Exhibit 4.1
EXECUTION COPY
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INDENTURE
Dated as of August 8, 2002
between
HOUSEHOLD AUTOMOTIVE TRUST 2002-2
Issuer
and
JPMORGAN CHASE BANK
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 Reserved..................................................................... 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.......................................................................... 16
SECTION 3.1 Payment of Principal and Interest............................................ 16
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 Series Trust Estate............................................ 19
SECTION 3.6 Opinions as to Series Trust Estate........................................... 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................................................................. 25
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.................................................. 26
SECTION 3.20 Further Instruments and Acts................................................. 26
SECTION 3.21 Amendments of Master Sale and Servicing Agreement and Trust Agreement........ 26
SECTION 3.22 Income Tax Characterization.................................................. 26
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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................................ 28
ARTICLE V. Remedies............................................................................. 28
SECTION 5.1 Events of Default............................................................ 28
SECTION 5.2 Collection of Indebtedness and Suits for Enforcement by
Indenture
Trustee................................................................... 28
SECTION 5.3 Limitation of Suits.......................................................... 30
SECTION 5.4 Unconditional Rights of Noteholders To Receive Principal and Interest........ 31
SECTION 5.5 Restoration of Rights and Remedies........................................... 31
SECTION 5.6 Rights and Remedies Cumulative............................................... 31
SECTION 5.7 Delay or Omission Not a Waiver............................................... 31
SECTION 5.8 Limitation on Voting of Preferred Stock; Control by
Insurer/Noteholders....................................................... 31
SECTION 5.9 Waiver of Past Defaults...................................................... 32
SECTION 5.10 Undertaking for Costs........................................................ 32
SECTION 5.11 Waiver of Stay or Extension Laws............................................. 33
SECTION 5.12 Action on Notes.............................................................. 33
SECTION 5.13 Performance and Enforcement of Certain Obligations........................... 33
ARTICLE VI. The
Indenture Trustee............................................................... 34
SECTION 6.1 Duties of
Indenture Trustee.................................................. 34
SECTION 6.2 Rights of
Indenture Trustee.................................................. 36
SECTION 6.3 Individual Rights of
Indenture Trustee....................................... 37
SECTION 6.4
Indenture Trustee's Disclaimer............................................... 37
SECTION 6.5 Notice of Defaults........................................................... 38
SECTION 6.6 Reports by Master Servicer to Holders........................................ 38
SECTION 6.7 Compensation and Indemnity................................................... 38
SECTION 6.8 Replacement of Indenture Trustee............................................. 39
SECTION 6.9 Successor Indenture Trustee by Merger........................................ 40
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee............ 41
SECTION 6.11 Eligibility: Disqualification................................................ 42
SECTION 6.12 Preferential Collection of Claims Against Issuer............................. 42
SECTION 6.13 Representations and Warranties of the Indenture Trustee...................... 42
SECTION 6.14 Waiver of Setoffs............................................................ 43
SECTION 6.15 No Consent to Certain Acts of Seller......................................... 43
ARTICLE VII. Noteholders' Lists and Reports..................................................... 43
SECTION 7.1 Issuer To Furnish To Indenture Trustee Names and Addresses of
Noteholders............................................................... 43
SECTION 7.2 Preservation of Information; Communications to Noteholders................... 44
SECTION 7.3 Reports by Issuer............................................................ 44
SECTION 7.4 Reports by Indenture Trustee................................................. 45
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ARTICLE VIII. Accounts, Disbursements and Releases.............................................. 45
SECTION 8.1 Collection of Money.......................................................... 45
SECTION 8.2 Release of Series Trust Estate............................................... 45
SECTION 8.3 Opinion of Counsel........................................................... 46
ARTICLE IX. Amendments; the Series Supplement................................................... 46
SECTION 9.1 Amendments Without Consent of Noteholders.................................... 46
SECTION 9.2 Amendments With Consent of Noteholders....................................... 47
SECTION 9.3 Series Supplement Authorizing the Notes...................................... 49
SECTION 9.4 Execution of the Series Supplement........................................... 49
SECTION 9.5 Effect of Series Supplement.................................................. 49
SECTION 9.6 Conformity With Trust Indenture Act.......................................... 50
SECTION 9.7 Reference in Notes to the Series Supplement.................................. 50
ARTICLE X....................................................................................... 50
SECTION 10.1 Note Insurer's Rights Regarding Actions, Proceedings or
Investigations............................................................ 50
ARTICLE XI. Miscellaneous....................................................................... 51
SECTION 11.1 Compliance Certificates and Opinions, etc.................................... 51
SECTION 11.2 Form of Documents Delivered to Indenture Trustee............................. 53
SECTION 11.3 Acts of Noteholders.......................................................... 53
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies.............. 54
SECTION 11.5 Notices to Noteholders; Waiver............................................... 55
SECTION 11.6 Alternate Payment and Notice Provisions...................................... 55
SECTION 11.7 Conflict with Trust Indenture Act............................................ 56
SECTION 11.8 Effect of Headings and Table of Contents..................................... 56
SECTION 11.9 Successors and Assigns....................................................... 56
SECTION 11.10 Separability................................................................. 56
SECTION 11.11 Benefits of Indenture........................................................ 56
SECTION 11.12 Legal Holidays............................................................... 56
SECTION 11.13 GOVERNING LAW................................................................ 56
SECTION 11.14 Counterparts................................................................. 57
SECTION 11.15 Recording of Indenture....................................................... 57
SECTION 11.16 Trust Obligation............................................................. 57
SECTION 11.17 No Petition.................................................................. 57
SECTION 11.18 Limited Recourse............................................................. 58
SECTION 11.19 Inspection................................................................... 58
SECTION 11.20 Limitation of Liability...................................................... 58
EXHIBIT A -- Form of Transferee Certificate
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INDENTURE dated as of August 8, 2002, between HOUSEHOLD AUTOMOTIVE
TRUST 2002-2, a Delaware business trust (the "Issuer") and JPMORGAN CHASE BANK,
a
New York banking corporation, 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,
and all amounts payable to the Insurer according to the terms of this Indenture,
the Series Supplement, the Notes and the Insurance Agreement, 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 Secured Parties.
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 all of the Notes 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.
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"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 the 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 the 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, JPMorgan Chase Bank, a
New
York banking corporation, 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.
"Insurer" has the meaning assigned to such term in the Series
Supplement.
"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.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or its
successor.
"Notes" means the Notes 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,
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or on the books of a Person maintaining an account with such Clearing Agency
(directly as a Clearing Agency Participant or as an indirect participant, in
each case in accordance with the rules of such Clearing Agency).
"Note Paying Agent" means the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 and is authorized by the Issuer to make payments to and
distributions from the 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,
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consent or waiver hereunder or under any Basic Document, Notes owned by the
Issuer, any other obligor upon the Notes, the Seller or any Affiliate of any
of the foregoing Persons shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Indenture Trustee shall
be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes that a Responsible Officer
of the Indenture Trustee either actually knows to be so owned or has received
written notice thereof shall be so disregarded. Notes so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Indenture Trustee the pledgee's right
so to act with respect to such Notes and that the pledgee is not the Issuer,
any other obligor upon the Notes, the Seller or any Affiliate of any of the
foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all
Notes, or Class of Notes, as applicable, Outstanding at the date of
determination.
"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, the Delaware 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, the Delaware 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.
"Secured Parties" has the meaning assigned to such term in the
Series Supplement.
"Securities Act" means the Securities Act of 1933, as amended.
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"Series Supplement" means the Series Supplement, dated as of
August 8, 2002, among the Master Servicer, the Issuer, the Seller, the Indenture
Trustee, the Owner Trustee and the Delaware Trustee, as such agreement may be
amended or supplemented from time to time.
"Series Trust Estate" has the meaning assigned to such term in the
Series Supplement.
"S&P" means Standard & Poor's Rating Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or its successor.
"State" means any one of the 50 states of the United States of
America or the District of Columbia.
"Tranche" means all of the Notes having the same date of
authentication.
"Trust Agreement" has the meaning assigned to such term in the
Series Supplement.
"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) The Notes shall be in substantially the form set forth in the
Series Supplement, with such appropriate insertions, omissions, substitutions
and other
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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 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 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 issuance date of such Notes.
The Notes 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 attached as Exhibit B to the Series Supplement, executed by the
Indenture Trustee by the manual signature of
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one of its authorized signatories, and such certificate attached to any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
SECTION 2.3 TEMPORARY NOTES. Pending the preparation of
Definitive Notes of any Class or Tranche, 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 Class or Tranche are issued, the Issuer
will cause Definitive Notes of such Class or Tranche to be prepared without
unreasonable delay. After the preparation of Definitive Notes of such Class
or Tranche, the temporary Notes shall be exchangeable for Definitive Notes of
such 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 Class or Tranche of authorized denominations. Until
so exchanged, the temporary Notes of any 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 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 any Class or Tranche may be
exchanged for other Notes of such 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 employee benefit plan
(within the meaning of Section 3(3) of the Employee Retirement
10
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 evidence to its satisfaction of the destruction, loss or
theft of any Note, and (ii) there is
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delivered to each of the Issuer, the Indenture Trustee and the Insurer (for
so long as it is the Controlling Party) such security or indemnity as may be
required by it to hold the Issuer, the Indenture Trustee and the Insurer (for
so long as it is the Controlling Party) harmless, then, in the absence of
notice to the Issuer, the Note Registrar or the Indenture Trustee that such
Note has been acquired by a bona fide purchaser, and provided that the
requirements of Section 8-405 of the UCC are met, the Issuer shall execute
and upon its written request the Indenture Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Note, a replacement Note of the same 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 in 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 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 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, the Insurer nor any agent of the Issuer, the Indenture
Trustee or the Insurer 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 are Book Entry Notes, unless Definitive Notes
have been issued pursuant to Section 2.12, with respect to Notes 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 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 RESERVED.
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 or its
agent, the initial Clearing Agency, by, or on behalf of, the Issuer. Such
Notes may initially be registered on the Note Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Note Owner will
receive a Definitive Note representing such Note Owner's interest in such
Note, except as provided in Section 2.12. Unless and until definitive, fully
registered Notes (the "Definitive Notes") have been issued to Note Owners
pursuant to Section 2.12:
(i) the provisions of this Section shall be in full
force and effect;
(ii) the Note Registrar and the Indenture Trustee shall be entitled
to deal with the Clearing Agency for all purposes of this Indenture
(including the payment of principal of and interest on the Notes and the
giving of instructions or directions hereunder) as the sole Holder of the
Notes, and shall have no obligation to the Note Owners;
(iii) to the extent that the provisions of this Section conflict
with any other provisions of this Indenture, the provisions of this
Section shall control;
(iv) the rights of Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Note Owners and the Clearing Agency and/or the
Clearing Agency Participants. Unless and until Definitive Notes are issued
pursuant to Section 2.12, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and transmit
payments of principal of and interest on the Notes to such Clearing Agency
Participants;
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(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 or on the
Indenture Trustee's web-site specified in the Series Supplement.
SECTION 2.11 NOTICES TO CLEARING AGENCY. With respect to any
Notes which are Book Entry Notes, whenever a notice or other communication to
the Noteholders 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 any Notes 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 such Notes, 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, Note Owners representing beneficial
interests aggregating at least a majority of the Outstanding Amount of the
Notes advise the Indenture Trustee through the Clearing Agency in writing
that the continuation of a book entry system through the Clearing Agency is
no longer in the best interests of the Note Owners, then the Clearing Agency
shall notify all Note Owners and the Indenture Trustee of the occurrence of
any such event and of the availability of Definitive Notes to Note Owners
requesting the same. Upon surrender to the Indenture Trustee of the
typewritten Note or Notes representing the Book-Entry Notes by the Clearing
Agency, accompanied by registration instructions, the Issuer shall execute
and upon the written direction of the Issuer the Indenture Trustee shall
authenticate the Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Note Registrar or the Indenture
Trustee shall be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Notes, the Indenture Trustee
shall recognize the Holders of the Definitive Notes as Noteholders.
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SECTION 2.13 FINAL DISTRIBUTION.
(a) The Master Servicer on behalf of the Issuer shall give the
Indenture Trustee at least 15 days prior written notice of the Distribution
Date (or other date) on which the Noteholders of any 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 Class is payable to Noteholders, the
Indenture Trustee shall provide notice to the Noteholders of such Class
specifying (i) the date upon which final payment of such Class will be made
upon presentation and surrender of Notes (if required) of such 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. Unless it
is serving in the related functions, the Indenture Trustee shall give such
notice to the Note 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 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
Issuer any moneys held by them for the payment of principal or interest that
remains unclaimed for two years. After payment to the Issuer, Noteholders
entitled to the money must look to the Issuer for payment as general
unsecured creditors unless an applicable abandoned property law designates
another Person and all liability of the Insurer under the Note Policy, 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.
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
16
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 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 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 hereby appoints the Person serving as Indenture
Trustee as Note Paying Agent to make payments to Noteholders on behalf of the
Issuer in accordance with the provisions of the Notes, this Indenture and the
Series Supplement, 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).
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 Issuer 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 SERIES TRUST ESTATE. The Issuer
intends the security interest Granted pursuant to this Indenture and the
Series Supplement in favor of the Secured Parties 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 Secured Parties a first lien on and a first priority,
perfected security interest in the Series Trust Estate. The Issuer will: (a)
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, (b) authenticate such records, and (c) 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
Secured Parties 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 Series Trust Estate 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.
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SECTION 3.6 OPINIONS AS TO SERIES TRUST ESTATE.
(a) On the Closing Date, the Issuer shall furnish to the Indenture
Trustee and the Insurer 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 Secured Parties, 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 perfected 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 and the
Insurer 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 March 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 has contracted with the Master Servicer to assist the
Issuer in performing its duties under this Indenture and the Series Supplement.
The Issuer may contract with Persons other than the Master Servicer to assist it
in performing its duties under this Indenture and the Series Supplement with the
consent of the Insurer (for so long as it is the Controlling Party), and any
performance of such duties by a Person identified to the Indenture Trustee and
the Insurer (for so long as it is the
20
Controlling Party) in an Officer's Certificate of the Issuer shall be deemed
to be action taken by the Issuer.
(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 and the Insurer (for so long as it is the
Controlling Party).
(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, the Insurer 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
21
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 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 and
the Insurer, 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 and the Insurer (for so long as it is
the Controlling Party), in form satisfactory to the Indenture Trustee and
the Insurer (for so long as it is the Controlling Party), 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;
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(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, the Owner Trustee
and the Insurer (for so long as it is the Controlling Party)) to the
effect that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder, any Certificateholder or the
Insurer;
(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;
(vi) the Issuer shall have delivered to the Indenture Trustee and
the Insurer (for so long as it is the Controlling Party) an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation
or merger comply with this Article III and that all conditions precedent
herein provided for relating to such transaction have been complied with
(including any filing required by the Exchange Act); and
(vii) such consolidation or merger is approved in writing by the
Insurer (for so long as it is the Controlling Party).
(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 and the Insurer, in form
satisfactory to the Indenture Trustee and the Insurer, 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, the Series 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;
23
(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 Insurer) to
the effect that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder, any Certificateholder or the
Insurer;
(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;
(vi) the Issuer shall have delivered to the Indenture Trustee and
the Insurer an Officers' Certificate and an Opinion of Counsel each
stating that such conveyance or transfer and such Indenture Supplement
complies with this Article III and that all conditions precedent herein
provided for relating to such transaction have been complied with
(including any filing required by the Exchange Act); and
(vii) such conveyance or transfer is approved in writing by the
Insurer (for so long as it is the Controlling Party).
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 2002-2
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 and the Insurer stating that Household Automotive Trust 2002-2
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.
24
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.
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
25
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, the Insurer 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 or the Insurer (for so long as it is the Controlling
Party), the Issuer will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 3.21 AMENDMENTS OF MASTER SALE AND SERVICING
AGREEMENT AND TRUST AGREEMENT. The Issuer shall not agree to any amendment to
Section 13.1 of the Master Sale and Servicing Agreement or Section 11.1 of
the Trust Agreement to eliminate the requirements thereunder that the
Indenture Trustee, the Insurer 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 and the Certificateholders will treat the
Notes as indebtedness and hereby instruct 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 the Secured
Parties 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 written 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
26
(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,
(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 Note Policy has terminated in accordance with its terms and
the Issuer has paid or caused to be paid all other amounts owing hereunder
or under the Insurance Agreement 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
Secured Parties 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.
27
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.
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 Secured
Parties, 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 Secured Parties 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
28
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 to the Secured Parties 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 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), of the Insurer and of the
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Secured Parties 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 Secured Parties 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 Secured Parties, 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 the Secured Parties to make payments
to the Indenture Trustee, and, in the event that the Indenture Trustee shall
consent to the making of payments directly to the Secured Parties, 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 Secured Party any plan of reorganization, arrangement, adjustment
or composition
29
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 Secured Party 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 Secured Parties.
(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 Secured Parties, and it shall not be necessary to make any
Secured Party 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. Nothing herein shall be construed as giving Holders of Notes
any right to make a direct claim under the Note Policy.
30
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 a 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, the Insurer 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 Trustee, the
Insurer 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, the Insurer 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 Insurer or any 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, any Controlling Party 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,
to the Insurer or to any Noteholders may be exercised from time to time, and
as often as may be deemed expedient, by the Indenture Trustee, by the Insurer
or by the related Noteholders, as the case may be.
SECTION 5.8 LIMITATION ON VOTING OF PREFERRED STOCK;
CONTROL BY INSURER/NOTEHOLDERS.
(a) Notwithstanding any provision of any Related Document to the
contrary, the Indenture Trustee shall hold the Class SV Preferred Stock in
trust for the benefit of the Secured Parties and shall vote such stock only
pursuant to the written instructions of the Insurer (for so long as it is the
Controlling Party) and, if the Insurer is no longer the Controlling Party,
the Holders of a majority of the Outstanding Amount of the Notes.
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(b) The Controlling Party 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. The Controlling Party may
waive any 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, the
Insurer 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.
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 the Insurer, (c) 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 (d)
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.
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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 or the Insurer, 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, the Insurer or the
Noteholders shall be impaired by the recovery of any judgment by the
Indenture Trustee or the Insurer 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 or
the Insurer (for so long as it is the Controlling Party) to do so and at the
Master Servicer's expense, the Issuer agrees to take all such lawful action
as the Indenture Trustee or the Insurer (for so long as it is the Controlling
Party) may request to compel or secure the performance and observance by the
Seller and the Master Servicer, as applicable, of each of their obligations
to the Issuer under or in connection with the Master Sale and Servicing
Agreement in accordance with the terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Issuer
under or in connection with the Master Sale and Servicing Agreement to the
extent and in the manner directed by the Indenture Trustee or the Insurer
(for so long as it is the Controlling Party), 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, or, if
at such time as there are no Notes Outstanding there remain sums due to the
Insurer pursuant to the Insurance Agreement, the Indenture Trustee may, with
the consent of the Insurer (for so long as it is the Controlling Party) and
shall, at the written direction of the Insurer (for so long as it is the
Controlling Party) or, if the Insurer is not the Controlling Party, at the
written direction of the Holders of 66-2/3% of the Outstanding Amount of the
Notes, 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
33
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 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
34
(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 each Related
Document to which it is a party.
(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 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.
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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 and/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 and/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.
(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 or the Insurer (for so long as it is
the Controlling Party), pursuant to the provisions of this Indenture or the
Series Supplement, unless such Holders of Notes or the Insurer 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, unless requested
in writing to do by the Insurer (for so long as it is the Controlling Party);
PROVIDED, HOWEVER, that if the payment within a reasonable time to the
36
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.
(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 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
37
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 promptly notify the Insurer in
writing and 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 to Noteholders 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 MASTER SERVICER TO HOLDERS. Upon the
written request of any Noteholder, the Master Servicer shall on behalf of the
Issuer deliver to the Indenture Trustee for distribution to any Noteholder
such information as may be reasonably required by such Noteholder to enable
such Noteholder 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
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
38
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 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, the Insurer, 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 with the consent of
the Insurer (for so long as it is the Controlling Party) upon 60 days'
written notice. The Issuer may, with the consent of the Insurer (for so long
as it is the Controlling Party) and shall, at the direction of the Insurer
(for so long as it is the Controlling Party) or the Noteholders, remove the
Indenture Trustee, if:
(i) the Indenture Trustee fails to comply with Section
6.11;
(ii) a court having jurisdiction in the premises in respect of the
Indenture Trustee in an involuntary case or proceeding under Federal or
state banking or bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or state bankruptcy, insolvency or other similar
law, shall have entered a decree or order granting relief or appointing a
receiver, liquidator, assignee, custodian, trustee, conservator,
sequestrator (or similar official) for the Indenture Trustee or for any
substantial part of the Indenture Trustee's property, or ordering the
winding-up or liquidation of the Indenture Trustee's affairs;
(iii) an involuntary case under the Federal bankruptcy laws, as now
or hereafter in effect, or another present or future Federal or state
bankruptcy, insolvency or similar law is commenced with respect to the
Indenture Trustee and such case is not dismissed within 60 days;
(iv) the Indenture Trustee commences a voluntary case under any
Federal or state banking or bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
conservator, sequestrator (or other similar official) for the Indenture
Trustee or for any substantial part of the Indenture Trustee's property,
or makes any assignment for the benefit of creditors or fails generally to
39
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 written notice of such removal, resignation or
vacancy to the Master Servicer and the Insurer, and the Master Servicer may
appoint a successor Indenture Trustee with the consent of the Insurer (for so
long as it is the Controlling Party). If the Master Servicer fails to appoint
such a successor Indenture Trustee, the Issuer, the Insurer (for so long as it
is the Controlling Party) 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 Note Paying Agent, Note Registrar and
Certificate Paying Agent.
A successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee, to the Insurer 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 the Basic
Documents. 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 or the Insurer (for so long as it is the Controlling Party) may
petition any court of competent jurisdiction for the removal of the Indenture
Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's and the Master Servicer's obligations under Section
6.7 shall continue for the benefit of the retiring Indenture Trustee.
SECTION 6.9 SUCCESSOR INDENTURE TRUSTEE BY 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
40
provide the Rating Agencies and the Insurer 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 Secured Parties, 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. The cost and expense of such co-trustee or co-trustees,
and/or separate trustee or separate trustees, shall be a cost and expense of
the Indenture Trustee pursuant to Section 3.03(a)(iii) of the Series
Supplement.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Indenture
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed
the Indenture Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in any
such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
41
(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 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 banking
corporation, duly organized, validly existing and in good standing under the
laws of the State of New
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York 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, the Series Supplement
and any other Related Document to which it is a party 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 and each other
Related Document to which it is a party, and each of this Indenture, the
Series Supplement 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 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.
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
43
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
(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.
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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,
2003 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, with the consent of
the Insurer (for so long as it is the Controlling Party) and shall, at the
direction of the Insurer (for so long as it is the Controlling Party), 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 SERIES TRUST ESTATE.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.7, and to the extent not covered by Section 8.2(b), the Indenture
Trustee may, and when required by the Issuer and the provisions of this
Indenture shall, execute instruments to release property from the lien of
this Indenture, in a manner and under circumstances that are not inconsistent
with the provisions of this Indenture. No party relying upon an instrument
executed by the Indenture Trustee as provided in this Article VIII shall be
bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
monies.
(b) The Indenture Trustee shall, at such time as there are no
Notes Outstanding, the Note Policy has terminated in accordance with its
terms and all sums due the Indenture Trustee pursuant to Section 6.7 and due
the Insurer pursuant to the Insurance Agreement and the Basic Documents have
been paid, release any remaining
45
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 Secured Parties 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 the prior written consent of
the Insurer (for so long as the Insurer is the Controlling Party) and 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 and the Insurer (for so long as it is the
Controlling Party), for any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the lien of this Indenture, or better to assure, convey
and confirm unto the Indenture Trustee any property subject or required to
be subjected to the lien of this Indenture, or to subject to the lien of
this Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another person to the Issuer, and the assumption by
any such successor of the covenants of the Issuer herein and in the Notes
contained;
46
(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, as evidenced by an Opinion of Counsel, adversely affect the interests
of the Holders of the Notes or the Insurer;
(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 the prior
written consent of the Insurer (for so long as it is the Controlling Party) and
with prior written notice to the Rating Agencies by the Issuer, as evidenced to
the Indenture Trustee, enter into an amendment hereto in form satisfactory to
the Insurer (for so long as it is the Controlling Party) 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 or the Insurer.
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, with prior written notice to the Rating Agencies and with the
consent of the Insurer (for so long as it is the Controlling Party) and the
Holders of not less than a majority of the Outstanding Amount of each Class
of Notes affected thereby, by Act of such Holders delivered to the
47
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 if the Controlling Party is not the Insurer, no such amendment shall
adversely affect the interests of the Insurer; and PROVIDED, FURTHER 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 4.03
of the Series Supplement;
(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,
48
except as otherwise permitted or contemplated herein or in the
Series 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.
49
SECTION 9.6 CONFORMITY WITH TRUST INDENTURE ACT. Every
amendment of this Indenture and the Series Supplement executed pursuant to
this Article IX shall conform to the requirements of the Trust Indenture Act
as then in effect so long as this Indenture shall then be qualified under the
Trust Indenture Act.
SECTION 9.7 REFERENCE IN NOTES TO 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.
SECTION 10.1 NOTE INSURER'S RIGHTS REGARDING ACTIONS,
PROCEEDINGS OR INVESTIGATIONS.
(a) In connection with any action, proceeding or investigation
against or with respect to the Issuer, for so long as the Insurer is the
Controlling Party the Indenture Trustee and the Issuer hereby agree to
cooperate with, and to take such action as directed in writing by, the
Insurer, including, without limitation, entering into such agreements and
settlements as the Insurer shall direct in writing, in its sole discretion,
without the consent of any other Person. Notwithstanding any other provision
herein or in any of the other Basic Documents, the Indenture Trustee shall
not require any bond or indemnification from any Person for taking of any
action at the direction of the Insurer given at a time when the Insurer is
the Controlling Party, and the Indenture Trustee shall not be liable to the
Issuer or the Insurer for any such action that conforms to the direction of
the Insurer given at a time when the Insurer is the Controlling Party. The
Indenture Trustee's reasonable out-of-pocket costs and expenses (including
attorneys' fees and expenses) with respect to any such action shall be
reimbursed pursuant to Section 3.03(a) of the Series Supplement.
(b) The Issuer and the Indenture Trustee hereby agree to provide
to the Insurer prompt written notice of any action, proceeding or
investigation that names the Issuer or the Indenture Trustee as a party or
that involves the Issuer or the Series Trust Estate or the rights or
obligations of the Insurer under the Related Documents or under the Note
Policy, including, without limitation, any insolvency or bankruptcy
proceeding in respect of the Issuer.
(c) Notwithstanding anything contained herein or in any of the
other Basic Documents to the contrary, the Issuer and the Indenture Trustee
shall not, without the Insurer's prior written consent so long as the Insurer
is the Controlling Party, which consent shall not be unreasonably withheld,
or unless directed by the Insurer in writing so long as the Insurer is the
Controlling Party, undertake or join any litigation or agree to any
settlement of any action, proceeding or investigation affecting the Series
Trust Estate
50
or the Issuer or the rights or obligations of the Insurer under the Basic
Documents or under the Note Policy.
(d) The Insurer shall have such rights as set forth in this
Section, which are in addition to any rights of the Insurer pursuant to the
other provisions of the Basic Documents and the rights set forth in this
Section may be exercised by the Insurer so long as the Insurer is the
Controlling Party, in its sole discretion, without the need for the consent
or approval of the Issuer, the Indenture Trustee or any other Person,
notwithstanding any other provision contained herein or in any of the other
Basic Documents. Nothing contained in this Section shall be deemed to create
or constitute an obligation of the Insurer to exercise any of the rights
provided for herein.
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 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.
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(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 in the
certificates required by clause (ii) above and this clause (iv), 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.
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(v) Notwithstanding 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 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
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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 2002-2, 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.
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
54
(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 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. Any
additional costs and expenses incurred by the Indenture Trustee pursuant to
this Section shall be a cost and expense of the Indenture Trustee pursuant to
Section 3.03(a)(iii) of the Series Supplement.
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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 Insurer and its successors, 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. The parties hereto
agree that the Insurer is a third-party beneficiary hereof and the Insurer
shall be entitled to rely upon and directly enforce the provisions of this
Indenture for so long as the Insurer is the Controlling Party; PROVIDED that
nothing herein shall affect or limit the Insurer's rights as subrogee to the
Noteholders.
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 LAWS PROVISIONS WHICH WOULD REQUIRE THE APPLICATION OF THE
LAWS OF ANY OTHER
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JURISDICTION, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 COUNTERPARTS. This Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one and
the same instrument.
SECTION 11.15 RECORDING OF INDENTURE. If this Indenture or 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.
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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 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
58
obligation, representation, warranty or covenant made or undertaking by the
Issuer under this Indenture or any related documents.
[Signature Page Follows]
59
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 2002-2
By: U.S. BANK NATIONAL ASSOCIATION, not
in its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Child
------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Child
Title: Vice President
JPMORGAN CHASE BANK,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
EXHIBIT A
FORM OF TRANSFEREE CERTIFICATE
Pursuant to Section 2.4 of the Indenture dated as of August 8, 2002
between Household Automotive Trust 2002-2 and JPMorgan Chase Bank, ___________
(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