EXHIBIT 4.1
EXECUTION COPY
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HOUSEHOLD AUTOMOTIVE TRUST 2001-3
Issuer
INDENTURE
Dated as of October 9, 2001
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
Indenture Trustee
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TABLE OF CONTENTS
PAGE
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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......................................11
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....................................................25
SECTION 3.21 Amendments of Master Sale and Servicing Agreement and Trust Agreement...........26
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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........................................................................................27
SECTION 5.1 Events of Default...............................................................27
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..............................................30
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.........................................................31
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..............................32
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......................................................37
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...................................................41
SECTION 6.12 Preferential Collection of Claims Against Issuer................................41
SECTION 6.13 Representations and Warranties of the Indenture Trustee.........................42
SECTION 6.14 Waiver of Setoffs...............................................................42
SECTION 6.15 No Consent to Certain Acts of Seller............................................42
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...............................................................43
SECTION 7.4 Reports by Indenture Trustee....................................................44
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ARTICLE VIII. Accounts, Disbursements and Releases.........................................................44
SECTION 8.1 Collection of Money.............................................................44
SECTION 8.2 Release of Trust Property.......................................................44
SECTION 8.3 Opinion of Counsel..............................................................45
ARTICLE IX. Amendments; the Series Supplement..............................................................45
SECTION 9.1 Amendments Without Consent of Noteholders.......................................45
SECTION 9.2 Amendments With Consent of Noteholders..........................................46
SECTION 9.3 Series Supplement Authorizing the Notes.........................................48
SECTION 9.4 Execution of the Series Supplement..............................................48
SECTION 9.5 Effect of Series Supplement.....................................................48
SECTION 9.6 Conformity With Trust Indenture Act.............................................48
SECTION 9.7 Reference in Notes to the Series Supplement.....................................49
ARTICLE X. Reserved........................................................................................49
ARTICLE XI. Miscellaneous..................................................................................49
SECTION 11.1 Compliance Certificates and Opinions, etc.......................................49
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.................52
SECTION 11.5 Notices to Noteholders; Waiver..................................................53
SECTION 11.6 Alternate Payment and Notice Provisions.........................................53
SECTION 11.7 Conflict with Trust Indenture Act...............................................54
SECTION 11.8 Effect of Headings and Table of Contents........................................54
SECTION 11.9 Successors and Assigns..........................................................54
SECTION 11.10 Separability....................................................................54
SECTION 11.11 Benefits of Indenture...........................................................54
SECTION 11.12 Legal Holidays..................................................................54
SECTION 11.13 GOVERNING LAW...................................................................54
SECTION 11.14 Counterparts....................................................................55
SECTION 11.15 Recording of Indenture..........................................................55
SECTION 11.16 Trust Obligation................................................................55
SECTION 11.17 No Petition.....................................................................55
SECTION 11.18 Limited Recourse................................................................55
SECTION 11.19 Inspection......................................................................56
SECTION 11.20 Limitation of Liability.........................................................56
EXHIBIT A -- Form of Transferee Certificate
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INDENTURE dated as of October 9, 2001, between HOUSEHOLD
AUTOMOTIVE TRUST 2001-3, a Delaware business trust (the "Issuer") and ▇▇▇▇▇
FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking association, as
indenture 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 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 Series Supplement and
the Notes, the Issuer, pursuant to the Series Supplement, shall pledge the
Series Trust Estate to the Indenture Trustee, all for the benefit of the
Indenture Trustee for the benefit of the Holders of the Notes.
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.
"Corporate Trust Office" has the meaning assigned to such term
in the Series Supplement.
"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
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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.
"Indenture Trustee" means, initially, ▇▇▇▇▇ Fargo Bank
Minnesota, National Association, a national banking 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 the Indenture Trustee.
"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" has the meaning assigned
to such term in the Series Supplement.
"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).
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"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 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.
"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
Section 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
Indenture 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 the 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
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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.
"Owner Trustee" has the meaning assigned to such term in the
Trust Agreement.
"Predecessor Note" means, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purpose of this definition, any
Note authenticated and delivered under Section 2.5 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Record Date" means, with respect to a Distribution Date, the
close of business on the Business Day immediately preceding such Distribution
Date. 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, the Delaware Trustee or the Owner Trustee, 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.
"Series Supplement" means the Series Supplement, dated as of
October 9, 2001, among the Master Servicer, the Issuer, the Seller, the
Indenture Trustee, the Owner Trustee and the Delaware Trustee.
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"State" means any one of the 50 states of the United States of
America or the District of Columbia.
"Termination Date" means the date on which the Indenture
Trustee shall have received payment and performance of all amounts and
obligations which the Issuer may at any time owe to or on behalf of the
Indenture Trustee for the benefit of the Noteholders under this Indenture or the
Notes.
"Tranche" means all of the Notes of a Series (or a Class
within a Series) having the same date of authentication.
"Trust Agreement" has the meaning assigned to such term in the
Series Supplement.
"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, the Series Supplement or the Trust Agreement.
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.
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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 Indenture 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 Certificates and Outstanding Notes); 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.
ARTICLE II.
THE NOTES
SECTION 2.1 FORM; AMOUNT LIMITED; ISSUABLE IN SERIES.
(a) Notes of each Series shall be in substantially the form
set forth in the Series Supplement, with such appropriate insertions, omissions,
substitutions and
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other variations as are required or permitted by this Indenture or the 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 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 the Series Supplement may so limit the aggregate
principal amount of Notes. The Notes shall be issued in a Series, and may be
issued in Classes and/or Tranches within such Series (and Tranches within a
Class).
No Series of Notes shall be issued under this Indenture unless
such Notes have been authorized pursuant to the Series Supplement, and all
conditions precedent to the issuance thereof, as specified in the 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 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 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.
The Notes of a Series shall be issuable in the denominations
specified in the Series Supplement.
No Note shall be entitled to any benefit under this Indenture
or the 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
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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 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.
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
9
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 Series
Supplement, as the Notes surrendered upon such registration of transfer or
exchange.
Unless specified in the Series Supplement, every Note
presented or surrendered for registration of transfer or exchange shall, unless
specified in the 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.
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
10
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.
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
11
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
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 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
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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.
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 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 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 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 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 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 Series Supplement, 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
13
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.
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 Termination Date, release any remaining portion of the
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;
14
(iv) the rights of Note Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law
and agreements between such Note Owners and the Clearing Agency and/or
the Clearing Agency Participants. Unless and until Definitive Notes are
issued pursuant to Section 2.12, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit payments of principal of and interest on the Notes to such
Clearing Agency Participants;
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of Notes
evidencing a specified percentage of the Outstanding 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
15
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.
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 (or
other 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 Collection Account and the Trust Accounts 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.
16
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 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;
17
(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
(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 the 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 the Person serving as Indenture
Trustee, as Certificate Paying Agent to make payments to Certificateholders on
behalf of the Issuer in accordance with the provisions of the Certificates, this
Indenture and the Trust Agreement, and such Person hereby accepts such
appointment (subject to removal in the event it no 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
18
(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, the Series Supplement, the Notes and each
other instrument or agreement included in the Series Trust Estate.
SECTION 3.5 PROTECTION OF TRUST PROPERTY. The Issuer intends
the security interest Granted pursuant to this Indenture and the Series
Supplement in favor of the Holders to be prior to all other liens in respect of
the 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
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, will authenticate such records, and
will take such other action necessary or advisable to:
(i) Grant more effectively all or any portion of the 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 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 Series
Supplement ;
(iv) enforce any of the Series Trust Estate;
(v) preserve and defend title to the 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
Series Trust Estate when due.
19
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, the 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 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 the calendar year succeeding the Closing Date, 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, the Series Supplement and any other requisite
documents, with respect to the execution and filing of any financing statements
and continuation statements, and with respect to the authentication of such
records as are necessary to maintain the lien and security interest created by
this Indenture and the 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, the execution
and filing of any financing statements and continuation statements and the
authentication of such records that will, in the opinion of such counsel, be
required to maintain the lien and security interest of this Indenture and the
Series Supplement until December 31 of the following calendar year.
SECTION 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 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 and the Basic Documents or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer. Initially, the
Issuer has contracted with the Master Servicer to assist the Issuer in
performing its duties under this Indenture and the Series Supplement.
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(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture and the Basic Documents
and in the instruments and agreements included in the 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 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, sell, transfer, exchange or otherwise dispose of any
of the properties or assets of the Issuer, including those included in
the Series Trust Estate;
(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 Series Trust Estate; or
(iii) (A) permit the validity or effectiveness of this
Indenture or the 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 the 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 Series Supplement) to be
created on or extend to or otherwise arise upon or burden the 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 Series
Supplement
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not to constitute a valid first priority (other than with respect to
any such tax, mechanics' or other lien) security interest in the 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 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 in the calendar year in which the Closing Date
occurs), 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 the 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 the Series Supplement on
the part of the Issuer to be performed or observed, all as provided
herein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing under
the 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
22
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 the 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 the
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 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, the 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
the 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
23
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 the 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).
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 the Series Supplement with the same effect as if such Person
had been named as 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 2001-3 will be released from every covenant and agreement of this
Indenture and the 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 2001-3
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 the Series
Supplement and all 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 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 the 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.
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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 the 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
contingently 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).
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, the Series Supplement or any 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 Collection Account except in accordance with this Indenture, the Basic
Documents, the Series Supplement or any 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 the 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
25
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 11.1 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.
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 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 Series Support,
if any, has been returned to the Series Support Provider; or
(2) all Notes not theretofore delivered to the
Indenture Trustee for cancellation
(i) have become due and payable,
26
(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 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.
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 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.
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 Series Supplement.
27
SECTION 5.2 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY INDENTURE TRUSTEE.
(a) Subject to the terms of the 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 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 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 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:
(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 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
28
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 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 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 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.
29
(f) In any proceedings brought by the Indenture Trustee (and
also any proceedings involving the interpretation of any provision of this
Indenture or the 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.
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 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;
(ii) the Holders of not less than 25% of the Outstanding
Amount of the Notes have made written request to the Indenture Trustee
to institute such proceeding in respect of such Event of Default in its
own name as Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the Indenture
Trustee 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 Series Supplement (or, in the case of redemption or
tender pursuant to the 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 Series Supplement and such
Proceeding has been discontinued or abandoned for any reason, then and in every
such case the Issuer, the Indenture
30
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.
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 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 Documents, a majority of the Noteholders may waive any past
Default or Event of Default relating to the Notes and its consequences except a
Default (a) in payment of principal of or interest on any of the Notes 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. In the case of any such waiver,
the Issuer, the Indenture Trustee and the Holders of the Notes shall be restored
to their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other Default or impair any right consequent
thereto.
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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 Series Supplement; but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereto.
SECTION 5.10 UNDERTAKING FOR COSTS. All parties to this
Indenture and the Series Supplement agree, and each Holder of any Note by such
Holder's acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture and the 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 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 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 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 the 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 Series Supplement.
Neither the lien of this Indenture or the 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 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
32
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.
(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.
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 Series Supplement and no implied
covenants or obligations shall be read into this Indenture or the
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 Series
Supplement; however, the Indenture Trustee shall
33
examine the certificates and opinions to determine whether or not they
conform on their face to the requirements of this Indenture or the
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
proven 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 Series Supplement or the Master Sale and Servicing
Agreement.
(f) No provision of this Indenture or the 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.
(g) Every provision of this Indenture and the 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, the 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
34
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, the 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 the Indenture Trustee, 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, the Series Supplement, any 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.
35
(f) The Indenture Trustee shall be under no obligation to
institute, conduct or defend any litigation under this Indenture or the Series
Supplement or in relation to this Indenture or the Series Supplement, at the
request, order or direction of any of the Holders of Notes, pursuant to the
provisions of this Indenture or the 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 the 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,
the 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 Indenture 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 or
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 Reserve
36
Account and the 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.
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, the Series Supplement, the 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 the 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 the 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
37
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.
(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, the Series Supplement or
any Related Documents, the Indenture Trustee agrees that the obligations of the
Issuer (but not the Master Servicer) to the Indenture Trustee hereunder and
under the Series Supplement or any Related Documents, shall be recourse to the
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 Series Trust Estate, the Seller and amounts held
pursuant to the Series Support shall be limited to the right to receive the
distributions as provided for in the payment priority provisions of the 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;
38
(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.
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.
39
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 MERGER. If the
Indenture Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
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.
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 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 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
40
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 separate trustee
and co-trustee, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee, its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Indenture on its behalf and in its name. If any separate
trustee or co-trustee shall die, 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.
SECTION 6.11 ELIGIBILITY: DISQUALIFICATION. The Indenture
Trustee shall at all times: satisfy TIA Section 310(a), have a combined capital
and surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition, and have a long-term debt rating of at ▇▇▇▇▇ "▇▇▇",
"▇▇▇▇" or equivalent rating from each of the Rating Agencies. The Indenture
Trustee shall comply with TIA Section 310(b), including the optional provision
permitted by the second sentence of TIA Section 310(b)(9); PROVIDED, HOWEVER,
that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
SECTION 6.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER.
The Indenture Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship
41
listed in TIA Section 311(b). An Indenture Trustee who has resigned or been
removed shall be subject to TIA Section 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 the 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, the Series Supplement and any other Related
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, the Series Supplement and such other Related Documents.
(d) VALID AND BINDING INDENTURE. The Indenture Trustee has
duly executed and delivered this Indenture, the Series Supplement, each other
Basic Document and each Related Document to which it is a party, and each of
this Indenture, the Series Supplement, each other Basic Document and each other
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.
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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 Section 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 Section 312(c).
SECTION 7.3 REPORTS BY ISSUER.
(a) 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
43
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA
Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i) and
(ii) of this Section 7.3(a) as may be required by rules and 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.
SECTION 7.4 REPORTS BY INDENTURE TRUSTEE. If required by TIA
Section 313(a), within 60 days after each March 31 beginning with March 31, 2002
the Indenture Trustee shall mail to each Noteholder as required by TIA Section
313(c) a brief report dated as of such date that complies with TIA Section
313(a). The Indenture Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Noteholders shall be filed by the 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.
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
44
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 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 Sections 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 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.
ARTICLE IX.
AMENDMENTS; THE SERIES SUPPLEMENT
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;
45
(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 the Series Supplement which may be inconsistent
with any other provision herein or in the Series Supplement or to make
any other provisions with respect to matters or questions arising under
this Indenture or in the 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.
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,
46
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, the 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
(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
47
Supplement or the 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 SERIES SUPPLEMENT AUTHORIZING THE NOTES.
(a) The Notes issued hereunder shall be issued pursuant to the
Series Supplement, which shall set forth the terms and provisions of the Notes.
(b) Amendments to the Series Supplement shall be governed by
the provisions of the Series Supplement.
SECTION 9.4 EXECUTION OF THE SERIES SUPPLEMENT. 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 the Series Supplement is
authorized or permitted by this Indenture.
SECTION 9.5 EFFECT OF SERIES SUPPLEMENT. Upon the execution of
the Series Supplement or any amendment pursuant to the provisions of the 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 the Series Supplement or any amendment shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 9.6 CONFORMITY WITH TRUST INDENTURE ACT. Every
amendment of this Indenture and the Series Supplement executed pursuant to this
Article
48
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 THE SERIES SUPPLEMENT. Notes
authenticated and delivered after the execution of the 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 the Series Supplement. If the Issuer
shall so determine, new Notes so modified as to conform, in the opinion of the
Issuer, to the 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
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
the 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 the 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 the 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 the 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
49
such signatory to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied with.
(b) (i) Prior to the deposit 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 Series Supplement, the Issuer shall, in addition to any obligation
imposed in Section 11.1(a) or elsewhere in this Indenture or the 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 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.
(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 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 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 then current calendar
year, as set forth
50
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 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.
Whenever in this Indenture or the 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
51
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 the 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
(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 be
deemed to have been duly given upon receipt to the Issuer addressed to:
Household Automotive Trust 2001-3, in care of the Owner Trustee at its Corporate
Trust Office, or at any other address previously furnished in writing to the
Indenture Trustee by the Issuer. The Issuer shall promptly transmit any notice
received by it from the Noteholders to the Indenture Trustee.
52
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:
(▇▇▇) ▇▇▇-▇▇▇▇, (ii) in the case of S&P, at the following address: Standard &
Poor's Ratings Group, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Asset Backed Surveillance Department, Fax No: (▇▇▇) ▇▇▇-▇▇▇▇ and (iii) in the
case of Fitch, Inc., at the following address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Fax No. (▇▇▇) ▇▇▇-▇▇▇▇; 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 the 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 the 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 the 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.
SECTION 11.6 ALTERNATE PAYMENT AND NOTICE PROVISIONS.
Notwithstanding any provision of this Indenture, the 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 Series Supplement for such
payments or notices, provided that such methods are reasonable and consented to
by the Indenture Trustee (which consent shall
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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 Sections 310 through 317 that impose
duties on any person (including the provisions automatically deemed included
herein unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not physically contained herein.
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, the Series Supplement shall bind its
successors. All agreements of the Master Servicer in this Indenture or the
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 the 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 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 the 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.
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.
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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 the
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 the 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 the 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 Related Documents.
SECTION 11.18 LIMITED RECOURSE.
(a) Notwithstanding anything in the Related Documents to the
contrary, the Notes constitute limited recourse obligations of the Issuer and
are limited in recourse to the Series Trust Estate. The Indenture Trustee, by
entering into this Indenture
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and the Series Supplement, and each Noteholder agree that recourse for the Notes
is limited to the Series Trust Estate and, if the Series Trust Estate shall
prove to be insufficient to pay amounts due under the Notes, the Noteholders
shall have no claim against the assets of the Issuer or the Seller other than
the Series Trust Estate.
(b) If, notwithstanding paragraph (a) above, the Noteholders
are deemed to have any interest in any asset of the Seller other than the
Seller's interest in the Series Trust Estate, including any interest in assets
of the Seller pledged to secure debt obligations of the Seller other than the
Notes, the Indenture Trustee, by entering into this Indenture and the Series
Supplement, and each Noteholder agree that any such interest is subordinate to
the claims of the holders of any such debt obligations, and the 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
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 Indenture is executed
and delivered by the Owner Trustee, 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 the Owner Trustee but is made and intended for the purpose of
binding only the Issuer, (c) nothing herein contained shall be construed as
creating any liability on the Owner Trustee 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 Indenture and
by any person claiming by, through or under them and (d) under no circumstances
shall the Owner Trustee 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 Indenture or any related documents.
[Signature Page Follows]
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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 2001-3
By: U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual capacity
but solely as Indenture Trustee
By: /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
57
EXHIBIT A
FORM OF TRANSFEREE CERTIFICATE
Pursuant to Section 2.4 of the Indenture dated as of October
9, 2001 between Household Automotive Trust 2001-3 and ▇▇▇▇▇ Fargo 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]
A-1