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___________________________________________________________
HOUSEHOLD AUTOMOTIVE TRUST V
Issuer
INDENTURE
Dated as of June 1, 2000
Norwest Bank Minnesota, National Association
Indenture Trustee
________________________________________________________
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TABLE OF CONTENTS
Page
ARTICLE I. Definitions and Incorporation by Reference 1
SECTION 1.1 Definitions 1
SECTION 1.2 Incorporation by Reference of the
Trust Indenture Act 6
SECTION 1.3 Rules of Construction 7
SECTION 1.4 Action by or Consent of Noteholders
and Certificateholders 7
SECTION 1.5 Conflict with TIA 7
ARTICLE II. The Notes 7
SECTION 2.1 Form; Amount Limited; Issuable in
Series 7
SECTION 2.2 Execution, Authentication and Delivery 8
SECTION 2.3 Temporary Notes 9
SECTION 2.4 Registration; Registration of Transfer
and Exchange 9
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen
Notes 12
SECTION 2.6 Persons Deemed Owner 12
SECTION 2.7 Payment of Principal and Interest;
Defaulted Interest 13
SECTION 2.8 Cancellation 14
SECTION 2.9 Release of Collateral 14
SECTION 2.10 Book-Entry Notes 14
SECTION 2.11 Notices to Clearing Agency 15
SECTION 2.12 Definitive Notes 15
SECTION 2.13 Final Distribution 16
ARTICLE III. Covenants 17
SECTION 3.1 Payment of Principal and Interest 17
SECTION 3.2 Maintenance of Office or Agency 17
SECTION 3.3 Money for Payments to be Held in Trust 17
SECTION 3.4 Existence 19
SECTION 3.5 Protection of Trust Property 19
SECTION 3.6 Opinions as to Trust Property 20
SECTION 3.7 Performance of Obligations; Servicing
of Receivables 20
SECTION 3.8 Negative Covenants 21
SECTION 3.9 Annual Statement as to Compliance 22
SECTION 3.10 Issuer May Consolidate, Etc. Only on
Certain Terms 22
SECTION 3.11 Successor or Transferee 24
SECTION 3.12 No Other Business 24
SECTION 3.13 No Borrowing 24
SECTION 3.14 Master Servicer's Obligations 25
SECTION 3.15 Guarantees, Loans, Advances and Other
Liabilities 25
SECTION 3.16 Capital Expenditures 25
SECTION 3.17 Compliance with Laws 25
SECTION 3.18 Restricted Payments 25
SECTION 3.19 Notice of Events of Default 25
SECTION 3.20 Further Instruments and Acts 26
SECTION 3.21 Amendments of Master Sale and
Servicing Agreement and Trust
Agreement 26
SECTION 3.22 Income Tax Characterization 26
ARTICLE IV. Satisfaction and Discharge 26
SECTION 4.1 Satisfaction and Discharge of
Indenture 26
SECTION 4.2 Application of Trust Money 27
SECTION 4.3 Repayment of Monies Held by Note
Paying Agent 27
ARTICLE V. Remedies 28
SECTION 5.1 Events of Default 28
SECTION 5.2 Collection of Indebtedness and Suits
for Enforcement by Indenture Trustee 28
SECTION 5.3 Limitation of Suits 30
SECTION 5.4 Unconditional Rights of Noteholders To
Receive Principal and Interest 30
SECTION 5.5 Restoration of Rights and Remedies 31
SECTION 5.6 Rights and Remedies Cumulative 31
SECTION 5.7 Delay or Omission Not a Waiver 31
SECTION 5.8 Control by Noteholders 31
SECTION 5.9 Waiver of Past Defaults 32
SECTION 5.10 Undertaking for Costs 32
SECTION 5.11 Waiver of Stay or Extension Laws 32
SECTION 5.12 Action on Notes 32
SECTION 5.13 Performance and Enforcement of Certain
Obligations 33
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ARTICLE VI. The Indenture Trustee 33
SECTION 6.1 Duties of Indenture Trustee 33
SECTION 6.2 Rights of Indenture Trustee 35
SECTION 6.3 Individual Rights of Indenture Trustee 37
SECTION 6.4 Indenture Trustee's Disclaimer 37
SECTION 6.5 Notice of Defaults 37
SECTION 6.6 Reports by Indenture Trustee to
Holders 37
SECTION 6.7 Compensation and Indemnity 38
SECTION 6.8 Replacement of Indenture Trustee 38
SECTION 6.9 Successor Indenture Trustee by Merger 40
SECTION 6.10 Appointment of Co-Indenture Trustee or
Separate Indenture Trustee 40
SECTION 6.11 Eligibility: Disqualification 42
SECTION 6.12 Preferential Collection of Claims
Against Issuer 42
SECTION 6.13 Representations and Warranties of the
Indenture Trustee 42
SECTION 6.14 Waiver of Setoffs 43
SECTION 6.15 No Consent to Certain Acts of Seller 43
ARTICLE VII. Noteholders' Lists and Reports 43
SECTION 7.1 Issuer To Furnish To Indenture Trustee
Names and Addresses of Noteholders 43
SECTION 7.2 Preservation of Information;
Communications to Noteholders 43
SECTION 7.3 Reports by Issuer 44
SECTION 7.4 Reports by Indenture Trustee 44
ARTICLE VIII. Accounts, Disbursements and Releases 44
SECTION 8.1 Collection of Money 44
SECTION 8.2 Release of Trust Property 45
SECTION 8.3 Opinion of Counsel 45
ARTICLE IX. Amendments; Series Supplements 46
SECTION 9.1 Amendments Without Consent of
Noteholders 46
SECTION 9.2 Amendments With Consent of Noteholders 47
SECTION 9.3 Supplements Authorizing a Series of
Notes 48
SECTION 9.4 Execution of Series Supplements 49
SECTION 9.5 Effect of Series Supplement 49
SECTION 9.6 Conformity With Trust Indenture Act 49
SECTION 9.7 Reference in Notes to Series
Supplements 49
ARTICLE X. Reserved 49
ARTICLE XI. Miscellaneous 50
SECTION 11.1 Compliance Certificates and Opinions,
etc. 50
SECTION 11.2 Form of Documents Delivered to
Indenture Trustee 51
SECTION 11.3 Acts of Noteholders 52
SECTION 11.4 Notices, etc., to Indenture Trustee,
Issuer and Rating Agencies 53
SECTION 11.5 Notices to Noteholders; Waiver 53
SECTION 11.6 Alternate Payment and Notice
Provisions 54
SECTION 11.7 Conflict with Trust Indenture Act 54
SECTION 11.8 Effect of Headings and Table of
Contents 54
SECTION 11.9 Successors and Assigns 55
SECTION 11.10 Separability 55
SECTION 11.11 Benefits of Indenture 55
SECTION 11.12 Legal Holidays 55
SECTION 11.13 GOVERNING LAW 55
SECTION 11.14 Counterparts 55
SECTION 11.15 Recording of Indenture 55
SECTION 11.16 Trust Obligation 55
SECTION 11.17 No Petition 56
SECTION 11.18 Limited Recourse. 56
SECTION 11.19 Inspection 57
SECTION 11.20 Limitation of Liability 57
EXHIBIT A -- Form of Transferee Certificate
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INDENTURE dated as of June 1, 2000, between
HOUSEHOLD AUTOMOTIVE TRUST V, a Delaware business trust (the
"Issuer") and Norwest Bank Minnesota, National Association,
a national banking association, as trustee (the "Indenture
Trustee").
In consideration of the mutual agreements
contained herein, and of other good and valuable
consideration the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
GRANTING CLAUSE
In order to secure the due and punctual payment of
the principal of and interest on the Notes of the related
Series when and as the same shall become due and payable,
whether as scheduled, by declaration of acceleration,
prepayment or otherwise, according to the terms of this
Indenture, the related Series Supplement and the related
Notes, the Issuer, pursuant to the related Series
Supplement, shall pledge the related Series Trust Estate to
the Indenture Trustee, all for the benefit of the Indenture
Trustee for the benefit of the Holders of the related
Series.
ARTICLE I.
Definitions and Incorporation by Reference
SECTION 1.1 Definitions
. Except as otherwise specified herein, the
following terms have the respective meanings set forth below
for all purposes of this Indenture.
"Act" has the meaning specified in Section
11.3(a).
"Authorized Officer" means, with respect to the
Issuer and the Master Servicer, any officer or agent acting
pursuant to a power of attorney of the Owner Trustee or the
Master Servicer, as applicable, who is authorized to act for
the Owner Trustee or the Master Servicer, as applicable, in
matters relating to the Issuer and who is identified on the
list of Authorized Officers delivered by each of the Owner
Trustee and the Master Servicer to the Indenture Trustee on
the Closing Date (as such list may be modified or
supplemented from time to time thereafter).
"Book Entry Notes" means any beneficial interest
in the Notes, ownership and transfers of which shall be made
through book entries by a Clearing Agency as described in
Section 2.10.
"Class" means, with respect to any Series, all the
Notes of such Series having the same specified payment terms
and priority of payment.
"Class SV Preferred Stock" means the preferred
stock of the Seller.
"Clearing Agency" means an organization registered
as a "clearing agency" pursuant to Section 17A of the
Exchange Act.
"Clearing Agency Participant" means a broker,
dealer, bank, other financial institution or other Person
for whom from time to time a Clearing Agency effects book-
entry transfers and pledges of securities deposited with the
Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, and Treasury Regulations
promulgated thereunder.
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"Corporate Trust Office" means the principal
office of the Indenture Trustee at which at any particular
time its corporate trust business shall be administered
which office at date of the execution of this Agreement is
located at Sixth Street and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇-▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Services/Asset-Backed Administration or at such other
address as the Indenture Trustee may designate from time to
time by notice to the Noteholders, the Master Servicer and
the Issuer, or the principal corporate trust office of any
successor Indenture Trustee (the address of which the
successor Indenture Trustee will notify the Noteholders and
the Issuer).
"Default" means any occurrence that is, or with
notice or the lapse of time or both would become, an Event
of Default.
"Definitive Notes" has the meaning specified in
Section 2.10.
"Event of Default" has the meaning specified in
Section 5.1.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended.
"Executive Officer" means, with respect to any
corporation, the Chief Executive Officer, Chief Operating
Officer, Chief Financial Officer, President, Executive Vice
President, any Vice President, the Secretary, the Treasurer,
or any Assistant Treasurer of such corporation.
"Grant" means mortgage, pledge, bargain, sell,
warrant, alienate, remise, release, convey, assign,
transfer, create, ▇▇▇▇▇ ▇ ▇▇▇▇ upon and a security interest
in and right of set-off against, deposit, set over and
confirm pursuant to this Indenture. A Grant of a Series
Trust Estate or of any other agreement or instrument shall
include all rights, powers and options (but none of the
obligations) of the granting party thereunder, including the
immediate and continuing right to claim for, collect,
receive and give receipt for principal and interest payments
in respect of a Series Trust Estate and all other monies
payable thereunder, to give and receive notices and other
communications, to make waivers or other agreements, to
exercise all rights and options, to bring proceedings in the
name of the granting party or otherwise and generally to do
and receive anything that the granting party is or may be
entitled to do or receive thereunder or with respect
thereto.
"Holder" or "Noteholder" means the Person in whose
name a Note is registered on the Note Register.
"Indebtedness" means, with respect to any Person
at any time, (a) indebtedness or liability of such Person
for borrowed money whether or not evidenced by bonds,
debentures, notes or other instruments, or for the deferred
purchase price of property or services (including trade
obligations); (b) obligations of such Person as lessee under
leases which should have been or should be, in accordance
with generally accepted accounting principles, recorded as
capital leases; (c) current liabilities of such Person in
respect of unfunded vested benefits under plans covered by
Title IV of ERISA; (d) obligations issued for or liabilities
incurred on the account of such Person; (e) obligations or
liabilities of such Person arising under acceptance
facilities; (f) obligations of such Person under any
guarantees, endorsements (other than for collection or
deposit in the ordinary course of business) and other
contingent obligations to purchase, to provide funds for
payment, to supply funds to invest in any Person or
otherwise to assure a creditor against loss; (g) obligations
of such Person secured by any lien on property or assets of
such Person, whether or not the obligations have been
assumed by such Person; or (h) obligations of such Person
under any interest rate or currency exchange agreement.
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"Indenture Trustee" means, initially, Norwest Bank
Minnesota, National Association, not in its individual
capacity but as trustee under this Indenture, or any
successor trustee under this Indenture.
"Indenture Trustee Fee" means the fees due to the
Indenture Trustee, as may be set forth in that certain fee
letter, dated as of the date hereof between the Master
Servicer and Norwest Bank Minnesota, National Association.
"Independent" means, when used with respect to any
specified Person, that the person (a) is in fact independent
of the Issuer, any other obligor upon the Notes, the Seller
and any Affiliate of any of the foregoing persons, (b) does
not have any direct financial interest or any material
indirect financial interest in the Issuer, any such other
obligor, the Seller or any Affiliate of any of the foregoing
Persons and (c) is not connected with the Issuer, any such
other obligor, the Seller or any Affiliate of any of the
foregoing Persons as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing
similar functions.
"Independent Certificate" means a certificate or
opinion to be delivered to the Indenture Trustee under the
circumstances described in, and otherwise complying with,
the applicable requirements of Section 11.1, prepared by an
Independent appraiser or other expert appointed pursuant to
an Issuer Order and approved by the Indenture Trustee in the
exercise of reasonable care, and such opinion or certificate
shall state that the signer has read the definition of
"Independent" in this Indenture and that the signer is
Independent within the meaning thereof.
"Issuer Order" and "Issuer Request" means a
written order or request signed in the name of the Issuer by
any one of its Authorized Officers and delivered to the
Indenture Trustee.
"Master Sale and Servicing Agreement" means the
Master Sale and Servicing Agreement dated as of June 1,
2000, among the Issuer, the Seller, the Master Servicer and
the Indenture Trustee, as the same may be amended or
supplemented from time to time.
"Note" means any Note authenticated and delivered
under this Indenture.
"Note Owner" means, with respect to a Book-Entry
Note, the person who is the owner of such Book-Entry Note,
as reflected on the books of the Clearing Agency, or on the
books of a Person maintaining an account with such Clearing
Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the
rules of such Clearing Agency).
"Note Paying Agent" means the Indenture Trustee or
any other Person that meets the eligibility standards for
the Indenture Trustee specified in Section 6.11 and is
authorized by the Issuer to make payments to and
distributions from the Master Collection Account and the
Series 2000-2 Collection Account, including payment of
principal of or interest on the Notes on behalf of the
Issuer.
"Note Register" and "Note Registrar" have the
respective meanings specified in Section 2.4.
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"Officer's Certificate" means a certificate signed
by any Authorized Officer of the Issuer, under the
circumstances described in, and otherwise complying with,
the applicable requirements of Section 11.1 and TIA 314,
and delivered to the Indenture Trustee. Unless otherwise
specified, any reference in this Indenture to an Officer's
Certificate shall be to an Officer's Certificate of any
Authorized Officer of the Issuer. Each certificate with
respect to compliance with a condition or covenant provided
for in this Agreement shall include (1) a statement that the
Authorized Officer signing the certificate has read such
covenant or condition; (2) a brief statement as to the
nature and scope of the examination or investigation upon
which the statements contained in such certificate are
based; (3) a statement that in the opinion of such person,
he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and (4) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been
complied with.
"Outstanding" means, as of the date of
determination, all Notes theretofore authenticated and
delivered under this Indenture except:
(i) Notes theretofore canceled by the Note
Registrar or delivered to the Note Registrar for
cancellation;
(ii) Notes or portions thereof the payment for
which money in the necessary amount has been
theretofore deposited with the Indenture Trustee or any
Note Paying Agent in trust for the Holders of such
Notes (provided, however, that if such Notes are to be
redeemed, notice of such redemption has been duly given
pursuant to a Series Supplement or provision therefor,
satisfactory to the Indenture Trustee, has been made);
and
(iii) Notes in exchange for or in lieu of
other Notes which have been authenticated and delivered
pursuant to this Indenture unless proof satisfactory to
the Indenture Trustee is presented that any such Notes
are held by a bona fide purchaser;
provided, however, that in determining whether the Holders
of the requisite Outstanding Amount of the Notes have given
any request, demand, authorization, direction, notice,
consent or waiver hereunder or under any Basic Document,
Notes owned by the Issuer, any other obligor upon the Notes,
the Seller or any Affiliate of any of the foregoing Persons
shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Indenture Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Notes that a Responsible Officer of the Indenture Trustee
either actually knows to be so owned or has received written
notice thereof shall be so disregarded. Notes so owned that
have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction
of the Indenture Trustee the pledgee's right so to act with
respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes, the Seller or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" means the aggregate principal
amount of all Notes, or Class of Notes, as applicable,
outstanding at the date of determination.
"Predecessor Note" means, with respect to any
particular Note, every previous Note evidencing all or a
portion of the same debt as that evidenced by such
particular Note; and, for the purpose of this definition,
any Note authenticated and delivered under Section 2.5 in
lieu of a mutilated, lost, destroyed or stolen Note shall be
deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Note.
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"Proceeding" means any suit in equity, action at
law or other judicial or administrative proceeding.
"Record Date" means, with respect to a
Distribution Date, the close of business on the Business Day
immediately preceding such Distribution Date. However, if
Definitive Notes are issued, the Record Date shall be the
last Business Day of the month preceding a Distribution
Date.
"Registration Statement" has the meaning specified
therefor in the Securities Act.
"Responsible Officer" means, with respect to the
Indenture Trustee or the Owner Trustee (as defined in the
Trust Agreement), any officer within the Corporate Trust
Office of the Indenture Trustee or the Owner Trustee, as the
case may be, including any Vice President, Assistant Vice
President, Assistant Treasurer, Assistant Secretary,
Financial Services Officer or any other officer of the
Indenture Trustee or the Owner Trustee, as the case may be,
customarily performing functions similar to those performed
by any of the above designated officers and having direct
responsibility for the administration of this Indenture.
"Securities Act" means the Securities Act of 1933,
as amended.
"State" means any one of the 50 states of the
United States of America or the District of Columbia.
"Tranche" means all of the Notes of a Series (or a
Class within a Series) having the same date of
authentication.
"Trust Agreement" means the Trust Agreement dated
as of June 1, 2000 between the Seller and the Owner Trustee,
as amended and restated as of June 1, 2000, as the same may
be amended and supplemented from time to time.
"Trust Property" means all money, instruments,
rights and other property that are subject or intended to be
subject to the lien and security interest of this Indenture
for the benefit of the Noteholders (including all property
and interests Granted to the Indenture Trustee), including
all proceeds thereof.
"Trust Indenture Act" or "TIA" means the Trust
Indenture Act of 1939, as amended and as in force on the
date hereof, unless otherwise specifically provided.
"UCC" means, unless the context otherwise
requires, the Uniform Commercial Code, as in effect in the
relevant jurisdiction, as amended from time to time.
"Unregistered Note" means a Note which is not
being offered for sale hereunder pursuant to a Registration
Statement.
Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to them in
the Master Sale and Servicing Agreement or the Trust
Agreement.
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SECTION 1.2 Incorporation by Reference of the Trust
Indenture Act
. Whenever this Indenture refers to a provision
of the TIA, the provision is incorporated by reference in
and made a part of this Indenture. The following TIA terms
used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange
Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee"
means the Indenture Trustee.
"obligor" on the indenture securities means the
Issuer.
All other TIA terms used in this Indenture that
are defined by the TIA, or defined by Commission rule have
the meaning assigned to them by such definitions.
SECTION 1.3 Rules of Construction
. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
and
(v) words in the singular include the plural and words
in the plural include the singular.
SECTION 1.4 Action by or Consent of Noteholders and
Certificateholders
. Whenever any provision of this Agreement refers
to action to be taken, or consented to, by Noteholders or
Certificateholders, such provision shall be deemed to refer
to the Certificateholder or Noteholder, as the case may be,
of record as of the Record Date immediately preceding the
date on which such action is to be taken, or consent given,
by Noteholders or Certificateholders. Solely for the
purposes of any action to be taken, or consented to, by
Noteholders or Certificateholders, any Note or Certificate
registered in the name of Seller or any Affiliate thereof
shall be deemed not to be outstanding (except in the event
that the Seller and/or an Affiliate thereof then owns all
outstanding Notes and Certificates); provided, however,
that, solely for the purpose of determining whether the
Indenture Trustee is entitled to rely upon any such action
or consent, only Notes or Certificates which the Owner
Trustee or the Indenture Trustee, respectively, knows to be
so owned shall be so disregarded.
SECTION 1.5 Conflict with TIA
. If this Indenture is qualified under the TIA,
and if any provision hereof limits, qualifies or conflicts
with a provision of the TIA that is required under the TIA
to be part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so
modified or excluded, the latter provisions shall be deemed
to apply to this Indenture as so modified or to be excluded,
as the case may be.
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ARTICLE II.
The Notes
SECTION 2.1 Form; Amount Limited; Issuable in Series
(a) Notes of each Series, together with the Indenture
Trustee's certificate of authentication, shall be in
substantially the form set forth in the related Series
Supplement, with such appropriate insertions, omissions,
substitutions and other variations as are required or
permitted by this Indenture or the related Series Supplement
and may have such letters, numbers or other marks of
identification and such legends or endorsements placed
thereon as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their
execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Note.
The Definitive Notes shall be typewritten,
printed, lithographed or engraved or produced by any
combination of these methods (with or without steel engraved
borders), all as determined by the officers executing such
Notes, as evidenced by their execution of such Notes.
Each Note shall be dated the date of its
authentication. The terms of the Notes set forth in the
related Series Supplement are part of the terms of this
Indenture.
(b) The aggregate principal amount of Notes which may
be authenticated and delivered and Outstanding at any time
under this Indenture is not limited; provided that any
Series Supplement may so limit the aggregate principal
amount of Notes of the related Series. The Notes shall be
issued in one or more Series, and may be issued in Classes
and/or Tranches within a Series (and Tranches within a
Class).
No Series of Notes shall be issued under this
Indenture unless such Notes have been authorized pursuant to
a Series Supplement, and all conditions precedent to the
issuance thereof, as specified in the related Series
Supplement, shall have been satisfied.
All Notes of each Series issued under this
Indenture shall be in all respects equally and ratably
entitled to the benefits hereof and secured by the related
Series Trust Estate without preference, priority or
distinction on account of the actual time or times of
authentication and delivery, all in accordance with the
terms and provisions hereof and the related Series
Supplement.
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 original or
facsimile.
Notes bearing the original or facsimile signature
of individuals who were at any time Authorized Officers of
the Issuer shall bind the Issuer, notwithstanding that such
individuals or any of them have ceased to hold such offices
prior to the authentication and delivery of such Notes or
did not hold such offices at the date of such Notes.
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At any time and from time to time after the
execution and delivery of this Indenture and the related
Series Supplement, and upon satisfaction of all the
conditions set forth in the related Series Supplement, the
Indenture Trustee shall, upon receipt of an Issuer Order and
an Officer's Certificate prepared and delivered by the
Seller that all conditions precedent for such issuance have
been satisfied, deliver Notes of the related Series
(including Notes of any Class or Tranche within such
Series.)
The Notes of a Series shall be issuable in the
denominations specified in the related Series Supplement.
No Note shall be entitled to any benefit under
this Indenture or any Series Supplement or be valid or
obligatory for any purpose, unless there appears attached to
such Note a certificate of authentication substantially in
the form provided for herein executed by the Indenture
Trustee by the manual signature of one of its authorized
signatories, and such certificate attached to any Note shall
be conclusive evidence, and the only evidence, that such
Note has been duly authenticated and delivered hereunder.
SECTION 2.3 Temporary Notes
. Pending the preparation of Definitive Notes of
any Series (or of any Class or Tranche within a Series), the
Issuer may execute, and upon receipt of an Issuer Order
prepared and delivered by the Master Servicer, the Indenture
Trustee shall authenticate and deliver, temporary Notes
which are printed, lithographed, typewritten, mimeographed
or otherwise produced, of the tenor of the Definitive Notes
in lieu of which they are issued and with such variations
not inconsistent with the terms of this Indenture as the
officers executing such Notes may determine, as evidenced by
their execution of such Notes.
If temporary Notes of any Series (or of any Class
or Tranche within a Series) are issued, the Issuer will
cause Definitive Notes of such Series (or Class or Tranche)
to be prepared without unreasonable delay. After the
preparation of Definitive Notes of such Series (or Class or
Tranche), the temporary Notes shall be exchangeable for
Definitive Notes of such Series (or Class or Tranche) upon
surrender of the temporary Notes at the office or agency of
the Issuer to be maintained as provided in Section 3.2,
without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes, the Issuer
shall execute and the Indenture Trustee shall authenticate
and deliver in exchange therefor a like principal amount of
Definitive Notes of such Series (or Class or Tranche) of
authorized denominations. Until so exchanged, the temporary
Notes of any Series (or Class or Tranche) shall in all
respects be entitled to the same benefits under this
Indenture and the related Series Supplement as Definitive
Notes of such Series (or Class or Tranche).
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 "Note
Registrar" for the purpose of registering Notes and
transfers of Notes as herein provided. Upon any resignation
of any Note Registrar, the Issuer shall promptly appoint a
successor or, if it elects not to make such an appointment,
assume the duties of Note Registrar.
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If a Person other than the Indenture Trustee is
appointed by the Issuer as Note Registrar, the Issuer will
give the Indenture Trustee prompt written notice of the
appointment of such Note Registrar and of the location, and
any change in the location, of the Note Register, and the
Indenture Trustee shall have the right to inspect the Note
Register at all reasonable times and to obtain copies
thereof. The Indenture Trustee shall have the right to rely
upon a certificate executed on behalf of the Note Registrar
by an Authorized Officer thereof as to the names and
addresses of the Holders of the Notes and the principal
amounts and number of such Notes.
Upon surrender for registration or transfer of any
Note at the office or agency of the Issuer to be maintained
as provided in Section 3.2, and if the requirements of
Section 8-401(1) of the UCC are met, the Issuer shall
execute and cause the Indenture Trustee to authenticate one
or more new Notes, in any authorized denominations, of the
same class and a like aggregate principal amount. A
Noteholder may also obtain from the Indenture Trustee, in
the name of the designated transferee or transferees one or
more new Notes, in any authorized denominations, of the same
Class and Tranche, as applicable, and a like aggregate
principal amount. Such requirements shall not be deemed to
create a duty in the Indenture Trustee to monitor the
compliance by the Issuer with Section 8-401 of the UCC.
At the option of the Holder, Notes of a Series (or
Class or Tranche) may be exchanged for other Notes of such
Series (or Class or Tranche) in any authorized
denominations, of the same Class (and Tranche, if
applicable) and a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so surrendered for exchange,
and if the requirements of Section 8-401(1) of the UCC are
met, the Issuer shall execute and upon its written request
the Indenture Trustee shall authenticate the Notes which the
Noteholder making the exchange is entitled to receive. Such
requirements shall not be deemed to create a duty in the
Indenture Trustee to monitor the compliance by the Issuer
with Section 8-401 of the UCC.
All Notes issued upon any registration of transfer
or exchange of Notes shall be the valid obligations of the
Issuer, evidencing the same debt, and entitled to the same
benefits under this Indenture and the related Series
Supplement, as the Notes surrendered upon such registration
of transfer or exchange.
Unless specified in a Series Supplement, every
Note presented or surrendered for registration of transfer
or exchange shall, unless specified in a Series Supplement,
be (i) duly endorsed by, or be accompanied by a written
instrument of transfer in the form attached as an exhibit to
the Note duly executed by the Holder thereof or such
Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar which
requirements include membership or participation in
Securities Transfer Agents Medallion Program ("Stamp") or
such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in
substitution for, Stamp, all in accordance with the Exchange
Act, and (ii) accompanied by such other documents as the
Note Registrar may require.
No service charge shall be made to a Holder for
any registration of transfer or exchange of Notes, but the
Note Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or
exchange of Notes.
Notwithstanding, the preceding provisions of this
section, the Issuer shall not be required to make, and the
Note Registrar shall not register, transfers or exchanges of
Notes selected for redemption for a period of 15 days
preceding the Distribution Date.
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The Note Registrar shall not register the transfer
of a Definitive Note unless the transferee has executed and
delivered to the Indenture Trustee a certification, in the
form of Exhibit A hereto, to the effect that either (i) the
transferee is not (A) an employee benefit plan (within the
meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) that is subject
to Title I of ERISA or (B) a plan (within the meaning of
Section 4975(e)(1) of the Code) that is subject to Section
4975 of the Code (each of the foregoing, a "Plan"), and is
not acting on behalf of or investing the assets of a Plan or
(ii) that the transferee's acquisition and continued holding
of the Definitive Note will be covered by a prohibited
transaction class exemption issued by the U.S. Department of
Labor. Each Note Owner that purchases a Book-Entry Note, or
to whom a Book-Entry Note is transferred, shall be deemed to
represent that either (i) it is not a Plan and is not acting
on behalf of or investing the assets of a Plan or (ii) its
acquisition and continued holding of the Book-Entry Note
will be covered by a prohibited transaction class exemption
issued by the U.S. Department of Labor.
No Holder of an Unregistered Note shall transfer
its Note, unless (i) such transfer is made in accordance
with Rule 144A under the Securities Act or (ii) pursuant to
an exemption from registration provided by Rule 144 under
the Securities Act (if available) and the registration and
qualification requirements under applicable state securities
laws.
Each Unregistered Note issued hereunder will
contain the following legend limiting sales to "Qualified
Institutional Buyers" within the meaning of Rule 144A under
the Securities Act:
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND HAS NOT BEEN
APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR REGULATORY AUTHORITY OF ANY STATE. THIS
NOTE HAS BEEN OFFERED AND SOLD PRIVATELY. THE HOLDER
HEREOF ACKNOWLEDGES THAT THESE SECURITIES ARE
"RESTRICTED SECURITIES" THAT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT AND AGREES FOR THE BENEFIT OF
THE OBLIGORS AND ITS AFFILIATES THAT THESE SECURITIES
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES
ACT IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A OR (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER JURISDICTION.
14
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 each of
the Issuer and the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer and
the Indenture Trustee 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 request the Indenture Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note of the
same Series (or Class or Tranche) (such requirement shall
not be deemed to create a duty in the Indenture Trustee to
monitor the compliance by the Issuer with Section 8-405);
provided, however, that if any such destroyed, lost or
stolen Note, but not a mutilated Note, shall have become or
within seven days shall be due and payable, or shall have
been called for redemption pursuant to the terms of the
related Series Supplement, the Issuer may, instead of
issuing a replacement Note, direct the Indenture Trustee, in
writing, to pay such destroyed, lost or stolen Note when so
due or payable or upon the redemption date without surrender
thereof. If, after the delivery of such replacement Note or
payment of a destroyed, lost or stolen Note pursuant to the
proviso to the preceding sentence, a bona fide purchaser of
the original Note in lieu of which such replacement Note was
issued presents for payment such original Note, the Issuer
and the 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
or any assignee of such Person, except a bona fide
purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Issuer or the
Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under
this Section, the Issuer may require the payment by the
Holder of such Note of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the
fees and expenses of the Indenture Trustee) connected
therewith.
Every replacement Note of any Series issued
pursuant to this Section in replacement of any mutilated,
destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or
not the mutilated, destroyed, lost or stolen Note shall be
at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture and the related Series
Supplement equally and proportionately with any and all
other Notes of the same Series duly issued hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 Persons Deemed Owner
. Prior to due presentment for registration of
transfer of any Note, the Issuer, the Indenture Trustee and
any agent of Issuer or the Indenture Trustee may treat the
Person in whose name any Note is registered (as of the
Record Date) as the owner of such Note for the purpose of
receiving payments of principal of and interest, if any on
such Note and for all other purposes whatsoever, whether or
not such Note be overdue, and none of the Issuer, the
Indenture Trustee nor any agent of the Issuer or the
Indenture Trustee shall be affected by notice to the
contrary.
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SECTION 2.7 Payment of Principal and Interest; Defaulted
Interest
(a) The Notes shall accrue interest as provided in the
form of Note set forth in the related Series Supplement and
such interest shall be due and payable on each Distribution
Date as specified therein. Any installment of interest or
principal, if any, payable on any Note which is punctually
or duly provided for by the Issuer on the applicable
Distribution Date shall be paid, as provided in the related
Series Supplement, or if not so provided to the Person in
whose name such Note (or one or more Predecessor Notes) is
registered on the Record Date, by check mailed first-class,
postage prepaid, to such Person's address as it appears on
the Note Register on such Record Date, except that, if the
Notes of a Series are Book Entry Notes, unless Definitive
Notes have been issued for such Series pursuant to Section
2.12, with respect to Notes of such Series registered on the
Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), payment
will be made by wire transfer in immediately available funds
to the account designated by such nominee and except for the
final installment of principal payable with respect to such
Note on a Distribution Date or on the Final Scheduled
Distribution Date with respect to a Series as set forth in
the relevant Series Supplement which shall be payable as
provided below. The funds represented by any such checks
returned undelivered shall be held in accordance with
Section 3.3.
(b) The principal of each Note shall be payable in
installments on each Distribution Date as provided in the
form of Note set forth in the related Series Supplement.
Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable, if not
previously paid, on the date on which an Event of Default
shall have occurred and be continuing, if the Notes are
declared to be immediately due and payable in the manner
provided in the related Series Supplement. Upon written
notice from the Master Servicer on behalf of the Issuer, the
Indenture Trustee shall notify the Person in whose name a
Note is registered at the close of business on the Record
Date preceding the Distribution Date on which the Issuer
expects that the final installment of principal of and
interest on such Note will be paid. Such notice may be
mailed or transmitted by facsimile prior to such final
Distribution Date and may specify that such final
installment will be payable only upon presentation and
surrender of such Note and shall specify the place where
such Note may be presented and surrendered for payment of
such installment.
(c) If the Issuer defaults in a payment of interest on
the Notes, the Issuer shall pay defaulted interest (plus
interest on such defaulted interest to the extent lawful) at
the applicable Note Rate to the extent lawful. Unless
otherwise provided in the related Series Supplements, the
Issuer may pay such defaulted interest to the Persons who
are Noteholders on a subsequent special record date, which
date shall be at least five Business Days prior to the
payment date. The Issuer shall fix or cause to be fixed any
such special record date and payment date, and, at least 15
days before any such special record date, the Issuer shall
mail to each Noteholder and the Indenture Trustee a notice
that states the special record date, the payment date and
the amount of defaulted interest to be paid.
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SECTION 2.8 Cancellation
. All Notes surrendered for payment, registration
of transfer, exchange or redemption shall, if surrendered to
any Person other than the Indenture Trustee, be delivered to
the Indenture Trustee and shall be promptly canceled by the
Indenture Trustee in accordance with its customary
procedures. The Issuer may at any time deliver to the
Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may
have acquired in any manner whatsoever, and all Notes so
delivered shall be promptly canceled by the Indenture
Trustee in accordance with its customary procedures. No
Notes shall be authenticated in lieu of or in exchange for
any Notes canceled as provided in this Section, except as
expressly permitted by this 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.
SECTION 2.9 Release of Collateral
. The Indenture Trustee shall, on or after a
Series Termination Date, release any remaining portion of
the related Series Trust Estate from the lien created by
this Indenture and deposit in the applicable Series
Collection Account any funds then on deposit in any other
Trust Account. The Indenture Trustee shall release property
from the lien created by this Indenture pursuant to this
Section 2.9 only upon receipt of an Issuer Request by it and
the Indenture Trustee accompanied by an Officer's
Certificate, an Opinion of Counsel and (if required by the
TIA) Independent Certificates in accordance with TIA
314(c) and 314(d)(1) meeting the applicable requirements
of Section 11.1.
SECTION 2.10 Book-Entry Notes
. The Notes, upon original issuance, may be
issued in the form of typewritten Notes representing the
Book-Entry Notes, to be delivered to The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of,
the Issuer. Such Notes may initially be registered on the
Note Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Note Owner will receive a
Definitive Note representing such Note Owner's interest in
such Note, except as provided in Section 2.12. Unless and
until definitive, fully registered Notes (the "Definitive
Notes") have been issued to Note Owners pursuant to Section
2.12:
(i) the provisions of this Section shall be in full
force and effect;
(ii) the Note Registrar and the Indenture Trustee shall
be entitled to deal with the Clearing Agency for all
purposes of this Indenture (including the payment of
principal of and interest on the Notes and the giving of
instructions or directions hereunder) as the sole Holder of
the Notes, and shall have no obligation to the Note Owners;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Indenture, the
provisions of this Section shall control;
(iv) the rights of Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Note Owners
and the Clearing Agency and/or the Clearing Agency
Participants. Unless and until Definitive Notes are issued
pursuant to Section 2.12, the initial Clearing Agency will
make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments of principal
of and interest on the Notes to such Clearing Agency
Participants;
17
(v) whenever this Indenture requires or permits
actions to be taken based upon instructions or directions of
Holders of Notes evidencing a specified percentage of the
Outstanding Amount of the Notes, the Clearing Agency shall
be deemed to represent such percentage only to the extent
that it has received instructions to such effect from Note
Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the
beneficial interest in the Notes or in the Notes of a Class,
as the case maybe, and has delivered such instructions to
the Indenture Trustee; and
(vi) Note Owners may receive copies of any reports sent
to Noteholders pursuant to this Indenture, upon written
request, together with a certification that they are Note
Owners and payment of reproduction and postage expenses
associated with the distribution of such reports, from the
Indenture Trustee at the Corporate Trust Office.
SECTION 2.11 Notices to Clearing Agency
. With respect to each Series of Notes which are
Book Entry Notes, whenever a notice or other communication
to the Noteholders of such Series is required under this
Indenture, unless and until Definitive Notes shall have been
issued to Note Owners pursuant to Section 2.12, the
Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of
the Notes to the Clearing Agency, and shall have no
obligation to the Note Owners.
SECTION 2.12 Definitive Notes
. If the Notes of a Series are Book-Entry Notes
and if (i) the Master Servicer advises the Indenture Trustee
in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities with respect
to the Notes of such Series, and the Master Servicer is
unable to locate a qualified successor, (ii) the Master
Servicer at its option advises the Indenture Trustee in
writing that it elects to terminate the book-entry system
through the Clearing Agency or (iii) after the occurrence of
an Event of Default with respect to such Series, Note Owners
representing beneficial interests aggregating at least a
majority of the Outstanding Amount of the Notes advise the
Indenture Trustee through the Clearing Agency in writing
that the continuation of a book entry system through the
Clearing Agency is no longer in the best interests of the
Note Owners, then the Clearing Agency shall notify all Note
Owners and the Indenture Trustee of the occurrence of any
such event and of the availability of Definitive Notes to
Note Owners requesting the same. Upon surrender to the
Indenture Trustee of the typewritten Note or Notes
representing the Book-Entry Notes by the Clearing Agency,
accompanied by registration instructions, the Issuer shall
execute and upon the written direction of the Issuer the
Indenture Trustee shall authenticate the Definitive Notes in
accordance with the instructions of the Clearing Agency.
None of the Issuer, the Note Registrar or the Indenture
Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the
issuance of Definitive Notes, the Indenture Trustee shall
recognize the Holders of the Definitive Notes as
Noteholders.
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SECTION 2.13 Final Distribution
(a) The Master Servicer on behalf of the Issuer shall
give the Indenture Trustee at least 15 days prior notice of
the Distribution Date on which the Noteholders of any Series
or Class may surrender their Notes for payment of the final
distribution on and cancellation of such Notes. Not later
than the fifth day of the month in which the final
distribution in respect of such Series or Class is payable
to Noteholders, the Indenture Trustee shall provide notice
to the Noteholders of such Series or Class specifying
(i) the date upon which final payment of such Series or
Class will be made upon presentation and surrender of Notes
(if required) of such Series or Class at the office or
offices therein designated, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise
applicable to such payment date is not applicable, payments
being made only upon presentation and surrender of such
Notes at the office or offices therein specified. The
Indenture Trustee shall give such notice to the Registrar
and the Note Paying Agent at the time such notice is given
to Noteholders.
(b) Notwithstanding a final distribution to the
Noteholders of any Series or Class, except as otherwise
provided in this paragraph, all funds then on deposit in the
Master Collection Account and any Series Trust Account
allocated to such Noteholders shall continue to be held in
trust for the benefit of such Noteholders, and the Note
Paying Agent or the Indenture Trustee shall pay such funds
to such Noteholders upon surrender of their Notes. In the
event that all such Noteholders shall not surrender their
Notes for cancellation within six months after the date
specified in the notice from the Indenture Trustee described
in paragraph (a), the Indenture Trustee shall give a second
notice to the remaining such Noteholders to surrender their
Notes for cancellation and receive the final distribution
with respect thereto. If within one year after the second
notice all such Notes shall not have been surrendered for
cancellation, the Indenture Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to
contact the remaining such Noteholders concerning surrender
of their Notes, and the cost thereof shall be paid out of
the funds in the account held for the benefit of such
Noteholders. The Indenture Trustee and the Note Paying
Agent shall upon written request pay to the related Issuer
any moneys held by them for the payment of principal or
interest that remains unclaimed for two years. After
payment to the related Issuers, Noteholders entitled to the
money must look to the related Issuers for payment as
general unsecured creditors unless an applicable abandoned
property law designates another Person and all liability of
the Indenture Trustee or such Note Paying Agent with respect
to such trust money shall thereupon cease.
(c) Any notice required or permitted to be given to a
Holder of Registered Notes shall be given by first-class
mail, postage prepaid, at the address of such Holder as
shown in the Note Register.
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ARTICLE III.
Covenants
SECTION 3.1 Payment of Principal and Interest
. The Issuer will duly and punctually pay or
cause to be paid the principal of and interest on the Notes
in accordance with the terms of the Notes, this Indenture
and the related Series Supplement. Amounts properly
withheld under the Code by any Person from a payment to any
Noteholder of interest and/or principal shall be considered
as having been paid by the Issuer to such Noteholder for all
purposes of this Indenture.
SECTION 3.2 Maintenance of Office or Agency
. The Issuer will maintain in Minnesota an office
or agency where Notes may be surrendered for registration,
transfer or exchange of the Notes, and where notices and
demands to or upon the Issuer in respect of the Notes and
this Indenture may be served. The Issuer hereby initially
appoints the Indenture Trustee to serve as its agent for the
foregoing purposes. The Issuer will give prompt written
notice to the Indenture Trustee of the location, and of any
change in the location, of any such office or agency. If at
any time the Issuer shall fail to maintain any such office
or agency or shall fail to furnish the Indenture Trustee
with the address thereof, such surrenders, notices and
demands may be made or served at the Corporate Trust Office,
and the Issuer hereby appoints the Indenture Trustee as its
agent to receive all such surrenders, notices and demands.
SECTION 3.3 Money for Payments to be Held in Trust
. One Business Day prior to each Distribution
Date, the Issuer shall deposit or cause to be deposited to
the related Series Collection Account Available Funds (which
shall be immediately available) with respect to the related
Collection Period. Such sum shall be held in trust for the
benefit of the Persons entitled thereto and (unless the Note
Paying Agent is the Indenture Trustee), the Issuer shall
promptly notify the Indenture Trustee of its action or
failure so to act.
The Issuer will cause each Note Paying Agent other
than the Indenture Trustee to execute and deliver to the
Indenture Trustee an instrument in which such Note Paying
Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Note Paying Agent with respect to
clauses (i) and (v), it hereby so agrees), subject to the
provisions of this Section, that such Note Paying Agent
will:
(i) hold all sums held by it for the payment of
amounts due with respect to the Notes in trust for the
benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as
herein provided and pay such sums to such Persons as herein
provided;
(ii) give the Indenture Trustee written notice of any
default by the Issuer of which a Responsible Officer of the
Note Paying Agent has actual knowledge (or any other obligor
upon the Notes) in the making of any payment required to be
made with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in
trust by such Note Paying Agent;
(iv) immediately resign as a Note Paying Agent and
forthwith pay to the 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 Note Paying
Agent at the time of its appointment; and
20
(v) comply with all requirements of the Code with
respect to the withholding from any payments made by it on
any Notes of any applicable withholding taxes imposed
thereon and with respect to any applicable reporting
requirements in connection therewith.
The Issuer may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture
and any Series Supplement or for any other purpose, by
Issuer Order direct any Note Paying Agent to pay to the
Indenture Trustee all sums held in trust by such Note Paying
Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by
such Note Paying Agent; and upon such a payment by any Note
Paying Agent to the Indenture Trustee, such Note Paying
Agent shall be released from all further liability with
respect to such money.
The Trust hereby appoints Norwest Bank Minnesota,
National Association, as Certificate Paying Agent to make
payments to Certificateholders on behalf of the Issuer in
accordance with the provisions of the Certificates, this
Agreement and the Trust Agreement, and Norwest Bank
Minnesota, National Association, hereby accepts such
appointment (subject to removal in the event it not longer
serves as Indenture Trustee pursuant to Section 6.8) and
further agrees that it will be bound by the provisions of
the Trust Agreement relating to the Certificate Paying Agent
and will:
(i) hold all sums held by it for the payment of
amounts due with respect to the Certificates in trust for
the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as
herein provided and as provided in the Trust Agreement and
pay such sums to such Persons as herein and therein
provided;
(ii) give the Owner Trustee notice of any default by
the Issuer of which a Responsible Officer of the Indenture
Trustee has actual knowledge in the making of any payment
required to be made with respect to the Certificates;
(iii) at any time during the continuance of any such
default, upon the written request of the Owner Trustee
forthwith pay to the Owner Trustee on behalf of the Issuer
all sums so held in Trust by such Certificate Paying Agent;
(iv) immediately resign as a Certificate Paying Agent
and forthwith pay to the Owner Trustee on behalf of the
Issuer all sums held by it in trust for the payment of
Certificates if at any time it ceases to meet the standards
required to be met by a Note Paying Agent at the time of its
appointment; and
(v) comply with all requirements of the Code with
respect to the withholding from any payments made by it on
any Certificates of any applicable withholding taxes imposed
thereon and with respect to any applicable reporting
requirements in connection therewith.
SECTION 3.4 Existence
. Except as otherwise permitted by the provisions
of Section 3.10, the Issuer will keep in full effect its
existence, rights and franchises as a business trust under
the laws of the State of Delaware (unless it becomes, or any
successor Issuer hereunder is or becomes, organized under
the laws of any other state or of the United States of
America, in which case the Issuer will keep in full effect
its existence, rights and franchises under the laws of such
other jurisdiction) and will obtain and preserve its
qualification to do business in each jurisdiction in which
such qualification is or shall be necessary to protect the
validity and enforceability of this Indenture, each Series
Supplement, the Notes and each other instrument or agreement
included in the related Series Trust Estate.
21
SECTION 3.5 Protection of Trust Property
. The Issuer intends the security interest
Granted pursuant to this Indenture and the related Series
Supplement in favor of the Holders to be prior to all other
liens in respect of the related Series Trust Estate, and the
Issuer shall take all actions necessary to obtain and
maintain, in favor of the Indenture Trustee for the benefit
of the Holders a first lien on and a first priority,
perfected security interest in the related Series Trust
Estate. The Issuer will from time to time prepare (or shall
cause to be prepared), execute and deliver all such
supplements and amendments hereto and all such financing
statements, continuation statements, instruments of further
assurance and other instruments, and will take such other
action necessary or advisable to:
(i) Grant more effectively all or any portion of the
related Series Trust Estate;
(ii) maintain or preserve the lien and security
interest (and the priority thereof) in favor of the
Indenture Trustee for the benefit of the Holders created by
this Indenture and the related Series Supplement or carry
out more effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity
of any Grant made or to be made by this Indenture and the
related Series Supplement ;
(iv) enforce any of the related Series Trust Estate;
(v) preserve and defend title to the related Series
Trust Estate and the rights of the Indenture Trustee in such
Trust Property against the claims of all persons and
parties; and
(vi) pay all taxes or assessments levied or assessed
upon the related Series Trust Estate when due.
SECTION 3.6 Opinions as to Trust Property
.
(a) On the Closing Date, the Issuer shall furnish to
the Indenture Trustee an Opinion of Counsel either stating
that, in the opinion of such counsel, such action has been
taken with respect to the recording and filing of this
Indenture, Series Supplement, and any other requisite
documents, and with respect to the execution and filing of
any financing statements and continuation statements, as are
necessary to perfect and make effective the first priority
lien and security interest in favor of the Indenture Trustee
for the benefit of the Holders, created by this Indenture
and the related Series Supplement and reciting the details
of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such lien and
security interest effective.
(b) Within 90 days after the beginning of each
calendar year, beginning with 2001 the Master Servicer on
behalf of the Issuer shall furnish to the Indenture Trustee
an Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the
recording, filing, re-recording and refiling of this
Indenture, any Series Supplement and any other requisite
documents and with respect to the execution and filing of
any financing statements and continuation statements as are
necessary to maintain the lien and security interest created
by this Indenture and the related Series Supplement and
reciting the details of such action or stating that in the
opinion of such counsel no such action is necessary to
maintain such lien and security interest. Such Opinion of
Counsel shall also describe the recording, filing, re-
recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and
the execution and filing of any financing statements and
continuation statements that will, in the opinion of such
counsel, be required to maintain the lien and security
interest of this Indenture and the related Series Supplement
until December 31 of the following calendar year.
22
SEECTION 3.7 Performance of Obligations; Servicing of
Receivables
.
(a) The Issuer will not take any action and will use
its best efforts not to permit any action to be taken by
others that would release any Person from any of such
Person's material covenants or obligations under any
instrument or agreement included in the related Series Trust
Estate or that would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or
agreement, except as ordered by any bankruptcy or other
court or as expressly provided in this Indenture, the Basic
Documents and the related Series Related Documents or such
other instrument or agreement.
(b) The Issuer may contract with other Persons to
assist it in performing its duties under this Indenture, and
any performance of such duties by a Person identified to the
Indenture Trustee in an Officer's Certificate of the Issuer
shall be deemed to be action taken by the Issuer.
Initially, the Issuer has contracted with the Master
Servicer to assist the Issuer in performing its duties under
this Indenture and each Series Supplement.
(c) The Issuer will punctually perform and observe all
of its obligations and agreements contained in this
Indenture, the Basic Documents, all Series Related Documents
and in the instruments and agreements included in the
related Series Trust Estate, including, but not limited, to
preparing (or causing to be prepared) and filing (or causing
to be filed) all UCC financing statements and continuation
statements required to be filed by the terms of this
Indenture, the related Series Supplement and the Master Sale
and Servicing Agreement in accordance with and within the
time periods provided for herein and therein. Except as
otherwise expressly provided therein, the Issuer shall not
waive, amend, modify, supplement or terminate any Basic
Document or any provision thereof without the consent of the
Indenture Trustee.
(d) If a Responsible Officer of the Owner Trustee
shall have actual knowledge of the occurrence of a Master
Servicer Termination Event under the Master Sale and
Servicing Agreement, the Issuer shall promptly notify the
Indenture Trustee and the Rating Agencies thereof in
accordance with Section 11.4, and shall specify in such
notice the action, if any, the Issuer is taking in respect
of such default. If a Master Servicer Termination Event
shall arise from the failure of the Master Servicer to
perform any of its duties or obligations under the Master
Sale and Servicing Agreement with respect to the
Receivables, the Issuer shall take all reasonable steps
available to it to remedy such failure.
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 Basic Documents or the related Series Related Documents,
sell, transfer, exchange or otherwise dispose of any of the
properties or assets of the Issuer, including those included
in the related Series Trust Estate;
23
(ii) claim any credit on, or make any deduction from
the principal or interest payable in respect of, the Notes
of a Series (other than amounts properly withheld from such
payments under the Code) or assert any claim against any
present or former Noteholder by reason of the payment of the
taxes levied or assessed upon any part of the related Series
Trust Estate; or
(iii) (A) permit the validity or effectiveness of this
Indenture or any Series Supplement to be impaired, or permit
the lien in favor of the Indenture Trustee created by this
Indenture to be amended, hypothecated, subordinated,
terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to
the Notes under this Indenture or any Series Supplement
except as may be expressly permitted hereby, (B) permit any
lien, charge, excise, claim, security interest, mortgage or
other encumbrance (other than the lien of this Indenture and
the related Series Supplement) to be created on or extend to
or otherwise arise upon or burden the related Series Trust
Estate or any part thereof or any interest therein or the
proceeds thereof (other than tax liens, mechanics' liens and
other liens that arise by operation of law, in each case on
a Financed Vehicle and arising solely as a result of an
action or omission of the related Obligor), (C) permit the
lien of this Indenture and the related Series Supplement not
to constitute a valid first priority (other than with
respect to any such tax, mechanics' or other lien) security
interest in the related Series Trust Estate, (D) except as
expressly permitted therein, amend, modify or fail to comply
with the provisions of the Basic Documents or (E) except as
expressly permitted therein, amend, modify or fail to comply
with the provisions of the Series Related Documents.
SECTION 3.9 Annual Statement as to Compliance
. The Master Servicer on behalf of the Issuer
will deliver to the Indenture Trustee, within 90 days after
the end of each fiscal year of the Issuer (commencing with
the fiscal year ended December 31, 2000), and otherwise in
compliance with the requirements of TIA Section 314(a)(4) an
Officer's Certificate stating, as to the Authorized Officer
signing such Officer's Certificate, that
(i) a review of the activities of the Issuer during
such year and of performance under this Indenture has been
made under such Authorized Officer's supervision; and
(ii) to the best of such Authorized Officer's
knowledge, based on such review, the Issuer has complied
with all conditions and covenants under this Indenture and
each Series Supplement throughout such year, or, if there
has been a default in the compliance of any such condition
or covenant, specifying each such default known to such
Authorized Officer and the nature and status thereof.
SECTION 3.10 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, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the principal of
and interest on all Notes and the performance or observance
of every agreement and covenant of this Indenture and each
Series Supplement on the part of the Issuer to be performed
or observed, all as provided herein;
24
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing under any Series Supplement;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the
Indenture Trustee and the Owner Trustee) to the effect that
such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or any
Certificateholder;
(v) any action as is necessary to maintain the lien
and security interest created by this Indenture and each
Series Supplement shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation or merger comply with
this Article III and that all conditions precedent herein
provided for relating to such transaction have been complied
with (including any filing required by the Exchange Act).
(b) The Issuer shall not convey or transfer all or
substantially all of its properties or assets, including
those included in each Series Trust Estate, to any Person,
unless
(i) the Person that acquires by conveyance or transfer
the properties and assets of the Issuer the conveyance or
transfer of which is hereby restricted shall (A) be a United
States citizen or a Person organized and existing under the
laws of the United States of America or any state, (B)
expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all Notes and
the performance or observance of every agreement and
covenant of this Indenture, each Supplement, each of the
Basic Documents and each of the Series Related Documents on
the part of the Issuer to be performed or observed, all as
provided herein, (C) expressly agree by means of such
Indenture Supplement that all right, title and interest so
conveyed or transferred shall be subject and subordinate to
the rights of Holders of the Notes, (D) unless otherwise
provided in such Series Supplement, expressly agree to
indemnify, defend and hold harmless the Issuer against and
from any loss, liability or expense arising under or related
to this Indenture, each Series Supplement and the Notes and
(E) expressly agree by means of such Series Supplement that
such Person (or if a group of persons, then one specified
Person) shall prepare (or cause to be prepared) and make all
filings with the Commission (and any other appropriate
Person) required by the Exchange Act in connection with the
Notes;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing under any Series Supplement;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the
Indenture Trustee) to the effect that such transaction will
not have any material adverse tax consequence to the Trust,
any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien
and security interest created by this Indenture and each
Series Supplement shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture
Trustee an Officers' Certificate and an Opinion of Counsel
each stating that such conveyance or transfer and such
Indenture Supplement complies with this Article III and that
all conditions precedent herein provided for relating to
such transaction have been complied with (including any
filing required by the Exchange Act).
25
SECTION 3.11 Successor or Transferee
.
(a) Upon any consolidation or merger of the Issuer in
accordance with Section 3.10(a), the Person formed by or
surviving such consolidation or merger (if other than the
Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this
Indenture and each Series Supplement with the same effect as
if such Person had been named as each Issuer herein.
(b) Upon a conveyance or transfer of all the assets
and properties of the Issuer pursuant to Section 3.10 (b),
Household Automotive Trust V will be released from every
covenant and agreement of this Indenture and each Series
Supplement to be observed or performed on the part of the
Issuer with respect to the Notes immediately upon the
delivery of written notice to the Indenture Trustee stating
that Household Automotive Trust V is to be so released.
SECTION 3.12 No Other Business
. The Issuer shall not engage in any business
other than financing, purchasing, owning, selling and
managing the Receivables, entering and maintaining any
ancillary agreement related to issuance of the Notes and
owning the Class SV Preferred Stock of the Seller in the
manner contemplated by this Indenture, the Basic Documents
and each Series Supplement and all Series Related Documents
and activities incidental thereto.
SECTION 3.13 No Borrowing
. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or
indirectly, for any Indebtedness except for (i) the Notes,
(ii) obligations owing from time to time to a related Series
Support Provider under the related agreement regarding
Series Support, if any and (iii) any other Indebtedness
permitted by or arising under the Basic Documents and each
Series Supplement. The proceeds of the Notes and the
Certificates of a Series shall be used exclusively to fund
the Issuer's purchase of the Receivables of such Series, or
to obtain release of the lien relating to the pledge of the
Receivables for a prior series of notes issued by the
Issuer, the purchase of related property of the Series Trust
Estate, to fund any trust account and to pay the Issuer's
organizational, transactional and start-up expenses.
SECTION 3.14 Master Servicer's Obligations
. The Issuer shall enforce the provisions of
Sections 4.9, 4.10 and 4.11 of the Master Sale and Servicing
Agreement with respect to the duties of Master Servicer
thereunder.
SECTION 3.15 Guarantees, Loans, Advances and Other
Liabilities
. Except as contemplated by the Master Sale and
Servicing Agreement or this Indenture or any Series
Supplement, the Issuer shall not make any loan or advance or
credit to, or guarantee (directly or indirectly or by an
instrument having the effect of assuring another's payment
or performance on any obligation or capability of so doing
or otherwise), endorse or otherwise become continently
liable, directly or indirectly, in connection with the
obligations, stocks or dividends of, or own, purchase,
repurchase or acquire (or agree continently to do so) any
stock, obligations, assets or securities of, or any other
interest in, or make any capital contribution to, any other
Person.
SECTION 3.16 Capital Expenditures
. The Issuer shall not make any expenditure (by
long-term or operating lease or otherwise) for capital
assets (either realty or personally).
26
SECTION 3.17 Compliance with Laws
. The Issuer shall comply with the requirements
of all applicable laws, the non-compliance with which would,
individually or in the aggregate, materially and adversely
affect the ability of the Issuer to perform its obligations
under the Notes, this Indenture, or any Basic Document, any
Series Supplement or any Series Related Document.
SECTION 3.18 Restricted Payments
. The Issuer shall not, directly or indirectly,
(i) pay any dividend or make any distribution (by reduction
of capital or otherwise), whether in cash, property,
securities or a combination thereof, to the Owner Trustee or
any owner of a beneficial interest in the Issuer or
otherwise with respect to any ownership or equity interest
or security in or of the Issuer or to the Seller, (ii)
redeem, purchase, retire or otherwise acquire for value any
such ownership or equity interest or security or (iii) set
aside or otherwise segregate any amounts for any such
purpose; provided, however, that the Issuer may make, or
cause to be made, distributions to the Seller, Master
Servicer, the Owner Trustee, the Indenture Trustee and the
Certificateholders as permitted by, and to the extent funds
are available for such purpose under, the Master Sale and
Servicing Agreement or Trust Agreement. The Issuer will not,
directly or indirectly, make payments to or distributions
from the Master Collection Account except in accordance with
this Indenture, the Basic Documents, any Series Supplement
or any Series Related Document.
SECTION 3.19 Notice of Events of Default
. Upon a Responsible Officer of the Owner Trustee
having actual knowledge thereof, the Issuer agrees to give
the Indenture Trustee and the Rating Agencies prompt written
notice of each Event of Default under any Series Supplement
and each default on the part of the Master Servicer or the
Seller of its obligations under the Master Sale and
Servicing Agreement.
SECTION 3.20 Further Instruments and Acts
. Upon request of the Indenture Trustee, the
Issuer will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this
Indenture.
SECTION 3.21 Amendments of Master Sale and Servicing
Agreement and Trust Agreement
. The Issuer shall not agree to any amendment to
Section 13.1 of the Master Sale and Servicing Agreement or
Section 13.1 of the Trust Agreement to eliminate the
requirements thereunder that the Indenture Trustee or the
Holders of the Notes consent to amendments thereto as
provided therein.
SECTION 3.22 Income Tax Characterization
. For purposes of federal income, state and local
income and franchise and any other income taxes, the Issuer,
the Noteholders, the Certificateholders and the Indenture
Trustee will treat the Notes as indebtedness and hereby
instructs the Indenture Trustee to treat the Notes as
indebtedness for federal and state tax reporting purposes.
27
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 of principal thereof and
interest thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8, 3.10,
3.12, 3.13, 3.20, 3.21 and 3.22, (v) the rights and
immunities of the 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 related Series Trust Estate 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 and the related Series Support, if any, has
been returned to the related Series Support Provider; or
(2) all Notes not theretofore delivered to the
Indenture Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at
their respective Final Scheduled Distribution
Dates within one year, or
(iii) are to be called for
redemption within one year under arrangements
satisfactory to the 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 (i), (ii) or (iii)
above, has irrevocably deposited or caused to be
irrevocably deposited with the Indenture Trustee
cash or direct obligations of or obligations
guaranteed by the United States of America (which
will mature prior to the date such amounts are
payable), in trust for such purpose, in an amount
sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore
delivered to the Indenture Trustee for
cancellation when due on the Final Scheduled
Distribution Date or tender date (if Notes shall
have been called for redemption or tender pursuant
to the related Series Supplement, as the case may
be; and
(B) the Issuer has paid or caused to be paid all other
amounts owing hereunder by the Issuer.
28
SECTION 4.2 Application of Trust Money
. All monies deposited with the Indenture Trustee
pursuant to Section 4.1 hereof shall be held in trust and
applied by it, in accordance with the provisions of the
Notes, this Indenture and the related Series Supplement, to
the payment, either directly or through any Note Paying
Agent, as the Indenture Trustee may determine, to the
Holders of the particular Notes for the payment or
redemption of which such monies have been deposited with the
Indenture Trustee, of all sums due and to become due thereon
for principal and interest; but such monies need not be
segregated from other funds except to the extent required
herein or in the Master Sale and Servicing Agreement or
required by law.
SECTION 4.3 Repayment of Monies Held by Note Paying Agent
. In connection with the satisfaction and
discharge of this Indenture with respect to the Notes, all
monies then held by any Note Paying Agent other than the
Indenture Trustee under the provisions of 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 Note Paying
Agent shall be released from all further liability with
respect to such monies.
29
ARTICLE V.
Remedies
SECTION 5.1 Events of Default
. The definition of "Event of Default" with
respect to a Series, together with certain rights and
remedies consequent thereto, shall be set forth in the
related Series Supplement.
SECTION 5.2 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee
.
(a) Subject to the terms of the related Series
Supplement, the Issuer covenants that if (i) default is made
in the payment of any interest on any Note when the same
becomes due and payable, and such default continues for a
period of five days, or (ii) default is made in the payment
of the principal of or any installment of the principal of
any Note when the same becomes due and payable, and such
default continues for a period of five days, the Issuer
will, upon demand of the Indenture Trustee, pay to it, for
the benefit of the Holders of the Notes, the whole amount
then due and payable on such Notes for principal and
interest, with interest upon the overdue principal, and, to
the extent payment at such rate of interest shall be legally
enforceable, upon overdue installments of interest, at the
applicable Note Rate and in addition thereto such further
amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
Indenture Trustee and its agents and outside counsel.
(b) If an Event of Default occurs and is continuing
with respect to a Series, the Indenture Trustee may in its
discretion proceed to protect and enforce the rights of the
Noteholders of each Series 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 the related Series Supplement or in aid of the
exercise of any power granted herein, or to enforce any
other proper remedy or legal or equitable right vested in
the Indenture Trustee by this Indenture, the related Series
Supplement or by law.
(c) In case there shall be pending, relative to the
Issuer or any other obligor upon the Notes or any Person
having or claiming an ownership interest in the related
Series Trust Estate, proceedings under Title 11 of the
United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the
Issuer or its property or such other obligor or Person, or
in case of any other comparable judicial proceedings
relative to the Issuer or other obligor upon the Notes of
such Series, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective
of whether the principal of any Notes of such Series shall
then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the
Indenture Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered,
by intervention in such proceedings or otherwise:
30
(i) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect
of such Notes and to file such other papers or documents as
may be necessary or advisable in order to have the claims of
the Indenture Trustee against the related Series Trust
Estate (including any claim for reasonable compensation to
the Indenture Trustee and each predecessor Indenture
Trustee, and their respective agents, attorneys and outside
counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the
Indenture Trustee and each predecessor Indenture Trustee,
except as a result of negligence, bad faith or willful
misconduct) and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of Notes of
such Series in any election of a trustee, a standby trustee
or person performing similar functions in any such
proceedings;
(iii) to collect and receive any monies or other
property payable or deliverable on any such claims and
received with respect to the related Series Trust Estate and
to distribute all amounts received with respect to the
claims of the Noteholders and of the Indenture Trustee on
their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have
the claims of the Indenture Trustee or the Holders of Notes
of such Series, in each case against the related Series
Trust Estate allowed in any judicial proceedings relative to
the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other
similar official in any such proceeding is hereby authorized
by each of such Noteholders to make payments to the
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 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.
(d) 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.
(e) All rights of action and of asserting claims under
this Indenture, the related Series Supplement or under any
of the Notes, may be enforced by the 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 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.
(f) In any proceedings brought by the Indenture
Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture or the
related Series Supplement), 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.
31
SECTION 5.3 Limitation of Suits
. No Holder of any Note shall have any right to
institute any proceeding, judicial or otherwise, with
respect to this Indenture or the related Series Supplement,
or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(i) such Holder has previously given written notice to
the Indenture Trustee of a continuing Event of Default with
respect to the Notes of the related Series;
(ii) the Holders of not less than 25% of the
Outstanding Amount of the Notes of the related Series have
made written request to the Indenture Trustee to institute
such proceeding in respect of such Event of Default in its
own name as Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the
Indenture Trustee indemnity reasonably satisfactory to it
against the costs, expenses and liabilities to be incurred
in complying with such request;
(iv) the Indenture Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has
failed to institute such Proceedings; and
(v) no direction inconsistent with such written
request has been given to the Indenture Trustee during such
60-day period by the Holders of a majority of the
Outstanding Amount of the Notes of such Series.
it being understood and intended that no Holders of Notes
shall have any right in any manner whatsoever by virtue of,
or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders
of Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right
under this Indenture, except in the manner herein provided.
SECTION 5.4 Unconditional Rights of Noteholders To
Receive Principal and Interest
. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right,
which is absolute and unconditional, to receive payment of
the principal of and interest, if any, on such Note on or
after the respective due dates thereof expressed in such
Note or in this Indenture or the related Series Supplement
(or, in the case of redemption or tender pursuant to any
Series Supplement, on or after the related redemption or
tender date) and to institute suit for the enforcement of
any such payment, and such right shall not be impaired
without the consent of such Holder.
SECTION 5.5 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 or the related Series Supplement and
such Proceeding has been discontinued or abandoned for any
reason, then and in every such case the Issuer, the
Indenture Trustee, and the related Noteholders shall,
subject to any determination in such Proceeding, be restored
severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the
Indenture Trustee, and the related Noteholders shall
continue as though no such proceeding had been instituted.
SECTION 5.6 Rights and Remedies Cumulative
. No right or remedy herein conferred upon or
reserved to the related Noteholders is intended to be
exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate
right or remedy.
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SECTION 5.7 Delay or Omission Not a Waiver
. No delay or omission of the Indenture Trustee
or any Holder of any related Note to exercise any right or
remedy accruing upon any Default or Event of Default shall
impair any such right or remedy or constitute a waiver of
any such Default or Event of Default or an acquiescence
therein. Every right and remedy given by this Article V or
by law to the Indenture Trustee, the Indenture Trustee or to
the related Noteholders may be exercised from time to time,
and as often as may be deemed expedient, by the Indenture
Trustee or by the related Noteholders, as the case may be.
SECTION 5.8 Control by Noteholders
. The Holders of a majority of the Outstanding
Amount of the Notes with respect to such Series shall have
the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Indenture
Trustee with respect to the Notes of such Series or
exercising any trust or power conferred on the Indenture
Trustee; provided that
(i) such direction shall not be in conflict with any
rule of law or with this Indenture or with the related
Series Supplement; and
(ii) the Indenture Trustee may take any other action
deemed proper by the Indenture Trustee that is not
inconsistent with such direction;
provided, however, that, subject to Section 6.1, the
Indenture Trustee need not take any action that it
determines might involve it in liability or might materially
adversely affect the rights of any Noteholders not
consenting to such action.
SECTION 5.9 Waiver of Past Defaults
. Unless otherwise provided in the related Series
Related Documents, a majority of the Noteholders of a Series
may waive any past Default or Event of Default relating to
such Series and its consequences except a Default relating
to such Series (a) in payment of principal of or interest on
any of the Notes of the related Series or (b) in respect of
a covenant or provision hereof which cannot be modified or
amended without the consent of the Holder of each Note of
the related Series. In the case of any such waiver, the
Issuer, the Indenture Trustee and the Holders of the Notes
of the related Series shall be restored to their former
positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other Default or
impair any right consequent thereto.
Upon any such waiver, such Default shall cease to
exist and be deemed to have been cured and not to have
occurred, and any Event of Default arising therefrom shall
be deemed to have been cured and not to have occurred, for
every purpose of this Indenture and the related Series
Supplement; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair
any right consequent thereto.
33
SECTION 5.10 Undertaking for Costs
. All parties to this Indenture and the related
Series Supplement agree, and each Holder of any Note by such
▇▇▇▇▇▇'s acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this
Indenture and the related Series Supplement, or in any suit
against the Indenture Trustee for any action taken, suffered
or omitted by it as Indenture Trustee, the filing by any
party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims
or defenses made by such party litigant; but the provisions
of this Section shall not apply to (a) any suit instituted
by the Indenture Trustee, (b) any suit instituted by any
Noteholder, or group of Noteholders, in each case holding in
the aggregate more than 10% of the Outstanding Amount of the
Notes of the related Series or (c) any suit instituted by
any Noteholder for the enforcement of the payment of
principal of or interest on any Note on or after the
respective due dates expressed in such Note and in this
Indenture and the related Series Supplement.
SECTION 5.11 Waiver of Stay or Extension Laws
. The Issuer covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead or in any manner whatsoever, claim or take the benefit
of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants
or the performance of this Indenture and the related Series
Supplement; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit of any
such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the
Indenture Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.
SECTION 5.12 Action on Notes
. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture or any
Series Supplement shall not be affected by the seeking,
obtaining or application of any other relief under or with
respect to this Indenture or the related Series Supplement.
Neither the lien of this Indenture or the related Series
Supplement nor any rights or remedies of the Indenture
Trustee 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 related Series Trust Estate or upon any of
the assets of the Issuer.
SECTION 5.13 Performance and Enforcement of Certain
Obligations
.
(a) Promptly following a request from the Indenture
Trustee to do so and at the Master Servicer's expense, the
Issuer agrees to take all such lawful action as the
Indenture Trustee may request to compel or secure the
performance and observance by the Seller and the Master
Servicer, as applicable, of each of their obligations to the
Issuer under or in connection with the Master Sale and
Servicing Agreement in accordance with the terms thereof,
and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in
connection with the Master Sale and Servicing Agreement to
the extent and in the manner directed by the Indenture
Trustee, including the transmission of notices of default on
the part of the Seller or the Master Servicer thereunder and
the institution of legal or administrative actions or
proceedings to compel or secure performance by the Seller or
the Master Servicer of each of their obligations under the
Master Sale and Servicing Agreement.
34
(b) If an Event of Default has occurred and is
continuing with respect to a Series, the Indenture Trustee
may, and, at the written direction of the Holders of 66-2/3%
of the Outstanding Amount of the Notes of such Series shall,
exercise all rights, remedies, powers, privileges and claims
of the Issuer against the Seller or the Master Servicer
under or in connection with the Master Sale and Servicing
Agreement, including the right or power to take any action
to compel or secure performance or observance by the Seller
or the Master Servicer of each of their obligations to the
Issuer thereunder and to give any consent, request, notice,
direction, approval, extension or waiver under the Master
Sale and Servicing Agreement, and any right of the Issuer to
take such action shall be suspended.
35
ARTICLE VI.
The Indenture Trustee
SECTION 6.1 Duties of Indenture Trustee
.
(a) If an Event of Default has occurred and is
continuing of which a Responsible Officer of the Indenture
Trustee has actual knowledge, the Indenture Trustee shall
exercise the rights and powers vested in it by this
Indenture and the Basic Documents and use the same degree of
care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of
Default with respect to a Series of which a Responsible
Officer of the Indenture Trustee has actual knowledge:
(i) the Indenture Trustee undertakes to perform with
respect to such Series such duties and only such duties as
are specifically set forth in this Indenture and the related
Series Supplement and no implied covenants or obligations
shall be read into this Indenture or the related Series
Supplement against the 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 as the case may be and conforming to the
requirements of this Indenture and the related Series
Supplement; however, the Indenture Trustee shall examine the
certificates and opinions to determine whether or not they
conform on their face to the requirements of this Indenture
or the related Series Supplement provided, further, that the
Indenture Trustee shall not be responsible for the accuracy
or content of any resolution, certificate, statement,
opinion, report, document, order or other instrument
furnished to it, including, without limitation, any
statistical, numerical or financial data contained therein.
(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 paragraph does not limit the effect of
paragraph (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; and
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good
faith in accordance with a direction received by it pursuant
to Section 5.8.
(d) The Indenture Trustee shall not be liable for
interest on any money received by it except as such Person
may agree in writing with the Issuer.
(e) Money held in trust by the Indenture Trustee need
not be segregated from other funds except to the extent
required by law or the terms of this Indenture, the related
Series Supplement or the Master Sale and Servicing
Agreement.
(f) No provision of this Indenture or the related
Series Supplement shall require the 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 repayment of
such funds or indemnity reasonably satisfactory to it
against such risk or liability is not reasonably assured to
it.
36
(g) Every provision of this Indenture and the related
Series Supplement relating to the conduct or affecting the
liability of or affording protection to the Indenture
Trustee shall be subject to the provisions of this Section
and to the provisions of the TIA.
(h) The Indenture Trustee shall, and hereby agrees
that it will, perform all of the obligations and duties
required of it under the Master Sale and Servicing
Agreement.
(i) Without limiting the generality of this Section
6.1, the Indenture Trustee shall have no duty (i) to see to
any recording, filing or depositing of this Indenture, any
Series Supplement or any agreement referred to herein or any
financing statement evidencing a security interest in the
Financed Vehicles, or to see to the maintenance of any such
recording or filing or depositing or to any recording,
refiling or redepositing of any thereof, (ii) to see to any
insurance of the Financed Vehicles or Obligors or to effect
or maintain any such insurance, (iii) to see to the payment
or discharge of any tax, assessment or other governmental
charge or any Lien or encumbrance of any kind owing with
respect to, assessed or levied against any part of the
Trust, (iv) to confirm or verify the contents of any reports
or certificates delivered to the Indenture Trustee pursuant
to this Indenture, any Series Supplement or the Master Sale
and Servicing Agreement believed by the Indenture Trustee to
be genuine and to have been signed or presented by the
proper party or parties, or (v) to inspect the Financed
Vehicles at any time or ascertain or inquire as to the
performance or observance of any of the Issuer's, the
Seller's or the Master Servicer's representations,
warranties or covenants or the Master Servicer's duties and
obligations as Master Servicer and as custodian of the
Receivable Files under the Master Sale and Servicing
Agreement.
(j) In no event shall Norwest Bank Minnesota, National
Association, in any of its capacities hereunder, be deemed
to have assumed any duties of the Owner Trustee under the
Delaware Business Trust Statute, common law, or the Trust
Agreement.
SECTION 6.2 Rights of Indenture Trustee
.
(a) The Indenture Trustee may rely on any document
believed by it to be genuine and to have been signed or
presented by the proper person. The Indenture Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from
acting, it may require an Officer's Certificate 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.
(c) The Indenture Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys or a
custodian or nominee, and the Indenture Trustee shall not be
responsible for any misconduct or negligence on the part of,
or for the supervision of the Master Servicer or any other
agent, attorney, custodian or nominee appointed with due
care by it hereunder.
(d) The Indenture Trustee shall not be liable for any
action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers;
provided, however, that the Indenture Trustee's conduct does
not constitute 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, the Basic Documents, any
Series Supplement, any Series Related Documents and the
Notes and such advice or opinion of counsel 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.
37
(f) The Indenture Trustee shall be under no obligation
to institute, conduct or defend any litigation under this
Indenture or any Series Supplement or in relation to this
Indenture or any Series Supplement, at the request, order or
direction of any of the Holders of Notes, pursuant to the
provisions of this Indenture or any Series Supplement,
unless such Holders of Notes shall have offered to the
Indenture Trustee reasonable security or indemnity against
the costs, expenses and liabilities that may be incurred
therein or thereby; provided, however, that the Indenture
Trustee shall, upon the occurrence of an Event of Default
(that has not been cured), exercise the rights and powers
vested in it by this Indenture and any Series Supplement
with reasonable care and skill customary for the care and
skill exercised by Indenture Trustees under similar
circumstances.
(g) The Indenture Trustee shall not be bound to make
any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or
other paper or document, provided, however, that if the
payment within a reasonable time to the Indenture Trustee of
the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of
the Indenture Trustee not reasonably assured to the
Indenture Trustee by the security afforded to it by the
terms of this Indenture, any Series Supplement or the Master
Sale and Servicing Agreement, the Indenture Trustee may
require indemnity reasonably satisfactory to it against such
cost, expense or liability as a condition to so proceeding;
the reasonable expense of every such examination shall be
paid by the Person making such request, or, if paid by the
Indenture Trustee shall be reimbursed by the Person making
such request upon demand.
(h) The right of the Indenture Trustee to perform any
discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Indenture Trustee shall not be
answerable for other than its negligence or willful
misconduct in the performance of such act.
(i) The Indenture Trustee shall not be required to
give any bond or surety in respect of the execution of the
Trust Estate created hereby or the powers granted hereunder.
(j) Anything in this Indenture or any Supplement
hereto to the contrary notwithstanding, in no event shall
the Indenture Trustee be liable for special, indirect or
consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the
Indenture Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.
(k) The Indenture Trustee shall not be required to
take notice or be deemed to have notice or knowledge of any
default, Event of Default, Master Servicer Termination Event
unless a Responsible Officer of the Indenture Trustee shall
have actual notice thereof.
(l) The Indenture Trustee shall not in any way be held
liable by reason of any insufficiency in any Trust Account
(including, without limitation, the Master Collection
Account, the Series 2000-2 Reserve Account and the Series
2000-2 Collection Account or any subaccount thereof) held by
or on behalf of the Indenture Trustee resulting from any
investment loss on any Eligible Investment included therein.
SECTION 6.3 Individual Rights of Indenture Trustee
. The Indenture Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuer or its Affiliates with
the same rights it would have if it were not Indenture
Trustee. Any Note Paying Agent, Note Registrar, co-
registrar or co-paying agent may do the same with like
rights. However, the Indenture Trustee must comply with
Sections 6.11 and 6.12.
38
SECTION 6.4 Indenture Trustee's Disclaimer
. The Indenture Trustee shall not be responsible
for and makes no representation as to the validity or
adequacy of this Indenture, any Series Supplement, the
related Series Trust Estate or the Notes, it shall not be
accountable for the Issuer's use of the proceeds from the
Notes, and it shall not be responsible for any statement of
the Issuer in the Indenture, in any Series Supplement or in
any document issued in connection with the sale of the Notes
or in the Notes other than the Indenture Trustee's
certificate of authentication.
SECTION 6.5 Notice of Defaults
. If an Event of Default occurs and is continuing
and if it is either actually known by, or written notice of
the existence thereof has been delivered to, a Responsible
Officer of the Indenture Trustee, the Indenture Trustee
shall mail to each Noteholder notice of the Default within
90 days after such knowledge or notice occurs. Except in
the case of a Default in payment of principal of or interest
on any Note, the Indenture Trustee may withhold the notice
if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the
interests of Noteholders.
SECTION 6.6 Reports by Indenture Trustee to Holders
. Upon written request, the Note Paying Agent or
the Master Servicer shall on behalf of the Issuer deliver to
each Noteholder such information as may be reasonably
required to enable such Holder to prepare its Federal and
state income tax returns required by law.
SECTION 6.7 Compensation and Indemnity
.
(a) As payable in each Series Supplement, the Issuer
shall, or shall cause the Master Servicer to, pay to the
Indenture Trustee from time to time the Indenture Trustee
Fee as 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. The Issuer
shall or shall cause the Master Servicer to reimburse the
Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such
expenses shall include the reasonable compensation and
expenses, disbursements and advances of the Trustee's
agents, outside counsel, accountants and experts. The
Issuer shall or shall cause the Master Servicer to indemnify
the Indenture Trustee, and its respective officers,
directors, employees and agents against any and all loss,
liability or expense (including attorneys' fees and
expenses) incurred by each of them in connection with the
acceptance or the administration of this trust and the
performance of its duties hereunder. The Indenture Trustee
shall notify the Issuer and the Master Servicer promptly of
any claim for which it may seek indemnity. Failure by the
Indenture Trustee to so notify the Issuer and the Master
Servicer shall not relieve the Issuer of its obligations
hereunder or the Master Servicer of its obligations under
Article XII of the Master Sale and Servicing Agreement. The
Issuer shall defend or shall cause the Master Servicer to
defend any claim for indemnity that may arise against the
Indenture Trustee, or the Indenture Trustee may have
separate counsel and the Issuer shall or shall cause the
Master Servicer to pay the fees and expenses of such
counsel. Neither the Issuer nor the Master Servicer need
reimburse any expense or indemnify against any loss,
liability or expense incurred by the Indenture Trustee
through such Person's own willful misconduct, negligence or
bad faith.
39
(b) The Issuer's payment obligations to the Indenture
Trustee pursuant to this Section shall survive the
resignation or removal of the Indenture Trustee and the
discharge of this Indenture. When the Indenture Trustee
incurs expenses after the occurrence of an Insolvency Event
with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the
United States Code or any other applicable Federal or state
bankruptcy, insolvency or similar law. Notwithstanding
anything else set forth in this Indenture, the Basic
Documents, any Series Supplement or any Series Related
Documents, the Indenture Trustee agrees that the obligations
of the Issuer (but not the Master Servicer) to the Indenture
Trustee hereunder and under any Series Supplement or any
Series Related Documents, shall be recourse to the related
Series Trust Estate only and specifically shall not be
recourse to the assets of the Issuer or any Securityholder.
In addition, the Indenture Trustee agrees that its recourse
to the Issuer, the related Series Trust Estate, the Seller
and amounts held pursuant to the related Series Support
shall be limited to the right to receive the distributions
as provided for in the payment priority provisions of the
related Series Supplement.
SECTION 6.8 Replacement of Indenture Trustee
. The Indenture Trustee may, and in the
circumstances specified in subparagraph (i) shall, resign at
any time upon 60 days' prior written notice by so notifying
the Issuer, Holders of a majority of Outstanding Amount of
the Notes and the Master Servicer. In addition, the Master
Servicer may remove the Indenture Trustee by so notifying
the Indenture Trustee upon 60 days' written notice. The
Issuer may and, at the request of the Noteholders shall,
remove the Indenture Trustee, if:
(i) the Indenture Trustee fails to comply with Section
6.11;
(ii) a court having jurisdiction in the premises in
respect of the Indenture Trustee in an involuntary case or
proceeding under Federal or state banking or bankruptcy
laws, as now or hereafter constituted, or any other
applicable Federal or state bankruptcy, insolvency or other
similar law, shall have entered a decree or order granting
relief or appointing a receiver, liquidator, assignee,
custodian, trustee, conservator, sequestrator (or similar
official) for the Indenture Trustee or for any substantial
part of the Indenture Trustee's property, or ordering the
winding-up or liquidation of the Indenture Trustee's
affairs;
(iii) an involuntary case under the Federal bankruptcy
laws, as now or hereafter in effect, or another present or
future Federal or state bankruptcy, insolvency or similar
law is commenced with respect to the Indenture Trustee and
such case is not dismissed within 60 days;
(iv) the Indenture Trustee commences a voluntary case
under any Federal or state banking or bankruptcy laws, as
now or hereafter constituted, or any other applicable
federal or state bankruptcy, insolvency or other similar
law, or consents to the appointment of or taking possession
by a receiver, liquidator, assignee, custodian, trustee,
conservator, sequestrator (or other similar official) for
the Indenture Trustee or for any substantial part of the
Indenture Trustee's property, or makes any assignment for
the benefit of creditors or fails generally to pay its debts
as such debts become due or takes any corporate action in
furtherance of any of the foregoing;
(v) the Indenture Trustee otherwise becomes incapable
of acting; or
(vi) the rating assigned to the long-term unsecured
debt obligations of the Indenture Trustee by the Rating
Agencies shall be lowered below the rating of "BBB", "Baa2"
or equivalent rating or be withdrawn by either of the Rating
Agencies.
40
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 deliver a notice of such removal,
resignation or vacancy to the Master Servicer and the Master
Servicer may appoint a successor Indenture Trustee. If the
Master Servicer fails to appoint such a successor Indenture
Trustee, the Issuer or a resigning Indenture Trustee may
petition any court of competent jurisdiction to appoint a
successor Indenture Trustee. If the Indenture Trustee
resigns or is removed, the Indenture Trustee shall also
resign or be removed, as the case may be, as Certificate
Paying Agent.
A successor Indenture Trustee shall deliver a
written acceptance of its appointment to the retiring
Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee
shall have all the rights, powers and duties of the retiring
Indenture Trustee under this Indenture and the Series
Supplement. The successor Indenture Trustee shall mail a
notice of its succession to Noteholders. The retiring
Indenture Trustee shall promptly transfer all property held
by it as Indenture Trustee to the successor Indenture
Trustee.
If the Indenture Trustee fails to comply with
Section 6.11, any Noteholder may petition any court of
competent jurisdiction for the removal of the Indenture
Trustee and the appointment of a successor Indenture
Trustee.
Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section, the Issuer's and the Master
Servicer's obligations under Section 6.7 shall continue for
the benefit of the retiring Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by ▇▇▇▇▇▇
. 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 entity without any further act shall be the
successor Indenture Trustee; provided that such corporation
or banking association shall otherwise be eligible under
Section 6.11 hereof. The Indenture Trustee shall provide
the Rating Agencies with written notice of any such
transaction as soon as practical thereafter.
In case at the time such successor or successors
by merger, conversion or consolidation to the Indenture
Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but
not delivered, any such successor to the Indenture Trustee
may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes
shall not have been authenticated, any successor to the
Indenture Trustee may authenticate such Notes either in the
name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases
such certificates shall have the full force which it is
anywhere in the Notes or in this Indenture provided that the
certificate of the Indenture Trustee shall have.
41
SECTION 6.10 Appointment of Co-Indenture Trustee or
Separate Indenture Trustee
.
(a) Notwithstanding any other provisions of this
Indenture, at any time, for the purpose of meeting any legal
requirement of any jurisdiction in which any part of the
Trust may at the time be located, the Indenture Trustee
shall have the power and may execute and deliver all
instruments to appoint one or more Persons to act as a co-
trustee or co-trustees, or separate trustee or separate
trustees, of all or any part of the related Series Trust
Estate, and to vest in such Person or Persons, in such
capacity and for the benefit of the Noteholders, such title
to the related Series Trust Estate, or any part hereof, and,
subject to the other provisions of this Section, such
powers, duties, obligations, rights and trusts as the
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 hereof.
(b) Every separate trustee and co-trustee shall, to
the extent permitted by law, be appointed and act subject to
the following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Indenture Trustee shall be
conferred or imposed upon and exercised or performed by the
Indenture Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any
particular act or acts are to be performed the Indenture
Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust 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, including acts or omissions of predecessor or
successor trustees; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each
of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to
this 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 all the provisions of this
Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the
liability of, or affording protection to, the Indenture
Trustee. Every such instrument shall be filed with the
Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee, its agent or attorney-in-
fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect
of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, dissolve, become
insolvent, become incapable of acting, resign or be removed,
all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Indenture Trustee, to
the extent permitted by law, without the appointment of a
new or successor trustee.
42
SECTION 6.11 Eligibility: Disqualification
. The Indenture Trustee shall at all times:
satisfy TIA 310(a), have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent
published annual report of condition, and have a long-term
debt rating of at least "BBB", "Baa2" or equivalent rating
from each of the Rating Agencies. The Indenture Trustee
shall comply with TIA 310(b), including the optional
provision permitted by the second sentence of TIA
310(b)(9); provided, however, that there shall be excluded
from the operation of TIA 310(b)(1) any indenture or
indentures under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth
in TIA 310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against
Issuer
. The Indenture Trustee shall comply with TIA
311(a), excluding any creditor relationship listed in TIA
311(b). An Indenture Trustee who has resigned or been
removed shall be subject to TIA 311(a) to the extent
indicated.
SECTION 6.13 Representations and Warranties of the
Indenture Trustee
. The Indenture Trustee represents and warrants
to the Issuer as follows:
(a) Due Organization. The Indenture Trustee is a
national banking association, duly organized, validly
existing and in good standing under the laws of the United
States and is duly authorized and licensed under applicable
law to conduct its business as presently conducted.
(b) Corporate Power. The Indenture Trustee has all
requisite right, power and authority to execute and deliver
this Indenture and each Series Supplement and to perform all
of its duties as the Indenture Trustee hereunder.
(c) Due Authorization. The execution and delivery by
the Indenture Trustee of this Indenture, each Series
Supplement and the other Series Related Transaction
Documents to which it is a party, and the performance by the
Indenture Trustee of its duties hereunder and thereunder,
have been duly authorized by all necessary corporate
proceedings which are required for the valid execution and
delivery by the Indenture Trustee, or the performance by the
Indenture Trustee, of this Indenture, each Series Supplement
and such other Series Related Documents.
(d) ▇▇▇▇▇ and Binding Indenture. The Indenture
Trustee has duly executed and delivered this Indenture, each
Series Supplement, each other Basic Document and each Series
Related Document to which it is a party, and each of this
Indenture, any Series Supplement, each other Basic Document
and each other Series Related Document constitutes the
legal, valid and binding obligation of the Indenture Trustee
enforceable against the Indenture Trustee in accordance with
its terms, except as (i) such enforceability may be limited
by bankruptcy, insolvency, reorganization and similar laws
relating to or affecting the enforcement of creditors'
rights generally and (ii) the availability of equitable
remedies may be limited by equitable principles of general
applicability.
SECTION 6.14 Waiver of Setoffs
. The Indenture Trustee hereby expressly waives
any and all rights of setoff that the Indenture Trustee may
otherwise at any time have under applicable law with respect
to any Trust Account and Series Trust Account and agrees
that amounts in the Trust Accounts and Series Trust Accounts
shall at all times be held and applied solely in accordance
with the provisions hereof.
SECTION 6.15 No Consent to Certain Acts of Seller
. The Seller shall not request that the Indenture
Trustee consent to, nor shall the Indenture Trustee consent
to any action proposed to be taken by the Seller pursuant to
Article FIFTEENTH of the Seller's Articles of Incorporation.
43
ARTICLE VII.
Noteholders' Lists and Reports
SECTION 7.1 Issuer To Furnish To Indenture Trustee Names
and Addresses of Noteholders
. The Issuer will furnish or cause to be
furnished to the Indenture Trustee with respect to each
Series of Notes (a) not more than five days after the
earlier of (i) each Record Date with respect to such Series
and (ii) three months after the last Record Date, a list, in
such form as the Indenture Trustee may reasonably require,
of the names and addresses of the Holders with respect to
such Series as of such Record Date, (b) at such other times
as the 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 contained in the most recent list
furnished to the Indenture Trustee as provided in Section
7.1 and the names and addresses of Holders received by the
Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as
provided in such Section 7.1 upon receipt of a new list so
furnished.
(a) Noteholders may communicate pursuant to TIA
312(b) with other Noteholders with respect to their rights
under this Indenture or under the Notes.
(b) The Issuer, the Indenture Trustee and the Note
Registrar shall have the protection of TIA 312(c).
SECTION 7.3 Reports by Issuer
.
If this Indenture is qualified under the TIA, the
Issuer shall:
(i) file with the Indenture Trustee, within 15 days
after the Issuer is required to file the same with the
Commission, copies of the annual reports and copies of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the
Issuer may be required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission
in accordance with rules and regulations prescribed from
time to time by the Commission such additional information,
documents and reports with respect to compliance by the
Issuer with the conditions and covenants of this Indenture
as may be required from time to time by such rules and
regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described
in TIA 313(c)) such summaries of any information,
documents and reports required to be filed by the Issuer
pursuant to clauses (i) and (ii) of this Section 7.3(a) as
may be required by rules and regulations prescribed from
time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal
year of the Issuer shall end on December 31 of each year.
(c) The Indenture Trustee shall not have any duty or
obligation with respect to any reports or other information
delivered to it pursuant to this Section 7.3.
44
SECTION 7.4 Reports by Indenture Trustee
. If required by TIA 313(a), within 60 days
after each March 31 beginning with March 31, 2001 the
Indenture Trustee shall mail to each Noteholder as required
by TIA 313(c) a brief report dated as of such date that
complies with TIA 313(a). The Indenture Trustee also
shall comply with TIA 313(b).
A copy of each report at the time of its mailing
to Noteholders shall be filed by the Indenture Trustee with
the Commission and each stock exchange, if any, on which the
Notes are listed. The Issuer shall notify the Indenture
Trustee if and when the Notes are listed on any stock
exchange.
45
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 Master
Sale and Servicing Agreement. The Indenture Trustee shall
apply all such money received by it as provided in this
Indenture and the Series Supplement. Except as otherwise
expressly provided in this Indenture or in the Master Sale
and Servicing Agreement, if any default occurs in the making
of any payment or performance under any agreement or
instrument that is part of the Series Trust Estate, the
Indenture Trustee may take such action as may be appropriate
to enforce such payment or performance, including the
institution and prosecution of appropriate proceedings. Any
such action shall be without prejudice to any right to claim
a Default or Event of Default under this Indenture and any
right to proceed thereafter as provided in Article V.
SECTION 8.2 Release of Trust Property
.
(a) Subject to the payment of its fees and expenses
pursuant to Section 6.7, the Indenture Trustee may, and when
required by the Issuer and the provisions of this Indenture
shall, execute instruments to release property from the lien
of this Indenture, in a manner and under circumstances that
are not inconsistent with the provisions of this Indenture.
No party relying upon an instrument executed by the
Indenture Trustee as provided in this Article VIII shall be
bound to ascertain the Indenture Trustee's authority,
inquire into the satisfaction of any conditions precedent or
see to the application of any monies.
(b) The Indenture Trustee shall, at such time as there
are no Notes outstanding and all sums due the Indenture
Trustee pursuant to Section 6.7 have been paid, release any
remaining portion of the related Series Trust Estate that
secured the Notes from the lien of this Indenture and
release to the Issuer or any other Person entitled thereto
any funds then on deposit in the Trust Accounts. The
Indenture Trustee shall release property from the lien of
this Indenture pursuant to this Section 8.2(b) only upon
receipt of an Issuer Request accompanied by an Officer's
Certificate, an Opinion of Counsel and (if required by the
TIA) Independent Certificates in accordance with TIA
314(c) and 314(d)(1) meeting the applicable requirements
of Section 11.1.
SECTION 8.3 Opinion of Counsel
. The Indenture Trustee shall receive at least
seven days' notice when requested by the Issuer to take any
action pursuant to Section 8.2(a), accompanied by copies of
any instruments involved, and the Indenture Trustee shall
also require as a condition to such action, an Opinion of
Counsel, stating the legal effect of any such action,
outlining the steps required to complete the same, and
concluding that all conditions precedent to the taking of
such action have been complied with and such action will not
materially and adversely impair the security for the Notes
or the rights of the Noteholders in contravention of the
provisions of this Indenture; provided, however, that such
Opinion of Counsel shall not be required to express an
opinion as to the fair value of the related Series Trust
Estate. Counsel rendering any such opinion may rely,
without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to
the Indenture Trustee in connection with any such action.
46
ARTICLE IX.
Amendments; Series Supplements
SECTION 9.1 Amendments Without Consent of Noteholders
.
(a) Except as otherwise provided in the Series
Supplement, without the consent of the Holders of any Notes
but with prior written notice to the Rating Agencies, as
evidenced to the Indenture Trustee and the Issuer, when
authorized by an Issuer Order, at any time and from time to
time, the parties hereto may enter into one or more
amendments 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 contained;
(iii) to add to the covenants of the Issuer, for the
benefit of the Holders of the Notes, or to surrender any
right or power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge
any property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement
any provision herein or in any Series Supplement which may
be inconsistent with any other provision herein or in any
Series Supplement or to make any other provisions with
respect to matters or questions arising under this Indenture
or in any Series Supplement; provided that such action shall
not adversely affect the interests of the Holders of the
Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to
the Notes and to add to or change any of the provisions of
this Indenture as shall be necessary to facilitate the
administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of
this Indenture to such extent as shall be necessary to
effect the qualification of this Indenture under the TIA or
under any similar federal statute hereafter enacted and to
add to this Indenture such other provisions as may be
expressly required by the TIA.
The Indenture Trustee is hereby authorized to join
in the execution of any amendment and to make any further
appropriate agreements and stipulations that may be therein
contained.
(b) Except as otherwise provided in the Series
Supplement, the Issuer and the Indenture Trustee, when
authorized by an Issuer Order, may, also without the consent
of any of the Holders of the Notes but with prior written
notice to the Rating Agencies by the Issuer, as evidenced to
the Indenture Trustee, enter into an amendment hereto for
the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, this
Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; provided,
however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect
the interests of any Noteholder.
47
SECTION 9.2 Amendments With Consent of Noteholders
. Except as otherwise provided in the Series
Supplement, the Issuer and the Indenture Trustee, when
authorized by an Issuer Order provided by the Master
Servicer, also may, upon satisfaction of the Rating Agency
Condition and with the consent of the Holders of not less
than a majority of the Outstanding Amount of each Class of
Notes affected thereby, by Act of such Holders delivered to
the Issuer and the Indenture Trustee, enter into an
amendment hereto for the purpose of adding any provisions
to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner
the rights of the Holders of the Notes under this Indenture;
provided, however, that no such amendment shall, without the
consent of the Holder of each Outstanding Note affected
thereby:
(i) change the date of payment of any installment
of principal of or interest on any Note, or reduce
the principal amount thereof, the interest rate
thereon, change the provision of this Indenture
relating to the application of collections on, or
the proceeds of the sale of, any Series Trust
Estate to payment of principal of or interest on
the Notes, or change any place of payment where,
or the coin or currency in which, any Note or the
interest thereon is payable;
(ii) impair the right to institute suit for the
enforcement of the provisions of this Indenture
requiring the application of funds available
therefor, as provided in Article V, to the payment
of any such amount due on the Notes on or after
the respective due dates thereof;
(iii) reduce the percentage of the Outstanding
Amount of the Notes, the consent of the Holders of
which is required for any such Series Supplement,
or the consent of the Holders of which is required
for any waiver of compliance with certain
provisions of this Indenture or certain defaults
hereunder and their consequences provided for in
this Indenture;
(iv) modify or alter the provisions of the proviso
to the definition of the term "Outstanding";
(v) reduce the percentage of the Outstanding
Amount of the Notes required to direct the
Indenture Trustee to direct the Issuer to sell or
liquidate the Series Trust Estate pursuant to
Section 5.4;
(vi) modify any provision of this Section except
to increase any percentage specified herein or to
provide that certain additional provisions of this
Indenture or the Basic Documents cannot be
modified or waived without the consent of the
Holder of each Outstanding Note affected thereby;
(vii) modify any of the provisions of this
Indenture in such manner as to affect the
calculation of the amount of any payment of
interest or principal due on any Note on any
Distribution Date (including the calculation of
any of the individual components of such
calculation) or to affect the rights of the
Holders of Notes to the benefit of any provisions
for the mandatory redemption of the Notes
contained in the Series Supplement; or
48
(viii) permit the creation of any lien ranking
prior to or on a parity with the lien of this
Indenture with respect to any part of the Series
Trust Estate or, except as otherwise permitted or
contemplated herein or in the Series Supplement or
the Series Related Documents, terminate the lien
of this Indenture on any property at any time
subject hereto or deprive the Holder of any Note
of the security provided by the lien of this
Indenture.
It shall not be necessary for any Act of
Noteholders under this Section to approve the particular
form of any proposed amendment, but it shall be sufficient
if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the
Indenture Trustee of any amendment pursuant to this Section,
the Indenture Trustee shall mail to the Holders of the Notes
to which such amendment relates a notice setting forth in
general terms the substance of such amendment. 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 amendment.
Prior to the execution of any amendment to this
Indenture, the Indenture Trustee shall be entitled to
receive and rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by
this Indenture. The Indenture Trustee may, but shall not be
obligated to, enter into any such amendment which affects
the Indenture Trustee's own rights, duties or immunities
under this Indenture.
SECTION 9.3 Supplements Authorizing a Series of Notes
.
(a) Each Series of Notes issued hereunder shall be
issued pursuant to a Series Supplement, which shall set
forth the terms and provisions of such Series.
(b) Amendments to Series Supplements shall be governed
by the provisions of the relevant Series Supplement. The
Indenture Trustee may conclusively rely on an Opinion of
Counsel as to which Series Supplements relate to which
Series, or to this Indenture (and thus all Series) as a
whole.
SECTION 9.4 Execution of Series Supplements
. In executing, or permitting the additional
trusts created by, any Series Supplement permitted by this
Article IX or the modifications thereby of the trusts
created by this Indenture, the Indenture Trustee shall be
entitled to receive, and subject to Sections 6.1 and 6.2,
shall be fully protected in relying upon, an Opinion of
Counsel (and, if requested, an Officer's Certificate)
stating that the execution of such Series Supplement is
authorized or permitted by this Indenture. The Indenture
Trustee may, but shall not be obligated to, enter into any
such Series Supplement that affects the Indenture Trustee's
own rights, duties, liabilities or immunities under this
Indenture or otherwise.
SECTION 9.5 Effect of Series Supplement
. Upon the execution of any Series Supplement or
amendment pursuant to the provisions of such Series
Supplement or hereof, this Indenture shall be and be deemed
to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective
rights, limitations of rights, obligations, duties,
liabilities and immunities under this Indenture of the
Indenture Trustee, the Issuer and the Holders of the Notes
shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such
Series Supplement or amendment shall be and be deemed to be
part of the terms and conditions of this Indenture for any
and all purposes.
49
SECTION 9.6 Conformity With Trust Indenture Act
. Every amendment of this Indenture and every
Series Supplement executed pursuant to this Article IX shall
conform to the requirements of the Trust Indenture Act as
then in effect so long as this Indenture shall then be
qualified under the Trust Indenture Act.
SECTION 9.7 Reference in Notes to Series Supplements
. Notes authenticated and delivered after the
execution of any Series Supplement pursuant to this Article
IX may, and if required by the Issuer shall, bear a notation
as to any matter provided for in such Series Supplement. If
the Issuer shall so determine, new Notes so modified as to
conform, in the opinion of the Issuer, to any such Series
Supplement may be prepared and executed by the Issuer and
authenticated and delivered by the Indenture Trustee in
exchange for Outstanding Notes.
ARTICLE X.
Reserved
50
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 any provision
of this Indenture or any Series Supplement, the Issuer shall
furnish to the Indenture Trustee (i) an Officer's
Certificate stating that all conditions precedent, if any,
provided for in this Indenture or any Series Supplement
relating to the proposed action have been complied with,
(ii) an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have
been complied with and (iii) (if required by the TIA) an
Independent Certificate from a firm of certified public
accountants meeting the applicable requirements of this
Section, except that, in the case of any such application or
request as to which the furnishing of such documents is
specifically required by any provision of this Indenture or
any Series Supplement, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture or any Series Supplement shall include:
(i) a statement that each signatory of such
certificate or opinion has read or has caused to be read
such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination or
investigation as is necessary to enable such signatory to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each
such signatory such condition or covenant has been complied
with.
(b)
(i) (i) Prior to the deposit of any property or
securities with the Indenture Trustee that is to be made the
basis for the release of any property or securities subject
to the lien of this Indenture and the related Series
Supplement, the Issuer shall, in addition to any obligation
imposed in Section 11.1(a) or elsewhere in this Indenture or
the related Series Supplement, furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the
opinion of each person signing such certificate as to the
fair value (within 90 days of such deposit) to the Issuer of
the property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or
stating the opinion of any signer thereof as to the matters
described in clause (i) above, the Issuer shall also deliver
to the Indenture Trustee an Independent Certificate as to
the same matters, if the fair value to the Issuer of the
securities to be so deposited and of all other such
securities made the basis of any such withdrawal or release
since the commencement of the then-current fiscal year of
the Issuer, as set forth in the certificates delivered
pursuant to clause (i) above and this clause (ii), is 10% or
more of the Outstanding Amount of the Notes; provided, that
such a certificate need not be furnished with respect to any
securities so deposited, if the fair value thereof to the
Issuer as set forth in the related Officer's Certificate is
less than $25,000 or less than 1% percent of the Outstanding
Amount of the Notes.
51
(iii) Other than with respect to the release of any
Repurchased Receivables or Liquidated Receivables (as such
terms are defined in the Master Sale and Servicing
Agreement), whenever any property or securities are to be
released from the lien of this Indenture and the related
Series Supplement, the Issuer shall also furnish to the
Indenture Trustee an Officer's Certificate certifying or
stating the opinion of each person signing such certificate
as to the fair value (within 90 days of such release) of the
property or securities proposed to be released and stating
that in the opinion of such person the proposed release will
not impair the security under this Indenture and the related
Series Supplement in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or
stating the opinion of any signer thereof as to the matters
described in clause (i) above, the Issuer shall also furnish
to the Indenture Trustee an Independent Certificate as to
the same matters if the fair value of the property or
securities and of all other property other than Repurchased
Receivables and Defaulted Receivables (as such terms are
defined in the Master Sale and Servicing Agreement), or
securities released from the lien of this Indenture since
the commencement of the then current calendar year, as set
forth in the certificates required by clause (ii) above and
this clause (iii), equals 10% or more of the Outstanding
Amount of the Notes; provided, that such certificate need
not be furnished in the case of any release of property or
securities if the fair value thereof as set forth in the
related Officer's Certificate is less than $25,000 or less
than 1 percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other provision
of this Section, the Issuer may (A) collect, liquidate, sell
or otherwise dispose of Receivables as and to the extent
permitted or required by the Basic Documents and (B) make
cash payments out of the Trust Accounts as and to the extent
permitted or required by the Basic Documents.
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 or opinion or representations with respect to
the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate of an Authorized
Officer or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of the
Master Servicer, the Seller or the Issuer, stating that the
information with respect to such factual matters is in the
possession of the Master Servicer, the Seller or the Issuer,
unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
52
Whenever in this Indenture or any Series
Supplement, in connection with any application or
certificate or report to the Indenture Trustee, it is
provided that the Issuer shall deliver any document as a
condition of the granting of such application, or as
evidence of the Issuer's compliance with any 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 right to
conclusively rely upon the truth and accuracy of any
statement or opinion contained in any such document as
provided in Article VI.
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 instruments of
substantially similar tenor signed by such Noteholders in
person or by agents duly appointed in writing; and except as
herein otherwise expressly provided such action shall become
effective when such instrument or instruments are delivered
to the Indenture Trustee, and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Noteholders
signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.1) conclusive in favor of the
Indenture Trustee and the Issuer, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any person
of any such instrument or writing may be proved in any
customary manner of the Indenture Trustee.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any
Notes shall bind the Holder of every Note issued upon the
registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to
be done by the Indenture Trustee or the Issuer in reliance
thereon, whether or not notation of such action is made upon
such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer
and Rating Agencies
. Any request, demand, authorization, direction,
notice, consent, waiver or Act of Noteholders or other
documents provided or permitted by this Indenture or any
Series Supplement to be made upon, given or furnished to or
filed with:
(a) The Indenture Trustee by any Noteholder or by the
Issuer shall be sufficient for every purpose hereunder if
personally delivered, delivered by overnight courier or
mailed first-class and shall be deemed to have been duly
given upon receipt to the Indenture Trustee at its Corporate
Trust Office, or
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(b) The Issuer by the Indenture Trustee or by any
Noteholder shall be sufficient for every purpose hereunder
if personally delivered, delivered by facsimile or overnight
courier or mailed first class, and shall deemed to have been
duly given upon receipt to the Issuer addressed to:
Household Automotive Trust V, in care of Wilmington Trust
Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: Corporate Trust
Administration, or at any other address previously furnished
in writing to the Indenture Trustee by 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 Rating
Agencies by the Issuer, the Indenture Trustee or the Owner
Trustee shall be in writing, personally delivered, delivered
by overnight courier or first class or via facsimile to (i)
in the case of Moody's, at the following address: ▇▇▇▇▇'▇
Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Fax No: (▇▇▇) ▇▇▇-▇▇▇▇ and (ii) in the case of
S&P, at the following address: Standard & Poor's Ratings
Group, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Asset Backed Surveillance Department, Fax No: (212) 438-
2649; or as to each of the foregoing, at such other address
as shall be designated by written notice to the other
parties.
SECTION 11.5 Notices to Noteholders; Waiver
. Where this Indenture or any Series Supplement
provides for notice to Noteholders of any event, such notice
shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class,
postage prepaid to each Noteholder affected by such event,
at his address as it appears on the Note Register, not later
than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case
where notice to Noteholders is given by mail, neither the
failure to mail such notice nor any defect in any notice so
mailed to any particular Noteholder shall affect the
sufficiency of such notice with respect to other
Noteholders, and any notice that is mailed in the manner
herein provided shall conclusively be presumed to have been
duly given.
Where this Indenture or any Series Supplement
provides for notice in any manner, such notice may be waived
in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by
Noteholders shall be filed with the Indenture Trustee but
such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular
mail service as a result of a strike, work stoppage or
similar activity, it shall be impractical to mail notice of
any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the
Indenture Trustee shall be deemed to be a sufficient giving
of such notice.
Where this Indenture or any Series Supplement
provides for notice to the Rating Agencies, failure to give
such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance
constitute a Default or Event of Default.
54
SECTION 11.6 Alternate Payment and Notice Provisions
. Notwithstanding any provision of this
Indenture, any Series Supplement or any of the Notes to the
contrary, the Issuer may enter into any agreement with any
Holder of a Note providing for a method of payment, or
notice by the Indenture Trustee or any Note Paying Agent to
such Holder, that is different from the methods provided for
in this Indenture or the related Series Supplement for such
payments or notices, provided that such methods are
reasonable and consented to by the Indenture Trustee (which
consent shall not be unreasonably withheld). 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 Conflict with Trust Indenture Act
. If this Indenture is qualified under the Trust
Indenture Act and if any provision hereof limits, qualifies
or conflicts with another provision hereof that is required
to be included in this indenture by any of the provisions of
the Trust Indenture Act, such required provision shall
control.
The provisions of TIA 310 through 317 that
impose duties on any person (including the provisions
automatically deemed included herein unless expressly
excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents
. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 11.9 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, any Series Supplement
shall bind its successors. All agreements of the Master
Servicer in this Indenture or any Series Supplement shall
bind its successors and assigns.
SECTION 11.10 Separability
. In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
SECTION 11.11 Benefits of Indenture
. Nothing in this Indenture or any Series
Supplement or in the Notes, express or implied, shall give
to any Person, other than the parties hereto and their
successors hereunder, and the Noteholders, and any other
party secured hereunder, and any other person with an
ownership interest in any part of the related Series Trust
Estate, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 11.12 Legal Holidays
. In any case where the date on which any payment
is due shall not be a Business Day, then (notwithstanding
any other provision of the Notes, this Indenture or any
Series Supplement) payment need not be made on such date,
but may be made on the next succeeding Business Day with the
same force and effect as if made on the date an which
nominally due, and no interest shall accrue for the period
from and after any such nominal date.
55
SECTION 11.13 GOVERNING LAW
. THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO
ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts
. This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.15 Recording of Indenture
. If this Indenture or any Series Supplement is
subject to recording in any appropriate public recording
offices, such recording is to be effected by the Issuer and
at its expense accompanied by an Opinion of Counsel (which
may be counsel to the Trust or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the
Noteholders or any other person secured hereunder or for the
enforcement of any right or remedy granted to the Indenture
Trustee under this Indenture or any Series Supplement.
SECTION 11.16 Trust Obligation
. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer,
the Seller, the Master Servicer, the Owner Trustee or the
Indenture Trustee on the Notes or under this Indenture or
any Series Supplement or any certificate or other writing
delivered in connection herewith or therewith, against (i)
the Seller, the Master Servicer, the Indenture Trustee or
the Owner Trustee in its individual capacity, (ii) any owner
of a beneficial interest in the Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director, employee or
agent of the Seller, the Master Servicer, the Indenture
Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Seller,
the Master Servicer, the Owner Trustee or the Indenture
Trustee or of any successor or assign of the Seller, the
Master Servicer, the Indenture Trustee or the Owner Trustee
in its individual capacity, except as any such Person may
have expressly agreed (it being understood that the
Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that
any such owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
For all purposes of this Indenture, in the performance of
any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles VI, VII, and VIII
of the Trust Agreement.
SECTION 11.17 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 Seller, or the Issuer, or join in, cooperate
with or encourage others in connection with the institution
against the Seller, or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States
Federal or state bankruptcy or similar law in connection
with any obligations relating to the Notes, this Indenture
or any of the Basic Documents or any of the Series Related
Documents.
56
SECTION 11.18 Limited Recourse.
(a) Notwithstanding anything in the Series 2000-2
Related Documents to the contrary, the Series 2000-2 Notes
constitute limited recourse obligations of the Issuer and
are limited in recourse to the Series 2000-2 Trust Estate.
The Indenture Trustee, by entering into this Indenture and
the related Series 2000-2 Supplement, and each Series 2000-2
Noteholder agree that recourse for the Series 2000-2 Notes
is limited to the Series 2000-2 Trust Estate and, if the
Series 2000-2 Trust Estate shall prove to be insufficient to
pay amounts due under the Series 2000-2, shall have no claim
against the assets of the Issuer or the Seller other than
the Series 2000-2 Trust Estate.
(b) If, notwithstanding paragraph (a) above, the
Series 2000-2 Noteholders are deemed to have any interest in
any asset of the Seller other than the Seller's interest in
the Series 2000-2 Trust Estate, including any interest in
assets of the Seller pledged to secure debt obligations of
the Seller other than the Series 2000-2 Notes, the Indenture
Trustee, by entering into this Indenture and the related
Series 2000-2 Supplement, and each Series 2000-2 Noteholder
agree that any such interest is subordinate to the claims of
the holders of any such debt obligations, and the Series
2000-2 Noteholders shall have no rights in such assets until
such other debt obligations are indefeasibly paid in full.
The agreement of the Indenture Trustee and the Series 2000-2
Noteholders pursuant to this Section 11.18(b) is intended to
constitute a subordination agreement for the purposes of
Section 510(a) of the Bankruptcy Code.
SECTION 11.19 Inspection
. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture
Trustee, during the Issuer's normal business hours, to
examine all the books of account, records, reports, and
other papers of the Issuer, to make copies and extracts
therefrom, to cause such books to be audited by independent
certified public accountants, and to discuss the Issuer's
affairs, finances and accounts with the Issuer's officers,
employees, and independent certified public accountants, all
at such reasonable times and as often as may be reasonably
requested. The Indenture Trustee shall and shall cause its
representatives to hold in confidence all such information
except to the extent disclosure may be required by law (and
all reasonable applications for confidential treatment are
unavailing) and except to the extent that the Indenture
Trustee may reasonably determine that such disclosure is
consistent with its Obligations hereunder.
SECTION 11.20 Limitation of Liability
. It is expressly understood and agreed by the
parties hereto that (a) this Agreement is executed and
delivered by Wilmington Trust Company, not individually or
personally but solely as Owner Trustee of the Issuer under
the Trust Agreement, in the exercise of the powers and
authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on
the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by Wilmington
Trust Company but is made and intended for the purpose for
binding only the Issuer, (c) nothing herein contained shall
be construed as creating any liability on Wilmington Trust
Company individually or personally, to perform any covenant
either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties to
this Agreement and by any person claiming by, through or
under them and (d) under no circumstances shall Wilmington
Trust Company be personally liable for the payment of any
indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation,
warranty or covenant made or undertaking by the Issuer under
this Agreement or any related documents.
[Signature Page Follows]
57
IN WITNESS WHEREOF, the Issuer and the Indenture
Trustee have caused this Indenture to be duly executed by
their respective officers, hereunto duly authorized, all as
of the day and year first above written.
HOUSEHOLD AUTOMOTIVE TRUST V
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Financial Services Officer
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Indenture
Trustee
By: /s/ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
Title: Corporate Trust Officer
[Signature Page for the Indenture]
58
Exhibit A
FORM OF TRANSFEREE CERTIFICATE
Pursuant to Section 2.4 of the Indenture dated as
of June 1, 2000 between the Household Automotive Trust V
and Norwest Bank Minnesota, National Association,
___________ (the "Transferee") hereby certifies on the date
hereof that either (check appropriate certification):
_____ (i) the Transferee is not (A) an employee
benefit plan (within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to Title I of ERISA or (B) a plan
(within the meaning of Section 4975(e)(1) of the Internal
Revenue Code of 1986, as amended (the "Code")) that is
subject to Section 4975 of the Code (each of the foregoing,
a "Plan"), and is not acting on behalf of or investing the
assets of a Plan; or
_____ (ii) that the Transferee's acquisition and
continued holding of the Definitive Note will be covered by
a prohibited transaction class exemption issued by the U.S.
Department of Labor.
By: ___________________
[Name of Transferee]