do business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Indenture, the
Notes and the Collateral.
SECTION 3.5. PROTECTION OF THE COLLATERAL. The Issuer intends the
security interest granted pursuant to this Indenture in favor of the Indenture
Trustee on behalf of the Noteholders to be prior to all other Liens (other than
Permitted Liens) in respect of the Collateral and the Issuer shall take all
action necessary to obtain and maintain for the benefit of the Indenture Trustee
on behalf of the Noteholders the first Lien on and a first priority perfected
security interest (other than Permitted Liens) in the Collateral. The Issuer
will 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, and will take such other action
necessary or advisable to:
(i) Grant more effectively all or any portion of the
Collateral;
(ii) maintain or preserve the Lien and security interest (and
the priority thereof) of this Indenture or carry out more effectively
the purposes hereof;
(iii) perfect, publish notice of or protect the validity of
any Grant made or to be made by this Indenture;
(iv) enforce any rights under or with respect to the
Collateral;
(v) preserve and defend title to the Collateral and the rights
of the Indenture Trustee and the Noteholders in such Collateral against
the claims of all Persons; or
(vi) pay all taxes or assessment levied or assessed upon the
Collateral when due.
The Issuer hereby designates the Indenture Trustee as its agent and
attorney-in-fact to execute any financing statement, continuation statement,
instrument of further assurance or other instrument required to be executed to
accomplish the foregoing. In no event shall the Indenture Trustee be responsible
for filing or maintaining such financing statements, continuation statements,
instruments of further assurance or other instruments.
SECTION 3.6. INTENTIONALLY OMITTED.
SECTION 3.7. PERFORMANCE OF OBLIGATIONS; SERVICING OF RECEIVABLES. (a)
The Issuer will not take any action and will use commercially reasonable efforts
not to permit any action to be taken by others that would release any Person
from any material covenants or obligations under any instrument or agreement
included in the Collateral or that would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the validity or
effectiveness of, any such instrument or agreement, except as expressly provided
in this Indenture, the Sale and Servicing Agreement or any other Transaction
Document.
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(b) The Issuer may contract with other Persons (acceptable to the
Facility Administrator) to assist it in performing its duties under this
Indenture, and any performance of such duties by a Person identified to the
Indenture Trustee and the Facility Administrator 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 Servicer and the Trust Administrator to assist
the Issuer in performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Transaction
Documents and in the instruments and agreements included in the Collateral,
including filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by this Indenture and the Sale and
Servicing Agreement in accordance with and within the time periods provided for
herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of a Servicer
Termination Event or Termination Event, the Issuer shall promptly notify the
Indenture Trustee and the Facility Administrator in writing thereof, and shall
specify in such notice the action, if any, the Issuer is taking with respect to
such default.
(e) As promptly as possible after the giving of notice of termination
to the Servicer of the Servicer's rights and powers pursuant to Article Eight of
the Sale and Servicing Agreement, the Back-Up Servicer shall be appointed in
accordance with Article Eight of the Sale and Servicing Agreement. In the event
that the Back-Up Servicer is unable to act as the Successor Servicer at the time
when the previous Servicer ceases to act as Servicer, the Indenture Trustee
without further action shall automatically be appointed the Successor Servicer
under the Sale and Servicing Agreement. The Indenture Trustee may resign as the
Servicer by giving written notice of such resignation to the Issuer and the
Facility Administrator and in such event will be released from such duties and
obligations, such release not to be effective until the date a Successor
Servicer enters into a servicing agreement with the Issuer as provided below.
Upon delivery of any such notice to the Issuer and the Facility Administrator,
the Issuer shall obtain a new Servicer acceptable to Holders holding at least a
majority of the Outstanding Amount of each Class of Notes as the Successor
Servicer. Any Successor Servicer other than the Indenture Trustee shall: (i) be
an established financial institution having a net worth of not less than
$50,000,000 and whose regular business includes the servicing of receivables and
(ii) enter into a servicing agreement with the Issuer having substantially the
same provisions as the provisions of the Sale and Servicing Agreement applicable
to the Servicer. If within 30 days after the delivery of the notice referred to
above, the Issuer shall not have obtained such a Successor Servicer, Holders
holding at least a majority of the Outstanding Amount of each Class of Notes may
appoint, or may petition a court of competent jurisdiction to appoint, a
Successor Servicer. In connection with any such appointment, Holders holding at
least a majority of the Outstanding Amount of each Class of Notes may make such
arrangements for the compensation of such Successor Servicer as they and such
Successor Servicer shall agree, subject to the limitations set forth below and
in the Sale and Servicing Agreement, and in accordance with Article Eight of the
Sale and Servicing Agreement, the Issuer shall enter into an agreement with such
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Successor Servicer for the servicing of the Receivables (such agreement to be in
form and substance satisfactory to the Issuer and the Facility Administrator).
If the Indenture Trustee shall succeed to the previous Servicer's duties as
Servicer of the Receivables as provided herein, it shall do so in its individual
capacity and not in its capacity as Indenture Trustee and, accordingly, the
provisions of Article VI hereof shall be inapplicable to the Indenture Trustee
in its duties as the Successor Servicer and the servicing of the Receivables. In
case the Indenture Trustee shall become the Successor Servicer under the Sale
and Servicing Agreement, the Indenture Trustee shall be entitled to appoint as
Servicer any one of its Affiliates, provided, that it shall be fully liable for
the actions and omissions of any such Affiliate in its capacity as Successor
Servicer unless the Issuer and the Facility Administrator shall have consented
in writing to the appointment of such Affiliate, which consent shall not be
unreasonably withheld.
(f) Upon any termination of the Servicer's rights and powers pursuant
to the Sale and Servicing Agreement, the Issuer shall promptly notify the
Indenture Trustee and the Facility Administrator in writing. As soon as a
Successor Servicer is appointed, the Issuer shall notify the Indenture Trustee
and the Facility Administrator of such appointment, specifying in such notice
the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the Grant of
Collateral under this Indenture or the rights of the Indenture Trustee
hereunder, the Issuer agrees that it will not, without the prior written consent
of the Holders holding at least a majority of the Outstanding Amount of each
Class of Notes, amend, modify, waive, supplement, terminate or surrender, or
agree to any amendment, modification, supplement, termination, waiver or
surrender of, the terms of any Collateral (except to the extent otherwise
provided in the Sale and Servicing Agreement) or the Transaction Documents, or
waive timely performance or observance by the Servicer, the Trust Depositor or
the Sellers under the Sale and Servicing Agreement; PROVIDED, HOWEVER, that no
such amendment shall: (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, distributions that are required to be made
for the benefit of the Noteholders, or (ii) reduce the aforesaid percentage of
the Notes that are required to consent to any such amendment, in either case
without the consent of the Holders of all the Outstanding Notes. If any such
amendment, modification, supplement or waiver shall be so consented to by the
Facility Administrator or such Holders, the Issuer agrees, promptly following a
request by the Facility Administrator to do so, to execute and deliver, in its
own name and at its own expense, such agreements, instruments, consents and
other documents as the Facility Administrator may deem necessary or appropriate
in the circumstances.
SECTION 3.8. NEGATIVE COVENANTS. So long as any Notes are Outstanding,
the Issuer shall not:
(i) except as expressly permitted by this Indenture or the
Sale and Servicing Agreement, sell, transfer, exchange or otherwise
dispose of any of the properties or assets of the Issuer, including
those included in the Collateral;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code or
applicable State law) or assert any claim against any present or former
Noteholder by reason of the payment of the taxes levied or assessed
upon any part of the Collateral; or
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(iii) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the Lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or
permit any Person to be released from any covenants or obligations with
respect to the Notes under this Indenture except as may be expressly
permitted hereby, or by the Sale and Servicing Agreement or any other
Transaction Document, (B) permit any Lien (other than the Lien of this
Indenture or Permitted Liens) to be created on or extend to or
otherwise arise upon or burden the Collateral or any part thereof or
any interest therein or the proceeds thereof or (C) permit the Lien of
this Indenture not to constitute a valid first priority (other than
with respect to any Permitted Lien or other tax lien, mechanics' lien
or other lien not considered a Lien) security interest in the
Collateral.
SECTION 3.9. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. (a)
The Issuer shall not consolidate or merge with or into any other Person, unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America or any State
and shall expressly assume, by an indenture supplemental hereto (in
form satisfactory to the Facility Administrator), executed and
delivered to the Indenture Trustee and the Facility Administrator, the
due and punctual payment of the principal of and interest on all Notes
and the performance or observance of every agreement and covenant of
this Indenture on the part of the Issuer to be performed or observed,
all as provided herein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture Trustee and
the Facility Administrator) to the effect that such transaction will
not have any material adverse consequence (tax or otherwise) to the
Issuer or any Noteholder;
(iv) any action that is necessary to maintain the Lien and
security interest created by this Indenture shall have been taken;
(v) the Issuer shall have delivered to the Indenture Trustee
and the Facility Administrator an Officer's Certificate and an Opinion
of Counsel each stating that such consolidation or merger and such
supplemental indenture comply with this ARTICLE III and that all
conditions precedent herein provided for relating to such transaction
have been complied with (including, if applicable, any filing required
under the Exchange Act);
(vi) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger has a net worth, immediately
after such consolidation or merger, that is (A) greater than zero and
(b) not less than the net worth of the Issuer immediately prior to
giving effect to such consolidation or merger; and
(vii) the Noteholders shall have consented thereto in writing.
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(b) Except as specifically contemplated by or permitted under the
Transaction Documents, the Issuer shall not convey or transfer any of its
properties including those included in the Collateral, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of which
is hereby restricted shall: (A) be a United States citizen or a Person
organized and existing under the laws of the United States of America
or any State, (B) expressly assume, by an indenture supplemental
hereto, executed and delivered to the Indenture Trustee and the
Facility Administrator, in form satisfactory to the Facility
Administrator, the due and punctual payment of the principal of and
interest on all Notes and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to
be performed or observed, all as provided herein, (C) expressly agree
by means of such supplemental indenture that all right, title and
interest so conveyed or transferred shall be subject and subordinate to
the rights of Holders of the Notes and the Facility Administrator as
set forth herein, (D) unless otherwise provided in such supplemental
indenture, expressly agree to indemnify, defend and hold harmless the
Issuer against and from any loss, liability or expense arising under or
related to this Indenture and the Notes and (E) if applicable,
expressly agrees by means of such supplemental indenture that such
Person (or if a group of Persons, then one specified Person) shall make
all filings with the Commission (and any other appropriate Person)
required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture Trustee and
the Facility Administrator) to the effect that such transaction will
not have any material adverse consequence (tax or otherwise) to the
Issuer or any Noteholder;
(iv) any action that is necessary to maintain the Lien and
security interest created by this Indenture shall have been taken;
(v) the Issuer shall have delivered to the Indenture Trustee
and the Facility Administrator an Officer's Certificate and an Opinion
of Counsel each stating that such conveyance or transfer and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with (including, if applicable, any filing required under the
Exchange Act);
(vi) the Issuer has a net worth, immediately after such
conveyance or transfer, that is (A) greater than zero and (B) not less
than the net worth of the Issuer immediately prior to giving effect to
such conveyance or transfer; and
(vii) the Noteholders shall have consented thereto in writing.
SECTION 3.10. SUCCESSOR OR TRANSFEREE. (a) Upon any consolidation or
merger of the Issuer in accordance with SECTION 3.9(A), the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
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to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer pursuant to SECTION 3.9(B), the Issuer will be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of the Issuer with respect to the Notes immediately upon the delivery of written
notice to the Indenture Trustee, the Noteholders and the Facility Administrator
stating that the Issuer is to be so released.
SECTION 3.11. NO OTHER BUSINESS. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing of the
Receivables in the manner contemplated by this Indenture and the Transaction
Documents and activities incidental thereto.
SECTION 3.12. NO BORROWING. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness secured by the Collateral, except for the Notes.
SECTION 3.13. SERVICER'S OBLIGATIONS. The Issuer shall use commercially
reasonable efforts to cause the Servicer to comply with its obligations under
the Sale and Servicing Agreement.
SECTION 3.14. GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Except
as contemplated by this Indenture and the other Transaction Documents, the
Issuer shall not make any loan or advance or credit to, or guarantee (directly
or indirectly or by an instrument having the effect of assuring another's
payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or own,
purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.15. CAPITAL EXPENDITURES. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
SECTION 3.16. NOTICE OF DEFAULTS AND EVENTS OF DEFAULT. The Issuer
shall give the Indenture Trustee and the Facility Administrator prompt written
notice of each Default and Event of Default (of which it has actual knowledge)
hereunder and each default of which it has actual knowledge on the part of the
Servicer or the Seller of its obligations under the Sale and Servicing
Agreement.
SECTION 3.17. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Indenture Trustee or the Facility Administrator, the Issuer will execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.
SECTION 3.18. 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
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the Issuer to perform its obligations under the Notes, this Indenture or any
other Transaction Document.
SECTION 3.19. TAX TREATMENT. The Issuer has structured this Indenture
and the Notes with the intention that the Notes will qualify under applicable
federal, state and local tax law as indebtedness. The Issuer and each Holder
agrees to treat, and take no action inconsistent with the treatment of, the
Notes (or any beneficial interest therein) as indebtedness for purposes of
federal, state and local income or franchise taxes and any other tax imposed on
or measured by income. Each Holder, by acquisition of a beneficial interest in a
Note, agrees to be bound by the provisions of this SECTION 3.19.
SECTION 3.20. INVESTMENT COMPANY ACT. The Issuer shall conduct its
operations in a manner that will not subject it to registration as an
"investment company" under the Investment Company Act of 1940, as amended.
SECTION 3.21. CONDUCT OF BUSINESS. The Issuer shall (a) conduct its
business solely in its own name through its duly authorized officers or agents
so as not to mislead others as to the identity of the Issuer with which those
others are concerned, and particularly shall use its best efforts to avoid the
appearance of conducting business on behalf of the Sellers or any Affiliate
thereof or that the assets of the Issuer are available to pay the creditors of
the Sellers or any Affiliate thereof or any other entity; (b) maintain records
and books of account separate from those of the Sellers or any Affiliate thereof
or any other entity; (c) use its best efforts to maintain an arm's-length
relationship with the Sellers or any Affiliate thereof and shall not hold itself
out as being liable for the debts of the Sellers or any Affiliate thereof or any
other entity; (d) use its best efforts to keep its assets and its liabilities
wholly separate from those of all other entities, including the Sellers or any
Affiliate thereof, except as otherwise anticipated by the Transaction Documents;
(e) not maintain bank accounts or other depository accounts to which any
Affiliate is an account party, into which any Affiliate makes deposits or from
which any Affiliate has the power to make withdrawals, except as otherwise
permitted by the Sale and Servicing Agreement; (f) shall obtain proper
authorization for all the Issuer's actions requiring such authorization; (g)
shall obtain proper authorization from the Sellers for all action requiring
approval of the Sellers; (h) shall pay operating expenses and liabilities from
the Issuer's own funds; (i) shall disclose in its annual financial statements
the effects of the Issuer's transactions under the Transaction Documents in
accordance with generally accepted accounting principles and shall disclose that
the assets of the Issuer are not available to pay creditors of the Sellers; and
(j) shall continuously maintain the resolutions, agreements and other
instruments underlying the transactions described in the Transaction Documents
as official records.
SECTION 3.22. ANNUAL STATEMENT AS TO COMPLIANCE. The Issuer will
deliver to the Indenture Trustee and the Facility Administrator, within 120 days
after the end of each fiscal year of the Issuer (commencing with the fiscal year
ended December 31, 2000), an Officer's Certificate, substantially in the form of
EXHIBIT B, stating that:
(i) a review of the activities of the Issuer during such year
and of performance under this Indenture has been made under such
Authorized Officers' supervision; and
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(ii) to the best of such Authorized Officers' 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 Officers and the
nature and status thereof.
SECTION 3.23. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The Issuer
represents and warrants as follows:
(a) POWER AND AUTHORITY. It has full power, authority and legal right
to execute, deliver and perform its obligations as Issuer under this Indenture
and the Notes (the foregoing documents, the "ISSUER DOCUMENTS").
(b) DUE AUTHORIZATION. The execution and delivery of the Issuer
Documents and the consummation of the transactions provided for therein have
been duly authorized by all necessary action on its part.
(c) NO CONFLICT. The execution and delivery of the Issuer Documents,
the performance of the transactions contemplated thereby and the fulfillment of
the terms thereof will not conflict with, result in any breach of any of the
materials terms and provisions of, or constitute (with or without notice or
lapse of time or both) a default under, any indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which the Issuer is a party or
by which it or any of its property is bound.
(d) NO VIOLATION. The execution and delivery of the Issuer Documents,
the performance of the transactions contemplated thereby and the fulfillment of
the terms thereof will not conflict with or violate, in any material respect,
any Requirements of Law applicable to the Issuer.
(e) ALL CONSENTS REQUIRED. All approvals, authorizations, consents,
orders or other actions of any Person or any Governmental Authority required to
be obtained by the Issuer in connection with the execution and delivery of the
Issuer Documents, the performance of the transactions contemplated thereby and
the fulfillment of the terms thereof have been obtained.
(f) LOCATION. The Issuer has its chief executive office and place of
business (as such terms are used in Article 9 of the UCC) in Wilmington,
Delaware. The Issuer agrees that it will not change the location of such office
to a location outside of Wilmington, Delaware, without at least 30 days prior
written notice to the Facility Administrator, the Servicer and the Indenture
Trustee.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall cease to be of further effect with respect to the Notes except as to: (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
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of principal thereof and interest thereon, (iv) SECTIONS 3.3, 3.4, 3.5, 3.8,
3.10, 3.12 and 3.13, (v) the rights, obligations and immunities of the Indenture
Trustee hereunder (including the rights of the Indenture Trustee under SECTION
6.7 and the obligations of the Indenture Trustee under SECTION 4.2) and (vi) the
rights of Noteholders as beneficiaries hereof with respect to the property so
deposited with the Indenture Trustee payable to all or any of them, and the
Indenture Trustee, on demand of and at the expense of the Issuer, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to the Notes, when:
(A) either:
(1) all Notes theretofore authenticated and delivered (other
than: (i) Notes that have been destroyed, lost or stolen and that have
been replaced or paid as provided in SECTION 2.5 and (ii) Notes for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust, as provided in SECTION 3.3) have
been delivered to the Indenture Trustee for cancellation; or
(2) all Notes not theretofore delivered to the Indenture Trust
for cancellation:
(i) have become due and payable in full,
(ii) will become due and payable in full on the
applicable Note Final Scheduled Maturity Date within one year,
or
(iii) 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 CLAUSE (2)(I), (II) or (III), has irrevocably
deposited or caused to be irrevocably deposited with the
Indenture Trustee cash or direct obligations of or obligations
guaranteed by the United States of America (which will mature
prior to the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the
entire indebtedness on such Notes not theretofore delivered to
the Indenture Trustee for cancellation when due to the
applicable Note Final Scheduled Maturity Date or Redemption
Date (if Notes shall have been called for redemption pursuant
to SECTION 10.1), as the case may be;
(B) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(C) the Issuer has delivered to the Indenture Trustee and the
Facility Administrator an Officer's Certificate and an Opinion of
Counsel, each meeting the applicable requirements of SECTION 11.1(A)
and, subject to SECTION 11.2, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
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SECTION 4.2. APPLICATION OF TRUST MONEY. All moneys deposited with the
Indenture Trustee pursuant to SECTION 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Notes, this Indenture and the Sale
and Servicing Agreement, to the payment, either directly or through any Paying
Agent, as the Facility Administrator shall determine, to the Holders of the
particular Notes for the payment or redemption of which such moneys have been
deposited with the Indenture Trustee, of all sums due and to become due thereon
for principal and interest; but such moneys need not be segregated from other
funds except to the extent required herein or in the Sale and Servicing
Agreement or as required by law.
SECTION 4.3. REPAYMENT OF MONEYS HELD BY PAYING AGENT. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all moneys then held by any Paying Agent other than the Indenture Trustee under
this Indenture with respect to such Notes shall, upon demand of the Issuer, be
paid to the Indenture Trustee to be held and applied according to SECTION 3.3,
and thereupon such Paying Agent shall be released from all further liability
with respect to such moneys.
ARTICLE V
EVENTS OF DEFAULT; REMEDIES
SECTION 5.1. EVENTS OF DEFAULT. "Event of Default", wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be 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):
(i) default in the payment of any interest on any Note when
the same becomes due and payable, and such default shall continue for a
period of three (3) Business Days,
(ii) default in the payment of the principal of any Note when
the same becomes due and payable, and such default shall continue for a
period of three (3) Business Days;
(iii) default in the observance or performance of any covenant
or agreement of the Issuer made in any Transaction Document (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
incorrect shall not have been eliminated or otherwise cured, for a
period of 30 days after there shall have been given, by registered or
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certified mail, to the Issuer by the Indenture Trustee or the Facility
Administrator, or to the Issuer, the Facility Administrator, and the
Indenture Trustee by the Holders of more than 50% of the Outstanding
Amount of either Class of Notes, 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;
(iv) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of any of the Issuer,
any Seller, the Servicer or the Club Trustee or any substantial part of
such Person's property 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 such Person or
for any substantial part of its property, or ordering the winding-up or
liquidation of such Person's affairs, and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days;
(v) the commencement by any of the Issuer, any Seller, the
Servicer or the Club Trustee 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 such Person to the entry of an
order for relief in an involuntary case under any such law, or the
consent by such Person to the appointment or taking possession by a
receiver, liquidate, assignee, custodian, trustee, sequestrator or
similar official of such Person or for any substantial part of its
property, or the making by such Person of any general assignment for
the benefit of creditors, or the failure by such Person generally to
pay its debts as such debts become due, or the taking of action by such
Person in furtherance of any of the foregoing;
(vi) (A) failure on the part of the Club Trustee, the Servicer
or any Seller to make or cause to be made any payment or deposit (or in
the alternative, Receivable substitution) required by the terms of any
Transaction Document on the day such payment or deposit (or
substitution) is required to be made by such Person (giving effect to
any applicable grace period) or (B) failure on the part of the Club
Trustee, the Club Managing Entity or any Seller to observe or perform
any of its other covenants or agreements set forth in any Transaction
Document, which failure continues unremedied for a period of 30 days
after written notice from the Indenture Trustee; PROVIDED, that only a
10 day cure period shall apply in the case of a failure by any Seller
to observe its covenant not to grant a security interest or otherwise
intentionally create a Lien on the Receivables; or
(vii) the Issuer shall become an "INVESTMENT COMPANY" within
the meaning of the Investment Company Act of 1940, as amended (the
"Act") or the arrangements contemplated by the Transaction Documents
shall require registration as an "INVESTMENT COMPANY" within the
meaning of the Act.
The Issuer shall deliver to the Indenture Trustee and the Facility
Administrator, within five Business Days after the Issuer obtains actual
knowledge thereof, written notice in the form of an Officer's Certificate of any
event that, with the giving of notice or the lapse of time or both, would become
an Event of Default under CLAUSE (III), its status and what action the Issuer is
taking or proposes to take with respect thereto.
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SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default shall have occurred and be continuing, the Indenture Trustee
shall, if so requested in writing by the Note Majority, declare by written
notice to the Issuer that the Facility Termination Date has occurred, whereupon
the Notes shall become due and payable, together with accrued and unpaid
interest thereon, and be paid in accordance with SECTION 2.11(B) of the Sale and
Servicing Agreement.
At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter in this ARTICLE V provided, the
Note Majority by written notice to the Issuer and the Indenture Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture
Trustee amounts sufficient to pay:
(A) all payments of principal of and interest on all
Notes and all other amounts that would then be due hereunder
or upon such Notes if the Event of Default giving rise to such
acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture
Trustee and the reasonable out-of-pocket expenses,
disbursements and advances of the Indenture Trustee and its
agents (including reasonable fees and disbursements of
counsel); and
(ii) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such acceleration,
have been cured or waived as provided in SECTION 5.12.
No such rescission shall affect any subsequent default or impair any
consequence thereof.
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE. (a) The Issuer covenants that if the Notes are accelerated in
accordance with Section 5.2, the Notes, together with accrued and unpaid
interest thereon, shall be paid together with interest upon the overdue
principal at the applicable interest rate, and, to the extent payment at such
rate of interest shall be legally enforceable, upon overdue installments of
interest, at the applicable interest rate, and in addition thereto such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable fees, out-of-pocket expenses, disbursements and
advances of the Indenture Trustee, the Facility Administrator and their
respective agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts under
SECTION 5.3(A) upon such demand, the Indenture Trustee, in its own name and as
trustee of an express trust, may (or shall, at the written direction of the Note
Majority) (i) institute a Proceeding for the collection of the sums so due and
unpaid, (ii) prosecute such Proceeding to judgment or final decree, and (iii)
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the moneys adjudged or decreed to be
payable.
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(c) In case an Event of Default occurs and is continuing, the Indenture
Trustee may (or shall at the written direction of the Note Majority), as more
particularly provided in SECTION 5.4, proceed to protect and enforce its rights
and the rights of the Noteholders, by such appropriate Proceedings as the
Indenture Trustee shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Collateral, 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, trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to 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 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 out-of-pocket expenses and
liabilities incurred, and all advances made, by the Indenture Trustee
and each predecessor Indenture Trustee, except as a result of the gross
negligence or bad faith), the Facility Administrator and the
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law or regulations, to
vote on behalf of the Holders of the Notes in any election of a
trustee, a standby trustee or any Person performing similar functions
in any such Proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders, the Facility
Administrator and the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee, the Facility Administrator or the Holders of
Notes allowed in any judicial Proceedings relative to the Issuer, its
creditors and its property;
and any trustee, receiver, liquidator, assignee, custodian, sequestrator or
other similar official in any such Proceeding is hereby authorized by each of
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such Noteholders to make payments to the Indenture Trustee, and, in the event
that the Indenture Trustee shall consent to the making of payments directly to
such Noteholders, to pay to the Indenture Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other out-of-pocket expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor Indenture Trustee
except as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Indenture Trustee shall be brought in its own name and as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents and attorneys, shall
be for the ratable benefit of the Holders of the Notes.
(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 Holders of the Notes, and it shall not be necessary to
make any Noteholder a party to any such Proceedings.
SECTION 5.4. REMEDIES; PRIORITIES. (a) If an Event of Default shall
have occurred and be continuing, the Indenture Trustee may (with the consent of
the Facility Administrator) (and shall at the written direction of the Facility
Administrator or the Note Majority) do one or more of the following (subject to
SECTION 5.5):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
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 Notes moneys adjudged
due;
(ii) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the
Collateral;
(iii) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the rights
and remedies of the Indenture Trustee and the Holders of the Notes; and
(iv) sell the Collateral, or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law;
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PROVIDED, HOWEVER, that the Indenture Trustee may not sell or otherwise
liquidate the Collateral following an Event of Default, other than an Event of
Default described in SECTION 5.1(I) or (II), unless: (A) all Noteholders consent
in writing thereto, (B) the proceeds of such sale or liquidation distributable
to the Noteholders are sufficient to discharge in full all amounts then due and
unpaid upon such Notes for principal and interest and any amounts set forth
under SECTION 2.11 of the Sale and Servicing Agreement or (C) the Indenture
Trustee determines that the Collateral will not continue to provide sufficient
funds for the payment of principal of and interest on the Notes as they would
have become due if the Notes had not been declared due and payable, and the
Indenture Trustee obtains the written consent of Holders of 66-2/3% of the
Outstanding Amount of each Class of Notes. In determining such sufficiency or
insufficiency with respect to CLAUSES (B) and (C), the Indenture Trustee may,
but need not, obtain and conclusively rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Collateral
for such purpose. The Indenture Trustee shall not be liable for acting in
reliance on such an opinion.
(b) If the Indenture Trustee collects any money or property pursuant to
this ARTICLE V, it shall pay out such money or property according to the
priorities set forth in SECTION 2.11 of the Sale and Servicing Agreement.
The Indenture Trustee may fix a special record date and special payment
date for any payment to Noteholders pursuant to this Section. At least 15 days
before such special record date, the Issuer shall mail to each Noteholder, the
Facility Administrator and the Indenture Trustee a notice that states the
special record date, the special payment date and the amount to be paid.
SECTION 5.5. OPTIONAL PRESERVATION OF THE RECEIVABLES. If the Notes
have been declared to be due and payable under SECTION 5.2 following an Event of
Default, and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may (or shall, at the written direction of the
Facility Administrator and the Note Majority) elect to maintain possession of
the Collateral. It is the desire of the parties hereto and the Noteholders that
there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Indenture Trustee shall take such desire into
account when determining whether or not to maintain possession of the
Collateral. In determining whether to maintain possession of the Collateral, 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 Collateral for such purpose. The Indenture Trustee shall not
be liable for acting in reliance on such an opinion.
SECTION 5.6. LIMITATION OF SUITS. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default and such Event of Default continues to
exist as of the date of the proposed Proceeding;
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(b) the Note Majority has made written request to the Indenture Trustee
to institute such Proceeding in respect of such Event of Default in its own name
as Indenture Trustee hereunder;
(c) such Holder(s) have offered to the Indenture Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred in
complying with such request;
(d) the Indenture Trustee for sixty (60) days after receipt of such
notice, request and offer of indemnity has failed to institute such Proceedings;
and
(e) no direction inconsistent with such written request has been given
to the Indenture Trustee during such sixty (60) day period by the Note Majority.
It being understood and intended that no one or more Holder(s) of Notes 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 Holder(s) of Notes or to obtain or to seek to obtain priority or
preference over any other Holder(s) or to enforce any right under this
Indenture, except in the manner herein provided.
SECTION 5.7. UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST. Notwithstanding any other provisions in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Note on or
after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder.
SECTION 5.8. RESTORATION OF RIGHTS AND REMEDIES. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee, the Facility Administrator and the 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, the Facility Administrator and the Noteholders shall
continue as though no such Proceeding had been instituted.
SECTION 5.9. RIGHTS AND REMEDIES CUMULATIVE. No right or remedy herein
conferred upon or reserved to the Indenture Trustee, the Facility Administrator
or to the Noteholders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. To the extent permitted by
law, the assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.10. DELAY OR OMISSION NOT A WAIVER. No delay or omission of
the Indenture Trustee, the Facility Administrator or any Holder of Notes to
exercise any right or remedy accruing upon any Default or Event of Default shall
impair any such right or remedy or constitute a waiver of any such Default or
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Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Indenture Trustee, the Facility Administrator or
to the Noteholders may be exercised from time to time, and as often as may be
deemed expedient, by the Indenture Trustee, the Facility Administrator or by the
Noteholders, as the case may be.
SECTION 5.11. CONTROL BY NOTEHOLDERS. Holders holding at least a
majority of the Outstanding Amount of each Class of Notes 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 Notes or exercising 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
with this Indenture;
(b) subject to the express terms of SECTION 5.4, any direction to the
Indenture Trustee to sell or liquidate the Collateral shall be by all the
Noteholders;
(c) if the conditions set forth in SECTION 5.5 have been satisfied and
the Indenture Trustee elects to retain the Collateral pursuant to such Section,
then any direction to the Indenture Trustee by Holders of Notes representing
less than 100% of the Outstanding Amount of the Notes to sell or liquidate the
Collateral shall be of no force and effect; and
(d) the Indenture Trustee may take any other action deemed prudent by
the Indenture Trustee that is not inconsistent with such direction;
PROVIDED, HOWEVER, that, subject to SECTION 6.1, the Indenture Trustee need not
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholder(s) not consenting to
such action.
SECTION 5.12. WAIVER OF PAST DEFAULTS. Prior to the time a judgment or
decree for payment of money due has been obtained as described in SECTION 5.3,
Holders holding at least a majority of the Outstanding Amount of each Class of
Notes may waive any Event of Default and its consequences except an Event of
Default: (a) in payment of principal of or interest on any of the Notes or (b)
in respect of a covenant or provision hereof that cannot be modified or amended
without the consent of the Holder of each Note. In the case of any such waiver,
the Issuer, the Indenture Trustee, the Facility Administrator and the Holders of
the Notes shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Event
of Default or impair any right consequent thereto.
Upon any such waiver, such Event of Default shall cease to exist and be
deemed to have been cured and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereto.
SECTION 5.13. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any 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
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undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorney's fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to: (a) any suit instituted by the
Indenture Trustee or the Facility Administrator, (b) any suit instituted by any
Noteholder(s) holding in the aggregate more than 10% of the Outstanding Amount
of the Notes or (c) any suit instituted by any Noteholder for the enforcement of
the payment of principal of or interest on any Note on or after the respective
due dates expressed in such Note and in this Indenture (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 or the Facility Administrator, but will suffer and permit
the execution of every such power as though no such law had been enacted.
SECTION 5.15. ACTION ON NOTES. The Indenture Trustee's right to seek
and recover judgment on the Notes or under this Indenture shall not be affected
by the seeking, obtaining or application of any other relief under or with
respect to this Indenture. Neither the Lien of this Indenture nor any rights or
remedies of the Indenture Trustee, the Facility Administrator or the 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 Collateral or upon any of the assets of the Issuer. Any money or
property collected by the Indenture Trustee shall be applied in accordance with
SECTION 5.4(B).
SECTION 5.16. PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS. (a)
Promptly following a request from the Indenture Trustee to do so and at the
Issuer's expense, the Issuer shall take all such lawful action within its
control as the Indenture Trustee, the Note Majority or the Facility
Administrator may request to compel or secure the performance and observance by
the Trust Depositor and the Servicer, as applicable, of each of their
obligations to the Issuer under or in connection with the Sale and Servicing
Agreement in accordance with the terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Issuer under
or in connection with the Sale and Servicing Agreement to the extent and in the
manner directed by the Indenture Trustee, the Note Majority or the Facility
Administrator, including the transmission of notices of breach on the part of
the Trust Depositor or the Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Trust Depositor or the Servicer of each of their obligations under the Sale and
Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing) of the Holders of not less than 66-2/3% of the Outstanding Amount of
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each Class of Notes shall, exercise all rights, remedies, powers, privileges and
claims of the Issuer against the Trust Depositor or the Servicer under or in
connection with the Sale and Servicing Agreement, including the right or power
to take any action to compel or secure performance or observance by the Trust
Depositor or the Servicer of each of their obligations to the Issuer thereunder
and to give any consent, request, notice, direction, approval, extension or
waiver under the Sale and Servicing Agreement, and any right of the Issuer to
take such action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1. DUTIES OF THE INDENTURE TRUSTEE. (a) If an Event of
Default has occurred and is continuing, the Indenture Trustee shall exercise the
rights and powers vested in it by this Indenture and use the same degree of care
and skill in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default actually known
to a Responsible Officer of the Indenture Trustee:
(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; PROVIDED, HOWEVER, in the case of any
such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the
Indenture Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this CLAUSE (C) does not limit the effect of CLAUSE (B) of
this Section;
(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;
(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 the Indenture;
(iv) the Indenture Trustee shall not be charged with knowledge
of an Event of Default unless a Responsible Officer obtains actual
knowledge of such event or the Indenture Trustee receives written
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notice of such event from the Seller, Servicer, the Facility
Administrator or Holders owning Notes aggregating not less than 10% of
the Outstanding Amount of the Notes (as used herein "actual knowledge"
means the actual fact or state of knowing, without any duty to
investigate); and
(v) the Indenture Trustee shall have no duty to monitor the
performance of the Issuer, the Seller or the Servicer, nor shall it
have any liability in connection with malfeasance or nonfeasance by the
Issuer, the Seller or the Servicer. The Indenture Trustee shall have no
liability in connection with compliance of the Issuer, the Seller or
the Servicer with statutory or regulatory requirements related to the
Collateral. The Indenture Trustee shall not make or be deemed to have
made any representations or warranties with respect to the Collateral
or the validity or sufficiency of any assignment of the Collateral.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to CLAUSES (A), (B), (C) and (F) of this Section
6.1.
(e) The Indenture Trustee shall not be liable for interest on any money
receive except as the Indenture Trustee may agree in writing with the Issuer.
(f) No provision of this Indenture shall require the Indenture Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds to believe that repayments
of such funds or indemnity satisfactory to it against any loss, liability or
expense is not reasonably assured to it.
(g) 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 this Section.
(h) The Indenture Trustee shall, upon two Business Days' prior notice
to the Indenture Trustee, permit any representative of the Facility
Administrator or the Issuer, during the Indenture Trustee's normal business
hours, to examine all books of account and official records required to be
maintained in accordance with this Indenture by the Indenture Trustee relating
to the Notes, to make copies and extracts therefrom and to discuss the Indenture
Trustee's affairs and actions, as such affairs and actions relate to the
Indenture Trustee's duties with respect to the Notes, with the Indenture
Trustee's officers and employees responsible for carrying out the Indenture
Trustee's duties with respect to the Notes. All expenses incurred by the
Indenture Trustee in connection with such examination shall be borne by the
Issuer.
SECTION 6.2. RIGHTS OF INDENTURE TRUSTEE. (a) The Indenture Trustee may
conclusively rely and shall be fully protected in acting on any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Indenture Trustee need not and shall not be bound to investigate any
fact or matter stated in any such document.
(b) Before the Indenture Trustee acts or refrains from acting at the
request of the Issuer, the Servicer, the Facility Administrator or any Holder,
it may require an Officer's Certificate or an Opinion of Counsel. The Indenture
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on the Officer's Certificate or Opinion of Counsel.
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(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, attorneys, a custodian or a nominee; PROVIDED, HOWEVER, that the
Indenture Trustee shall not be responsible for any misconduct or negligence on
the part of, and for the supervision of any such agent, attorney, custodian or
nominee appointed with due care by it.
(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 or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
(f) The Indenture Trustee shall not be required to make any initial or
periodic examination of any files or records related to the Receivables for the
purpose of establishing the presence or absence of defects, the compliance by
the Issuer with its representations and warranties or for any other purpose.
(g) In the event that the Indenture Trustee is also acting as transfer
agent, Paying Agent or Note Registrar hereunder, the rights and protections
afforded to the Indenture Trustee pursuant to this Article VI shall also be
afforded to the Indenture Trustee in its capacity as such transfer agent, Paying
Agent or Note Registrar.
SECTION 6.3. INDIVIDUAL RIGHTS OF THE INDENTURE TRUSTEE. The Indenture
Trustee shall not, in its individual capacity, but may in a fiduciary capacity,
become the owner of Notes. The Indenture Trustee may otherwise deal with the
Issuer or its Affiliates with the same rights it would have if it were not the
Indenture Trustee. Any Paying Agent, Note Registrar, co-registrar or co-paying
agent may do the same with like rights. However, the Indenture Trustee must
comply with SECTION 6.11.
SECTION 6.4. INDENTURE TRUSTEE'S DISCLAIMER. Except as set forth in
SECTION 6.12, the Indenture Trustee shall not be responsible for, and makes no
representation as to the validity or adequacy of, this Indenture, the Collateral
or the Notes; shall not be accountable for the Issuer's use of the proceeds from
the Notes; and shall not be responsible for any statement of the Issuer in this
Indenture or in any document issued in connection with the sale of the Notes or
in the Notes other than the Indenture Trustee's certificate of authentication.
SECTION 6.5. NOTICE OF DEFAULTS. If a Default or an Event of Default
occurs and is continuing and is actually known to a Responsible Officer, the
Indenture Trustee shall fax, if such fax number is known, (followed by a notice
sent by mail) to each Noteholder and the Facility Administrator notice of the
Default or Event of Default within 5 Business Days after obtaining knowledge of
the occurrence thereof.
SECTION 6.6. REPORTS BY INDENTURE TRUSTEE TO THE HOLDERS. The Indenture
Trustee shall deliver to each Noteholder such information as may be required to
enable such Holder to prepare its Federal, State and other income tax returns;
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PROVIDED the Servicer has provided the Indenture Trustee with any such required
information in a timely manner.
SECTION 6.7. COMPENSATION AND INDEMNITY. The Issuer shall (pursuant to
SECTION 2.11 of the Sale and Servicing Agreement) pay to the Indenture Trustee
from time to time reasonable compensation for its services. The Indenture
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. Subject to the last sentence of this paragraph, the
Issuer shall indemnify the Indenture Trustee and its officers, directors,
employees and agents against any and all loss, claims, actions, liability or
expense (including reasonable attorneys' fees) incurred by them in connection
with the administration of this trust and the performance of its duties
hereunder, the Transaction Documents and any transaction or document
contemplated herewith or therewith. The Indenture Trustee shall notify the
Issuer, the Facility Administrator and the Servicer promptly of any claim for
which it may seek indemnity. Failure by the Indenture Trustee to so notify the
Issuer, the Facility Administrator and the Servicer shall not relieve the
Servicer or the Issuer of its obligations. The Issuer shall defend any such
claim and the Indenture Trustee may have separate counsel and the Issuer shall
pay the fees and expenses of such counsel. The Issuer need not reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Indenture Trustee through the Indenture Trustee's own willful misconduct,
negligence or bad faith.
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 an Event of Default specified in
SECTION 5.1(IV) or (V), the expenses are intended to constitute expenses of
administration under Title II of the United States Code or any other applicable
Federal or State bankruptcy, insolvency or similar law.
SECTION 6.8. REPLACEMENT OF THE INDENTURE TRUSTEE. No resignation or
removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by a
successor Indenture Trustee pursuant to this SECTION 6.8. The Indenture Trustee
may resign at any time by so notifying the Issuer, the Servicer and the Facility
Administrator in writing. Holders constituting not less than a majority of each
Class of Notes may remove the Indenture Trustee by so notifying the Indenture
Trustee in writing and may appoint a successor Indenture Trustee. The Issuer
may, with the consent of the Facility Administrator, remove the Indenture
Trustee if:
(i) the Indenture Trustee fails to comply with SECTION 6.11;
(ii) the Indenture Trustee is adjudged as bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee which is reasonably
acceptable to the Facility Administrator and the Trust Depositor.
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A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee, the Facility Administrator, the
Servicer and to the Issuer. Thereupon the resignation or removal of the retiring
Indenture Trustee shall become effective, and the successor Indenture Trustee
shall have all the rights, powers and duties of the Indenture Trustee under this
Indenture. The successor Indenture Trustee shall mail a notice of its succession
to Noteholders, the Servicer and the Facility Administrator. The retiring
Indenture Trustee shall promptly transfer, at the expense of the Issuer, all
property held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer, the Facility Administrator or Holders
constituting not less than a majority of each Class of Notes may petition any
court of competent jurisdiction for the appointment of a successor Indenture
Trustee.
If the Indenture Trustee fails to comply with SECTION 6.11, any
Noteholder or the Facility Administrator may petition any court of competent
jurisdiction for the removal of the Indenture Trustee and the appointment of a
successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's obligations under SECTION 6.7 shall continue for the
benefit of the retiring Indenture Trustee. The retiring Indenture Trustee shall
have no liability for any act or omission by any successor Indenture Trustee.
SECTION 6.9. SUCCESSOR INDENTURE TRUSTEE BY MERGER. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee; PROVIDED, that
such corporation or banking association shall be otherwise qualified and
eligible under SECTION 6.11. The Indenture Trustee shall provide the Facility
Administrator and the Issuer prior written notice of any such transaction.
In case at the time such successor(s) by merger, conversion or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor trustee hereunder or in the name of
the successor to the Indenture Trustee; and in all such cases such certificates
of authentication shall have the full force and effect to the same extent given
to the certificate of authentication of the Indenture Trustee anywhere in the
Notes or in this Indenture.
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 Collateral may at the time be located, the Indenture Trustee (with the
consent of the Facility Administrator (which consent shall not be unreasonably
withheld)) shall have the power and may execute and deliver all instruments to
appoint one or more Person(s) to act as co-trustee(s), or separate trustee(s),
of all or any part of the Collateral, and to vest in such Person(s), in such
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capacity and for the benefit of the Noteholders, such title to the Collateral,
or any part thereof, and, subject to the other provisions of this Section, such
powers, duties, obligations, rights and trusts as the Indenture Trustee may
consider necessary or desirable. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
SECTION 6.11 and no notice to Noteholders of the appointment of any co-trustee
or separate trustee shall be required under SECTION 6.8.
(b) Every separate trustee and co-trustee shall, to the extent
permitted, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act(s) are to be
performed, the Indenture Trustee shall be incompetent or unqualified to
perform such act(s), in which event such rights, powers, duties and
obligations (including the holding of title to the Collateral or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove, in its sole discretion, any separate trustee
or co-trustee (it being understood that the Indenture Trustee shall
provide notice of such resignation or removal to the Facility
Administrator).
(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 Agreement and
the conditions of this ARTICLE VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee as 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, cease to exist, become incapable of acting, resign or
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be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Indenture Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
(e) The Indenture Trustee shall have no obligation to determine whether
a co-trustee or separate trustee is legally required in any jurisdiction in
which any part of the Collateral may be located.
SECTION 6.11. ELIGIBILITY; DISQUALIFICATION. The Indenture Trustee and
any Paying Agent shall have, or be a member of a bank holding company having, a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition and it shall have a long term
senior, unsecured debt rating of "Baa3" or better by Moody's (or, if not rated
by Moody's, a comparable rating by another statistical rating agency) and "BBB-"
or better by Standard & Poor's.
SECTION 6.12. REPRESENTATIONS AND WARRANTIES OF INDENTURE TRUSTEE.
Indenture Trustee in its individual capacity and as Indenture Trustee represents
and warrants as follows:
(a) ORGANIZATION AND CORPORATE POWER. It is a duly organized and
validly existing Illinois banking corporation in good standing under the laws of
each jurisdiction where its business so requires. It has full corporate power,
authority and legal right to execute, deliver and perform its obligations as
Indenture Trustee under this Indenture and the Sale and Servicing Agreement (the
foregoing documents, the "Indenture Trustee Documents") and to authenticate the
Notes.
(b) DUE AUTHORIZATION. The execution and delivery of the Indenture
Trustee Documents, the consummation of the transactions provided for therein and
the authentication of the Notes have been duly authorized by all necessary
corporate action on its part, either in its individual capacity or as Indenture
Trustee, as the case may be.
(c) NO CONFLICT. The execution and delivery of the Indenture Trustee
Documents, the performance of the transactions contemplated thereby and the
fulfillment of the terms thereof (including the authentication of the Notes)
will not conflict with, result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or lapse of time or both) a
default under any indenture, contract, agreement, mortgage, deed of trust, or
other instrument to which the Indenture Trustee is a party or by which it or any
of its property is bound.
(d) NO VIOLATION. The execution and delivery of the Indenture Trustee
Documents, the performance of the transactions contemplated thereby and the
fulfillment of the terms thereof (including the authentication of the Notes)
will not conflict with or violate, in any material respect, any Applicable Law.
(e) ALL CONSENTS REQUIRED. All approvals, authorizations, consents,
orders or other actions of any Person or Governmental Entity applicable to the
Indenture Trustee, required in connection with the execution and delivery of the
Indenture Trustee Documents, the performance by the Indenture Trustee of the
transactions contemplated thereby and the fulfillment by the Indenture Trustee
of the terms thereof (including the authentication of the Notes) have been
obtained.
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(f) VALIDITY, ETC. Each Indenture Trustee Document constitutes a legal,
valid and binding obligation of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with its terms, except as such enforceability
may be limited by applicable insolvency laws and except as such enforceability
may be limited by general principles of equity, concepts of materiality and
reasonableness (whether considered in a suit at law or in equity) or by an
implied covenant of good faith and fair dealing.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1. ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF
NOTEHOLDERS. The Issuer will furnish or cause to be furnished to the Indenture
Trustee: (a) not more than five days after the earlier of: (i) each Record Date
and (ii) three months after the last Record Date, a list, in such form as the
Indenture Trustee may reasonably require, of the names and addresses of the
Holders of Notes as of such Record Date, and (b) 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 10 days prior to the time such list is furnished; PROVIDED, HOWEVER,
that so long as the Indenture Trustee is the Note Registrar, no such list shall
be required to be furnished.
SECTION 7.2. PRESERVATION OF INFORMATION: COMMUNICATIONS TO
NOTEHOLDERS. The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in SECTION 7.1 and the names and addresses of Holders of Notes received by the
Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in SECTION 7.1 upon receipt of a
new list so furnished.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1. COLLECTION OF MONEY. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture and the Sale
and Servicing Agreement. The Indenture Trustee shall apply all such money
received by it as provided in this Indenture and the Sale and Servicing
Agreement. 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 Collateral, the Indenture Trustee may cause
the Servicer to take such action as may be appropriate to enforce such payment
or performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim an
Event of Default under this Indenture and any right to proceed thereafter as
provided in ARTICLE V.
SECTION 8.2. TRUST ACCOUNTS. On or prior to the Closing Date, the
Issuer shall cause the Servicer to establish and maintain, in the name of the
Indenture Trustee, for the benefit of the Noteholders, the Trust Accounts as
provided in SECTION 2.3 of the Sale and Servicing Agreement. Not in limitation
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of the foregoing, on each Payment Date and Redemption Date, the Indenture
Trustee shall distribute amounts on deposit in the Collection Account to
Noteholders to the extent of amounts due and unpaid on the Notes in the amounts
and in the order of priority set forth in SECTION 2.11 of the Sale and Servicing
Agreement.
SECTION 8.3. GENERAL PROVISIONS REGARDING ACCOUNTS. (a) So long as no
Event of Default shall have occurred and be continuing, all or a portion of the
funds in the Trust Accounts (other than the Lockbox Account) shall be invested
in Permitted Investments and reinvested by the Indenture Trustee pursuant to the
provisions of SECTION 2.5 of the Sale and Servicing Agreement. All income or
other gain from investments of moneys deposited in the Trust Accounts shall be
deposited by the Indenture Trustee in the Collection Account or the Reserve
Account, and any loss or expenses resulting from such investments shall be
charged to such account.
(b) Subject to SECTION 6.1(C), the Indenture Trustee shall not in any
way be held liable for the selection of Permitted Investments or by reason of
any insufficiency in an of the Trust Accounts resulting from any loss on any
Permitted Investment included therein, except for losses attributable to the
Indenture Trustee's failure to make payments on 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) In the absence of timely and specific written investment direction
from the Servicer and Issuer, the Indenture Trustee shall invest any cash held
in Permitted Investments of a type described in clause (c)(i) of the definition
thereof. In no event shall the Indenture Trustee be liable for investment losses
incurred thereon. The Indenture Trustee shall have no liability in respect of
losses incurred as a result of the liquidation of any investment prior to its
stated maturity or the failure of the Servicer and Issuer to provide timely
written investment direction.
SECTION 8.4. RELEASE OF COLLATERAL. (a) Subject to the payment of its
fees and expenses pursuant to SECTION 6.7, the Indenture Trustee may, and when
required by this Indenture, the Sale and Servicing Agreement or any other
Transaction Document 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 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 moneys.
(b) The Indenture Trustee shall, at such time as there are no Aggregate
Outstandings and all sums due to the Indenture Trustee, the Facility
Administrator and the Noteholders pursuant to SECTION 6.7 or the other
Transaction Documents have been paid, release any remaining portion of the
Collateral without representation, warranty or recourse that secured the Notes
from the Lien of this Indenture and release to the Issuer or any other Person
entitled thereto any funds then on deposit in the Trust Accounts. The Indenture
Trustee shall release property from the Lien of this Indenture pursuant to this
paragraph only upon receipt of an Issuer Request accompanied by an Officer's
Certificate and an Opinion of Counsel.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
Without the consent of the Holders of Notes and with the prior written consent
of the Facility Administrator (which consent shall not be unreasonably
withheld), the Issuer and the Indenture Trustee, when authorized by an Issuer
Order, at any time and from time to time, may enter into one or more indentures
supplemental hereto in form satisfactory to the Indenture Trustee, for any of
the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the Lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the Lien of this Indenture, or to subject
to the Lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another Person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein
and in the Notes;
(iii) to add to the covenants of the Issuer, for the benefit
of the Holders of Notes, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee; or
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; PROVIDED, that such action shall not materially adversely
affect the interests of the Holders of Notes.
The Indenture Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
SECTION 9.2. SUPPLEMENTAL INDENTURES WITH CONSENT NOTEHOLDERS. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, may, with
the written consent of the Facility Administrator and Holders holding at least a
majority of the Outstanding Amount of each Class of Notes affected thereby,
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 affecting such Class of Notes or of modifying in
any manner the rights of the Holders of Notes under this Indenture; PROVIDED,
HOWEVER, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Note affected thereby:
(i) change the date of payment of any installment of principal
of or interest on any Note, or reduce the principal amount thereof, the
interest rate thereon or the Redemption Price with respect thereto,
change the provisions of this Indenture relating to the application of
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collections on, or the proceeds of the sale of, the Collateral to the
payment of principal of or interest on the Notes, or change any place
of payment where, or the coin or currency in which, any Note or the
interest thereon is payable, or impair the right to institute suit for
the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in ARTICLE V, to
the payment of any Such amount due on or after the respective
due dates thereof (or, in the case of redemption, on or after the
Redemption Date);
(ii) reduce the percentage of the Outstanding Amount, the
consent of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required for any
waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of "Outstanding";
(iv) reduce the percentage of the Outstanding Amount required
to direct the Indenture Trustee to direct the Issuer to sell or
liquidate the Collateral pursuant to SECTION 5.4;
(v) 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 Transaction Documents cannot be
modified or waived without the consent of the Holder of each
Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Payment Date (including
the calculation of any of the individual components of such
calculation); or
(vii) permit the creation of any Lien ranking prior to or on a
parity with the Lien of this Indenture with respect to any part of the
Collateral or, except as otherwise permitted or contemplated herein,
terminate the Lien of this Indenture on any property at any time
subject hereto or deprive any Holder of Notes of the security provided
by the Lien of this Indenture.
Notwithstanding the foregoing, the Issuer and the Indenture Trustee
shall not enter into an indenture or indenture supplemental thereto without the
consent of the Servicer (so long as the Servicer is Bluegreen or an Affiliate
thereof), if the effect of such supplemental indenture is to materially increase
the obligations of the Servicer (in its capacity as Trust Administrator) under
the Administration Agreement.
It shall not be necessary for any Act (as hereinafter defined) of the
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. The manner of obtaining such consents (and any other consents
of Noteholders provided for in this Indenture or in any other Transaction
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Document) and of evidencing the authorization of the execution thereof by
Noteholders shall be subject to such reasonable requirements as the Indenture
Trustee may provide.
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 Holders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.3. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this ARTICLE IX or the modifications thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive (with a
copy to the Facility Administrator) and, subject to SECTIONS 6.1 and 6.2, shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized and permitted by this
Indenture and all conditions precedent to the execution of such supplemental
indenture have been met. The Indenture Trustee may, but shall not be obligated
to, enter into any such supplemental indenture that affects the Indenture
Trustee's own rights, duties, liabilities or immunities under this Indenture or
otherwise.
SECTION 9.4. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this Indenture of
the Indenture Trustee, the Issuer, the Facility Administrator and the Holders of
the Notes shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.5. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. 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 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 Notes.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1. REDEMPTION. The Notes are subject to redemption in whole,
but not in part, at the direction of the Trust Depositor pursuant to Section
11.2 of the Sale and Servicing Agreement, on any Payment Date on which the Trust
Depositor exercises its option to purchase the Collateral pursuant to said
Section 11.2 (the "REDEMPTION DATE"), for a purchase price equal to the
Aggregate Outstandings (the "REDEMPTION PRICE"). If such Notes are to be
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redeemed pursuant to this SECTION 10.1, the Servicer or the Issuer shall furnish
notice of such election to the Indenture Trustee and the Facility Administrator
not later than 20 days prior to the Redemption Date and the Issuer shall deposit
with the Indenture Trustee in the Collection Account the Redemption Price one
(1) Business Day prior to the Redemption Date.
SECTION 10.2. FORM OF REDEMPTION NOTICE. Notice of redemption under
SECTION 10.1 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, mailed not less than five days prior to the applicable
Redemption Date to each Holder of Notes, as of the close of business on the
Record Date preceding the applicable Redemption Date, at such Holder's address
appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such Notes 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 3.2); and
(iv) CUSIP numbers, if any.
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuer. Failure to give notice of
redemption, or any defect therein, to any Holder of any Note shall not impair or
affect the validity of the redemption of any other Note.
SECTION 10.3. NOTES PAYABLE ON REDEMPTION DATE. The Notes to be
redeemed shall, following notice of redemption pursuant to this Article, 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.
If there are not sufficient funds in the Collection Account on the
Payment Date on which the Notes are to be redeemed available to pay the
Redemption Price, the notice of redemption shall be deemed to have been revoked
and the Notes shall not be redeemed on the Redemption Date. Payments will be
made on such Payment Date in accordance with SECTION 5.5 of the Sale and
Servicing Agreement as though no notice of redemption had been given and the
Notes shall continue to bear interest at the Class A Note Rate or Class B Note
Rate, as applicable.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. COMPLIANCE CERTIFICATES AND OPINIONS, ETC. (a) Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under this Indenture, the Indenture Trustee shall be entitled to request that
the Issuer furnish to the Indenture Trustee and the Facility Administrator: (i)
an Officer's Certificate stating that all conditions precedent, if any, provided
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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 this Indenture, no additional certificate
or opinion need be furnished.
(b) Notwithstanding SECTION 2.9 or any other provision of this Section,
the Issuer may, without compliance with the requirements of the other provisions
of this Section: (A) collect, liquidate, sell or otherwise dispose of
Receivables or otherwise take action as and to the extent permitted or required
by the Transaction Documents and (B) make cash payments out of the Trust
Accounts as and to the extent permitted or required by the Transaction
Documents.
SECTION 11.2. 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 of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate, opinion or
representations with respect to the matters upon which his certificate or
opinion is based is/are erroneous. Any such certificate of an Authorized Officer
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Servicer, the Seller, or the Issuer stating that the information with
respect to such factual matters is in the possession of the Servicer, the Seller
or the Issuer, as applicable, unless such Authorized Officer or counsel knows,
or in the exercise of reasonable care should know, that the certificate, opinion
or representations with respect to such matters is/are erroneous.
Where any Person is required or permitted 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,
certificate or report to the Indenture Trustee and/or the Facility
Administrator, it is provided that the Issuer shall deliver any document as a
condition of the granting of such application, or as evidence of the Issuer's
compliance with any term hereof, it is intended that the truth and accuracy, at
the time of the granting of such application or at the effective date of such
certificate or report (as the case may be), of the facts and opinions stated in
such document shall in such case be conditions precedent to the right of the
Issuer to have such application granted or to the sufficiency of such
certificate or report. The foregoing shall not, however, be construed to affect
the Indenture Trustee's or the Facility Administrator's right to rely upon the
truth and accuracy of any statement or opinion contained in any such document as
provided in ARTICLE VI.
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SECTION 11.3. ACTS OF NOTEHOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instrument(s) of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except as
herein otherwise expressly provided, such action shall become effective when
such instrument(s) are delivered to the Indenture Trustee and, where it is
hereby expressly required, to the Issuer. Such instrument(s) (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Noteholders signing such instrument(s). Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to SECTION 6.1) conclusive in
favor of the Indenture Trustee, the Facility Administrator 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
and/or the Facility Administrator, as applicable, deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or Act by the Holder of any Notes shall bind the Holder of every Note
issued upon the registration thereof, in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Indenture
Trustee, the Facility Administrator or the Issuer in reliance thereon, whether
or not notation of such action is made upon such Note.
SECTION 11.4. NOTICES, ETC., TO THE INDENTURE TRUSTEE, ISSUER, THE
FACILITY ADMINISTRATOR. Any request, demand, authorization, direction, notice,
consent, waiver or Act of Noteholders, or other documents provided or permitted
by this Indenture, shall be in writing and, if such request, demand,
authorization, direction, notice, consent, waiver or Act of Noteholders is to be
made upon, given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer, shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office (with a
copy to the Facility Administrator); or
(b) the Issuer by the Indenture Trustee or by any Noteholder, shall be
sufficient for every purpose hereunder if in writing and mailed, first-class,
postage prepaid, to the Issuer addressed to: c/o Wilmington Trust Company,
▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Corporate Trust Administration or at any other address previously
furnished in writing to the Indenture Trustee by the Issuer. The Issuer shall
promptly transmit any notice received by it from the Noteholders to the
Indenture Trustee.
Notices required to be given to the Facility Administrator by the
Issuer or the Indenture Trustee shall be in writing, personally delivered or
mailed by certified mail, return receipt requested, to their respective
addresses set forth in SECTION 13.3 of the Sale and Servicing Agreement. So long
as Bluegreen or an Affiliate thereof is the Servicer, copies of all notices
delivered to the Issuer shall be delivered by the sender of such notice to the
Servicer at its address set forth in the Sale and Servicing Agreement.
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SECTION 11.5. NOTICES TO NOTEHOLDERS; WAIVER. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given. Any notice sent
to the Noteholders shall also be sent to the Facility Administrator.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service, it shall
be impractical to mail notice of any event to Noteholders when such notice is
required to be given pursuant to 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.
SECTION 11.6. ALTERNATE PAYMENT AND NOTICE PROVISIONS. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the Issuer
may enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such Holder,
that is different from the methods provided for in this Indenture or the Notes
for such payments or notices. The Issuer will furnish to the Indenture Trustee a
copy of each such agreement and the Indenture Trustee will cause payments to be
made and notices to be given in accordance with such agreements.
SECTION 11.7. 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 11.8. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind its successors, co-trustees and agents of the
Indenture Trustee.
SECTION 11.9. SEVERABILITY. Any provision of this Indenture or the
Notes that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or of the
Notes, as applicable, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 11.10. BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Servicer, the Trust Depositor, the
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Noteholders, the Facility Administrator, any other party secured hereunder and
any other Person with an ownership interest in any part of the Collateral, any
benefit or any legal or equitable right, remedy or claim under this Indenture;
PROVIDED, HOWEVER, that the Facility Administrator shall be considered an
express third-party beneficiary of this Indenture and capable of bringing an
action with respect to this Indenture in the same manner as a party hereto.
SECTION 11.11. LEGAL HOLIDAY. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next Business Day with the same force and effect as if
made on the date on which nominally due, and no interest shall accrue for the
period from and after any such nominal date.
SECTION 11.12. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS INDENTURE
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE ISSUER, THE
INDENTURE TRUSTEE AND EACH NOTEHOLDER (BY ACCEPTING A NOTE) WAIVES ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE SOUNDING IN CONTRACT, TORT OR
OTHERWISE BETWEEN THE PARTIES ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION WITH THIS
INDENTURE OR THE NOTES. INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT SHALL BE
RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
SECTION 11.13. COUNTERPARTS. This Indenture may be executed in any
number of counterparts (including by facsimile), each of which when so executed
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.14. RECORDING OF INDENTURE. If this Indenture is subject to recording
in any public recording offices, such recording is to be effected by the Issuer
and, at its expense, accompanied by an Opinion of Counsel (which may be counsel
to the Servicer or any other counsel reasonably acceptable to the Facility
Administrator) to the effect that such recording is necessary either for the
protection of the Noteholders or any other Person secured hereunder or for the
enforcement of any right or remedy granted to the Indenture Trustee under this
Indenture.
SECTION 11.15. TRUST OBLIGATION. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer or the Indenture
Trustee on the Notes or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against: (i) the Indenture
Trustee in its individual capacity, (ii) any owner or a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, officer, director, employee
or agent of: (a) the Indenture Trustee in its individual capacity, (b) any owner
of a beneficial interest in the Issuer or the Indenture Trustee or (c) of any
successor or assign of the Indenture Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
Indenture Trustee has no such obligations in its individual capacity).
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SECTION 11.16. NO PETITION. The Indenture Trustee, by entering into
this Indenture, and each Noteholder, by accepting a Note, hereby covenant and
agree that they will not at any time institute against the Issuer, or join in
any institution against the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or State bankruptcy or similar law in connection with
any obligations relating to the Notes, this Indenture or any of the Transaction
Documents. The foregoing shall not limit the rights of the Indenture Trustee to
file any claim in or otherwise take any action with respect to any insolvency
proceeding that was instituted against the Issuer by any Person other than the
Indenture Trustee.
SECTION 11.17. INSPECTION. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee or of the
Facility Administrator, 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 and the Facility Administrator
shall and shall cause its representatives to hold in confidence all such
information; PROVIDED, HOWEVER, that the foregoing shall not be construed to
prohibit: (i) disclosure of any and all information that is or becomes publicly
known, or information obtained by the Indenture Trustee or of the Facility
Administrator from sources other than the Issuer or Servicer, (ii) disclosure of
any and all information: (A) if required to do so by any applicable statute,
law, rule or regulation, (B) to any government agency or regulatory or
self-regulatory body having or claiming authority to regulate or oversee any
aspects of the Indenture Trustee's or the Facility Administrator's business or
that of its Affiliates, (C) pursuant to any subpoena, civil investigative demand
or similar demand or request of any court, regulatory authority, arbitrator or
arbitration to which the Indenture Trustee, the Facility Administrator or an
Affiliate or any officer, director, employee or shareholder of either is Subject
or is a party, (D) in any preliminary or final offering circular, registration
statement or contract or other document pertaining to the transactions
contemplated by the Indenture and approved in advance by the Issuer or (E) to
any Affiliate, independent or internal auditor, agent, employee or attorney of
either the Indenture Trustee or the Facility Administrator having a need to know
the same; PROVIDED, that the Indenture Trustee or the Facility Administrator
advises such recipient of the confidential nature of the information being
disclosed and such recipient agrees to keep such information confidential, (iii)
any other disclosure authorized by the Issuer or the Servicer or (iv) disclosure
to the other parties to the transactions contemplated by the Transaction
Documents.
[signature page follows]
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53
Signature Page to Indenture
717629.8
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers duly authorized as of the day and
year first above written.
BXG RECEIVABLES OWNER TRUST 2000
By: Wilmington Trust Company, not in its
individual capacity but solely as Owner Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: FINANCIAL SERVICES
U.S. BANK TRUST NATIONAL ASSOCIATION, not in its
individual capacity but solely as Indenture Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
Title: ASSISTANT VICE PRESIDENT
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