Exhibit 4.1
MASTER INDENTURE
between
GE DEALER FLOORPLAN MASTER NOTE TRUST,
as Issuer
and
WILMINGTON TRUST COMPANY,
as Indenture Trustee
Dated as of August 12, 2004
GE DEALER FLOORPLAN MASTER NOTE TRUST
Reconciliation and Tie between this Indenture
and the
Trust Indenture Act of 1939, as amended
TIA Section Indenture Section
---------------------- -----------------
310(a)(1) 6.11
(a)(2) 6.11
(a)(3) 6.10(b)
(a)(4) Not Applicable
(b) 6.11
(c) Not Applicable
311(a) 6.13
(b) 6.13
312(a) 7.1
(b) 7.2(b); 10.14
(c) 7.2(c); 10.14
313(a) 6.14; 6.6
(b)(1) 6.14
(b)(2) 6.14
(c) 6.14
(d) 6.14
314(a) 7.3
(b) 3.6; 8.8
(c)(1) 8.7
(c)(2) 8.7
(c)(3) 8.7
(d) 8.7
(e) 10.1
(f) Not Applicable
315(a) 6.1
(b) 6.5
(c) 6.1
(d) 6.7
(e) 5.12
316(a) (last sentence) 2.12
(a)(1)(A) 5.10
(a)(1)(b) 5.11
(a)(2) Not Applicable
317(a)(1) 5.3
(a)(2) 5.3
(b) 6.16
318(a) 10.17
(c) 10.17
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE.................... 2
SECTION 1.1. Definitions........................................... 2
SECTION 1.2. Other Interpretive Matters............................ 25
SECTION 1.3. Incorporation by Reference of TIA..................... 26
ARTICLE II THE NOTES.................................................... 26
SECTION 2.1. Form.................................................. 26
SECTION 2.2. Execution, Authentication and Delivery................ 27
SECTION 2.3. Temporary Notes....................................... 28
SECTION 2.4. Registration; Registration of Transfer and Exchange... 28
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes............ 29
SECTION 2.6. Persons Deemed Owner.................................. 30
SECTION 2.7. Payment of Principal and Interest; Defaulted
Interest.............................................. 31
SECTION 2.8. New Issuances......................................... 32
SECTION 2.9. Cancellation.......................................... 33
SECTION 2.10. Book-Entry Notes...................................... 33
SECTION 2.11. Notices to Clearing Agency............................ 34
SECTION 2.12. Definitive Notes...................................... 34
SECTION 2.13. Treasury Notes........................................ 35
SECTION 2.14. CUSIP Numbers......................................... 35
SECTION 2.15. Perfection Representations and Warranties............. 35
SECTION 2.16. Notes to Constitute Indebtedness...................... 35
SECTION 2.17. Redemption............................................ 36
ARTICLE III COVENANTS................................................... 36
SECTION 3.1. Payment of Principal and Interest..................... 36
SECTION 3.2. Maintenance of Office or Agency....................... 36
SECTION 3.3. Paying Agent's Obligations............................ 36
SECTION 3.4. Existence............................................. 37
SECTION 3.5. Protection of the Collateral; Further Assurances...... 37
SECTION 3.6. Opinion as to the Collateral.......................... 37
SECTION 3.7. Performance of Obligations; Servicing of Transferred
Receivables........................................... 37
-i-
TABLE OF CONTENTS
(continued)
PAGE
----
SECTION 3.8. Taxes................................................. 40
SECTION 3.9. Annual Statement as to Compliance..................... 40
SECTION 3.10. Negative Covenants.................................... 40
SECTION 3.11. Successor or Transferee............................... 43
SECTION 3.12. Notice of Early Amortization Event and Events of
Default............................................... 44
SECTION 3.13. Further Instruments and Acts.......................... 44
SECTION 3.14. Enforcement of Related Documents...................... 44
ARTICLE IV SATISFACTION AND DISCHARGE................................... 44
SECTION 4.1. Satisfaction and Discharge of Indenture............... 44
SECTION 4.2. Application of Trust Funds............................ 46
ARTICLE V TRUST EARLY AMORTIZATION EVENTS, EVENTS OF DEFAULTS AND
REMEDIES...................................................... 46
SECTION 5.1. Trust Early Amortization Events....................... 46
SECTION 5.2. Events of Default..................................... 46
SECTION 5.3. Acceleration of Maturity and Annulment; Remedies...... 47
SECTION 5.4. Collection of Indebtedness and Suits for Enforcement
by the Indenture Trustee.............................. 50
SECTION 5.5. Limitation of Suits................................... 52
SECTION 5.6. Unconditional Rights of Noteholders to Receive
Principal and Interest................................ 53
SECTION 5.7. Restoration of Rights and Remedies.................... 53
SECTION 5.8. Rights and Remedies Cumulative........................ 53
SECTION 5.9. Delay or Omission Not a Waiver........................ 53
SECTION 5.10. Control by Noteholders................................ 53
SECTION 5.11. Waiver of Past Defaults............................... 54
SECTION 5.12. Undertaking for Costs................................. 54
SECTION 5.13. Waiver of Stay or Extension Laws...................... 54
SECTION 5.14. Action on Notes....................................... 54
SECTION 5.15. Performance and Enforcement of Certain Obligations.... 55
SECTION 5.16. Sale of Collateral.................................... 55
ARTICLE VI THE INDENTURE TRUSTEE AND THE PAYING AGENT................... 57
-ii-
TABLE OF CONTENTS
(continued)
PAGE
----
SECTION 6.1. Duties of the Indenture Trustee....................... 57
SECTION 6.2. Rights of the Indenture Trustee....................... 59
SECTION 6.3. Individual Rights of the Indenture Trustee............ 60
SECTION 6.4. Funds Held in Trust................................... 61
SECTION 6.5. Notice of Early Amortization Events or Events or
Defaults.............................................. 61
SECTION 6.6. Reports by Indenture Trustee to the Noteholders....... 61
SECTION 6.7. Compensation and Indemnity............................ 61
SECTION 6.8. Resignation and Removal; Appointment of Successor..... 62
SECTION 6.9. Successor Indenture Trustee by Merger................. 63
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee......... 63
SECTION 6.11. Eligibility; Disqualification......................... 64
SECTION 6.12. Acceptance by Indenture Trustee....................... 66
SECTION 6.13. Preferential Collection of Claims Against the Issuer.. 66
SECTION 6.14. Reports by Indenture Trustee to Noteholders........... 66
SECTION 6.15. Representations and Warranties........................ 66
SECTION 6.16. The Paying Agent...................................... 67
ARTICLE VII NOTEHOLDERS LISTS AND REPORTS............................... 68
SECTION 7.1. The Issuer to Furnish the Indenture Trustee Names and
Addresses of Noteholders.............................. 68
SECTION 7.2. Preservation of Information; Communications to
Noteholders........................................... 68
SECTION 7.3. Reports by the Issuer................................. 69
SECTION 7.4. List of Noteholders................................... 69
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES....................... 70
SECTION 8.1. Collection of Amounts Due............................. 70
SECTION 8.2. Trust Accounts........................................ 70
SECTION 8.3. Rights of Noteholders................................. 71
SECTION 8.4. Collections and Allocations........................... 71
SECTION 8.5. Shared Principal Collections.......................... 73
SECTION 8.6. Excess Non-Principal Collections...................... 74
SECTION 8.7. Release of Collateral................................. 74
-iii-
TABLE OF CONTENTS
(continued)
PAGE
----
SECTION 8.8. Opinion of Counsel.................................... 74
ARTICLE IX SUPPLEMENTAL INDENTURES...................................... 75
SECTION 9.1. Supplemental Indentures Without Consent of
Noteholders........................................... 75
SECTION 9.2. Supplemental Indentures With Consent of Noteholders... 76
SECTION 9.3. Execution of Supplemental Indentures.................. 78
SECTION 9.4. Effect of Supplemental Indenture...................... 78
SECTION 9.5. Reference in Notes to Supplemental Indentures......... 78
SECTION 9.6. Conformity with Trust Indenture Act................... 78
ARTICLE X MISCELLANEOUS................................................. 78
SECTION 10.1. Compliance Certificates and Opinions, etc............. 79
SECTION 10.2. Form of Documents Delivered to the Indenture Trustee.. 80
SECTION 10.3. Acts of Noteholders................................... 81
SECTION 10.4. Notices, etc., to the Indenture Trustee, the Issuer
and Rating Agencies................................... 82
SECTION 10.5. Notices to Noteholders; Waiver........................ 83
SECTION 10.6. Alternate Payment and Notice Provisions............... 83
SECTION 10.7. Successors and Assigns................................ 84
SECTION 10.8. Severability.......................................... 84
SECTION 10.9. Benefits of Indenture................................. 84
SECTION 10.10. Legal Holidays........................................ 84
SECTION 10.11. Governing Law......................................... 84
SECTION 10.12. Counterparts.......................................... 86
SECTION 10.13. The Issuer Obligation................................. 86
SECTION 10.14. Communication by Noteholders with Other Noteholders... 86
SECTION 10.15. Agents of the Issuer.................................. 86
SECTION 10.16. Survival of Representations and Warranties............ 86
SECTION 10.17. Conflict with Trust Indenture Act..................... 86
SECTION 10.18. Subordination......................................... 86
SECTION 10.19. Title to Trust Property............................... 87
-iv-
EXHIBIT A Form of Officer's Certificate (Section 3.9)
SCHEDULE 1 Perfection Representations and Warranties (Section 2.15)
-v-
MASTER INDENTURE, dated as of August 12, 2004, between GE DEALER FLOORPLAN
MASTER NOTE TRUST, a Delaware statutory trust and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as trustee and not in its individual capacity.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by
the holders thereof, it is mutually covenanted and agreed, for the benefit of
all Noteholders, as follows:
GRANTING CLAUSE
The Issuer, as security for the Issuer's obligations under the Notes and
this Indenture, hereby Grants to the Indenture Trustee on the Closing Date
relating to the first Series of Notes, as the Indenture Trustee for the benefit
of the Noteholders and the Indenture Trustee, a security interest in all of the
Issuer's right, title and interest in, to and under the following, whether now
existing or hereafter arising or acquired (collectively, the "Collateral"): (a)
the Note Trust Certificate; (b) the Transferred Receivables; (c) Collections
related to and all money, instruments, investment property and other property
distributed or distributable in respect of (together with all earnings,
dividends, distributions, income, issues, and profits relating to) the
Transferred Receivables pursuant to the terms of this Indenture and any
Indenture Supplement; (d) all funds, Financial Assets, Investment Property or
other property on deposit from time to time in or credited to the Trust
Accounts, including the proceeds thereof and income thereon; (e) all Insurance
Proceeds; (f) all proceeds of derivative contracts, if any, between the Issuer
or, to the extent assigned to the Issuer, the Transferor and a counterparty, as
described in any Indenture Supplement; (g) all present and future claims,
demands, causes and causes in action in respect of any or all of the property
described in the foregoing clauses (a) through (f) and all payments on, under or
in respect of any or all of the foregoing, including all proceeds of the
conversion, voluntary or involuntary, into cash or other liquid property, all
cash proceeds, Trust Accounts, promissory notes, drafts, acceptances, chattel
paper, checks, deposit accounts, insurance proceeds, condemnation awards, rights
to payment of any and every kind and other forms of obligations and receivables,
instruments and other property that at any time constitute all or part of or are
included in the proceeds of any and all of the foregoing; (h) all rights,
remedies, powers, privileges and claims of the Issuer under or with respect to
any Series Enhancement or any Related Document (whether arising pursuant to the
terms of the related Enhancement Agreement, any Related Document or otherwise
available to the Issuer at law or in equity), including the rights of the Issuer
to enforce such Enhancement Agreement or any Related Document and to give or
withhold any and all consents, requests, notices, directions, approvals,
extensions or waivers under or with respect to such Enhancement Agreement or any
Related Document to the same extent as the Issuer could but for the assignment
and security interest granted to the Indenture Trustee for the benefit of the
Noteholders; (i) all general intangibles relating to or arising out of any of
the property described in the foregoing clauses (a) through (h); (j) all
proceeds of any of the property described in the foregoing clauses (a) through
(i); and (k) all other personal property of the Issuer, of whatever kind or
nature and wherever located.
Such Grant is made in trust to the Indenture Trustee.
The Indenture Trustee, on behalf of the Noteholders, (i) acknowledges such
Grant, and (ii) accepts the trusts under this Indenture in accordance with this
Indenture and agrees, subject to the terms and conditions hereof, to perform its
duties required in this Indenture to the best of its ability to the end that the
interests of the Noteholders may be adequately and effectively protected.
The Issuer shall file, and hereby authorizes the Indenture Trustee to file,
a UCC financing statement with a collateral description covering all of the
Issuer's personal property, wherever located, whether now existing or arising in
the future.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions. Except as otherwise specified or as the context
may otherwise require, the following capitalized terms only have the meanings
set forth below for all purposes of this Indenture (including the Granting
Clause of this Indenture).
"Account" means each Initial Account and, from and after the related
Addition Date, each Additional Account. The term "Account" shall not include any
Removed Accounts.
"Account Schedule" is defined in the First Tier Agreement.
"Accounts Receivable" means, with respect to any Dealer, all amounts shown
on such Dealer's records as amounts payable by a customer in respect of goods or
services sold by such Dealer to such customer.
"Accounts Receivable Business" means the extensions of credit made by an
Originator to Dealers in order to finance the Accounts Receivable of such
Dealers.
"Accounts Receivable Financing Agreement" means an accounts receivable
financing agreement entered into by an Originator with a Dealer in connection
with the Accounts Receivable Business.
"Act" is defined in Section 10.3(a).
"Addition Date" is defined in the First Tier Agreement.
"Additional Account" means an Eligible Account, which is designated
pursuant to the First Tier Agreement to be included as an Account and is
identified in an Account Schedule delivered to the Indenture Trustee.
"Administration Agreement" means the Administration Agreement, dated as of
August 12, 2004, between the Administrator, the Trustee and the Issuer.
"Administrator" means GE Capital, in its capacity as Administrator under
the Administration Agreement, or any other Person designated as Administrator
under the Administration Agreement.
2
"Adverse Effect" means, with respect to any action, that such action will
(a) result in the occurrence of an Early Amortization Event or an Event of
Default or (b) materially and adversely affect the amount or timing of
distributions to be made to the Noteholders of any Series or Class pursuant to
the Related Documents.
"Affiliate" means, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the securities having
ordinary voting power in the election of directors of such Person, (b) each
Person that controls, is controlled by or is under common control with such
Person, or (c) each of such Person's officers, directors, joint venturers and
partners. For the purposes of this definition, "control" of a Person means the
possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Aggregate Principal Receivables" means, as of any date of determination,
the aggregate Outstanding Balance of Principal Receivables held by the Issuer as
of such date.
"Allocation Percentage" is defined, for any Series, in the related
Indenture Supplement.
"Amortization Period" means, as to any Series or any Class within a Series,
any Early Amortization Period or any period specified as an "Amortization
Period," if any, in the related Indenture Supplement.
"Asset Based Lending Business" means the extensions of credit made by an
Originator to Dealers in order to provide loans based on the value of certain
assets of such Dealers.
"Asset Based Lending Financing Agreement" means an asset based lending
financing agreement entered into by an Originator and a Dealer in connection
with the Asset Based Lending Business.
"Authenticating Agent" is defined in Section 2.2(e).
"Authorized Officer" means (a) with respect to any corporation or statutory
trust, the Chairman or Vice-Chairman of the Board, the President, any Vice
President, the Secretary, the Treasurer, any Assistant Secretary, any Assistant
Treasurer and each other officer or employee of such corporation or trustee of
such statutory trust specifically authorized in resolutions of the Board of
Directors of such corporation or trustee or administrator of such statutory
trust to sign agreements, instruments or other documents on behalf of such
corporation or statutory trust or by the governing documents or agreements of
such statutory trust in connection with the transactions contemplated by the
Related Documents, and (b) with respect to a limited liability company, any
officer or manager of such limited liability company, provided, that any
Authorized Officer of the Transferor shall be considered to be an Authorized
Officer of the Issuer.
"Bankruptcy Code" means the provisions of Title 11 of the United States
Code, 11 U.S.C. Sections 101 et seq.
3
"Benefit Plan" means (i) an "employee benefit plan" as defined in Section
3(3) of ERISA which is subject to Title I of ERISA, (ii) a "plan" as defined in
Section 4975 of the Code, (iii) an entity whose underlying assets include plan
assets of the foregoing, or (iv) a governmental plan subject to applicable law
that is substantially similar to the fiduciary responsibility provisions of
ERISA or Section 4975 of the Code.
"Book-Entry Notes" means a beneficial interest in the Notes of a particular
Class, ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.10.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banks are required or permitted to be closed in the State of New York, the
State of Illinois or the State of Connecticut (or, with respect to any Series,
any additional city specified by the related Indenture Supplement).
"Certificated Security" has the meaning assigned to such term in Section
8-102 of Article 8 of the UCC.
"Chattel Paper" has the meaning assigned thereto in Section 9-102 of
Article 9 of the UCC.
"Class" means any class of Notes of any Series.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act that has been designated
as the "Clearing Agency" for purposes of this Indenture. The initial Clearing
Agency is The Depository Trust Company.
"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 such Clearing
Agency.
"Closing Date" means, with respect to any Series, the date specified as
such in the Indenture Supplement for such Series.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and Treasury Regulations promulgated thereunder.
"Collateral" is defined in the Granting Clause of this Indenture.
"Collateral Amount" is defined, with respect to any Series, in the
Indenture Supplement for such Series.
"Collateral Security" means, with respect to any Receivable, (i) the
security interest, if any, granted by or on behalf of the related Dealer with
respect thereto, including a security interest in the related Products, Accounts
Receivable or assets, (ii) all other security interests or liens and property
subject thereto from time to time purporting to secure payment of such
Receivable, whether pursuant to the agreement giving rise to such Receivable or
otherwise, together with all financing statements filed against a Dealer
describing any collateral securing
4
such Receivable, (iii) all guarantees, insurance and other agreements (including
Floorplan Agreements and subordination agreements with other lenders) or
arrangements of whatever character from time to time supporting or securing
payment of such Receivable whether pursuant to the agreement giving rise to such
Receivable or otherwise, and (iv) all Records in respect of such Receivable.
"Collection Account" means the account designated as such, established and
owned by the Issuer and maintained in accordance with Section 8.2.
"Collections" means, without duplication, all payments by or on behalf of
Dealers received in respect of the Receivables (including proceeds from the
realization upon any Collateral Security), in the form of cash, checks, wire
transfers or any other form of payment. Collections of Non-Principal Receivables
shall include all Recoveries. Amounts paid by Transferor pursuant to Section 2.5
of the Second Tier Agreement shall be deemed to be Principal Collections.
Amounts paid by Transferor pursuant to Section 6.1(e) of the Second Tier
Agreement shall be deemed to be Principal Collections to the extent that they
represent the purchase price of Principal Receivables. Amounts paid by the
Master Servicer pursuant to Section 2.6 of the Servicing Agreement shall be
deemed to be Principal Collections. The net proceeds of the sales of
participations in Receivables after such Receivables are transferred to the
Issuer shall be deemed to be Principal Collections.
"Combined Outstanding Principal Balances" means the outstanding balance of
all Principal Receivables held by the Issuer plus the outstanding balance of
"Principal Receivables" (as defined in the Pooling and Servicing Agreement) held
by DFS Financing Trust allocable to the Note Trust Certificate.
"Commission" means the Securities and Exchange Commission.
"Concentration Limit Percentage" has the meaning set forth in the
definition of Dealer Concentration Limit.
"Control", with respect to any Federal Book Entry Security, means that:
(i) the Indenture Trustee is a "participant" (as such term is defined in
the Federal Book Entry Regulations) in the book entry system maintained by the
Federal Reserve Bank that is acting as fiscal agent for the issuer of such
Federal Book Entry Security, and such Federal Reserve Bank has indicated by book
entry that a Securities Entitlement to such Federal Book Entry Security has been
credited to the Indenture Trustee's Securities Account maintained by such
Federal Reserve Bank in such book entry system; or
(ii) (a) the Indenture Trustee (1) is registered on the records of a
Securities Intermediary as the Person having a Securities Entitlement in respect
of such Federal Book Entry Security against such Securities Intermediary; or (2)
has obtained the agreement, in writing, of the Securities Intermediary for such
Securities Entitlement that such Securities Intermediary will comply with
Entitlement Orders of the Indenture Trustee without further consent of any other
Person; (b) the Securities Intermediary is a "participant" (as such term is
defined in the Federal Book Entry Regulations) in the book entry system
maintained by the Federal Reserve Bank that is acting as fiscal agent for the
issuer of such Federal Book Entry Security; and (c) such Federal
5
Reserve Bank has indicated by book entry that a Security Entitlement to such
Federal Book Entry Security has been credited to the Securities Intermediary's
Securities Account maintained by such Federal Reserve Bank in such book entry
system.
"Corporate Trust Office" means, (a) with respect to the Indenture Trustee,
the principal office of the Indenture Trustee at which at any particular time
its corporate trust business shall be administered, which office at the date of
this Indenture is located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Administration (facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇);
or at such other address as the Indenture Trustee may designate from time to
time by notice to the Noteholders and the Issuer, or the principal corporate
trust office of any successor Indenture Trustee (the address of which the
successor Indenture Trustee will notify the Noteholders and the Issuer) and (b)
with respect to the Trustee, as provided in the Trust Agreement.
"Credit and Collection Policies" means the credit and collection policies
adopted by the Issuer pursuant to the Credit and Collection Policies Resolution,
as such credit and collection policies may be amended or modified from time to
time.
"Credit and Collection Policies Resolution" means a resolution adopted by
the Issuer on or prior to the Closing Date for the first Series issued by the
Issuer.
"Custodian" means Wilmington Trust Company, as custodian under the Custody
and Control Agreement, or any successor custodian under the Custody and Control
Agreement.
"Custody and Control Agreement" means the Custody and Control Agreement,
dated as of August 12, 2004, among the Issuer, the Custodian and the Indenture
Trustee.
"Date of Processing" means, as to any transaction, the date on which the
transaction is first recorded on the Issuer's computer file of accounts (without
regard to the effective date of such recordation).
"Dealer" means a Person engaged generally in the business of purchasing
consumer or commercial products from a manufacturer or distributor thereof and
holding such Products for sale or lease in the ordinary course of business or a
Person engaged generally in the business of manufacturing or distributing
Products for sale to Dealers in the ordinary course of business.
"Dealer Concentration Limit" means a dollar amount calculated as a
percentage (the "Concentration Limit Percentage") of the Combined Outstanding
Principal Balances as of the end of each Monthly Period, subject to the
following limitations:
(a) if a Dealer is ranked first or second owing the largest amount of
such Principal Receivables as of the end of a Monthly Period, the
Concentration Limit Percentage shall equal two and one-half percent (2.5%);
(b) if a Dealer is ranked third or fourth owing the largest amount of
such Principal Receivables as of the end of a Monthly Period, the
Concentration Limit Percentage shall equal two percent (2.0%);
6
(c) if a Dealer is ranked fifth through seventh owing the largest
amount of such Principal Receivables as of the end of a Monthly Period, the
Concentration Limit Percentage shall equal one and three-quarters percent
(1.75%);
(d) if a Dealer is ranked eighth through eleventh owing the largest
amount of such Principal Receivables as of the end of a Monthly Period, the
Concentration Limit Percentage shall equal one and one-half percent (1.5%);
(e) if a Dealer is ranked twelfth through sixteenth owing the largest
amount of such Principal Receivables as of the end of a Monthly Period, the
Concentration Limit Percentage shall equal one and one-quarter percent
(1.25%);
(f) if a Dealer is ranked seventeenth through twenty-sixth owing the
largest amount of such Principal Receivables as of the end of a Monthly
Period, the Concentration Limit Percentage shall equal one percent (1.0%);
(g) if a Dealer is ranked twenty-seventh through forty-first owing the
largest amount of such Principal Receivables as of the end of a Monthly
Period, the Concentration Limit Percentage shall equal three-quarters of
one percent (0.75%); and
(h) if a Dealer is ranked forty-second or lower owing the largest
amount of such Principal Receivables as of the end of a Monthly Period, the
Concentration Limit Percentage shall equal one-half of one percent (0.50%).
Notwithstanding the foregoing, any percentage specified in this definition
of Dealer Overconcentration Limit may, if the Rating Agency Condition is
satisfied, be increased to be such larger percentage of the Combined Outstanding
Principal Balances as of the end of each Monthly Period, as is stated in the
notice from each applicable Rating Agency in connection with the satisfaction of
the Rating Agency Condition.
"Dealer Overconcentration" means, on any Determination Date, with respect
to an Overconcentrated Dealer, the excess, if any, of (a) the portion of the
Combined Outstanding Principal Balances that are owed by such Dealer, over (b)
the Dealer Concentration Limit with respect to such Dealer.
"Dealer Overconcentration Percentage" means, with respect to an
Overconcentrated Dealer, a fraction, calculated as of the end of each Monthly
Period, expressed as a percentage, (a) the numerator of which is the Dealer
Overconcentration with respect to such Dealer, and (b) the denominator of which
is the portion of the Combined Outstanding Principal Balances owed by such
Dealer.
"Debtor Relief Law" means the Bankruptcy Code and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, suspension of payments, readjustment
of debt, marshalling of assets or similar debtor relief laws of the United
States, any state or any foreign country from time to time in effect, affecting
the rights of creditors generally.
7
"Default" means any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default.
"Default Amount" means for any date of determination with respect to the
preceding month, the result of (a) the sum, for all Accounts, of the amount of
Principal Receivables (other than Ineligible Receivables, unless there is an
Insolvency Event with respect to the related Originator or the Transferor) in
such Accounts which became Defaulted Receivables during such month, plus (b) the
amount of "Defaulted Receivables" (as defined in the Pooling and Servicing
Agreement) that are allocated to the Note Trust Certificate with respect to such
month.
"Defaulted Receivable" is defined in the First Tier Agreement.
"Definitive Notes" is defined in Section 2.10.
"Delivery" means, when used with respect to Trust Account Property:
(i) with respect to any such Trust Account Property that constitutes a
Certificated Security, transfer of possession of such Certificated Security to
the Indenture Trustee or its nominee or custodian by physical delivery to the
Indenture Trustee or its nominee or custodian, endorsed to, or registered in the
name of, the Indenture Trustee or its nominee or custodian or endorsed in blank
(and, in the case of delivery to any nominee of or custodian for the Indenture
Trustee, such nominee or custodian shall have acknowledged in writing that it is
holding possession thereof on behalf of and for the Indenture Trustee); and
(ii) with respect to any such Trust Account Property that constitutes an
Uncertificated Security (including any investments in money market mutual funds,
but excluding any Federal Book-Entry Security), satisfaction of the requirements
for obtaining "control" pursuant to Section 8-106(c)(2) of Article 8 of the UCC.
"Determination Date" means, unless otherwise specified in any Indenture
Supplement with respect to the related Series, the second Business Day preceding
each Payment Date.
"DFS Financing Trust" means Distribution Financial Services Floorplan
Master Trust.
"DFS Financing Trust Termination Date" means the date on which DFS
Financing Trust is terminated.
"Early Amortization Event" means, as to any Series, (a) each event, if any,
specified in the relevant Indenture Supplement as an Early Amortization Event
for that Series and (b) a Trust Early Amortization Event.
"Early Amortization Period" with respect to a Series, is defined in the
related Indenture Supplement.
"Eligible Account" is defined in the First Tier Agreement.
"Eligible Deposit Account" means: (a) a deposit account maintained with a
federal or state-chartered depository institution or trust company that is an
Eligible Institution or (b) a
8
segregated trust account maintained with the corporate trust department of a
federal depository institution or state chartered depository institution that is
subject to federal or state regulations regarding fiduciary funds on deposit
substantially similar to 12 C.F.R. Section 9.10(b) which, in the case of this
clause (b), has corporate trust powers, acting in its fiduciary capacity.
"Eligible Institution" means (a) in the case of deposit accounts or trust
accounts in which deposits are held for less than thirty (30) days, an
institution whose commercial paper, short-term debt obligations or other
short-term deposits are rated A-1+ by S&P and, if rated by Moody's, are rated
P-1 by Moody's; and (b) in the case of deposit accounts or trust accounts in
which deposits are held for more than thirty (30) days, in institution whose
long-term unsecured debt obligations are rated at least AA- by S&P and, if rated
by Moody's, are rated at least Baa3 by Moody's.
"Enhancement Agreement" means any agreement, instrument or document
governing the terms of any Series Enhancement or pursuant to which any Series
Enhancement is issued.
"Entitlement Order" has the meaning assigned thereto in Section 8-102(a) of
Article 8 of the UCC.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" is defined in Section 5.2.
"Excess Allocation Series" means a Series that, pursuant to the Indenture
Supplement therefor, is entitled to receive certain excess Collections of
Non-Principal Receivables, as set forth in such Indenture Supplement. If so
specified in the Indenture Supplement for a Group of Series, such Series may be
an Excess Allocation Series only for the Series in such Group.
"Excess Funding Account" means the account designated as such, established
and owned by the Issuer and maintained in accordance with Section 8.2.
"Excess Non-Principal Collections" means all amounts, if any, that any
Indenture Supplement designates as "Excess Non-Principal Collections."
"FDIC" means the Federal Deposit Insurance Corporation.
"Federal Book-Entry Regulations" means (a) the Federal regulations listed
on Appendix A to Operating Circular No. 7 issued by the Federal Reserve Banks
and (b) the Federal regulations published at 25 C.F.R. Part 350.
"Federal Book-Entry Security" means a marketable security (a) issued in
electronic form by (i) the United States Government, (ii) the Federal Home Loan
Mortgage Corporation, the Federal National Mortgage Association or the
Government National Mortgage Association or (iii) any direct obligation of any
other agency or instrumentality of the United States Government that is fully
guaranteed as to timely payment or principal and interest by the United States
of America and (b) that the Federal Reserve Banks have determined is eligible to
be held in an account at a Federal Reserve Bank containing securities of such
type pursuant to the Federal Book-Entry Regulations.
9
"Financial Asset" has the meaning assigned thereto in Section 8-102 of
Article 8 of the UCC.
"Financing Agreement" means any Wholesale Financing Agreement or Asset
Based Lending Financing Agreement.
"First Tier Agreement" means the Receivables Sale Agreement, dated as of
August 12, 2004, among the Originators and the Transferor.
"Fitch" means Fitch, Inc., doing business as Fitch Ratings.
"Floorplan Agreement" means an agreement entered into by an Originator and
a Manufacturer establishing certain terms and conditions for the financing of
such Manufacturer's Dealers by such Originator, which may include such
Manufacturer's agreement, among other matters, to repurchase from, or remarket
for, such Originator Products sold by such Manufacturer to any of its Dealers
and financed by such Originator under a Wholesale Financing Agreement if such
Originator acquires possession of such Products because of a default by such
Dealer under such Wholesale Financing Agreement, whether by repossession,
voluntary surrender or other circumstances.
"Floorplan Business" means the extensions of credit made by an Originator
to Dealers in order to finance Products purchased by Dealers from Manufacturers
for sale or lease by such Dealers.
"Free Equity Amount" means, on any date of determination, (a) the Note
Trust Principal Balance, minus (b) the aggregate of the Collateral Amounts for
all Series of Notes that are Outstanding.
"GE Capital" means General Electric Capital Corporation, a Delaware
corporation.
"Governmental Authority" means any nation or government, any state, county,
city, town, district, board, bureau, office commission, any other municipality
or other political subdivision thereof (including any educational facility,
utility or other Person operated thereby), and any agency, department or other
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Grant" means to create and ▇▇▇▇▇ ▇ ▇▇▇▇ pursuant to this Indenture, and
other forms of the verb "to Grant" shall have correlative meanings. A Grant with
respect to the Collateral or any other agreement or instrument shall include a
grant of a Lien upon all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the right, upon the
occurrence of a Default and declaration thereof by the party to whom such Grant
is made, to claim for, collect, receive and give receipt for principal and
interest payments in respect of the Collateral and all other amounts 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.
10
"Group" means, with respect to any Series, the group of Series, if any, in
which the related Indenture Supplement specifies such Series is to be included.
"Indenture" means this Master Indenture, dated as of August 12, 2004
between the Issuer and the Indenture Trustee.
"Indenture Servicer Default" means:
(a) failure on the part of the Master Servicer duly to observe or
perform in any material respect any covenants or agreements of the Master
Servicer set forth in the Servicing Agreement which has a material adverse
effect on the Noteholders, which continues unremedied for a period of sixty
(60) days after the date on which written notice of such failure requiring
the same to be remedied shall have been given to the Issuer by the
Indenture Trustee; or the Master Servicer shall assign or delegate its
duties under the Servicing Agreement except as permitted by the Servicing
Agreement, and such assignment or delegation continues unremedied for
fifteen (15) days after the date on which written notice thereof, requiring
the same to be remedied, shall have been given to the Issuer by the
Indenture Trustee at the direction of Noteholders of more than sixty-six
and two-thirds percent (66 2/3%) of the Outstanding Principal Balance of
the Notes; or
(b) any representation, warranty or certification made by the Master
Servicer in the Servicing Agreement or in any certificate delivered
pursuant to the Servicing Agreement shall prove to have been incorrect when
made, which has a material adverse effect on the rights of the Noteholders
and which continues to be incorrect in any material respect for a period of
sixty (60) days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Issuer by
the Indenture Trustee at the direction of Noteholders of more than
sixty-six and two-thirds percent (66 2/3%) of the Outstanding Principal
Balance of the Notes.
"Indenture Supplement" means, with respect to any Series, a supplement to
this Indenture, executed and delivered in connection with the original issuance
of the Notes of such Series pursuant to Section 2.8, and an amendment or
modification to this Indenture executed pursuant to Section 9.1 or Section 9.2,
and, in either case, including all amendments or modifications thereof and
supplements thereto.
"Indenture Trustee" means Wilmington Trust Company, not in its individual
capacity but solely as Indenture Trustee under this Indenture, or any successor
Indenture Trustee under this Indenture.
"Independent" means, with respect to any specified Person, any such Person
who (a) does not have any direct financial interest, or any material indirect
financial interest in any Originator, the Master Servicer, the Transferor, the
Issuer, or any Affiliate of any thereof and (b) is not connected with any
Originator, the Master Servicer, the Transferor, the Issuer, or any Affiliate of
any thereof, as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions; provided, however, that a
Person shall not fail to be Independent of any Originator, the Master Servicer,
the Transferor, the Issuer, or any Affiliate of any thereof
11
merely because such Person is the beneficial owner of one percent (1%) or less
of any class of securities issued by any Originator, the Master Servicer, the
Transferor, the Issuer or any Affiliate thereof, as the case may be.
"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 10.1 made by an
Independent appraiser or other expert appointed by an Issuer Order, and such
opinion or certificate shall state that the signer has read the definition of
"Independent" in this Indenture and that the signer is Independent within the
meaning thereof.
"Ineligible Receivables" means Receivables that are not Eligible
Receivables (as such term is defined in the First Tier Agreement).
"Initial Account" means each individual revolving credit arrangement
established by an Originator with a Dealer which was identified in an Account
Schedule delivered to the Indenture Trustee on or prior to the Initial Closing
Date. By its execution of this Indenture, the Indenture Trustee acknowledges
receipt of such Account Schedule on or prior to the Initial Closing Date.
"Initial Closing Date" means August 12, 2004.
"Insolvency Event" means, with respect to a specified Person: (a) the
commencement by a court having jurisdiction in the premises of an involuntary
action seeking: (i) a decree or order for relief in respect of such Person in a
case or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization, or other similar law, (ii) the appointment of a custodian,
receiver, liquidator, conservator, assignee, trustee, sequestrator, or other
similar official of such Person or (iii) the winding up or liquidation of such
Person's affairs, and notwithstanding the objection by such Person any such
action shall have remained undischarged or unstayed for a period of ninety (90)
consecutive days or any order or decree providing the sought after relief,
remedy or other action shall have been entered; or (b) the commencement by such
Person of a voluntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization, or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or an insolvent, or the consent
by it to the entry of a decree or order for relief in respect of such Person in
an involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, conservator, assignee, trustee, sequestrator,
or similar official of such Person or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or such
Person's failure to pay its debts generally as they become due, or the taking of
corporate action by such Person in furtherance of any such action.
"Instruments" has the meaning assigned thereto in Section 9-102 of Article
9 of the UCC.
"Insurance Proceeds" with respect to an Account means any amounts received
pursuant to any policy of insurance which are required to be paid to an
Originator pursuant to a Wholesale
12
Financing Agreement, Accounts Receivable Financing Agreement or Asset Based
Lending Financing Agreement.
"Investment Company Act" means the Investment Company Act of 1940.
"Investment Property" has the meaning assigned thereto in Section 9-102 of
Article 9 of the UCC.
"Issuer" means GE Dealer Floorplan Master Note Trust, a Delaware statutory
trust, until a successor replaces it and, thereafter, means the successor and,
for purposes of any provision contained in this Indenture and required by the
TIA, each other obligor on the Notes.
"Issuer Order" and "Issuer Request" means a written order or request,
respectively, signed in the name of the Issuer by any one of its Authorized
Officers and delivered to the Indenture Trustee.
"Lien" means any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale, any lease or title retention agreement, or any financing lease
having substantially the same economic effect as any of the foregoing), and the
filing of, or agreement to give, any financing statement perfecting a security
interest under the UCC or comparable law of any jurisdiction); provided,
however, Permitted Encumbrances shall not constitute a Lien.
"Manufacturer" means a Person engaged generally in the business of
manufacturing or distributing Products for sale or lease to Dealers in the
ordinary course of business.
"Manufacturer Concentration Limit" means a dollar amount calculated as
fifteen percent (15%) of the Combined Outstanding Principal Balances on the last
day of the applicable Monthly Period (in the case of each of the Manufacturers
that is among the three (3) Manufacturers which are parties to Floorplan
Agreements covering the largest portion of the Combined Outstanding Principal
Balances, or ten percent (10%) of the Combined Outstanding Principal Balances on
the last day of such Monthly Period (in the case of Manufacturers other than
such top three (3) Manufacturers) or, in each case, if the Rating Agency
Condition is satisfied, such larger percentage of the Combined Outstanding
Principal Balances as is stated in the notice from each applicable Rating Agency
in connection with the satisfaction of the Rating Agency Condition.
"Manufacturer Overconcentration" means, on any Determination Date, with
respect to all Accounts (as defined either herein or in the Pooling and
Servicing Agreement) covered by a Floorplan Agreement with the same Manufacturer
as obligor, the excess, if any, of (a) the Combined Outstanding Principal
Balances in such Accounts (as defined either herein or in the Pooling and
Servicing Agreement, as applicable) covered by such a Floorplan Agreement with
such Manufacturer, on the last day of the Monthly Period immediately preceding
such Determination Date, over (b) the Manufacturer Concentration Limit for such
Manufacturer.
"Manufacturer Overconcentration Percentage" means, with respect to an
Overconcentrated Manufacturer, a fraction, calculated as of the end of each
Monthly Period,
13
expressed as a percentage, (a) the numerator of which is the Manufacturer
Overconcentration with respect to such Manufacturer and (b) the denominator of
which is the Combined Outstanding Principal Balances in all Accounts (as defined
herein or in the Pooling and Servicing Agreement) covered by a Floorplan
Agreement (as defined herein or in the Pooling and Servicing Agreement) with
such Manufacturer.
"Master Servicer" means GE Capital, in its capacity as the master servicer
under the Servicing Agreement, or any other Person designated as a Successor
Master Servicer pursuant to the Servicing Agreement.
"Material Originator" means an Originator, if the aggregate amount of
Principal Receivables originated by such Originator and held by the Issuer is
equal to or greater than two percent (2%) (by dollar amount) of the Combined
Outstanding Principal Balances; provided, that if the aggregate amount of
Principal Receivables originated by an Originator and held by the Issuer is less
than two percent (2%) (by dollar amount) of the Combined Outstanding Principal
Balances (such Originator may be referred to as a "Less than 2% Originator"),
then such Less than 2% Originator and all other Less than 2% Originators shall
be treated as a single Material Originator if the sum of the aggregate amount of
Principal Receivables originated by such Less than 2% Originators and held by
the Issuer is equal to or greater than two percent (2%) (by dollar amount) of
the Combined Outstanding Principal Balances.
"Minimum Free Equity Amount" means, as of any date of determination, the
product of (a) the Note Trust Principal Balance and (b) the highest of the
Minimum Free Equity Percentages specified in the Indenture Supplements effective
on the date of determination.
"Minimum Free Equity Percentage", with respect to a Series, has the meaning
specified in the related Indenture Supplement.
"Monthly Period" means as to each Payment Date, the preceding calendar
month, unless otherwise defined with respect to a Series in the related
Indenture Supplement.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"New Issuance" is defined in Section 2.8(a).
"Non-Principal Collections" means the sum of (a) Collections of interest
and all other non-principal charges (including insurance service fees and
handling fees) on the Receivables; (b) all Recoveries; (c) all interest and
earnings on investments included in the Excess Funding Account, net of losses
and investment expenses; and (d) to the extent allocable to the Note Trust
Certificate, "Non-Principal Collections" (as defined in the Pooling and
Servicing Agreement).
"Non-Principal Receivables" with respect to any Account means all amounts
billed to the related Dealer in respect of interest and all other non-principal
charges.
"Non-Principal Shortfalls" is defined, as to any Series, in the related
Indenture Supplement.
14
"Note" means one of the notes issued by the Issuer pursuant to this
Indenture and an Indenture Supplement, substantially in the form attached to the
related Indenture Supplement.
"Note Depository Agreement" means an agreement among the Issuer, the
Indenture Trustee and The Depository Trust Company, as the initial Clearing
Agency.
"Note Owner" means, with respect to a Book-Entry Note, the Person who is
the owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with the Clearing
Agency (directly as a Clearing Agency Participant or as an indirect participant,
in each case in accordance with the rules of the Clearing Agency).
"Note Register" has the meaning specified in Section 2.4(a).
"Note Registrar" has the meaning specified in Section 2.4(a).
"Note Trust Certificate" means a certificate captioned "Note Trust
Certificate", representing a beneficial interest in a portion of the assets held
by DFS Financing Trust.
"Note Trust Certificate Balance" means the outstanding balance of the Note
Trust Certificate, as determined pursuant to the Series 2004-NTC Supplement.
"Note Trust Principal Balance" means, as of any time of determination
falling within or relating to a Monthly Period, the sum of (a) the Aggregate
Principal Receivables plus the Note Trust Certificate Balance at that time and
(b) the amount on deposit in the Excess Funding Account at that time (exclusive
of any investment earnings on such amount).
"Noteholder" means the Person in whose name a Note is registered on the
Note Register or such other Person deemed to be a "Noteholder" in any related
Indenture Supplement.
"Notice of Default" is defined in Section 5.2(c).
"Officer's Certificate" means, with respect to any Person, a certificate
signed by an Authorized Officer of such Person.
"Opinion of Counsel" means a written opinion of counsel (who may, except as
otherwise expressly provided in this Indenture, be an employee of or counsel to
the Issuer or an Affiliate of the Issuer), which counsel and opinion shall be
reasonably acceptable to the Indenture Trustee.
"Originator Guaranty" means the Originator Performance Guaranty dated as of
August 12, 2004 made by GE Capital.
"Originators" means the Persons from time to time party to the First Tier
Agreement as "Sellers". As of the Initial Closing Date, the only Originators are
GE Commercial Distribution Finance Corporation, Transamerica Commercial Finance
Corporation and Brunswick Acceptance Company, LLC.
"Other Assets" is defined in Section 10.18.
15
"Outstanding" means, as of the date of determination, all Notes theretofore
authenticated and delivered under this Indenture except:
(a) Notes theretofore canceled by the Note Registrar or delivered to
the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which funds in the
necessary amount have been theretofore deposited with the Indenture Trustee
or any Paying Agent in trust for the Noteholders (provided, however, that
if such Notes are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture); and
(c) Notes in exchange for or in lieu of other Notes that 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 Protected Purchaser;
provided, that in determining whether the Noteholders of the requisite
Outstanding Principal Balance of the Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any
Related Document, Notes owned by the Issuer or any Affiliate thereof 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 actually knows to be so
owned 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 or any Affiliate thereof.
"Outstanding Balance" means, with respect to any Principal Receivable, the
outstanding amount of such Principal Receivable; provided, that the Outstanding
Balance of a Defaulted Receivable shall equal zero.
"Outstanding Principal Balance" means the aggregate principal amount of all
Notes which are Outstanding at the date of determination.
"Overconcentrated Dealer" means a Dealer, that is not a Manufacturer, with
respect to which a Dealer Overconcentration exists. For the purposes of the
definition of Overconcentrated Dealer, such a Dealer and all of its Affiliates
that are Dealers shall be considered to be a single Dealer.
"Overconcentrated Manufacturer" means a Manufacturer with respect to which
a Manufacturer Overconcentration exists.
"Overconcentrated Product Line" means a Product line with respect to which
a Product Line Overconcentration exists.
"Participation Agreement" is defined in the First Tier Agreement.
"Participation Interest" is defined in the First Tier Agreement.
16
"Paying Agent" means with respect to the Notes, initially the Indenture
Trustee or any other Person that meets the eligibility standards for the
Indenture Trustee (except subsection (a)(4)(i) of Rule 3a-7 of the Investment
Company Act) specified in Section 6.11 and is authorized by the Issuer to make
the payments from the Trust Accounts, including payment of principal of or
interest on the Notes on behalf of the Issuer; provided, that if the Indenture
Supplement for a Series so provides, a separate or additional Paying Agent may
be appointed with respect to such Series.
"Payment Date" means, with respect to any Series, the date specified as
such in the related Indenture Supplement.
"Permitted Encumbrances" means the following: (a) Liens for taxes or
assessments or other governmental charges not yet due and payable; (b) inchoate
and unperfected workers', mechanics', suppliers' or similar Liens arising in the
ordinary course of business; (c) presently existing or hereinafter created Liens
in favor of, or created by, Issuer; (d) any Lien created or permitted by any
Related Document; (e) any Lien created by any Participation Agreement; and (f)
any security interests in Products or Accounts Receivable that are subordinate
to the security interests securing the related Receivables.
"Permitted Investments" means one or more of the following:
(a) obligations of, or guaranteed as to the full and timely payment of
principal and interest by, the United States or obligations of any agency
or instrumentality thereof, when such obligations are backed by the full
faith and credit of the United States;
(b) repurchase agreements on obligations specified in clause (a);
provided, that the short-term debt obligations of the party agreeing to
repurchase, on the date of acquisition, are rated A-1+ by S&P and, if rated
by Moody's, are rated P-1 by Moody's;
(c) federal funds, certificates of deposit, time deposits and bankers'
acceptances (which shall each have an original maturity of not more than 90
days or, in the case of bankers' acceptances, shall in no event have an
original maturity of more than 365 days) of any United States depository
institution or trust company incorporated under the laws of the United
States or any State thereof or of any United States branch or agency of a
foreign commercial bank; provided, that the short-term debt obligations of
such depository institution or trust company, on the date of acquisition,
are rated A-1+ by S&P and, if rated by Moody's, are rated P-1 by Moody's;
(d) commercial paper (having original maturities of not more than 30
days) which, on the date of acquisition, are rated A-1+ by S&P and, if
rated by Moody's, are rated P-1 by Moody's;
(e) securities of money market funds, which on the date of
acquisition, are rated A-1+ by S&P and, if rated by Moody's, are rated P-1
by Moody's; and
(f) any other investment permitted by each of the rating agencies as
set forth in writing delivered to the Indenture Trustee; provided, that
investments described in clauses (e) and (f) shall be made only if there
shall have been delivered to the Indenture
17
Trustee an Opinion of Counsel to the effect that making such investments
will not require the Issuer to register as an investment company under the
Investment Company Act.
"Person" means any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, trust including a business trust,
association, corporation, limited liability company, institution, public benefit
corporation, joint stock company, Governmental Authority or any other entity of
whatever nature.
"Pooling and Servicing Agreement" means the Amended and Restated Pooling
and Servicing Agreement, dated as of April 1, 2000, among CDF Financing, L.L.C.
(as successor to Deutsche Floorplan Receivables, L.P.), GE Commercial
Distribution Finance Corporation (formerly known as Deutsche Financial Services
Corporation), and Wilmington Trust Company (as successor to The Chase Manhattan
Bank), as trustee.
"Predecessor Note" means, with respect to any particular Note in a Series,
every previous Note in such Series 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 in a Series authenticated and delivered under Section 2.5
in lieu of a mutilated, lost, destroyed or stolen Note in such Series shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Note.
"Principal Collections" means (a) Collections under the Receivables other
than Non-Principal Collections, and (b) to the extent allocable to the Note
Trust Certificate, "Principal Collections" (as defined in the Pooling and
Servicing Agreement). Amounts paid by an Originator pursuant to Section 2.5 of
the First Tier Agreement shall be deemed to be Principal Collections. To the
extent not duplicative of the preceding sentence, amounts paid by Transferor
pursuant to Section 2.5 of the Second Tier Agreement shall be deemed to be
Principal Collections. Amounts paid by Transferor pursuant to Section 6.1(e) of
the Second Tier Agreement shall be deemed to be Principal Collections to the
extent that they represent the purchase price of Principal Receivables. Amounts
paid by the Master Servicer pursuant to Section 2.6 of the Servicing Agreement
shall be deemed to be Principal Collections.
"Principal Receivable" with respect to an Account means amounts shown on
the Issuer's records as Receivables (other than such amounts which represent
Non-Principal Receivables) payable by the related Dealer.
"Principal Sharing Series" means a Series that, pursuant to the Indenture
Supplement therefor, is entitled to receive Shared Principal Collections.
"Principal Shortfalls" is defined, as to any Series, in the related
Indenture Supplement.
"Principal Terms" means, with respect to any Series, the following
information related thereto, not all of which will necessarily apply to each
Series: (a) the name or designation and Closing Date for such Series; (b) the
initial principal amount of each Class of Notes (or method for calculating such
amount) and the Collateral Amount; (c) the note interest rate for each Class of
Notes of such Series (or method for the determination thereof); (d) the payment
date or dates and the date or dates from which interest shall accrue; (e) the
method for allocating Collections to Noteholders of such Series; (f) the
designation of any Series Accounts and the terms governing the operation of any
such Series Accounts; (g) the Series Servicing Fee Percentage;
18
(h) the terms of any form of Series Enhancement with respect thereto; (i) the
terms, if any, on which the Notes of such Series may be exchanged for Notes of
another Series, repurchased by the Transferor or remarketed to other investors;
(j) the Series Maturity Date; (k) the number of Classes of Notes of such Series
and, if more than one Class, the rights and priorities of each such Class; (l)
the extent to which the Notes of such Series will be issuable in temporary or
permanent global form (and, in such case, the depositary for such global note or
notes, the terms and conditions, if any, upon which such global note or notes
may be exchanged, in whole or in part, for Definitive Notes, and the manner in
which any interest payable on a temporary or global note will be paid); (m)
whether the Notes of such Series may be issued in bearer form and any
limitations imposed thereon; (n) the priority of such Series with respect to any
other Series; (o) whether such Series will be part of a Group; (p) whether such
Series will be a Principal Sharing Series; (q) whether such Series will be an
Excess Allocation Series; (r) the applicable Payment Dates; (s) the legal final
maturity date on which the rights of the Noteholders of such Series to receive
payments from the Issuer will terminate; and (t) whether such Series will or may
act as a paired series with another existing Series and the Series, with which
it will be paired, if applicable.
"Proceeding" means any suit in equity, action at law or other judicial or
administrative proceeding.
"Product Line Concentration Limit" means, with respect to a Product line, a
dollar amount calculated as:
(a) twenty-five percent (25%) of the Combined Outstanding Principal
Balances on the last day of the applicable Monthly Period if such Product
line is consumer electronics and appliances;
(b) twenty-five percent (25%) of the Combined Outstanding Principal
Balances on the last day of the applicable Monthly Period if such Product
line is technology;
(c) forty percent (40%) of the Combined Outstanding Principal Balances
on the last day of the applicable Monthly Period if such Product line is
marine;
(d) thirty percent (30%) of the Combined Outstanding Principal
Balances on the last day of the applicable Monthly Period if such Product
line is recreational vehicles;
(e) twenty-five percent (25%) of the Combined Outstanding Principal
Balances on the last day of the applicable Monthly Period if such Product
line is motorcycles;
(f) twenty percent (20%) of the Combined Outstanding Principal
Balances on the last day of the applicable Monthly Period if such Product
line is music;
(g) twenty percent (20%) of the Combined Outstanding Principal
Balances on the last day of the applicable Monthly Period if such Product
line is snowmobiles;
19
(h) twenty-five percent (25%) of the Combined Outstanding Principal
Balances on the last day of the applicable Monthly Period if such Product
line is industrial equipment;
(i) ten percent (10%) of the Combined Outstanding Principal Balances
on the last day of the applicable Monthly Period if such Product line is
manufactured housing;
(j) twenty-five percent (25%) of the Combined Outstanding Principal
Balances on the last day of the applicable Monthly Period if such Product
line is lawn and garden;
(k) twenty percent (20%) of the Combined Outstanding Principal
Balances on the last day of the applicable Monthly Period if such Product
line is accounts receivable (including purchases of accounts receivable);
(l) twenty percent (20%) of the Combined Outstanding Principal
Balances on the last day of the applicable Monthly Period if such Product
line is asset based lending receivables; provided, that the amount
permitted pursuant to this paragraph (l) and paragraph (k) above, when
taken together, do not exceed twenty-five percent (25%) of the Combined
Outstanding Principal Balances on the last day of the applicable Monthly
Period; and
(m) twenty percent (20%) of the Combined Outstanding Principal
Balances on the last day of the applicable Monthly Period if such Product
is in a Product line other than those listed above;
or, in the case of any of the above paragraphs of this definition, if the Rating
Agency Condition is satisfied, such larger percentage of the Combined
Outstanding Principal Balances as is stated in the notice from each applicable
Rating Agency in connection with the satisfaction of the Rating Agency
Condition.
"Product Line Overconcentration" means, on any Determination Date, the
excess, if any, of (a) the portion of the Combined Outstanding Principal
Balances that represents financing for a single Product line (according to the
classification system of GE Commercial Distribution Finance Corporation (with
respect to Principal Receivables (as defined in the Pooling and Servicing
Agreement) held by DFS Financing Trust) or GE Commercial Distribution Finance
Corporation or another Originator (with respect to Principal Receivables held by
the Issuer)) on the last day of the Monthly Period immediately preceding such
Determination Date over (b) the Product Line Concentration Limit for such
Product line.
"Product Line Overconcentration Percentage" means, with respect to an
Overconcentrated Product Line, a fraction, calculated as of the end of each
Monthly Period, expressed as a percentage, (a) the numerator of which is the
Product Line Overconcentration relating to Products in such Product line, and
(b) the denominator of which is the portion of the Combined Outstanding
Principal Balances relating to Products in such Product line.
"Products" means the commercial and consumer goods financed by an
Originator for Dealers.
20
"Protected Purchaser" has the meaning set forth in Section 8-303 of the
UCC.
"Rating Agency" means, as to each Series, the Persons, if any, specified as
such in the related Indenture Supplement.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency, if any, shall have notified the Issuer that such action will not
result in a reduction or withdrawal of the then current rating, if any, of any
Notes that are Outstanding with respect to which it is a Rating Agency.
"Receivable" means, with respect to an Account, all amounts payable
(including interest, finance charges and other charges), and the obligation to
pay such amounts, by the related Dealer from time to time in respect of advances
made by an Originator to or on behalf of such Dealer in connection with the
Floorplan Business, the Accounts Receivable Business, or the Asset Based Lending
Business, as the case may be, together with the group of writings evidencing
such amounts and the security interest created in connection therewith and all
of the rights, remedies, powers and privileges thereunder (including under the
related Financing Agreement); provided, that if a Participation Interest has
been created in respect of such Account, whether before or after that Account
has been designated as an Account, the amounts so payable by the related Dealer
that are allocable to such Participation Interest shall not be part of the
"Receivables" in respect of such Account. A Receivable that, prior to its
transfer to the Transferor, was subject to a participation from an Originator in
favor of another Originator shall be considered a Receivable.
"Record Date" means, with respect to a Payment Date, unless otherwise
specified for a Series in the Indenture Supplement for such Series, the close of
business on the last Business Day of the calendar month immediately preceding
such Payment Date.
"Records" means, with respect to any Receivable, all Financing Agreements
and other documents, books, records and other information (including computer
programs, tapes, disks, data processing software and related property and
rights) relating to such Receivable and the related Dealer.
"Recoveries" on any Determination Date means all amounts received,
including Insurance Proceeds, during the Monthly Period immediately preceding
such Determination Date with respect to Receivables which have previously become
Defaulted Receivables.
"Redemption Date" means, with respect to any Series, the date or dates
specified as such in this Indenture or the related Indenture Supplement.
"Redemption Price" means, with respect to any Series, the price specified
as such in the Indenture Supplement.
"Related Documents" means the First Tier Agreement, the Second Tier
Agreement, the Servicing Agreement, the Administration Agreement, the Notes, the
Trust Agreement, this Indenture, any Indenture Supplement, the Note Trust
Certificate, the Custody and Control Agreement, the Originator Guaranty, and
including all other pledges, powers of attorney, consents, assignments,
contracts, notices, and all other written matter whether heretofore, now or
21
hereafter executed by or on behalf of any Person, or any employee of any Person,
and delivered in connection with any of the foregoing. Any reference in the
foregoing documents to a Related Document shall include all Annexes, Exhibits
and Schedules thereto, and all amendments, restatements, supplements or other
modifications thereto, and shall refer to such Related Documents as the same may
be in effect at any and all times such reference becomes operative.
"Removed Accounts" is defined in the First Tier Agreement.
"Required Principal Balance" means, as of any date of determination, the
sum of the numerators used at such date to calculate the Allocation Percentages
with respect to Principal Collections for all Series outstanding on such date.
"Responsible Officer" means:
(a) with respect to the Issuer, any officer of the Administrator;
(b) with respect to the Indenture Trustee, any officer assigned to the
Corporate Trust Office, including any vice president, assistant vice
president, assistant treasurer, or any other officer of the Indenture
Trustee customarily performing functions similar to those performed by any
of the above designated officers and having direct responsibility for the
administration of the applicable Related Documents, and also, with respect
to a particular matter, any other officer, to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject;
(c) with respect to the Trustee, any officer within the Corporate
Trust Office of the Trustee with direct responsibility for the
administration of the Issuer, or any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject; and
(d) with respect to any Person other than the Issuer, the Indenture
Trustee or the Trustee, an officer or employee of such Person corresponding
to any officer or employee described in clause (c) above.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"S&P Condition" means, with respect to any action, that S&P shall have
notified the Issuer that such action will not result in a reduction or
withdrawal of S&P's then current rating, if any, of any Notes that are
Outstanding with respect to which it is a Rating Agency.
"Second Tier Agreement" means the Receivables Purchase and Contribution
Agreement dated as of August 12, 2004 between the Transferor and the Issuer.
"Securities Account" has the meaning assigned thereto in Section 8-501(a)
of Article 8 of the UCC.
"Securities Act" means the provisions of the Securities Act of 1933, 15
U.S.C. Sections 77a et seq., and any regulations promulgated thereunder.
22
"Securities Entitlement" has the meaning assigned thereto in Section 8-102
of Article 8 of the UCC.
"Securities Exchange Act" means the provisions of the Securities Exchange
Act of 1934 15 U.S.C. Sections 78a et seq., and any regulations promulgated
thereunder.
"Securities Intermediary" is defined in Section 8-102 of Article 8 of the
UCC.
"Series" means any series of Notes, which may include within any such
Series a Class or Classes of Notes subordinate to another such Class or Classes
of Notes of the same Series.
"Series Account" means any deposit, trust, escrow or similar account
maintained for the benefit of the Noteholders of any Series or Class, as
specified in any Indenture Supplement. Each Indenture Supplement shall require
that each Series Account is an Eligible Deposit Account.
"Series Enhancement" means the rights and benefits provided to the Issuer
or the Noteholders of any Series or Class pursuant to any letter of credit,
surety bond, cash collateral account, collateral interest, spread account,
reserve account, cash collateral guaranty, insurance policy, tax protection
agreement, interest rate swap agreement, interest rate cap agreement or other
similar arrangement. The subordination of any Series or Class to another Series
or Class shall be deemed to be a Series Enhancement.
"Series Enhancer" means the Person or Persons providing any Series
Enhancement, other than (except to the extent otherwise provided with respect to
any Series in the Indenture Supplement for such Series) any account or deposits
therein or the Noteholders of any Series or Class which is subordinated to
another Series or Class.
"Series Maturity Date" means, with respect to any Series, the date
specified as such in the Indenture Supplement for such Series.
"Series Servicing Fee Percentage" is defined, as to any Series, in the
related Indenture Supplement.
"Series 2004-NTC Supplement" means the Series 2004-NTC Supplement, dated as
of August 12, 2004, among CDF Financing, L.L.C., GE Commercial Distribution
Finance Corporation, and Wilmington Trust Company, as trustee.
"Servicer Default" is defined in Section 5.1 of the Servicing Agreement.
"Servicing Agreement" means the Servicing Agreement dated as of August 12,
2004, between the Master Servicer and the Issuer.
"Shared Principal Collections" means all amounts that any Indenture
Supplement designates as "Shared Principal Collections."
"STAMP" is defined is Section 2.4(d).
23
"State" means any one of the 50 states of the United States of America or
the District of Columbia.
"Sub-Servicer" means any Person with whom the Master Servicer enters into a
Sub-Servicing Agreement.
"Sub-Servicing Agreement" means any written contract entered into between
the Master Servicer and any Sub-Servicer relating to the servicing,
administration or collection of the Transferred Receivables.
"Subsidiary" means, with respect to any Person, any corporation or other
entity (a) of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other Persons
performing similar functions are at the time directly or indirectly owned by
such Person or (b) that is directly or indirectly controlled by such Person
within the meaning of control under Section 15 of the Securities Act.
"Successor Master Servicer" means a successor to the initial Master
Servicer as appointed under the Servicing Agreement.
"Tax Opinion" means, with respect to any action, an Opinion of Counsel to
the effect that, for Federal income tax purposes, (a) such action will not
adversely affect the tax characterization as debt of Notes of any outstanding
Class with respect to which an Opinion of Counsel was delivered at the time of
their issuance that such Notes would be characterized as debt, (b) such actions
will not cause the Issuer to be classified as an association (or publicly traded
partnership) taxable as a corporation, (c) such action will not cause or
constitute an event in which tax gain or loss would be recognized by any
Noteholder and (d) and with respect to a New Issuance, unless otherwise
specified in the related Indenture Supplement, the Notes of the new Series will
be treated as debt.
"TIA" or the "Trust Indenture Act" means the Trust Indenture Act of 1939,
as in force on the date of this Indenture unless otherwise specifically
provided.
"Transfer Date" means the Business Day preceding each Payment Date.
"Transferor" means CDF Funding, Inc.
"Transferor Interest" means the interest of the Transferor or its assigns
in the Issuer and the Receivables, which entitles the Transferor or its assigns
to receive the various amounts specified in the Related Documents to be paid or
transferred to the holder(s) of the Transferor Interest.
"Transferor Percentage" means as to Non-Principal Receivables, Defaulted
Receivables and Principal Receivables, one hundred percent (100%) less the sum
of the applicable Allocation Percentages for all outstanding Series.
"Transferred Receivable" means a Receivable that has been transferred by
the Transferor to the Issuer under the Second Tier Agreement.
24
"Treasury Regulations" means regulations, including proposed or temporary
regulations, promulgated under the Code. References to specific provisions of
proposed or temporary regulations shall include analogous provisions of final
Treasury Regulations or other successor Treasury Regulations.
"Trust Account" is defined in Section 8.2.
"Trust Account Property" means the Trust Accounts, all amounts, Financial
Assets, Investment Property and other investments or other property held from
time to time in or credited to any Trust Account and all proceeds of the
foregoing.
"Trust Agreement" means the Amended and Restated Trust Agreement relating
to the Issuer, dated as of August 12, 2004 between the Transferor and the
Trustee.
"Trust Early Amortization Event" is defined in Section 5.1.
"Trust Estate" means all right, title and interest of the Issuer in and to
the property and rights assigned to the Issuer pursuant to the Second Tier
Agreement, all monies, investment property, instruments and other property on
deposit from time to time in a Trust Account and all other property of the
Issuer from time to time, including any rights of the Trustee and the Issuer
pursuant to the Related Documents.
"Trustee" means The Bank of New York (Delaware), not in its individual
capacity but solely in its capacity as Trustee under the Trust Agreement, its
successors in interest and any successor Trustee under the Trust Agreement.
"Uncertificated Security" has the meaning assigned thereto in Section 8-102
of Article 8 of the UCC.
"UCC" means, unless the context otherwise requires, the Uniform Commercial
Code as in effect in the relevant jurisdiction.
"Variable Funding Note" means any Note that is designated as a variable
funding note in the related Indenture Supplement.
"Wholesale Financing Agreement" means a wholesale financing agreement
entered into by an Originator and a Dealer in order to finance Products
purchased by such Dealer from a Manufacturer.
SECTION 1.2. Other Interpretive Matters. All terms defined directly or by
reference in this Indenture shall have the defined meanings when used in any
certificate or other document delivered pursuant hereto unless otherwise defined
therein. For purposes of this Indenture and all such certificates and other
documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined herein and accounting terms partly defined herein to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles; and unless otherwise provided,
references to any month, quarter or year refer to a calendar month, quarter or
year; (b) unless defined in this Indenture or the context otherwise requires,
capitalized terms used in this Indenture which are defined in the UCC shall have
the
25
meaning given such term in the UCC; (c) any reference to each rating agency
shall only apply to any specific rating agency if such rating agency is then
rating any outstanding Series; (d) references to any amount as on deposit or
outstanding on any particular date means such amount at the close of business on
such day; (e) the words "hereof," "herein" and "hereunder" and words of similar
import refer to this Indenture (or the certificate or other document in which
they are used) as a whole and not to any particular provision of this Indenture
(or the certificate or other document in which reference is made); (f)
references to any Section, Schedule or Exhibit are references to Sections,
Schedules and Exhibits in or to this Indenture, and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (g) the term "including" means "including without limitation"; (h)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (i) references to
any agreement refer to that agreement as from time to time amended, restated or
supplemented or as the terms of such agreement are waived or modified in
accordance with its terms; and (j) references to any Person include that
Person's successors and permitted assigns.
SECTION 1.3. Incorporation by Reference of TIA. 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 terms, where used in the TIA
shall have the following meanings for the purposes hereof:
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture Trustee.
"obligor" on the indenture securities means the Issuer.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meanings assigned to them by such definitions.
ARTICLE II
THE NOTES
SECTION 2.1. Form. With respect to any Series, the Notes related thereto,
together with the Indenture Trustee's certificate of authentication, shall be in
substantially the form of an exhibit to the Indenture Supplement for such
Series, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or such Indenture
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 such 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.
26
The Notes shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods (with or without steel engraved
borders), all as determined by the Persons 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 an exhibit to the related Indenture Supplement are part of
the terms of this Indenture.
Except as otherwise specified in the related Indenture Supplement, the
Notes of each Series shall be issuable only in registered form and only in
minimum denominations of at least one thousand dollars ($1,000) and in integral
multiples of one thousand dollars ($1,000).
SECTION 2.2. Execution, Authentication and Delivery.
(a) Each Note shall be executed by manual or facsimile signature on
behalf of the Issuer by any of its Authorized Officers.
(b) Notes bearing the manual or facsimile signature of an individual
who was at the time of signature an Authorized Officer of the Issuer shall
bind the Issuer, notwithstanding that such individual has ceased to hold
such office prior to the authentication and delivery of such Notes or did
not hold such office at the date of such Notes.
(c) No Note shall be entitled to any benefit under this Indenture or
the related Indenture Supplement or be valid or obligatory for any purpose,
unless there appears on such Note a certificate of authentication
substantially in the form provided for herein or in the related Indenture
Supplement executed by the Indenture Trustee by the manual signature of one
of its authorized signatories, and such certificate of authentication shall
be conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
(d) From time to time when permitted hereunder, the Issuer shall
execute and deliver Notes to the Indenture Trustee for authentication
together with an Issuer Request to the Indenture Trustee directing the
authentication and delivery of such Notes and thereupon the same shall be
authenticated and delivered by the Indenture Trustee in accordance with
such Issuer Request.
(e) The Indenture Trustee may appoint one or more agents (each, an
"Authenticating Agent"), reasonably acceptable to the Issuer, to
authenticate the Notes. Any such appointment shall be evidenced by an
instrument signed by a Responsible Officer of the Indenture Trustee, a copy
of which shall be furnished to the Issuer. Unless limited by the terms of
such appointment, an Authenticating Agent may authenticate Notes whenever
the Indenture Trustee may do so. Each reference in this Indenture to
authentication by the Indenture Trustee shall include authentication by
such Authenticating Agent. An Authenticating Agent shall have the same
rights as any Note Registrar, Paying Agent or agent for service of notices
and demands. As of the date hereof, the Indenture Trustee appoints Deutsche
Bank Trust Company Americas as Authenticating Agent.
27
SECTION 2.3. Temporary Notes. Pending the preparation of Definitive Notes,
when permitted hereunder, the Issuer shall execute, and upon receipt of an
Issuer Order, the Indenture Trustee shall authenticate and deliver, temporary
Notes of the tenor of the Definitive Notes in lieu of which they are issued and
with such variations not inconsistent with this Indenture as the Issuer may
determine, as evidenced by its execution of such Notes.
If temporary Notes are issued, the Issuer will cause Definitive Notes to be
prepared without unreasonable delay. After the preparation of Definitive Notes,
the temporary Notes shall be exchangeable for Definitive Notes upon surrender of
the temporary Notes at the office or agency of the Issuer to be maintained as
provided in Section 3.2, without charge to the Noteholder. Upon surrender for
cancellation of any one or more temporary Notes, the Issuer shall execute and
the Indenture Trustee shall authenticate and deliver in exchange therefor a like
principal amount of Definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture and the applicable Indenture Supplement as if they
were Definitive Notes.
SECTION 2.4. Registration; Registration of Transfer and Exchange.
(a) 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 Issuer hereby appoints Deutsche Bank Trust Company
Americas as registrar (in such capacity, the "Note Registrar") for the
purpose of registering Notes and transfers of Notes as herein provided and
Deutsche Bank Trust Company Americas hereby accepts such appointment. Upon
any resignation of any Note Registrar, the Issuer shall promptly appoint a
successor or, if it cannot make such an appointment, the Issuer shall
assume the duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the
Issuer as the Note Registrar, the Issuer will give the Indenture Trustee
prompt written notice of the appointment of such Note Registrar and of the
location, and any change in the location, of the Note Register. The
Indenture Trustee shall have the right to inspect the Note Register at all
reasonable times, to obtain copies thereof and to rely upon a certificate
executed on behalf of the Note Registrar by an officer thereof as to the
names and addresses of the Noteholders and the principal amounts and number
of such Notes.
(b) Subject to Section 2.4(a), upon surrender for registration of
transfer of any Note at the Corporate Trust Office of the Indenture Trustee
to be maintained as provided in Section 3.2, if the requirements of Section
8-401(a)(1) of the UCC are met, the Issuer shall execute, the Indenture
Trustee shall authenticate and the Noteholder shall obtain from the
Indenture Trustee, in the name of the designated transferee or transferees,
one or more new Notes of the same Series and Class in any authorized
denominations of a like aggregate principal amount. At the option of a
Noteholder, its Notes may be exchanged for other new Notes of the same
Series or Class in any authorized denominations of 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, if
the requirements of Section 8-401(a)(1) of the UCC are met, the Issuer
shall execute, the Indenture Trustee
28
shall authenticate and the Noteholder shall obtain from the Indenture
Trustee, the Notes that the Noteholder making the exchange is entitled to
receive. The Indenture Trustee shall make a notation on any such new Note
of the amount of principal, if any, that has been paid on such Note.
(c) All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same
debt and entitled to the same benefits under this Indenture and the related
Indenture Supplement as the Notes surrendered upon such registration of
transfer or exchange.
(d) Every Note presented or surrendered for registration of transfer
or exchange shall (if so required by the Issuer or the Indenture Trustee)
be duly endorsed by, or be accompanied by a written instrument of transfer
in form satisfactory to the Issuer and the Indenture Trustee duly executed
by, the Noteholder thereof or such Noteholder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Note Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange
Act.
(e) By acquiring a Note (or any interest therein), each purchaser and
transferee shall be deemed to represent and warrant that either (i) it is
not acquiring the Note with the plan assets of a Benefit Plan or (ii) the
acquisition and holding of the Note (or any interest therein), will not
give rise to a non-exempt prohibited transaction under Section 406 of ERISA
or Section 4975 of the Code (or, in the case of a governmental plan, any
substantially similar law).
(f) The registration of transfer of any Note shall be subject to the
additional requirements, if any, set forth in the Indenture Supplement
related to such Note.
(g) No service charge shall be made to a Noteholder for any
registration of transfer or exchange of Notes, but the Issuer or the
Indenture Trustee may require the payment by such Noteholder of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Notes, other than exchanges pursuant to Section 2.3 or 9.5.
(h) If and so long as any Series of Notes are listed on the Luxembourg
Stock Exchange and such exchange shall so require, the Issuer shall appoint
a co-transfer agent and co-registrar in Luxembourg or another European
city. Any reference in this Indenture to Note Registrar shall include any
co-transfer agent and co-registrar unless the context otherwise requires.
The Indenture Trustee will enter into any appropriate agency agreement with
any co-transfer agent and co-registrar not a party to this Indenture, which
will implement the provisions of this Indenture that relate to such agent.
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes.
29
(a) If: (i) any mutilated Note is surrendered to the Indenture
Trustee, or the Indenture Trustee receives evidence to its satisfaction of
the destruction, loss or theft of any Note, and (ii) there is delivered to
the Indenture Trustee such security or indemnity as may be required by the
Indenture Trustee and the Issuer to hold the Indenture Trustee and the
Issuer, respectively, harmless, then, in the absence of notice to the
Issuer, the Note Registrar or the Indenture Trustee that such Note has been
acquired by a Protected Purchaser, and provided, that the requirements of
Section 8-405 of the UCC are met, the Issuer shall execute, and upon its
request the Indenture Trustee shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note of the same Class, Series and principal amount and bearing
a number not contemporaneously outstanding; 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, instead of issuing a replacement Note, the Issuer
may pay such destroyed, lost or stolen Note when so due or payable or upon
the Redemption Date without surrender thereof. If, after the delivery of
such replacement Note (or payment of a destroyed, lost or stolen Note
pursuant to the proviso to the preceding sentence), a Protected 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 payment made) or any assignee of such Person, except a
Protected 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.
(b) Upon the issuance of any replacement Note under this Section, the
Issuer or the Indenture Trustee shall require the payment by such
Noteholder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable
expenses (including the fees and expenses of the Indenture Trustee)
connected therewith.
(c) Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall
constitute an original additional contractual obligation of the Issuer,
whether or not the mutilated, destroyed, lost or stolen Note shall be at
any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Notes
of the same Class and Series duly issued hereunder.
(d) 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 the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payment on such Note
30
pursuant to the terms of the applicable Indenture Supplement and for all other
purposes whatsoever, whether or not such Note be overdue, and neither the
Issuer, the Indenture Trustee nor any agent of the Issuer or the Indenture
Trustee shall be affected by notice to the contrary.
SECTION 2.7. Payment of Principal and Interest; Defaulted Interest.
(a) Any installment of interest or principal, if any, payable on any
Note that is punctually paid or duly provided for by the Issuer on the
applicable Payment Date shall be paid to the Person in whose name such Note
(or one or more Predecessor Notes) is registered on the Record Date by
check mailed first-class, postage prepaid, to such Person's address as it
appears on the Note Register on such Record Date unless otherwise specified
in the applicable Indenture Supplement. However, 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. Notwithstanding the above, the final installment of principal
payable with respect to such Note (and except for the Redemption Price for
any Note called for redemption pursuant to Section 2.17) shall be payable
as provided in clause (b)(iii). The funds represented by any such checks
returned undelivered shall be held in accordance with Section 6.16.
(b) (i) The principal of each Note shall be payable in installments on
each applicable Payment Date in an amount set forth in the related
Indenture Supplement, for such Payment Date.
(ii) Notwithstanding the foregoing, the entire Outstanding
Principal Balance of any affected Series shall be due and payable on:
(A) the date on which an Event of Default described in paragraph (a),
(b) or (c) of Section 5.2 shall have occurred and be continuing with
respect to such Series if the Indenture Trustee or the Noteholders
representing not less than a majority of the Outstanding Principal
Balance of the Notes of such Series have declared the Notes to be
immediately due and payable in the manner provided in Section 5.3, (B)
the date on which an Event of Default described in paragraph (d) of
Section 5.2 shall have occurred and be continuing and (C) if the Notes
in any Series remain Outstanding, the Series Maturity Date for such
Series.
(iii) The Issuer shall notify the Indenture Trustee, and the
Indenture Trustee shall subsequently notify the Person in whose name a
Note is registered at the close of business on the Record Date
preceding the Payment Date, of the date on which the Issuer expects
that the final installment of principal of and interest on such Note
will be paid. Such notice shall be mailed no later than the fifth day
of the calendar month for such final Payment Date and shall specify
that such final installment will be payable only upon presentation and
surrender of such Note and shall specify the place where such Note may
be presented and surrendered for payment of such installment.
(c) All reductions in the principal amount of a Note effected by
payments of installments of principal made on any Payment Date shall be
binding upon all
31
Noteholders of such Note and of any Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, whether or not
such payment is noted on such Note. All payments on the Notes shall be made
without any requirement of presentment but each Noteholder of any Note
shall be deemed to agree, by its acceptance of the same, to surrender such
Note at the Corporate Trust Office against payment of the final installment
of principal of such Note.
SECTION 2.8. New Issuances.
(a) Pursuant to one or more Indenture Supplements, the Issuer may
issue one or more new Series of Notes (a "New Issuance"). The Notes of all
outstanding Series shall be equally and ratably entitled as provided herein
to the benefits of this Indenture without preference, priority or
distinction, all in accordance with the terms and provisions of this
Indenture and the related Indenture Supplement except, with respect to any
Series or Class, as provided in the Indenture Supplement related to such
Series. Interest on and principal of the Notes of each outstanding Series
shall be paid as specified in the Indenture Supplement relating to such
outstanding Series. If a conflict exists between the terms and provisions
of this Indenture and any Indenture Supplement, the terms and provisions of
the Indenture Supplement shall be controlling with respect to the related
Series.
(b) On or before the Closing Date relating to any New Issuance, the
parties hereto will execute and deliver an Indenture Supplement which will
specify the Principal Terms of the new Series to be issued. The terms of
such Indenture Supplement may modify or amend the terms of this Indenture
solely as applied to such new Series. The obligation of the Issuer to
execute the Notes of any Series and of the Indenture Trustee to
authenticate such Notes (other than the Series issued on or about the
Initial Closing Date) and to execute and deliver the related Indenture
Supplement is subject to the satisfaction of the following conditions:
(i) on or before the fifteenth day immediately preceding the
applicable Closing Date (unless a shorter period shall be acceptable
to the Indenture Trustee and each applicable Rating Agency), the
Issuer shall have given the Indenture Trustee and each Rating Agency
notice (unless such notice requirement is otherwise waived) of such
New Issuance and the Closing Date;
(ii) the Issuer shall have delivered to the Indenture Trustee any
related Indenture Supplement, in form satisfactory to the Issuer and
the Indenture Trustee, executed by each party hereto;
(iii) the Issuer shall have delivered to the Indenture Trustee
any Enhancement Agreement to be entered into in connection with such
New Issuance executed by the Series Enhancer;
(iv) the Rating Agency Condition shall have been satisfied with
respect to such issuance;
32
(v) such New Issuance will not have an Adverse Effect as of the
applicable Closing Date and after giving effect to such New Issuance,
and the Transferor shall have delivered an Officer's Certificate to
the effect that based upon the facts known to the officer or manager
executing such Officer's Certificate, the New Issuance will not have
an Adverse Effect as of the applicable Closing Date and after giving
effect to such New Issuance;
(vi) the Free Equity Amount shall not be less than the Minimum
Free Equity Amount as of the applicable Closing Date after giving
effect to such New Issuance;
(vii) the Note Trust Principal Balance shall not be less than the
Required Principal Balance as of the applicable Closing Date after
giving effect to such New Issuance; and
(viii) the Issuer shall have delivered to the Indenture Trustee
(with a copy to each Rating Agency) a Tax Opinion, dated the Closing
Date with respect to such issuance.
(c) Upon satisfaction of the above conditions, pursuant to Section
2.2, the Issuer, shall execute and the Indenture Trustee shall, upon
receipt of an Issuer Request, authenticate and deliver the Notes of such
Series as provided in this Indenture and the applicable Indenture
Supplement.
SECTION 2.9. 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. The Issuer may at any time deliver
to the Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder that the Issuer may have acquired in any manner whatsoever,
and all Notes so delivered shall be promptly canceled by the Indenture Trustee.
No Notes shall be authenticated in lieu of or in exchange for any Notes canceled
as provided in this Section except as expressly permitted by this Indenture. All
canceled Notes may be held or disposed of by the Indenture Trustee in accordance
with its standard retention or disposal policy as in effect at the time unless
the Issuer shall direct by an Issuer Order that they be returned to it;
provided, that such Notes have not been previously disposed of by the Indenture
Trustee.
SECTION 2.10. Book-Entry Notes. Unless otherwise provided in any related
Indenture Supplement, the Notes of each Series and Class, upon original
issuance, will be issued in the form of typewritten Notes representing the
Book-Entry Notes to be delivered to the depository specified in such Indenture
Supplement which shall be the Clearing Agency or its custodian, by or on behalf
of the Issuer. The Notes of each Series and Class shall, unless otherwise
provided in the related Indenture Supplement, initially be registered in the
Note Register in the name of the nominee of the Clearing Agency for such
Book-Entry Notes and shall be delivered to the Indenture Trustee or, pursuant to
such Clearing Agency's instructions, held by the Indenture Trustee's agent as
custodian for the Clearing Agency.
33
Unless and until definitive fully registered Notes (the "Definitive Notes")
are issued under the circumstances described in Section 2.12 or any applicable
Indenture Supplement, no Note Owner shall be entitled to receive a Definitive
Note representing such Note Owner's interest in such Note. Unless and until
Definitive Notes have been issued to the Note Owners pursuant to Section 2.12 or
any applicable Indenture Supplement:
(i) the provisions of this Section shall be in full force and
effect with respect to each such Series;
(ii) the Issuer, the Note Registrar and the Indenture Trustee,
and their officers, directors, manager, employees and agents may deal
with the Clearing Agency for all purposes (including the payment of
principal of and interest on the Notes of each such Series) as the
authorized representative of the respective Note Owners;
(iii) to the extent that this Section conflicts with any other
provisions of this Indenture, this Section shall control with respect
to each such Series;
(iv) the rights of the respective Note Owners of each such Series
shall be exercised only through the Clearing Agency and the Clearing
Agency Participants and shall be limited to those established by law
and agreements between such respective Note Owners and the Clearing
Agency and/or the Clearing Agency Participants. Pursuant to the Note
Depository Agreement applicable to a Series, unless and until
Definitive Notes of such Series 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 related Notes to such Clearing Agency
Participants; and
(v) whenever this Indenture or any applicable Indenture
Supplement requires or permits actions to be taken based upon
instructions, directions, or the consent of Noteholders evidencing a
specified percentage of the Outstanding Principal Balance of the Notes
or of a particular Series or Class of 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 such Notes, Series
or Class, as applicable, and has delivered such instructions to the
Indenture Trustee.
SECTION 2.11. Notices to Clearing Agency. Whenever a notice or other
communication to any Noteholder is required under this Indenture, unless and
until Definitive Notes have been issued to the related Note Owners, the
Indenture Trustee or its agent shall give all such notices and communications to
the Clearing Agency.
SECTION 2.12. Definitive Notes.
(a) If: (i) the Issuer advises the Indenture Trustee in writing that
the Clearing Agency is no longer willing or able to properly discharge its
responsibilities under the Note Depository Agreement with respect to the
Notes of a given Series, and the Issuer is
34
unable to locate a qualified successor or (ii) after the occurrence of an
Event of Default, Note Owners representing beneficial interests aggregating
more than fifty percent (50%) of the Outstanding Principal Balance of the
Notes (or such other percentage as specified in the related Indenture
Supplement) of such Series advise 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 of such Series, then the
Clearing Agency has undertaken to notify all Note Owners of such Series and
the Indenture Trustee of the occurrence of any such event and of the
availability of Definitive Notes to Note Owners of such Series requesting
the same. Upon surrender to the Indenture Trustee of the typewritten Notes
of such Series representing the Book-Entry Notes by the Clearing Agency,
accompanied by registration and transfer instructions from the Clearing
Agency for registration, the Issuer shall execute, and the Indenture
Trustee shall authenticate, the Definitive Notes of such Series in
accordance with the instructions of the Clearing Agency and shall recognize
registered holders of such Definitive Notes as Noteholders under this
Indenture. 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 of such Series, all
references herein to obligations imposed upon or to be performed by the
Clearing Agency with respect to such Series shall be deemed to be imposed
upon and performed by the Issuer, to the extent applicable with respect to
such Definitive Notes, and the Issuer shall recognize the holders of the
relevant Definitive Notes of such Series as Noteholders hereunder.
(b) Definitive Notes will not be eligible for clearing or settlement
through the Clearing Agency.
SECTION 2.13. Treasury Notes. In determining whether the Noteholders of the
required Outstanding Principal Balance have concurred in any direction, waiver
or consent, any such Notes owned by the Issuer or an Affiliate of the Issuer
shall be considered as though not Outstanding, except that for the purposes of
determining whether the Indenture Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes which a Responsible Officer of the
Indenture Trustee actually knows are so owned shall be so disregarded.
SECTION 2.14. CUSIP Numbers. The Issuer in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Indenture Trustee
shall indicate the "CUSIP" numbers of the Notes in notices of redemption and
related materials as a convenience to Noteholders; provided, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of
redemption and related materials.
SECTION 2.15. Perfection Representations and Warranties. The parties hereto
agree that the representations, warranties and covenants set forth in Schedule 1
shall be a part of this Indenture for all purposes.
SECTION 2.16. Notes to Constitute Indebtedness. The parties hereto agree
that it is their mutual intent that, for all applicable tax purposes, the Notes
will constitute indebtedness. Further, each party hereto and each Noteholder (by
accepting and holding a Note) hereby
35
covenants to every other party hereto and to every other Noteholder to treat the
Notes as indebtedness for all applicable tax purposes in all tax filings,
reports and returns and otherwise, and further covenants that neither it nor any
of its Affiliates will take, or participate in the taking of or permit to be
taken, any action that is inconsistent with the treatment of the Notes as
indebtedness for tax purposes. All successors and assignees of the parties
hereto shall be bound by the provisions hereof.
SECTION 2.17. Redemption. If so specified in the applicable Indenture
Supplement, the Notes of each Series shall be subject to redemption in
connection with exercise by the Transferor of its rights under Section 10.1 of
the Trust Agreement relating to the Collateral Amount for that Series. The terms
of any such redemption shall be specified in the applicable Indenture
Supplement.
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Principal and Interest.
(a) The Issuer will duly and punctually pay the principal of and
interest, if any, on the Notes in accordance with the terms of the Notes,
as specified in the Indenture Supplement related to such Notes.
(b) The Noteholders of any Series as of the Record Date in respect of
a Payment Date shall be entitled to the interest accrued and payable and
principal payable on such Payment Date with respect to such Series as
specified in the related Indenture Supplement. All payment obligations
under a Note are discharged to the extent such payments are made to the
Noteholder of record.
SECTION 3.2. Maintenance of Office or Agency.
(a) The Issuer will maintain at the corporate trust office of Deutsche
Bank Trust Company Americas (on the date hereof located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇ NYC 60-2606, New York, New York 10005) an office or agency
where Notes may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Issuer in respect of the Notes and
this Indenture may be served. The Issuer hereby initially appoints Deutsche
Bank Trust Company Americas at its address set forth above to serve as its
agent for the foregoing purposes.
(b) The chief executive office of the Issuer at which the Issuer
maintains its records with respect to the Transferred Receivables and the
transactions contemplated hereby, is currently located at the following
address: ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Manager,
Securitizations. The Issuer will not change the location of such offices or
its jurisdiction of organization, as defined in the UCC, without giving the
Indenture Trustee at least thirty (30) days' prior written notice thereof.
SECTION 3.3. Paying Agent's Obligations. The Issuer will cause each Paying
Agent to comply with the obligations of the Paying Agent set forth in Section
6.16.
36
SECTION 3.4. Existence.
(a) The Issuer will keep in full effect its existence, rights and
franchises as a Delaware statutory trust.
(b) The Issuer shall at all times observe and comply in all material
respects with (i) all laws applicable to it, and (ii) all requisite and
appropriate organizational and other formalities in the management of its
business and affairs and the conduct of the transactions contemplated
hereby.
SECTION 3.5. Protection of the Collateral; Further Assurances. The Issuer
will from time to time execute and deliver all such supplements and amendments
hereto and all such writings of further assurance and other writings, and will
take such other action necessary or advisable to:
(a) more effectively make a Grant over all or any portion of the
Collateral;
(b) maintain or preserve the Lien (and the priority thereof) of this
Indenture or carry out more effectively the purposes hereof;
(c) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture and perfect the Lien contemplated
hereby in favor of the Indenture Trustee;
(d) enforce or cause the Master Servicer to enforce any of the
Collateral; or
(e) preserve and defend against the claims of all Persons and parties,
(i) title to the Collateral (including the right to receive all payments
due or to become due with respect to the Transferred Receivables) and the
interests in the property included in the Collateral and (ii) the rights of
the Indenture Trustee and the Noteholders with respect to such Collateral
(including the right to receive all payments due or to become due with
respect to the Transferred Receivables) and interests with respect to the
property included in the Collateral.
The Issuer hereby designates the Indenture Trustee as its agent and
attorney-in-fact to file and/or execute any financing statement, continuation
statement, writing of further assurance or other writing required to be executed
and/or filed to accomplish the foregoing; provided, however, that nothing in
this paragraph shall obligate the Indenture Trustee to file or execute any
financing statement or continuation statement or to take any other action
hereunder.
SECTION 3.6. Opinion as to the Collateral. On the Closing Date relating to
the first Series of Notes, the Issuer shall furnish to the Indenture Trustee an
Opinion of Counsel with respect to the filing of any financing statements as is
necessary to perfect and make effective the Lien created by this Indenture and
reciting the details of such action.
SECTION 3.7. Performance of Obligations; Servicing of Transferred
Receivables.
37
(a) The Issuer will not take any action and will use commercially
reasonable efforts not to permit any action to be taken by others that
would release any Person from any material covenants or obligations under
any instrument or agreement included in the Collateral or that would result
in the amendment, hypothecation, subordination, termination or discharge
of, or impair the validity or effectiveness of, any such instrument or
agreement, except as expressly provided in this Indenture, any applicable
Indenture Supplement, or any other Related Document or such other
instrument or agreement.
(b) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, any applicable
Indenture Supplement, the other Related Documents and in the instruments
and agreements included in the Collateral, including filing or causing to
be filed all UCC financing statements and continuation statements required
to be filed by this Indenture, any applicable Indenture Supplement, and any
other Related Document in accordance with and within the time periods
provided for herein and therein.
(c) The Issuer hereby covenants and agrees that it will enforce the
obligations of the Master Servicer under the Servicing Agreement and if a
Servicer Default shall arise from the failure of the Master Servicer to
perform any of its duties or obligations under the Servicing Agreement with
respect to the Transferred Receivables, the Issuer shall take all
reasonable actions available to it to remedy such failure; provided,
however, that any Servicer Default other than a Servicer Default arising
under Section 5.1(a) or Section 5.1(e) of the Servicing Agreement may be
waived by the Issuer upon consent of the Noteholders of not less than
sixty-six and two-thirds percent (66 2/3%) of the Outstanding Principal
Balance for the Notes for all Series to which the Servicer Default relates.
(d) The Issuer hereby covenants and agrees that it shall deliver a
notice to the Master Servicer of any Servicer Default if directed to do so
by the Indenture Trustee or by the Noteholders of not less than twenty-five
percent (25%) of the Outstanding Principal Balance of the Notes for all
Series; provided, however, with respect to any Servicer Default that does
not relate to all Series, the Issuer shall deliver a notice to the Master
Servicer of such Servicer Default if directed to do so by the Noteholders
of twenty-five percent (25%) of the Outstanding Principal Balance of the
Notes for all Series to which the Servicer Defaults relates; provided,
however, that if the Master Servicer breaches its covenants in Section 2.6
of the Servicing Agreement, upon discovery by the Issuer, the Issuer shall
provide prompt written notice of such breach to the Master Servicer in
accordance with Section 2.6 of the Servicing Agreement. The Issuer hereby
covenants and agrees that it shall: (i) upon the occurrence of a Servicer
Default set forth in Section 5.1(e) of the Servicing Agreement, promptly
exercise its rights to terminate the Master Servicer pursuant to Section
5.1 of the Servicing Agreement and (ii) prior to exercising its rights to
terminate the Master Servicer pursuant to Section 5.1 of the Servicing
Agreement due to the occurrence of a Servicer Default set forth in Section
5.1(a), Section 5.1(b), Section 5.1(c) or Section 5.1(d) of the Servicing
Agreement, obtain the consent of the Noteholders representing not less than
fifty percent (50%) of the Outstanding Principal Balance of each affected
Series of Notes. Within thirty (30) days after the giving of notice of
termination to the Master Servicer of the
38
Master Servicer's rights and powers pursuant to Section 5.1 of the
Servicing Agreement, the Issuer shall appoint a Successor Master Servicer,
such appointment to be reflected by a written assumption in a form
acceptable to the Indenture Trustee. In the event that a Successor Master
Servicer has not been appointed and accepted its appointment at the time
when the previous Servicer ceases to act as Servicer, the Indenture Trustee
without further action shall automatically be appointed the Successor
Master Servicer, subject to all the responsibilities, duties and
liabilities relating thereto placed on the Master Servicer by the terms and
provisions of the Servicing Agreement, provided, however, that the
Indenture Trustee shall not be liable for any actions of any Servicer prior
to the Indenture Trustee's appointment as Successor Master Servicer.
Notwithstanding the preceding sentence, the Indenture Trustee shall, if it
is legally unable to so act or if the Noteholders representing a majority
of the Outstanding Principal Balance of all Series so request in writing to
the Indenture Trustee, appoint, or petition a court of competent
jurisdiction to appoint, any institution established in servicing
receivables substantially similar to the Transferred Receivables as the
successor to the Master Servicer under the Servicing Agreement in the
assumption of the responsibilities, duties or liabilities of the Master
Servicer under the Servicing Agreement. The Indenture Trustee may resign as
the Master Servicer by giving written notice of such resignation to the
Issuer and in such event will be released from such duties and obligations,
such release not to be effective until the date a Successor Master Servicer
enters into a servicing agreement with the Issuer as provided below. Upon
delivery of any such notice to the Issuer, the Issuer shall obtain a new
servicer as the Successor Master Servicer under the Servicing Agreement.
Any Successor Master Servicer other than the Indenture Trustee shall: (i)
be an established financial institution having a net worth of not less than
five hundred million dollars ($500,000,000) and whose regular business
includes the servicing of receivables and (ii) enter into a servicing
agreement with the Issuer having substantially the same provisions as the
provisions of the Servicing Agreement applicable to the Master Servicer. If
within 30 days after the delivery of the notice of termination of the
Master Servicer's rights and powers referred to above, the Issuer shall not
have obtained such a Successor Master Servicer, the Indenture Trustee may
appoint, or may petition a court of competent jurisdiction to appoint, a
Successor Master Servicer. In connection with any such appointment, the
Indenture Trustee may make such arrangements for the compensation of such
Successor Master Servicer as it and such Successor Master Servicer shall
agree, subject to the limitations set forth below and in the Servicing
Agreement, and in accordance with Section 6.2 of the Servicing Agreement,
the Issuer shall enter into an agreement with such Successor Master
Servicer for the servicing of the Transferred Receivables (such agreement
to be in form and substance satisfactory to the Indenture Trustee). If the
Indenture Trustee shall succeed to the previous Servicer's duties as
servicer of the Transferred Receivables as provided herein, it shall do so
in its individual capacity and not in its capacity as Indenture Trustee
and, accordingly, the provisions of Article VI shall be inapplicable to the
Indenture Trustee in its duties as the Successor Master Servicer and the
servicing of the Transferred Receivables. In case the Indenture Trustee
shall become the Successor Master Servicer under the Servicing Agreement,
the Indenture Trustee shall be entitled to appoint as Servicer any one of
its Affiliates; provided, that it shall be fully liable for the actions and
omissions of such Affiliate in its capacity as Successor Master Servicer.
39
(e) Upon any termination of the Master Servicer's rights and powers
pursuant to the Servicing Agreement, the Issuer shall promptly notify the
Indenture Trustee. As soon as a Successor Master Servicer is appointed, the
Issuer shall notify the Indenture Trustee of such appointment, specifying
in such notice the name and address of such Successor Master Servicer.
(f) The Issuer shall provide to the Indenture Trustee or its
respective designees access to the documentation regarding the Accounts and
the Transferred Receivables in such cases where the Indenture Trustee or
such designee is required in connection with the enforcement of the rights
of the Indenture Trustee, or by applicable statutes or regulations, to
review such documentation, such access being afforded without charge but
only (i) upon reasonable request, (ii) during normal business hours, (iii)
subject to the Issuer's normal security and confidentiality procedures and
(iv) at offices designated by the Issuer. Nothing in this section shall
derogate from the obligation of any Person to observe any applicable law
prohibiting disclosure of information regarding the Dealers, and the
failure of the Issuer to provide access as provided in this section as a
result of such obligation shall not constitute a breach of this Section.
(g) Upon a merger or consolidation of (x) the Master Servicer or (y)
an Originator, the Issuer shall provide prompt written notice to the Rating
Agencies and, in the case of clause (x), if the Master Servicer is no
longer GE Capital, or, in the case of clause (y), if such Originator merges
or consolidates with a Person other than another Orginator, the Issuer
shall cause the Rating Agency Condition to be satisfied.
SECTION 3.8. Taxes. The Issuer shall contest or pay all taxes when due and
payable or levied against its assets, properties or income, including any
property that is part of the Collateral.
SECTION 3.9. Annual Statement as to Compliance. The Issuer will deliver to
the Indenture Trustee, within 120 days after the end of each fiscal year of the
Issuer (commencing with the first fiscal year of the Issuer ending after 2004),
an Officer's Certificate, substantially in the form of Exhibit A, stating that:
(i) a review of the activities of the Issuer during such year and
of performance under this Indenture has been made under the
supervision of the Authorized Officer signing such Officer's
Certificate; and
(ii) to the best of such Authorized Officer's knowledge, based on
such review, the Issuer has complied with all conditions and covenants
under this Indenture throughout such year or, if there has been a
default in the compliance of any such condition or covenant,
specifying each such default known to such Authorized Officer and the
nature and status thereof.
SECTION 3.10. Negative Covenants. So long as any Notes are Outstanding, the
Issuer shall not:
40
(a) sell, transfer, exchange or otherwise dispose of any of the
properties or assets of the Issuer, including those included in the
Collateral, except as expressly permitted by this Indenture, any Indenture
Supplement, or any other Related Document;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly
withheld from such payments under the Code or applicable State law) or
assert any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Collateral;
(c) engage in any business or activity other than in connection with,
or relating to, the financing, purchasing, owning, selling and servicing
of, the Transferred Receivables and the interests in the property
constituting the Collateral, the issuance of the Notes, and the specific
transactions contemplated by the Related Documents and activities
incidental thereto;
(d) issue, incur, assume, or allow to remain outstanding any
indebtedness, or guaranty any indebtedness or otherwise become liable,
directly or indirectly for any indebtedness of any Person, other than the
Notes, except as contemplated by this Indenture and the other Related
Documents;
(e) (i) seek dissolution or liquidation or wind up its affairs in
whole or in part, or reorganize its business or affairs, or (ii) amend the
Trust Agreement in a manner that would be adverse in any material respect
to the Noteholders;
(f) (i) permit the validity or effectiveness of this Indenture to be
impaired, or permit the Lien of this Indenture to be amended, hypothecated,
subordinated, impaired, terminated or discharged, or permit any Person to
be released from any covenants or obligations with respect to the Notes
under this Indenture, except as may be expressly permitted hereby, (ii)
permit any Lien to be created on or extend to or otherwise arise upon or
burden the Collateral or any part thereof or any interest therein or the
proceeds thereof or (iii) permit the Lien of this Indenture not to
constitute a valid first priority (other than with respect to any tax lien,
mechanics' lien or other lien not considered a Lien) "security interest"
(as such term is defined in Section 1-201 of Article 1 of the UCC) in the
Collateral;
(g) make any loan or advance to any Affiliate of the Issuer or to any
other Person;
(h) make any expenditure (by long-term or operating lease or
otherwise) for capital assets (either realty or personalty);
(i) 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, with respect to any
ownership or equity interest or security in or of the Issuer, (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
41
purpose or (iv) make payments to or from the Collection Account, in each
case, except in accordance with this Indenture and the Related Documents;
(j) consolidate or merge with or into any other Person or (unless
expressly permitted by this Indenture, the Second Tier Agreement, the
Servicing Agreement or an Indenture Supplement) convey or transfer any of
its properties or assets or its business, including those included in the
Collateral, to any Person unless:
(i) such Person shall be a United States citizen or a Person
organized and existing under the laws of the United States of America
or any State,
(ii) such Person shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee,
in form satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed, all
as provided herein,
(iii) immediately after giving effect to such transaction, no
Event of Default shall have occurred and be continuing;
(iv) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(v) the Issuer shall have received a Tax Opinion (and shall have
delivered copies thereof to the Indenture Trustee);
(vi) such Person is not required to be registered as an
"investment company" under the Investment Company Act;
(vii) in the case of a sale of the Issuer's business, such Person
expressly agrees by an indenture supplement hereto that (A) all right,
title and interest so conveyed or transferred by the Issuer will be
subject and subordinate to the rights of the Noteholders, (B) such
Person will make all filings with the Commission required by the
Securities Exchange Act in connection with the Notes and (c) such
Person expressly agrees to indemnify the Indenture Trustee for any
loss, liability or expense arising under the Indenture and the Notes;
(viii) any action that is necessary to maintain the Lien created
by this Indenture and the priority thereof shall have been taken; and
(ix) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation or merger or such conveyance or transfer, as the case
may be, and such supplemental indenture comply with this Section and
that all conditions precedent herein provided for relating to such
transaction have been complied with (including any filing, if any,
required by the Securities Exchange Act) and the supplemental
indenture is duly authorized, executed and delivered and is
enforceable subject to
42
applicable bankruptcy, insolvency, moratorium or other similar laws,
now or hereafter in effect, relating to or affecting the rights of
creditors generally and subject to legal and equitable limitations on
the enforcement of specified remedies;
(k) amend the Second Tier Agreement or the Servicing Agreement or
consent to any amendment of the First Tier Agreement unless (A) (I) the
amendment (x) is being entered into to cure any ambiguity or correct or
supplement any provision of or to add any provisions concerning matters or
questions raised under the Second Tier Agreement, the Servicing Agreement
or the First Tier Agreement and (y) does not materially adversely affect
the interest of the Noteholders, (II) the Transferor has delivered an
Officer's Certificate to the Issuer certifying the amendment will not
result in an Adverse Effect, or (B) the Rating Agency Condition is
satisfied and the amendment is being entered into to add, modify or
eliminate provisions necessary or advisable in order to avoid the
imposition of state or local income or franchise taxes on the Issuer's
property or its income, or (C) the Issuer obtains the consent of
Noteholders representing more than sixty-six and two-thirds percent
(66 2/3%) of Outstanding Principal Balance of each Series affected by the
amendment for which the Transferor has not delivered an Officer's
Certificate required under clause (A). Notwithstanding the foregoing, the
Issuer will not enter into any amendment of the Second Tier Agreement or
the Servicing Agreement or consent to any amendment of the First Tier
Agreement (A) if the amendment (i) reduces the amount of, or delays the
timing of distributions to the Noteholders of any Series (provided,
however, changes in Early Amortization Events or Events of Default that
decrease the likelihood of the occurrence of those events will not be
considered reductions in the amount of or delays in the timing of
distributions or deposits of amounts to be distributed or the amount
available under any Enhancement Agreement), in each case without the
consent of each affected Noteholder, (ii) changes the manner of calculating
the interest of any Noteholder without the consent of each affected
Noteholder or (iii) would reasonably be expected to adversely affect the
ratings of any Series or Class then maintained by any Rating Agency,
without the consent of the Noteholders representing more than sixty-six and
two-thirds percent (66 2/3%) of the Outstanding Principal Balance of each
affected Series or Class and (B) without providing notice to the Rating
Agencies as to such amendment; or
(l) consent to the removal of Accounts under the Second Tier Agreement
unless it reasonably believes such removal will not cause an Early
Amortization Event.
SECTION 3.11. Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.10(j), 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 and have every obligation of, the
Issuer under this Indenture with the same effect as if such Person had been
named as the original Issuer.
43
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer pursuant to Section 3.10(j), the Issuer will be released from
every covenant and agreement of this Indenture to be observed or performed
on the part of the Issuer with respect to the Notes immediately upon the
delivery of written notice to the Indenture Trustee stating that the Issuer
is to be so released.
SECTION 3.12. Notice of Early Amortization Event and Events of Default.
(a) The Issuer shall give the Indenture Trustee and the Rating
Agencies written notice of each Early Amortization Event, each Event of
Default and each Servicer Default (and, in the case of a Servicer Default,
shall specify in such notice the action, if any, the Issuer is taking with
respect to such Servicer Default), in each case within five (5) Business
Days after an Authorized Officer of the Issuer obtains actual knowledge of
such Early Amortization Event, Event of Default or Servicer Default.
(b) The Issuer shall deliver to the Indenture Trustee, within five (5)
Business Days after an Authorized Officer of the Issuer obtains actual
knowledge thereof, written notice in the form of an Officer's Certificate
of any event that, with the giving of notice or the lapse of time or both,
would become an Early Amortization Event or an Event of Default, its status
and what action the Issuer is taking or proposes to take with respect
thereto.
SECTION 3.13. Further Instruments and Acts. Upon request of the Indenture
Trustee, the Issuer will execute and deliver such further instruments and do
such further acts as may be reasonably necessary to carry out more effectively
the provisions of this Indenture.
SECTION 3.14. Enforcement of Related Documents. With respect to any Related
Document to which it is a party, the Issuer will enforce the obligations of the
other parties to such Related Documents.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
(a) This Indenture shall cease to be of further effect 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) Section
3.2, (v) the rights, obligations and immunities of the Indenture Trustee
hereunder (including the rights of the Indenture Trustee under Section 6.7
and the obligations of the Indenture Trustee under Section 4.2) and (vi)
the rights of Noteholders as beneficiaries hereof with respect to the
property deposited with the Indenture Trustee payable to all or any of
them, and the Indenture Trustee, on demand of and at the expense of the
Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes, when:
44
(A) either:
(1) all Notes theretofore authenticated and delivered
(other than: (i) Notes that have been destroyed, lost
or stolen and that have been replaced or paid as
provided in Section 2.5 and (ii) Notes for whose
payment funds have 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 6.16) have been delivered
to the Indenture Trustee for cancellation; 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 on the Series Maturity
Date therefor 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 on behalf, and at the
expense, of the Issuer;
and the Issuer, in the case of clause (2)(i), (ii) or (iii),
has irrevocably deposited or caused to be irrevocably
deposited with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the United
States of America (which will mature prior to the date such
amounts are payable), in trust for such purpose, in an
amount sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the
Indenture Trustee for cancellation when due to the Series
Maturity Date for such Class or Series of Notes or the
Redemption Date (if Notes shall have been called for
redemption pursuant to the related Indenture Supplement), as
the case may be;
(B) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(C) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate, an Opinion of Counsel and (if
required by the TIA or the Indenture Trustee) an Independent
Certificate from a firm of certified public accountants,
each meeting the applicable requirements of Section 10.1(a)
and, subject to Section 10.2, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been met.
At such time, the Indenture Trustee shall deliver to the Issuer or,
upon an Issuer Order, its assignee, all cash, securities and other property
held by it as part of the
45
Collateral other than funds deposited with the Indenture Trustee pursuant
to Section 4.1(a)(A)(2) for the payment and discharge of the Notes.
(b) Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Issuer to the Indenture Trustee under Section 6.7,
and if funds shall have been deposited with the Indenture Trustee pursuant
to Section 4.1(a)(A)(2), the obligations of the Indenture Trustee under
Sections 4.2 and 6.7 (in its capacity as Paying Agent) shall survive.
SECTION 4.2. Application of Trust Funds. All funds deposited with the
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Notes, this Indenture and the
applicable Indenture Supplement, to the payment, either directly or through any
Paying Agent, as the Indenture Trustee may determine, to the Noteholders of the
particular Notes for the payment or redemption of which such funds have been
deposited with the Indenture Trustee, of all sums due and to become due thereon
for principal and interest; but such funds need not be segregated from other
funds except to the extent required herein or as required by law.
ARTICLE V
TRUST EARLY AMORTIZATION EVENTS, EVENTS OF DEFAULTS AND REMEDIES
SECTION 5.1. Trust Early Amortization Events. If any one of the following
events (each, a "Trust Early Amortization Event") shall occur:
(a) the occurrence of an Insolvency Event with respect to CDF
Floorplan Receivables, L.P., CDF Financing, L.L.C., a Material Originator
or the Transferor;
(b) a Material Originator shall become unable for any reason to
transfer Receivables to the Transferor pursuant to the First Tier Agreement
or the Transferor shall become unable for any reason to transfer
Receivables to the Issuer pursuant to the Second Tier Agreement; or
(c) the Issuer or DFS Financing Trust shall be required to register as
an "investment company" within the meaning of the Investment Company Act;
then an Early Amortization Event with respect to all Series of Notes shall occur
without any notice or other action on the part of the Indenture Trustee or the
Noteholders immediately upon the occurrence of such event.
Upon the occurrence of an Early Amortization Event, payment on the Notes of
each Series will be made in accordance with the terms of the related Indenture
Supplement.
SECTION 5.2. Events of Default. "Event of Default," wherever used herein,
means, with respect to any Series, any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or
46
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or Governmental Authority):
(a) default in the payment of any interest on any Note of that Series
when the same becomes due and payable, and such default shall continue for
a period of thirty-five (35) days;
(b) default in the payment of the principal of any Note of that
Series, if and to the extent not previously paid, when the same becomes due
and payable on its Series Maturity Date;
(c) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture in respect of the Notes of
such Series (other than a covenant or agreement a default in the observance
or performance of which is elsewhere in this Section specifically dealt
with) (all such covenants and agreements in the Indenture which are not
expressly stated to be for the benefit of a particular Series being deemed
to be in respect of the Notes of all Series for this purpose) and (i) such
default shall continue or not be cured for a period of sixty (60) days
after there shall have been given, by registered or certified mail, to the
Issuer by the Indenture Trustee or to the Issuer and the Indenture Trustee
by the Noteholders of at least twenty-five percent (25%) of the Outstanding
Principal Balance of the Notes of such Series, a written notice specifying
such default and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder, and (ii) as a result of such default,
the interests of such Noteholders are materially and adversely affected and
continue to be materially and adversely affected during such sixty (60) day
period;
(d) the occurrence of an Insolvency Event with respect to the Issuer;
or
(e) any additional events specified as Events of Default in the
Indenture Supplement related to such Series.
SECTION 5.3. Acceleration of Maturity and Annulment; Remedies.
(a) If an Event of Default shall have occurred and be continuing with
respect to any Series, and the Notes of such Series have been accelerated
pursuant to Section 5.3(b) or Section 5.3(c), the Indenture Trustee may do
one or more of the following:
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Notes of the affected Series or under this Indenture with respect
thereto, whether by declaration or otherwise, enforce any judgment
obtained, and collect from the Issuer and any other obligor upon such
Notes moneys adjudged due;
(ii) take any other appropriate action to protect and enforce the
rights and remedies of the Indenture Trustee and the Noteholders of
the affected Series;
47
(iii) cause the Issuer to sell randomly selected Receivables (or
interests therein) in an amount equal to the Collateral Amount of the
accelerated Series in accordance with Section 5.16;
provided, however, that the Indenture Trustee may not exercise the remedy
described in subparagraph (iii) above unless (A) (1) the Noteholders
representing one hundred percent (100%) of the Outstanding Principal
Balance of the Notes of the affected Series consent in writing thereto, (2)
the Indenture Trustee determines that any proceeds of such exercise
distributable to the Noteholders of the affected Series are sufficient to
discharge in full all amounts then due and unpaid upon the Notes for
principal and interest and is directed to exercise this remedy by
Noteholders representing more than fifty percent (50%) of the Outstanding
Principal Balance of the Notes of such Series, or (3) the Indenture Trustee
determines that the Collateral may not continue to provide sufficient funds
for the payment of principal of and interest on the Notes as they would
have become due if the Notes had not been declared due and payable, and the
Indenture Trustee obtains the consent of the Noteholders representing at
least sixty-six and two-thirds percent (66 2/3%) of the Outstanding
Principal Balance of the Notes of each Class of such Series for such sale
of Receivables (or interests therein) and (B) the Indenture Trustee has
been provided with an Opinion of Counsel to the effect that the exercise of
such remedy complies with applicable federal and state securities laws. In
determining such sufficiency or insufficiency with respect to clauses
(A)(2) and (A)(3), the Indenture Trustee may, but need not, obtain and
conclusively rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Collateral for such
purpose.
(b) If an Event of Default described in paragraph (a), (b) or (c)
of Section 5.2 should occur and be continuing with respect to a
Series, then the Indenture Trustee or the Noteholders representing not
less than a majority of the Outstanding Principal Balance of the Notes
of such Series may declare all the Notes of such Series to be
immediately due and payable, by a notice in writing to the Issuer, and
upon any such declaration the Outstanding Principal Balance of such
Notes, together with accrued and unpaid interest thereon through the
date of acceleration, shall become immediately due and payable;
(c) If an Event of Default described in paragraph (d) of Section 5.2
should occur and be continuing, then the unpaid principal of the Notes,
together with accrued and unpaid interest thereon through the date of
acceleration, shall automatically become due and payable.
(d) At any time after a declaration of acceleration of maturity of an
affected Series has been made and before a judgment or decree for payment
of the amount due has been obtained by the Indenture Trustee as hereinafter
in this Article V provided, the Noteholders of Notes representing not less
than a majority of the Outstanding Principal Balance of such Series, by
written notice to the Issuer and the Indenture Trustee may rescind and
annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture Trustee a
sum sufficient to pay:
48
(A) all payments of principal of and interest on all Notes
of such Series and all other amounts that would then be due
hereunder or upon such Notes if the Event of Default giving rise
to such acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its
agents and counsel, and all other amounts due to the Indenture
Trustee pursuant to Section 6.7; and
(ii) all Events of Default in respect of such Series, other than
the nonpayment of the principal or interest of the Notes that have
become due solely by such acceleration, have been cured or waived as
provided in Section 5.11.
No such rescission shall affect any subsequent Event of Default or
impair any right consequent thereto.
(e) If the Indenture Trustee collects any money or property pursuant
to this Article V following the acceleration of the Notes of the affected
Series pursuant to this Section 5.3 (so long as such a declaration shall
not have been rescinded or annulled), it shall pay out the money or
property in the following order:
FIRST: to the Indenture Trustee, the Note Registrar, the Paying Agent
and the Authenticating Agent for amounts due pursuant to
Section 6.7 and to the Trustee for amounts due pursuant to
Article VII of the Trust Agreement; and
SECOND: unless otherwise specified in the related Indenture
Supplement, for application and payment in accordance with the
related Indenture Supplement with such amounts being deemed to
be Principal Collections and Non-Principal Collections in the
same proportion as (x) the Outstanding Principal Balance of
the Notes bears to (y) the sum of the accrued and unpaid
interest on the Notes and other fees and expenses payable in
connection therewith under the applicable Indenture
Supplement, including the amounts payable under any Series
Enhancements with respect to such Series.
(f) The Indenture Trustee may, upon notification to the Issuer, fix a
record date and payment date for any payment to Noteholders of the affected
Series pursuant to this Section. At least fifteen (15) days before such
record date, the Indenture Trustee shall mail or send by facsimile, at the
expense of the Issuer, to each such Noteholder a notice that states the
record date, the payment date and the amount to be paid.
(g) In addition to the application of money or property referred to in
Section 5.16 for an accelerated Series, amounts then held in the Collection
Account, Excess Funding
49
Account or any Series Accounts for such Series and any amounts available
under the Series Enhancement for such Series shall be used to make payments
to the Noteholders of such Series and the Series Enhancement Provider for
such Series in accordance with the terms of this Indenture, the related
Indenture Supplement and the Series Enhancement for such Series. Following
the sale of any Principal Receivables and related Non-Principal Receivables
pursuant to Section 5.16 (or interests therein) for a Series and the
application of the proceeds of such sale to such Series and the application
of the amounts then held in the Collection Account, the Excess Funding
Account and any Series Accounts for such Series as are allocated to such
Series and any amounts available under the Series Enhancement for such
Series, such Series shall no longer be entitled to any allocation of
Collections or other property constituting the Collateral under this
Indenture.
(h) Each of the Indenture Trustee and each Noteholder by its
acceptance of a Note covenants that: (i) it will not directly or indirectly
institute or cause to be instituted against the Issuer any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceeding under any Federal or state bankruptcy law unless Noteholders of
not less than sixty-six and two-thirds percent (66 2/3%) of the Outstanding
Principal Amount of each Class of each Series have approved such filing;
and (ii) it will not directly or indirectly institute or cause to be
instituted against DFS Financing Trust or the Transferor any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceeding under any Federal or state bankruptcy law in any instance;
provided, that the foregoing shall not in anyway limit a Noteholder's
rights to pursue any other creditor rights or remedies that such Noteholder
may have for claims against the Issuer.
(i) The remedies provided in this Section are the exclusive remedies
provided to the Noteholders with respect to the Collateral and each of the
Noteholders (by their acceptance of their respective interests in the
Notes) and the Indenture Trustee hereby expressly waive any other remedy
that might have been available under the applicable UCC.
SECTION 5.4. Collection of Indebtedness and Suits for Enforcement by the
Indenture Trustee.
(a) In case (i) there shall be pending, relative to the Issuer or any
Person having or claiming an ownership interest in the Collateral,
Proceedings under any Debtor Relief Law, or (ii) a receiver, assignee,
trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Issuer or its property or such other Person, or (iii) of any other
comparable judicial Proceedings relative to the Issuer, or to the creditors
or property of the Issuer, then the Indenture Trustee (irrespective of
whether the principal of any Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Indenture Trustee shall have made any demand pursuant to this Section),
shall be entitled and empowered to, and at the written direction of the
requisite Noteholders pursuant to Section 5.10 shall, by intervention in
such Proceedings or otherwise:
50
(A) file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes of
such Series and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the
Indenture Trustee and each predecessor the Indenture Trustee, and
their respective agents, attorneys and 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, willful misconduct or bad faith, and all
other amounts due to the Indenture Trustee pursuant to Section 6.7)
and of the Noteholders of such Series allowed in such Proceedings;
(B) participate as a member, voting or otherwise, of any official
committee of creditors appointed in any such matter.
(C) unless prohibited by applicable law or regulations, vote on
behalf of the Noteholders of such Series in any election of a trustee,
a standby trustee or any Person performing similar functions in any
such Proceedings;
(D) collect and receive any amounts or other property payable or
deliverable on any such claims and to distribute all amounts received
with respect to the claims of the Noteholders of such Series and of
the Indenture Trustee on their behalf; and
(E) 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 Noteholders of such Series allowed in any
judicial Proceedings relative to the Issuer, its creditors and its
property;
and any trustee, receiver, liquidator, assignee, custodian, sequestrator or
other similar official in any such Proceeding is hereby authorized by each
of such Noteholders to make payments to the Indenture Trustee, and, in the
event that the Indenture Trustee shall consent to the making of payments
directly to such Noteholders, to pay to the Indenture Trustee such amounts
as shall be sufficient to cover reasonable compensation to the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and
all advances made, by the Indenture Trustee and each predecessor Indenture
Trustee except as a result of negligence, willful misconduct or bad faith,
and all other amounts due to the Indenture Trustee pursuant to Section 6.7.
(b) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any
Noteholder thereof or to authorize the Indenture Trustee to vote in respect
of the claim of any Noteholder in any such proceeding except, as aforesaid,
to vote for the election of a trustee in bankruptcy or similar Person.
51
(c) All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Indenture Trustee without
the possession of any of the Notes or the production thereof in any trial
or other Proceedings relative thereto, and any such action or Proceedings
instituted by the Indenture Trustee shall be brought in its own name and as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Noteholders of the
affected Series as provided herein.
(d) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings to which the Indenture Trustee is a party involving the
interpretation of any provision of this Indenture), the Indenture Trustee
shall be held to represent all the Noteholders of the affected Series, and
it shall not be necessary to make any such Noteholder a party to any such
Proceedings.
SECTION 5.5. Limitation of Suits. No Noteholder shall have any right to
institute any Proceeding, with respect to this Indenture or any Indenture
Supplement, or for the appointment of a receiver or trustee, or for any other
remedy hereunder or thereunder, unless:
(i) such Noteholder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Noteholder(s) of not less than twenty-five percent (25%)
of the Outstanding Principal Balance of the Notes of each affected
Series have made written request to the Indenture Trustee to institute
such Proceeding in its own name as the Indenture Trustee hereunder;
(iii) such Noteholder or Noteholders has offered to the Indenture
Trustee indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for sixty (60) days after its receipt
of such request and offer of indemnity has failed to institute such
Proceeding; and
(v) no direction inconsistent with such written request has been
given to the Indenture Trustee during such sixty (60) day period by
the Noteholders of more than fifty percent (50%) of the Outstanding
Principal Balance of the Notes of each affected Series;
it being understood and intended that no one or more Noteholder(s) of the
affected Series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Noteholder of such Series or to obtain or to seek to obtain
priority or preference over any other Noteholder(s) of such Series or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the other Noteholders of the same Series.
Nothing in this Section 5.5 shall be construed as limiting the rights of
otherwise qualified Noteholders to petition a court for the removal of an
Indenture Trustee pursuant to Section 6.8.
52
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Noteholders of an
affected Series, each representing less than fifty percent (50%) of the
Outstanding Principal Balance of the Notes of such Series, the Indenture Trustee
in its sole discretion may determine what action, if any, shall be taken,
notwithstanding any other provisions of this Indenture.
SECTION 5.6. Unconditional Rights of Noteholders to Receive Principal and
Interest. Notwithstanding any other provisions in this Indenture, each
Noteholder 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 the applicable
Indenture Supplement (or, in the case of redemption, on or after the applicable
Redemption Date) and to institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent of such Noteholder.
SECTION 5.7. Restoration of Rights and Remedies. If the Indenture Trustee
or any Noteholder has instituted any Proceeding to enforce any right or remedy
under this Indenture and such Proceeding has been discontinued or abandoned for
any reason or has been determined adversely to the Indenture Trustee or to such
Noteholder, then and in every such case the Issuer, the Indenture Trustee and
the Noteholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
SECTION 5.8. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost, or
stolen Notes in Section 2.5(d) and as provided in Section 5.3(i), no right or
remedy herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. 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 5.9. Delay or Omission Not a Waiver. No delay or omission of the
Indenture Trustee or any Noteholder to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article V or by law to the Indenture Trustee or to the
Noteholders may be exercised from time to time, and as often as may be deemed
expedient, by the Indenture Trustee or by the Noteholders, as the case may be.
SECTION 5.10. Control by Noteholders. Upon the occurrence and continuation
of an Event of Default, except as otherwise expressly provided in this Indenture
or any Indenture Supplement, the Noteholders of not less than a majority of the
Outstanding Principal Balance of the Notes of any affected Series shall have the
right to direct the time, method and place of conducting any Proceeding for any
remedy available to the Indenture Trustee with respect to such Series; provided,
that such direction shall not be in conflict with any rule of law or with this
Indenture; provided, further, that, subject to Section 6.1, the Indenture
Trustee need not take any
53
action that it determines might subject it to liability for which it is not
indemnified to its satisfaction or might materially adversely affect the rights
of any Noteholder(s) of an affected Series not consenting to such action. The
Indenture Trustee may take any other action deemed proper by the Indenture
Trustee that is not inconsistent with such direction.
SECTION 5.11. Waiver of Past Defaults. Prior to the acceleration of the
maturity of any Series of Notes pursuant to Section 5.3, and subject to Section
5.3(b), the Noteholders of not less than a majority of the Outstanding Principal
Balance of the Notes of the affected Series (or with respect to any Series with
two or more Classes, each Class) may waive any past Event of Default with
respect to such Series and its consequences except an Event of Default: (a) in
payment of principal of or interest on any of the Notes of such Series or (b) in
respect of a covenant or provision hereof that cannot be modified or amended
without the consent of each Noteholder of such Series. In the case of any such
waiver, the Issuer, the Indenture Trustee and the Noteholders of the affected
Series shall be restored to their former positions and rights hereunder,
respectively.
Upon any such waiver, such Event of 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; but no such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereto.
SECTION 5.12. Undertaking for Costs. All parties to this Indenture agree
(and each Noteholder by such Noteholder's acceptance thereof shall be deemed to
have agreed) that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken, suffered or omitted by it as the
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 attorney's fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to: (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder(s) holding in the
aggregate more than ten percent (10%) of the Outstanding Principal Balance of
the Notes of the affected Series or (c) any suit instituted by any Noteholder
for the enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Notes and the related Indenture
Supplement (or, in the case of redemption, on or after the applicable Redemption
Date).
SECTION 5.13. Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may adversely affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
54
SECTION 5.14. Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the Lien created by this Indenture nor any rights or
remedies of the Indenture Trustee or the Noteholders shall be impaired by the
recovery of any judgment by the Indenture Trustee against the Issuer or by the
levy of any execution under such judgment upon any portion of the Collateral.
Any funds or other property collected by the Indenture Trustee shall be applied
in accordance with the applicable Indenture Supplement.
SECTION 5.15. Performance and Enforcement of Certain Obligations. Promptly
following a request from the Indenture Trustee to do so and at the Issuer's
expense, the Issuer shall take all such lawful action to compel or secure the
performance and observance by the Master Servicer of its obligations to the
Issuer under or in connection with the Servicing Agreement or by the Transferor
of its obligations to the Issuer under or in connection with the Transfer
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 Servicing Agreement (or under or in connection with
the Transfer Agreement), in each case to the extent and in the manner directed
by the Indenture Trustee, including the transmission of notices of default on
the part of the Master Servicer or the Transferor thereunder and the institution
of legal or administrative actions or proceedings to compel or secure
performance by the Master Servicer or the Transferor of each of their
obligations under the Servicing Agreement or the Transfer Agreement.
SECTION 5.16. Sale of Collateral.
(a) The power to effect any sale of any portion of the Collateral
described pursuant to Section 5.3 shall not be exhausted by any one or more
sales as to any portion of the Collateral remaining unsold, but shall
continue unimpaired until Collateral in an amount up to the Collateral
Amount of the affected Series shall have been sold or all amounts due to
the Noteholders of the affected Series under this Indenture and the
applicable Indenture Supplement have been paid in full. The Indenture
Trustee may from time to time, upon directions in accordance with Section
5.10, postpone any public sale by public announcement made at the time and
place of such sale. For any public sale of Collateral, the Indenture
Trustee shall have provided each Noteholder of the affected Series with
notice of such sale at least two (2) weeks in advance of such sale, which
notice shall specify the date, time and location of such sale.
(b) To the extent permitted by applicable law, the Indenture Trustee
shall not sell Collateral, or any portion thereof, to a third party in any
private sale unless:
(i) the Noteholders of not less than sixty-six and two-thirds
percent (66 2/3%) of the then Outstanding Principal Balance of the
Notes of the affected Series consent to or direct the Indenture
Trustee in writing to make such sale; or
(ii) the proceeds of such sale would be not less than the sum of
all amounts due to the Noteholders of the affected Series under this
Indenture and the Indenture Supplement related to such Series.
55
The foregoing provisions shall not preclude or limit the ability of
the Indenture Trustee to purchase all or any portion of the Collateral at a
private sale.
(c) In connection with a sale of all or any portion of the Collateral:
(i) any one or more Noteholders (other than the Transferor and
its Affiliates) may bid for and purchase the property offered for
sale, and upon compliance with the terms of sale may hold, retain, and
possess and dispose of such property, without further accountability,
and any Noteholder of the affected Series may, in paying the purchase
price therefor, deliver in lieu of cash any Outstanding Notes of such
Series or claims for interest thereon for credit in the amount that
shall, upon distribution of the net proceeds of such sale, be payable
thereon, and the Notes of the affected Series, in case the amounts so
payable thereon shall be less than the amount due thereon, shall be
returned to the Noteholders of such Series after being appropriately
stamped to show such partial payment;
(ii) the Indenture Trustee is hereby irrevocably appointed the
agent and attorney-in-fact of the Issuer to transfer and convey any
portion of the Collateral in connection with a sale thereof, and to
take all action necessary to effect such sale;
(iii) the Indenture Trustee shall execute and deliver an
appropriate instrument of conveyance transferring, without
representation, warranty or recourse, any portion of the Collateral in
connection with a sale thereof; and
(iv) no purchaser or transferee at such a sale 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 funds.
(d) The method, manner, time, place and terms of any sale of all or
any portion of the Collateral shall be commercially reasonable.
(e) The provisions of this Section 5.16 shall not be construed to
restrict the ability of the Indenture Trustee to exercise any rights and
powers against the Issuer or all or a portion of the Collateral that are
vested in the Indenture Trustee by this Indenture, including the power of
the Indenture Trustee to proceed against the Collateral subject to the Lien
of this Indenture and to institute judicial proceedings for the collection
of any deficiency remaining thereafter.
(f) The purchase price received by the Indenture Trustee in respect of
any sale made in accordance with this Section 5.16 shall be deemed
conclusive and binding on the parties hereto and the Noteholders and the
proceeds of such sale shall be applied in accordance with Section 8.4.
56
ARTICLE VI
THE INDENTURE TRUSTEE AND THE PAYING AGENT
SECTION 6.1. Duties of the Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise of
such rights and powers as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default actually
known to a Responsible Officer of the Indenture Trustee:
(i) the Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture
against the Indenture Trustee; and
(ii) in the absence of bad faith or negligence on its part, the
Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; provided, however,
in the case of any such certificates or opinions that are specifically
required to be furnished to the Indenture Trustee pursuant to any
provision of this Indenture or any Indenture Supplement, the Indenture
Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture or
the applicable Indenture Supplement.
(c) If an Event of Default has occurred and is continuing and a
Responsible Officer of the Indenture Trustee shall have actual knowledge of
such Event of Default, the Indenture Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree
of care and skill in the exercise of such rights and powers, as a prudent
person would exercise or use under the circumstances in the conduct of such
Person's own affairs.
(d) The Indenture Trustee shall notify each Rating Agency (i) of any
change in any rating of the Notes by any other Rating Agency of which a
Responsible Officer has actual knowledge, and (ii) promptly after the
occurrence thereof, of any Event of Default or Early Amortization Event of
which a Responsible Officer of the Indenture Trustee has actual knowledge.
(e) No provision of this Indenture shall be construed to relieve the
Indenture Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this clause (e) does not limit the effect of clauses (b), (c)
or (d) of this Section;
57
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Indenture
Trustee unless it is proved that the Indenture Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Indenture Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to this Indenture;
(iv) the Indenture Trustee shall not be charged with knowledge of
an Event of Default, Early Amortization Event or Servicer Default
unless a Responsible Officer of the Indenture Trustee obtains actual
knowledge of such event or the Indenture Trustee receives written
notice of such event from the Issuer or Note Owners beneficially
owning Notes of the affected Series or all Series, as applicable,
aggregating not less than ten percent (10%) of the Outstanding
Principal Balance of the Notes of the affected Series or all Series,
as applicable; and
(v) the Indenture Trustee shall have no duty to monitor the
performance of the Issuer or its agents, nor shall it have any
liability in connection with malfeasance or nonfeasance by the Issuer.
The Indenture Trustee shall have no liability in connection with
compliance of the Issuer or its agents with statutory or regulatory
requirements related to the Transferred Receivables. The Indenture
Trustee shall not make or be deemed to have made any representations
or warranties with respect to the Transferred Receivables or the
validity or sufficiency of any grant of a security interest in the
Receivables to the Indenture Trustee.
(f) The Indenture Trustee shall not be liable for interest on any
amounts received by it, except as the Indenture Trustee may agree in
writing with the Issuer.
(g) No provision of this Indenture shall require the Indenture Trustee
to expend or risk its own funds or otherwise incur financial liability in
the performance of any of its duties hereunder or in the exercise of any of
its rights or powers if it reasonably believes that repayments of such
funds or adequate indemnity satisfactory to it against any loss, liability
or expense is not reasonably assured to it.
(h) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Indenture Trustee shall be subject to this
Section 6.1 and the TIA.
(i) The Indenture Trustee:
(i) shall at all times be a "participant" (as such term is
defined in the Federal Book-Entry Regulations) in the Federal Reserve
System;
(ii) shall, to the extent that any of the Trust Accounts is a
Securities Account, comply with all of the obligations of a Securities
Intermediary under Article 8 of the UCC with respect thereto;
58
(iii) agrees that each item of property including cash received
by it for deposit in or credit to a Trust Account, and each investment
made by it pursuant to Section 8.5 shall constitute and be treated by
it as a Financial Asset; and
(iv) shall not, except with respect to the Indenture Trustee as
provided herein, consent to or permit anyone to have "control" (as
such term is defined in Section 8-106 of Article 8 of the UCC and
Section 9-401 of Article 9 of the UCC) of any of the Trust Accounts.
SECTION 6.2. Rights of the Indenture Trustee.
(a) Subject to the provisions of Section 6.1:
(i) the Indenture Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, note, debenture, other
evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) any request or direction or action of the Issuer mentioned
herein shall be sufficiently evidenced by an Issuer Order;
(iii) whenever in the administration of this Indenture the
Indenture Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Indenture Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officer's Certificate;
(iv) the Indenture Trustee may consult with counsel as to legal
matters and the advice or opinion of any such counsel selected by the
Indenture Trustee with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(v) the Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Noteholders pursuant to this
Indenture, if: (A) the Indenture Trustee is advised by counsel that
the action it is directed to take is in conflict with applicable laws
or the Indenture, (B) the Indenture Trustee determines in good faith
that the requested actions would be illegal or involve the Indenture
Trustee in personal liability or be unjustly prejudicial to
Noteholders not making the request or direction or (C) the Indenture
Trustee reasonably believes it will not be adequately indemnified
against the costs, expenses and liabilities which might be incurred by
it in complying with that request;
(vi) the Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument,
59
opinion, report, notice, request, direction, consent, order, note,
debenture, other evidence of indebtedness, or other paper or document,
but the Indenture Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Indenture Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Issuer, personally or by agent or
attorney;
(vii) the Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, attorneys, custodians or nominees and the Indenture
Trustee shall be responsible for any misconduct or negligence on the
part of any agent, attorney, custodian or nominee appointed by it
hereunder;
(viii) the Indenture Trustee shall not be required to give any
bond or surety in respect of the performance of its powers and duties
hereunder;
(ix) the Indenture Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any covenants,
conditions or agreements on the part of the Issuer;
(x) the permissive rights of the Indenture Trustee to do things
enumerated in this Indenture shall not be construed as a duty and the
Indenture Trustee shall not be answerable for other than its gross
negligence or willful default;
(xi) the rights and protections afforded to the Indenture Trustee
pursuant to this Article VI shall also be afforded to the Paying
Agent, the Authenticating Agent and the Note Registrar; and
(xii) the Indenture Trustee shall at no time have any
responsibility or liability for or with respect to the legality,
validity or enforceability of any Collateral or any arrangement or
agreement between the Issuer and any Person with respect thereto, or
the perfection of any security interest created in any of the
Collateral or the maintenance of any such perfection and priority, or
for or with respect to the sufficiency of the Collateral following an
Event of Default.
(b) The recitals contained in the Agreement and in the Notes, except
the Indenture Trustee's certificates of authentication, shall be taken as
the statements of the Issuer, and the Indenture Trustee assumes no
responsibility for their correctness. The Indenture Trustee makes no
representations as to the validity or sufficiency of the Agreement or the
Notes, except to the extent provided by the Indenture Trustee's certificate
of authentication on the Notes. The Indenture Trustee shall not be
accountable for the use or application by the Issuer of the proceeds of the
Notes.
SECTION 6.3. Individual Rights of the Indenture Trustee. Subject to
compliance with subsection (a)(4)(i) of Rule 3a-7 of the Investment Company Act:
(a) the Indenture Trustee shall not, in its individual capacity, but may in a
fiduciary capacity, become the owner of Notes or otherwise extend credit to the
Issuer; and (b) the Indenture Trustee may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not the Indenture
Trustee.
60
Any Paying Agent, Note Registrar, co-registrar or co-paying agent may do the
same with like rights. However, the Indenture Trustee must comply with Sections
6.11 and 6.13.
SECTION 6.4. Funds Held in Trust. Funds and investments and other property
held by the Indenture Trustee or Paying Agent shall be held in trust in one or
more Trust Accounts hereunder, but need not be segregated from other funds
except to the extent required by law.
SECTION 6.5. Notice of Early Amortization Events or Events or Defaults. If
any Early Amortization Event or Event of Default occurs and is continuing and is
known to a Responsible Officer of the Indenture Trustee, the Indenture Trustee
shall mail to the Rating Agencies and to the affected Noteholders or all
Noteholders, as applicable, notice of such Early Amortization Event or Event of
Default within thirty (30) days after it occurs or within ten (10) Business Days
after it receives notice or obtains actual notice, if later. Except in the case
of an Early Amortization Event or an Event of Default relating to the failure to
pay principal or interest on any Note (including payments pursuant to the
mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Noteholders.
SECTION 6.6. Reports by Indenture Trustee to the Noteholders. The Issuer
shall deliver, or cause the Master Servicer to deliver, to each Noteholder such
information as may be required to enable such Noteholder to prepare its Federal,
State and other income tax returns. To the extent required in the Indenture
Supplement for any Series, on or before the date prescribed by applicable law,
the Indenture Trustee shall mail to each Noteholder of a Note in such Series a
brief report as of such date that complies with TIA Section 313(a) (if required
by said section).
SECTION 6.7. Compensation and Indemnity. The Issuer shall pay to the
Indenture Trustee from time to time reasonable compensation for its services
hereunder as the Issuer and the Indenture Trustee may agree in writing (which
compensation shall not be limited by any law on compensation of a trustee of an
express trust). The Issuer shall reimburse the Indenture Trustee upon its
request, 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 Indenture Trustee's agents, counsel,
accountants and experts. The Issuer shall indemnify the Indenture Trustee and
its officers, directors, employees and agents against any and all loss,
liability or expense (including reasonable attorneys' fees and expenses)
incurred by them to the extent related to or arising out of the administration
of this Indenture and the performance of its duties hereunder, including the
costs and expenses of enforcing this Indenture against the Issuer (including
this Section 6.7) and defending itself against or investigating any claims
(whether asserted by the Issuer, any Noteholder or any other Person). The
Indenture Trustee shall notify the Issuer promptly of any claim for which it may
seek indemnity. Failure by the Indenture Trustee to so notify the Issuer shall
not relieve the Issuer of its obligations hereunder. The Issuer shall defend the
claim and the Indenture Trustee may have separate counsel and the Issuer shall
pay the fees and expenses of such counsel. The Issuer need not reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Indenture Trustee through the Indenture Trustee's own willful misconduct,
negligence or bad faith.
61
The Issuer's payment obligations to the Indenture Trustee pursuant to this
Section shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of an Event of Default specified in
Section 5.2(c) or Section 5.2(d), the expenses are intended to constitute
expenses of administration under any Debtor Relief Law.
SECTION 6.8. Resignation and Removal; Appointment of Successor. No
resignation or removal of the Indenture Trustee and no appointment of a
successor Indenture Trustee shall become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section. The
Indenture Trustee may resign at any time by giving thirty (30) days written
notice to the Issuer. The Noteholders of not less than sixty-six and two-thirds
percent (66 2/3%) of the Outstanding Principal Balance of the Notes for all
Series may remove the Indenture Trustee by so notifying the Indenture Trustee in
writing and may appoint a successor Indenture Trustee. The Issuer shall remove
the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in
the office of the Indenture Trustee for any reason (the Indenture Trustee in
such event being referred to herein as the retiring Indenture Trustee), the
Issuer shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of the Indenture Trustee under this Indenture. 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 the Indenture Trustee
to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within sixty (60)
days after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Noteholders of not less than a majority of
the Outstanding Principal Balance of the Notes for all Series may petition any
court of competent jurisdiction for the appointment of a successor Indenture
Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any Noteholder
may petition any court of competent jurisdiction for the removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to this
Section, the Issuer's obligations under Section 6.7 shall continue for the
benefit of the retiring Indenture
62
Trustee. The retiring Indenture Trustee shall have no liability for any act or
omission by any successor Indenture Trustee.
SECTION 6.9. Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another Person, the
resulting, surviving or transferee Person without any further act shall be the
successor Indenture Trustee. The Indenture Trustee shall provide the Issuer and
S&P prior written notice of any such transaction; provided, that such Person
shall be otherwise qualified and eligible under Section 6.11.
In case at the time such successor(s) by merger, conversion or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor trustee hereunder or in the name of
the successor to the Indenture Trustee; and in all such cases such certificates
of authentication shall have the full force and effect to the same extent given
to the certificate of authentication of the Indenture Trustee anywhere in the
Notes or in this Indenture.
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the Collateral may at the time be located, the
Indenture Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Person(s) to act as co-trustee(s), or
separate trustee(s) for the benefit of the Noteholders, and to vest in such
Person(s), in such capacity, all rights hereunder with respect to the
Collateral, or any part thereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Indenture Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 6.11 and no notice to
Noteholders of the appointment of any co-trustee or separate trustee shall
be required under Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent
permitted 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(s) are
to be performed, the Indenture Trustee shall be incompetent or
unqualified to perform such act(s), in which event such rights,
powers, duties and obligations (including the holding of rights with
respect to the Collateral or any portion thereof in any
63
such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove, in its sole discretion, any separate trustee
or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Indenture and the conditions of this Article 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 as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Indenture on its behalf and in its name. If any
separate trustee or co-trustee shall die, 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.
(e) The Indenture Trustee shall have no obligation to determine
whether a co-trustee or separate trustee is legally required in any
jurisdiction in which any part of the Collateral may be located.
SECTION 6.11. Eligibility; Disqualification. The Indenture Trustee shall at
all times satisfy the requirements of TIA Section 310(a), Section 26(a)(1) of
the Investment Company Act and subsection (a)(4)(i) of Rule 3a-7 of the
Investment Company Act. There shall at all times be an Indenture Trustee
hereunder which shall (a) be a bank organized and doing business under the laws
of the United States of America, any State or the District of Columbia,
authorized under such laws to exercise corporate trust powers; (b) have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition; (c) be subject to supervision or
examination by federal or state authority; and (d) at the time of appointment,
shall have a long term senior, unsecured debt rating of "Baa3" or better by
Moody's, if rated by Moody's, or "BBB" or better by S&P, (or, if not rated by
Moody's or S&P, a comparable rating acceptable to the Rating Agencies by another
statistical rating agency). 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(s) 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.
64
If such bank publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such bank
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Indenture Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect specified in this
Article.
This Indenture shall always have a trustee who satisfies the requirements
of Section 310(a)(1) of the TIA. The Indenture Trustee is subject to the
provisions of Section 310(b) of the TIA regarding disqualification of a trustee
upon acquiring any conflicting interest.
If a default occurs under this Indenture or any Indenture Supplement, and
the Indenture Trustee is deemed to have a conflicting interest as a result of
acting as trustee for more than one Series or Class of Notes, a successor
Indenture Trustee shall be appointed for one or more of such Classes or Series,
so that the Indenture Trustee for any one of the affected Classes or Series is
different from the Indenture Trustees for the other affected Classes or Series.
No such event shall alter the voting rights of the Noteholders of such Classes
or Series under this Indenture, any Indenture Supplement or any other Related
Document. However, so long as any amounts remain unpaid with respect to any
Class of Notes, only the Indenture Trustee for the Noteholders of such Class
will have the right to exercise remedies under this Indenture or the applicable
Indenture Supplement (but subject to the express provisions of Section 5.3 and
to the right of the Noteholders of any subordinate Class within the same Series
to receive their share of any proceeds of enforcement). Upon repayment of the
Class of Notes with the higher payment priority in full, all rights to exercise
remedies under this Indenture will transfer to the Indenture Trustee for the
next subordinate Class of Notes within the same Series.
In the case of the appointment hereunder of a successor Indenture Trustee
with respect to any Series or Class of Notes, the Issuer, the retiring Indenture
Trustee and the successor Indenture Trustee with respect to such Series or Class
of Notes shall execute and deliver an indenture supplemental hereto wherein the
successor Indenture Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, the successor Indenture Trustee all the rights,
powers, trusts and duties of the retiring Indenture Trustee with respect to the
Notes of the Series or Class to which the appointment of such successor
Indenture Trustee relates, (ii) if the retiring Indenture Trustee is not
retiring with respect to all Series or Classes of Notes, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Indenture Trustee with respect
to the Notes of each Series or Class as to which the retiring Indenture Trustee
is not retiring shall continue to be vested in the retiring Indenture Trustee,
and (iii) shall add to or change any of the provisions of this Indenture and the
applicable Indenture Supplement as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Indenture
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Indenture Trustee's co-trustees of the same
trust and that each such Indenture Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Indenture Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Indenture
Trustee shall become effective to the extent provided therein.
65
SECTION 6.12. Acceptance by Indenture Trustee. The Indenture Trustee hereby
acknowledges the grant of a Lien on the Collateral and the receipt of a Lien on
the assets constituting the Collateral granted by the Issuer hereunder and
declares that the Indenture Trustee, through a custodian, will hold such Lien on
the Collateral in trust, for the use and benefit of all Noteholders subject to
the terms and provisions hereof.
SECTION 6.13. Preferential Collection of Claims Against the Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.14. Reports by Indenture Trustee to Noteholders. To the extent
required by the TIA, on or before the date prescribed by applicable law, the
Indenture Trustee shall mail to the Noteholders a brief report dated as of such
reporting date that complies with TIA Section 313(a), if such a report is
required pursuant to TIA Section 313(a). The Indenture Trustee also shall comply
with TIA Section 313(b). The Indenture Trustee shall also transmit by mail all
reports as required by TIA Section 313(c).
A copy of each such report required under TIA Section 313 shall, at the
time of such transmission to Noteholders be filed with the Commission and with
each stock exchange or other market system on which the Notes are listed. The
Issuer shall notify the Indenture Trustee in writing if the Notes become listed
on any stock exchange or market trading system.
SECTION 6.15. Representations and Warranties. The Indenture Trustee hereby
represents that:
(a) the Indenture Trustee is duly organized and validly existing as a
bank in good standing under the laws of the State of Delaware with power
and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted;
(b) the Indenture Trustee has the power and authority to execute and
deliver this Indenture and to carry out its terms; and the execution,
delivery and performance of this Indenture have been duly authorized by the
Indenture Trustee by all necessary corporate action;
(c) each of this Indenture and the other Related Documents to which it
is a party has been duly executed and delivered by the Indenture Trustee
and constitutes its legal, valid and binding obligation in accordance with
its terms;
(d) the consummation of the transactions contemplated by this
Indenture and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under the articles of
organization or bylaws of the Indenture Trustee or any material agreement
or other instrument to which the Indenture Trustee is a party or by which
it is bound; and
66
(e) there are no proceedings or investigations pending or to the best
of the Indenture Trustee's knowledge, threatened before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Indenture Trustee or its
properties: (i) asserting the invalidity of this Indenture, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Indenture or (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Indenture Trustee of
its obligations under, or the validity or enforceability of, this
Indenture.
SECTION 6.16. The Paying Agent. The Issuer hereby appoints Deutsche Bank
Trust Company Americas as the initial Paying Agent. All payments of amounts due
and payable with respect to any Notes that are to be made from amounts withdrawn
from any Trust Account pursuant to Section 4.2 and the applicable Indenture
Supplement shall be made on behalf of the Issuer by the Paying Agent.
The Paying Agent hereby agrees that subject to the provisions of this
Section, it shall:
(i) hold any 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 prompt notice of any default by
the Issuer of which it has actual knowledge in the making of any
payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to
the Indenture Trustee any sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee any sums held by it in trust for the payment of
Notes if at any time it ceases to meet the standards required to be
met by a Paying Agent; and
(v) comply with all requirements of the Code and any applicable
State law with respect to the withholding from any payments made by it
on any Notes of any applicable withholding taxes imposed thereon and
with respect to any applicable reporting requirements in connection
therewith.
The Issuer shall at any time when necessary or required, for the purpose of
obtaining the satisfaction and discharge of this Indenture with respect to all
the Notes or for any other purpose, by Issuer Order, cause any Paying Agent
other than the Indenture Trustee to pay to the Indenture Trustee any sums held
in trust by such Paying Agent with respect to the Notes, such sums to be held by
the Indenture Trustee upon the same trusts as those upon which the sums were
held by such Paying Agent and, in the case of satisfaction and discharge of the
Indenture, applied according to Section 4.1; and upon such payment by any Paying
Agent to the Indenture Trustee, such Paying Agent shall be released from all
further liability with respect to such sums.
67
Subject to applicable laws with respect to escheat of funds, any amounts
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed for two (2)
years after such amount has become due and payable shall be discharged from such
trust and be paid to the Issuer on Issuer Request; and the related Noteholder
shall thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust funds shall thereupon cease; provided, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense and direction of the Issuer cause to be published once, in
a newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such funds remain unclaimed and that, after a date specified therein, which
shall not be less than thirty (30) days from the date of such publication, any
unclaimed balance of such funds then remaining will be repaid to the Issuer. The
Indenture Trustee shall also adopt and employ, at the expense of the Issuer, any
other reasonable means of notification of such repayment (including mailing
notice of such repayment to Noteholders whose Notes have been called but have
not been surrendered for redemption or whose right to or interest in amounts due
and payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Noteholder).
Each Paying Agent (other than the initial Paying Agent) shall be appointed
by Issuer Order with written notice thereof to the Indenture Trustee. Any Paying
Agent appointed by the Issuer shall be a Person who would be eligible to be
Indenture Trustee hereunder as provided in Section 6.11 (except that a Paying
Agent need not satisfy the requirements of subsection (a)(4)(i) of Rule 3a-7 of
the Investment Company Act). The Issuer shall not appoint any Paying Agent
(other than the Indenture Trustee) which is not, at the time of such
appointment, a depository institution or trust company, including the Indenture
Trustee, that (a) is incorporated under the laws of the United States of America
or any State, (b) is subject to supervision and examination by federal or state
banking authorities, and (c) has outstanding unsecured commercial paper or other
short-term unsecured debt obligations that are rated at least "A-1" by S&P or
"P-1" by Moody's (or its equivalent).
ARTICLE VII
NOTEHOLDERS LISTS AND REPORTS
SECTION 7.1. The Issuer to Furnish the Indenture Trustee Names and
Addresses of Noteholders. The Issuer will furnish or cause to be furnished to
the Indenture Trustee (a) upon each transfer of a Note, a list, in such form as
the Indenture Trustee may reasonably require, of the names, addresses and
taxpayer identification numbers of the as of such Record Date, and (b) at such
other times, as the Indenture Trustee may request in writing, within ten (10)
days after receipt by the Issuer of any such request, a list of similar form and
content as of a date not more than ten (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.
68
(a) The Indenture Trustee shall preserve, at all times, the names and
addresses of the Noteholders contained in the most recent list furnished to
the Indenture Trustee as provided in Section 7.1 and the names and
addresses of Noteholders received by the Indenture Trustee in its capacity
as Note Registrar. The Indenture Trustee may destroy any list furnished to
it as provided in Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or
under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall
have the protection of TIA Section 312(c).
SECTION 7.3. Reports by the Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within fifteen (15) days
after the Issuer is required to file the same with the Commission,
copies of the annual reports and 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 Securities 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
or its agent 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. The Issuer shall notify the
Indenture Trustee in writing of any change in its fiscal year.
(c) Delivery of such reports, information and documents to the
Indenture Trustee is for informational purposes only and the Indenture
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Issuer's compliance with any of the covenants
hereunder.
SECTION 7.4. List of Noteholders.
69
Noteholders of not less than ten percent (10%) of the Outstanding Principal
Balance of any Series of Notes may obtain access to the list of Noteholders the
Indenture Trustee maintains for the purpose of communicating with the other
Noteholders. The Indenture Trustee may elect not to allow the requesting
Noteholders access to the list of Noteholders if the Indenture Trustee agrees to
mail the requested communication or proxy, on behalf and at the expense of the
requesting Noteholders, to all Noteholders of record.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1. Collection of Amounts Due. Except as otherwise expressly
provided herein and in the related Indenture Supplement, 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 sums and other property payable to or receivable by the Indenture Trustee
pursuant to this Indenture. The Indenture Trustee shall apply all such amounts
received by it as provided in this Indenture.
SECTION 8.2. Trust Accounts.
(a) On or prior to the Closing Date for the first Series (in respect
of clauses (i) and (ii) below) or the Closing Date for the applicable
Series (in respect to clause (iii) below), the Issuer covenants to have
established and shall thereafter maintain the following accounts (the
"Trust Accounts"), which accounts shall be Eligible Deposit Accounts:
(i) Collection Account;
(ii) Excess Funding Account; and
(iii) a Series Account for the applicable Series of Notes.
(b) If any Trust Account is a Securities Account, such Trust Account
shall be maintained in accordance with the Custody and Control Agreement.
(c) If any Trust Account is a deposit account: (i) If, at any time,
any of the Trust Accounts ceases to be an Eligible Deposit Account, the
Issuer shall within ten (10) Business Days (or such longer period, not to
exceed thirty (30) calendar days, as to which, if any Notes are
Outstanding, each Rating Agency may consent to such longer period)
establish a new Trust Account as an Eligible Deposit Account and shall
transfer any cash and/or any investments held in the no longer Eligible
Deposit Account to such new Trust Account.
(ii) With respect to the Trust Account Property, the Issuer and
Indenture Trustee agree, as security for the Issuer's obligations
under this Indenture, that:
(A) any Trust Account Property that constitutes, or is held
through or in, a deposit account shall be, or shall be held through or
in, an Eligible Deposit
70
Account continuously identified in the deposit bank's books and
records as subject to a security interest of the Indenture Trustee
and, except as may be expressly provided herein to the contrary, in
order to perfect the security interest of the Indenture Trustee in
accordance with Section 9-104 of the UCC, the Indenture Trustee shall
have the power to direct disposition of the funds in such deposit
account without further consent by the Issuer; provided, however, that
prior to delivery by the Indenture Trustee to the Issuer of notice
otherwise, the Issuer shall direct the disposition of the funds in
such deposit account in accordance with the terms of the Related
Documents; provided, further that the Indenture Trustee agrees that it
will not deliver such notice or exercise its power to direct
disposition of the funds in such deposit account unless an Event of
Default has occurred and is continuing; and
(B) any Trust Account Property that constitutes a Permitted
Investment or a similar investment shall be held by the Custodian in
accordance with the Custody and Control Agreement and shall be subject
to the Indenture Trustee's security interest in such Trust Account
Property.
(d) Funds on deposit in the Excess Funding Account shall be withdrawn
and paid to the Transferor on any day to the extent that the Free Equity
Amount exceeds the Minimum Free Equity Amount. On any Transfer Date on
which one or more Series is in an Amortization Period, the Issuer shall
determine the aggregate amounts of Principal Shortfalls, if any, with
respect to each such Series that is a Principal Sharing Series (after
giving effect to the allocation and payment provisions in the related
Indenture Supplement, including the application of Shared Principal
Collections, with respect to each such Series), and Issuer shall instruct
the Indenture Trustee to withdraw such amount from the Excess Funding
Account (up to the lesser of (x) the amount on deposit in the Excess
Funding Account after application of the preceding sentence on that day and
(y) the amount, if any, by which the Free Equity Amount would be less than
zero if there were no funds on deposit in the Excess Funding Account on
that day) on such Transfer Date and allocate such amount among each such
Series as specified in the related Indenture Supplement.
SECTION 8.3. Rights of Noteholders. The Collateral shall secure the rights
of the Noteholders of each Series to receive the portion of Collections
allocable to the Noteholders of such Series pursuant to this Indenture and the
related Indenture Supplement, funds and other property credited to the
Collection Account (or any subaccount thereof) allocable to the Noteholders of
such Series pursuant to this Indenture and such Indenture Supplement, funds and
other property credited to any related Series Account and funds available
pursuant to any related Series Enhancement, it being understood that, except as
specifically set forth in the Indenture Supplement with respect thereto, the
Notes of any Series or Class shall not be secured by any interest in any Series
Account or Series Enhancement pledged for the benefit of any other Series or
Class that is Outstanding.
SECTION 8.4. Collections and Allocations.
71
(a) Issuer shall apply all funds on deposit in the Collection Account
as described in this Article VIII and in each Indenture Supplement. Except
as otherwise provided below and in each Indenture Supplement, Issuer shall
deposit, or cause to be deposited, Collections into the Collection Account
no later than the second Business Day following the Date of Processing of
such Collections.
Subject to the express terms of any Indenture Supplement, but
notwithstanding anything else in this Indenture to the contrary, if (x) for
so long as the Master Servicer maintains a short term debt rating of A-1 or
better by S&P, P-1 or better by Moody's (if rated by Moody's) and F1 or
better by Fitch (if rated by Fitch), (y) with respect to Collections
allocable to any Series, any other conditions specified in the related
Indenture Supplement are satisfied or (z) the Master Servicer has provided
to the Indenture Trustee a letter of credit, surety bond or other similar
arrangement covering collection risk of Servicer and in each case
acceptable to each Rating Agency (as evidenced by a letter from each Rating
Agency to the effect that the Rating Agency Condition has been satisfied),
if any, Issuer need not make the daily deposits of Collections into the
Collection Account as provided in the preceding paragraph, but may make a
single deposit in the Collection Account in immediately available funds not
later than 12:00 noon, New York City time, on the related Business Day
immediately preceding the Payment Date.
(b) On each Determination Date, after giving effect to allocations in
respect of Dealer Overconcentrations, Manufacturer Overconcentrations and
Product Line Overconcentrations pursuant to clauses (d) through (f) below,
Principal Collections and Non-Principal Collections shall be allocated to
each Series of Notes in accordance with the related Indenture Supplement.
On each Determination Date after giving effect to allocations in respect of
Dealer Overconcentrations, Manufacturer Overconcentrations and Product Line
Overconcentrations pursuant to clauses (d) through (f) below, the Default
Amount will be allocated to each Series of Notes in accordance with the
related Indenture Supplement.
(c) Throughout the existence of the Issuer, unless otherwise stated in
any Indenture Supplement, on each Determination Date, after giving effect
to allocations in respect of Dealer Overconcentrations, Manufacturer
Overconcentrations and Product Line Overconcentrations pursuant to clauses
(d) through (f) below, the Issuer shall allocate to the Transferor an
amount equal to the product of (A) the Transferor Percentage and (B) the
aggregate amount of Principal Collections and Non-Principal Collections,
respectively, on that Determination Date; provided, that, if the Free
Equity Amount (determined after giving effect to any transfer of Principal
Receivables to the Issuer on such date), is less than or equal to the
Minimum Free Equity Amount, Issuer shall deposit in the Excess Funding
Account an amount equal to the lesser of (i) the amounts that otherwise
would be allocated to the Transferor and (ii) the amount by which the
Minimum Free Equity Amount exceeds the Free Equity Amount. Unless otherwise
stated in any Indenture Supplement, neither the Master Servicer nor
Transferor need deposit any amounts allocated to Transferor pursuant to the
foregoing into the Collection Account and shall pay, or be deemed to pay,
such amounts as collected to Transferor.
72
The payments to be made to Transferor pursuant to this Section 8.4(c) do
not include amounts that do not represent Collections, including proceeds from
the sale, disposition or liquidation of Transferred Receivables pursuant to
Section 5.3 or payment of the purchase price for the Notes of a specific Series
pursuant to the related Indenture Supplement.
(d) On each Determination Date, the Issuer shall determine whether a
Dealer Overconcentration exists with respect to any Dealer that is not a
Manufacturer, and, if any Dealer Overconcentration does exist, shall
calculate the Dealer Overconcentration Percentage for each Overconcentrated
Dealer. For so long as a Dealer Overconcentration exists, the Dealer
Overconcentration Percentage of (i) all Principal Collections relating to
each Overconcentrated Dealer, (ii) all Non-Principal Collections relating
to each Overconcentrated Dealer and (iii) the portion of the Default Amount
relating to each Overconcentrated Dealer with respect to each Monthly
Period shall each be allocated to the Transferor on each Determination
Date.
(e) On each Determination Date, after giving effect to paragraph (d)
above, the Issuer shall determine whether a Manufacturer Overconcentration
exists with respect to any Manufacturer, and, if any Manufacturer
Overconcentration does exist, shall calculate the Manufacturer
Overconcentration Percentage for each Overconcentrated Manufacturer. For so
long as a Manufacturer Overconcentration exists, the Manufacturer
Overconcentration Percentage of (i) all Principal Collections relating to
each Overconcentrated Manufacturer, (ii) all Non-Principal Collections
relating to each Overconcentrated Manufacturer and (iii) the portion of the
Default Amount relating to each Overconcentrated Manufacturer with respect
to each Monthly Period shall each be allocated to the Transferor on each
Determination Date.
(f) On each Determination Date, after giving effect to paragraphs (d)
and (e) above, the Issuer shall determine whether a Product Line
Overconcentration exists with respect to any Product line, and, if any
Product Line Overconcentration does exist, shall calculate the Product Line
Overconcentration Percentage for each Overconcentrated Product Line. For so
long as a Product Line Overconcentration exists, the Product Line
Overconcentration Percentage of (i) all Principal Collections relating to
each Overconcentrated Product Line, (ii) all Non-Principal Collections
relating to each Overconcentrated Product Line and (iii) the portion of the
Default Amount relating to each Overconcentrated Product Line with respect
to each Monthly Period shall each be allocated to the Transferor on each
Determination Date.
SECTION 8.5. Shared Principal Collections. On each Transfer Date, (a)
Issuer shall allocate Shared Principal Collections not previously so applied or
paid to each applicable Principal Sharing Series, pro rata, in proportion to the
Principal Shortfalls, if any, with respect to each such Series and (b) Issuer
shall withdraw from the Collection Account and pay to Transferor any amounts
representing Shared Principal Collections remaining after the allocations and
applications referred to in clause (a); provided, that, if, on any day the Free
Equity Amount (determined after giving effect to any transfer of Principal
Receivables to the Issuer on such day), is less than or equal to the Minimum
Free Equity Amount, Issuer shall not distribute to Transferor any Shared
Principal Collections that otherwise would be distributed to Transferor,
73
but shall deposit such funds in the Excess Funding Account to the extent
required so that the Free Equity Amount equals the Minimum Free Equity Amount.
SECTION 8.6. Excess Non-Principal Collections. On each Transfer Date, (a)
for each Group, Issuer shall allocate the aggregate amount for all outstanding
Series in such Group of the amounts which the related Indenture Supplements
specify are to be treated as "Excess Non-Principal Collections" for such
Transfer Date to each Series in such Group, pro rata, in proportion to the
Non-Principal Shortfalls, if any, with respect to each such Series, and (b)
Issuer shall on the related Payment Date withdraw (or shall instruct the
Indenture Trustee in writing to withdraw) from the Collection Account and pay to
Transferor an amount equal to the excess, if any, of (x) the aggregate amount
for all outstanding Series in a Group of the amounts which the related Indenture
Supplements specify are to be treated as "Excess Non-Principal Collections" for
such Payment Date over (y) the aggregate amount for all outstanding Series in
such Group which the related Indenture Supplements specify are "Non-Principal
Shortfalls", for such Payment Date.
SECTION 8.7. Release of Collateral.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.7, the Indenture Trustee may, and when required by this Indenture
shall, execute instruments to release property from the Lien of this
Indenture, or convey the Indenture Trustee's interest in the same, in a
manner and under circumstances that are not inconsistent with this
Indenture. No party relying upon an instrument executed by the Indenture
Trustee as provided in this Article shall be bound to ascertain the
Indenture Trustee's authority, inquire into the satisfaction of any
conditions precedent or see to the application of any funds.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding, release and transfer, without recourse, all of the Collateral
that secured the Notes (other than any cash held for the payment of the
Notes pursuant to Section 4.2). The Indenture Trustee shall release
property from the Lien of this Indenture pursuant to this Section 8.7(b)
only upon receipt of an Issuer Request requesting such release accompanied
by an Officer's Certificate and an Opinion of Counsel and (if required by
the TIA and the applicable Indenture Supplement) Independent Certificates
in accordance with TIA Sections 314(c) and 314(d)(1) meeting the applicable
requirements of Section 10.1.
SECTION 8.8. Opinion of Counsel. The Indenture Trustee shall receive at
least five (5) days' notice when requested by the Issuer to take any action
pursuant to Section 8.7(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require, as a condition to such action, an
Opinion of Counsel stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
will not materially and adversely impair the security for the Notes or the
rights of the Noteholders in contravention of this Indenture; provided, however,
that such Opinion of Counsel shall not be required to express an opinion as to
the fair value of the Collateral. 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.
74
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Noteholders, the Issuer and the
Indenture Trustee, when authorized by an Issuer Order, at any time and from
time to time, may enter into one or more indentures supplemental hereto or
to any Indenture Supplement (which shall conform to the TIA as in force at
the date of the execution thereof), in form satisfactory to the Indenture
Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture, or better to Grant unto
the Indenture Trustee a Lien on any property subject or required to be
subjected to the Lien of this Indenture, or to subject to the Lien of
this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another Person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein
and in the Notes;
(iii) to add to the covenants of the Issuer, for the benefit of
the Noteholders, or to surrender any right or power herein conferred
upon the Issuer; provided such surrender would not (as evidenced by an
Officer's Certificate of the Issuer) have a material adverse effect on
the Noteholders;
(iv) to convey, transfer, assign, mortgage or pledge any property
to or with the Indenture Trustee for the benefit of the Noteholders;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with
any other provision herein or in any supplemental indenture or to make
any other provisions with respect to matters or questions arising
under this Indenture or in any supplemental indenture; provided, that
such action shall not (as evidenced by an Officer's Certificate of the
Issuer) materially and adversely affect the interests of the
Noteholders;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor or additional trustee with
respect to the Notes or any class thereof 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;
(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; or
75
(viii) to provide for the issuance of one or more new Series of
Notes, in accordance with the provisions of Section 2.8.
The Indenture Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate
agreements and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee may when authorized by an
Issuer Request, also without the consent of any Noteholders of any Series
then Outstanding, enter into an indenture or indentures supplemental hereto
or to any Indenture Supplement for the purpose of adding any provisions to,
or changing in any manner or eliminating any of the provisions of, this
Indenture or to any Indenture Supplement or modifying in any manner the
rights of the Noteholders under this Indenture or under any Indenture
Supplement; provided, however, that the Issuer shall have delivered to the
Indenture Trustee (i) an Officer's Certificate, dated the date of any such
action, stating that all requirements therefor contained in this Section
9.1(b) have been met, and that the Issuer reasonably believes that such
action will not result in an Adverse Effect and (ii) a Tax Opinion.
Additionally, notwithstanding the preceding sentence, the Issuer and the
Indenture Trustee, when authorized by an Issuer Request, may, without the
consent of any Noteholders of any Series then Outstanding, enter into an
indenture or indentures supplemental hereto to add, modify or eliminate
such provisions as may be necessary or advisable to avoid the imposition of
state or local income or franchise taxes imposed on the Issuer's property
or its income; provided, however, that (i) the Issuer delivers to the
Indenture Trustee and the Issuer an Officer's Certificate to the effect
that the proposed action (i) meets the requirements set forth in this
Section 9.1(b) and (ii) does not adversely affect the rights, duties,
protections, indemnities, immunities or obligations of the Indenture
Trustee or the Issuer hereunder. The amendments which the Issuer may make
without the consent of Noteholders pursuant to this Section 9.1(b) may
include the addition of Transferred Receivables.
(c) The Issuer shall notify the Rating Agencies as to any amendment
pursuant to this Section 9.1.
SECTION 9.2. Supplemental Indentures With Consent of Noteholders. If
Section 9.1 is not applicable, the Issuer and the Indenture Trustee, when
authorized by an Issuer Order, may, with prior written notice to the Rating
Agencies, and with the consent of the Noteholders of at least sixty-six and
two-thirds percent (66 2/3%) of the Outstanding Principal Balance of the Notes
of each adversely affected Series, by Act of such Noteholders delivered to the
Issuer and the Indenture Trustee, enter into an indenture or indentures
supplemental hereto or to any Indenture Supplement for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture and the Indenture Supplement related to such affected Series or
of modifying in any manner the rights of such Noteholders under this Indenture
and such Indenture Supplement; provided, however, that no such supplemental
indenture shall, without the consent of the Noteholder of each Outstanding Note
affected thereby:
76
(a) change the due date of any installment of principal of or interest
on any Note, or reduce the principal amount thereof, the interest rate
specified thereon or the Redemption Price with respect thereto or change
any place of payment where, or the coin or currency in which, any Note or
any interest thereon is payable;
(b) impair the right to institute suit for the enforcement of the
provisions of this Indenture requiring the application of funds available
therefor, as provided in Article V, to the payment of any such amount due
on or after the respective due dates thereof (or, in the case of
redemption, on or after the Redemption Date);
(c) reduce the percentage of the Outstanding Principal Balance of
Notes of any Series the consent of the Noteholders of which is required for
any such supplemental indenture, or the consent of the Noteholders 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;
(d) reduce the percentage of the Outstanding Principal Balance of
Notes of any Series, the consent of the Noteholders of which is required to
direct the Indenture Trustee to direct the Issuer to sell the Collateral or
any portion thereof if the proceeds of such sale would be insufficient to
pay the principal amount and accrued but unpaid interest on the Outstanding
Notes of such Series;
(e) decrease the percentage of the Outstanding Principal Balance of
Notes required to amend the sections of this Indenture which specify the
applicable percentage of the Outstanding Principal Balance of Notes of any
Series necessary to amend the Indenture or any Related Documents which
require such consent;
(f) modify or alter the provisions of this Indenture prohibiting the
voting of Notes held by the Issuer, any other obligor on the Notes, a
Transferor or any affiliate thereof; or
(g) permit the creation of any Lien ranking prior to or on a parity
with the Lien of this Indenture with respect to any part of the Collateral
for any Notes or, except as otherwise permitted or contemplated herein,
terminate the Lien of this Indenture on any such Collateral at any time
subject hereto or deprive the Noteholders of the security provided by the
Lien of this Indenture.
The Indenture Trustee may in its discretion determine for purposes of this
Section 9.2 whether or not any Notes would be affected by any supplemental
indenture and any such determination shall be conclusive upon the Noteholders,
whether theretofore or thereafter authenticated and delivered hereunder. The
Indenture Trustee shall not be liable for any such determination made in good
faith.
Satisfaction of the Rating Agency Condition shall not be required with
respect to the execution of any supplemental indenture pursuant to this Section
for which the consent of all of the affected Noteholders is required; provided
that prior notice of any such supplemental indenture shall be given to each
Rating Agency.
77
It shall not be necessary for any Act of the Noteholders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof. The manner
of obtaining such consents (and any other consents of Noteholders provided for
in this Indenture or in any other Related Document) and of evidencing the
authorization of the execution thereof by Noteholders shall be subject to such
reasonable requirements as the Indenture Trustee may provide.
Promptly after the execution by the Issuer and the Indenture Trustee of any
supplemental indenture pursuant to this Section, the Indenture Trustee shall
mail to the Noteholders to which such amendment or supplemental indenture
relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.3. Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and,
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, in
addition to the documents required by Section 10.1, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Indenture Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith, and such
supplemental indenture shall form a part of the terms and conditions of this
Indenture for any and all purposes and every Noteholder, theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby. This
Section does not apply to Indenture Supplements.
SECTION 9.5. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
SECTION 9.6. Conformity with Trust Indenture Act. Every amendment of this
Indenture and every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the TIA as then in effect so long as this
Indenture shall then be qualified under the TIA.
78
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Compliance Certificates and Opinions, etc.
(a) Upon any written application or request (or oral application with
prompt written or facsimiled confirmation) by the Issuer to the Indenture
Trustee to take any action under this Indenture, other than any request
that (i) the Indenture Trustee authenticate the Notes specified in such
request, or (ii) the Indenture Trustee pay amounts due and payable to the
Issuer hereunder to the Issuer's assignee specified in such request, the
Issuer shall furnish to the Indenture Trustee: (A) an Officer's Certificate
stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, (B) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with and (C) if required
by the TIA and the applicable Indenture Supplement, 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 this Indenture, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) 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;
(2) 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;
(3) a statement that, in the opinion of each such signatory, such
signatory has made (or has caused to be 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
(4) a statement as to whether, in the opinion of each such signatory,
such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the Lien of this
Indenture, the Issuer shall, in addition to any obligation imposed in
Section 10.1(a) or elsewhere in this Indenture, 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 ninety (90)
days of such deposit) to the Issuer of such Collateral or other property or
securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate described in clause (i), 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 such
Collateral or other property or securities to be so
79
deposited and of all other Collateral or other property or securities
released from the Lien of this Indenture since the commencement of the
then-current fiscal year of the Issuer, as set forth in the
certificates required by clause (i) and this clause (ii), equals ten
percent (10%) or more of the Outstanding Principal Balance of the
Notes, but such certificate need not be furnished with respect to any
Collateral or other property or securities so deposited if the fair
value thereof to the Issuer as set forth in the related Officer's
Certificate is less than twenty-five thousand dollars ($25,000) or
less than one percent of the then Outstanding Principal Balance of the
Notes.
(iii) Other than with respect to the release of any Defaulted
Receivables and Receivables in Removed Accounts, whenever any property
or investment property is to be released from the Lien of this
Indenture, the Issuer shall also furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within ninety (90) days
of such release) of the property or securities proposed to be released
and stating that in the opinion of such person the proposed release
will not impair the security under this Indenture in contravention of
the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate described in clause (iii), 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
Collateral or other property or securities and of all other such
Collateral or other property, other than Defaulted Receivables and
Transferred Receivables in Removed Accounts, or securities released
from the Lien of this Indenture since the commencement of the then
current calendar year, as set forth in the certificates required by
clause (iii) and this clause (iv), equals ten percent (10%) or more of
the Outstanding Principal Balance of the Notes, but such certificate
need not be furnished in the case of any release of Collateral or
other property or securities if the fair value thereof to the Issuer
as set forth in the related Officer's Certificate is less than
twenty-five thousand dollars ($25,000) or less than one percent of the
then Outstanding Principal Balance of the Notes.
(v) Notwithstanding any other provision of this Section, the
Issuer may (A) collect, liquidate, sell or otherwise dispose of
Transferred Receivables as and to the extent permitted or required by
the Related Documents and (B) make cash payments out of the Series
Accounts as and to the extent permitted or required by the Related
Documents.
SECTION 10.2. Form of Documents Delivered to the 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.
80
Any certificate or opinion of an Authorized Officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate, opinion or representations
with respect to the matters upon which his certificate or opinion is based
is/are erroneous. Any 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 any Originator, the
Master Servicer, the Transferor and/or the Issuer, stating that the information
with respect to such factual matters is in the possession of any Originator, the
Master Servicer, the Transferor and/or the Issuer, as applicable, unless such
Authorized Officer or the applicable counsel knows, or in the exercise of
reasonable care should know, that the certificate, opinion or representations
with respect to such matters is/are erroneous. Any Opinion of Counsel may be
based on the written opinion of other counsel, in which event such Opinion of
Counsel shall be accompanied by a copy of such other counsel's opinion.
Where any Person is required or permitted to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever in this Indenture, in connection with any application, certificate
or report to the Indenture Trustee, 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 rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 10.3. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instrument(s)
of substantially similar tenor signed by such Noteholders in person or by
agents duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument(s) are
delivered to the Indenture Trustee, and, where it is hereby expressly
required, to the Issuer. Such instrument(s) (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Noteholders signing such instrument(s). Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section. At any time the Notes of any Class are
maintained on Book-Entry Notes, any reference in this Indenture to an Act
of Noteholders or a Noteholder or Noteholders representing a specified
portion of the Outstanding Principal Balance of the Notes or such Class of
Notes shall be deemed to
81
refer to an Act of Note Owners or a Note Owner or Note Owners holding such
specified portion of the Outstanding Principal Balance of the Notes or
Class, as the case may be.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the
Indenture Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or Act by the Noteholder shall bind every Noteholder issued upon the
registration of the related Note, 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.
(e) By accepting the Notes issued pursuant to this Indenture, each
Noteholder irrevocably appoints the Indenture Trustee hereunder as the
special attorney-in-fact for such Noteholder vested with full power on
behalf of such Noteholder to effect and enforce the rights of such
Noteholder and the revisions pursuant hereto for the benefit of such
Noteholder; provided, that nothing contained in this Section shall be
deemed to confer upon the Indenture Trustee any duty or power to vote on
behalf of the Noteholders with respect to any matter on which the
Noteholders have a right to vote pursuant to the terms of this Indenture.
SECTION 10.4. Notices, etc., to the Indenture Trustee, the 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, shall be in writing and, if such request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders is to be made upon,
given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer, shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Indenture Trustee at its Corporate Trust Office
with a copy to Deutsche Bank Trust Company Americas, or
(b) the Issuer by the Indenture Trustee or by any Noteholder, shall be
sufficient for every purpose hereunder if in writing and mailed,
first-class, postage prepaid, to the Issuer addressed to: GE Dealer
Floorplan Master Note Trust, in care of General Electric Capital
Corporation, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, Attention: Manager,
Securitizations, or at any other address furnished in writing to the
Indenture Trustee by
82
the Issuer. The Issuer shall promptly transmit any notice received by it
from the Noteholders to the Indenture Trustee.
Notices, if any, required to be given to the Rating Agencies by the Issuer,
the Indenture Trustee or the Trustee shall be in writing, personally delivered
or mailed by certified mail, return receipt requested, to their respective
addresses set forth in the applicable Indenture Supplement.
SECTION 10.5. Notices to Noteholders; Waiver. Where this Indenture provides
for notice to Noteholders of any event or the mailing of any report to
Noteholders, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class, postage prepaid or
certified mail return receipt requested, or sent by private courier or confirmed
telecopy to each Noteholder affected by such event or to whom such report is
required to be mailed, at its 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 or the mailing of such report. In any case where
notice or report to Noteholders is given by mail, neither the failure to mail
such notice or report nor any defect in any notice or report so mailed to any
particular Noteholder shall affect the sufficiency of such notice or report 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 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 or by reason of
any other cause it shall be impracticable to mail or send notice to Noteholders,
in accordance with this Section, of any event or any report to Noteholders when
such notice or report is required to be delivered pursuant to any provision of
this Indenture, then such notification or delivery as shall be made with the
approval of the Indenture Trustee shall constitute a sufficient notification for
every purpose hereunder.
Where this Indenture 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 an Event of Default.
SECTION 10.6. Alternate Payment and Notice Provisions. Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, the Issuer
will, upon reasonable request of any Noteholder, enter into any agreement with
such Noteholder providing for a method of payment, or notice by the Indenture
Trustee or any Paying Agent to such Noteholder, that is different from the
methods provided for in this Indenture or the Notes for such payments or
notices, unless such agreement or the effects thereof could cause economic or
administrative burden on the Issuer or is unlawful; provided, however, that any
such agreement that imposes any duties or obligations on the Indenture Trustee
(including in its capacity as Paying Agent) shall be subject to the prior
written consent of the Indenture Trustee. The Issuer will furnish to
83
the Indenture Trustee a copy of each such agreement and the Indenture Trustee
will cause payments to be made and notices to be given in accordance with such
agreements.
SECTION 10.7. Successors and Assigns. All covenants and agreements in this
Indenture and the Notes by the Issuer shall bind its successors and assigns,
whether so expressed or not. All agreements of the Indenture Trustee in this
Indenture shall bind its successors, co-trustees and agents of the Indenture
Trustee, whether so expressed or not.
SECTION 10.8. Severability. Any provision of this Indenture or the Notes
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or of the
Notes, as applicable, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 10.9. Benefits of Indenture. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Noteholders, any other party secured
hereunder and any other Person with an ownership interest in any part of the
Collateral, any benefit or any legal or equitable right, remedy or claim under
this Indenture. Notwithstanding the foregoing or anything else to the contrary
in this Indenture, each of the Transferor and the Master Servicer is hereby
authorized to make any filings, reports, notices, applications and registrations
with, and seek consents and authorizations from, the Commission and any State
securities authority on behalf of the Issuer as may be necessary or advisable to
comply with any federal or state securities laws or reporting requirements.
SECTION 10.10. Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next Business Day with the same force and effect as if
made on the date on which nominally due, and no interest shall accrue with
respect to such payment for the period from and after any such nominal date.
SECTION 10.11. Governing Law.
(a) THIS INDENTURE AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW
PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA. TO THE EXTENT PROVIDED IN ANY APPLICABLE INDENTURE SUPPLEMENT,
THIS INDENTURE IS SUBJECT TO THE TRUST INDENTURE ACT AND SHALL BE GOVERNED
THEREBY AND CONSTRUED IN ACCORDANCE THEREWITH.
84
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL
HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN THEM PERTAINING TO THIS INDENTURE OR TO ANY MATTER ARISING OUT OF
OR RELATING TO THIS INDENTURE; PROVIDED, THAT EACH PARTY HERETO
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY;
PROVIDED, FURTHER, THAT NOTHING IN THIS INDENTURE SHALL BE DEEMED OR
OPERATE TO PRECLUDE THE INDENTURE TRUSTEE FROM BRINGING SUIT OR TAKING
OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL
OR ANY OTHER SECURITY FOR THE NOTES, OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF THE INDENTURE TRUSTEE. EACH PARTY HERETO SUBMITS
AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY
OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO
THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY
SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS
DETERMINED IN ACCORDANCE WITH SECTION 10.4 AND THAT SERVICE SO MADE SHALL
BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF
OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE
PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO
TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED
AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO
APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND
OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR
85
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH
THIS INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 10.12. Counterparts. This Indenture may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument. Executed counterparts may be delivered electronically.
SECTION 10.13. The Issuer Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer on the Notes or under
this Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) the Indenture Trustee or the 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 Indenture Trustee or the Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Trustee or the Indenture
Trustee or of any successor or assign of the Indenture Trustee or the Trustee in
its individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
SECTION 10.14. Communication by Noteholders with Other Noteholders. Subject
to Section 7.2(b), Noteholders may communicate, pursuant to TIA Section 312(b),
with other Noteholders with respect to their rights under this Indenture or the
Notes. The Issuer, the Indenture Trustee, the Note Registrar and all other
parties shall have the protection of TIA Section 312(c).
SECTION 10.15. Agents of the Issuer. The Indenture Trustee hereby
acknowledges that it has been advised that any agent of the Issuer may act on
behalf of the Issuer hereunder for purposes of all consents, amendments, waivers
and other actions permitted or required to be taken, delivered or performed by
the Issuer, and the Indenture Trustee agrees that any such action taken by an
agent on behalf of the Issuer shall satisfy the Issuer's obligations hereunder.
SECTION 10.16. Survival of Representations and Warranties. The
representations, warranties and certifications of the Issuer made in this
Indenture or in any certificate or other writing delivered by the Issuer
pursuant hereto shall survive the authentication and delivery of the Notes
hereunder.
SECTION 10.17. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by the TIA, 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.
86
SECTION 10.18. Subordination. The Issuer and each Noteholder by accepting a
Note acknowledge and agree that such Note represents indebtedness of the Issuer
and does not represent an interest in any assets (other than the Trust Estate)
of Transferor (including by virtue of any deficiency claim in respect of
obligations not paid or otherwise satisfied from the Trust Estate and proceeds
thereof). In furtherance of and not in derogation of the foregoing, to the
extent Transferor enters into other financial transactions, the Issuer as well
as each Noteholder by accepting a Note acknowledge and agree that it shall have
no right, title or interest in or to any assets (or interest therein) (other
than Trust Estate) conveyed or purported to be conveyed by Transferor to another
trust or other Person or Persons in connection therewith (whether by way of a
sale, capital contribution or by virtue of the granting of a lien) ("Other
Assets"). To the extent that, notwithstanding the agreements and provisions
contained in the preceding sentences of this subsection, the Issuer or any
Noteholder either (i) asserts an interest or claim to, or benefit from, Other
Assets, whether asserted against or through Transferor or any other Person owned
by Transferor, or (ii) is deemed to have any such interest, claim or benefit in
or from Other Assets, whether by operation of law, legal process, pursuant to
applicable provisions of insolvency laws or otherwise (including by virtue of
Section 1111(b) of the Bankruptcy Code or any successor provision having similar
effect under the Bankruptcy Code), and whether deemed asserted against or
through Transferor or any other Person owned by Transferor, then the Issuer and
each Noteholder by accepting a Note further acknowledges and agrees that any
such interest, claim or benefit in or from Other Assets is and shall be
expressly subordinated to the indefeasible payment in full of all obligations
and liabilities of Transferor which, under the terms of the relevant documents
relating to the securitization of such Other Assets, are entitled to be paid
from, entitled to the benefits of, or otherwise secured by such Other Assets
(whether or not any such entitlement or security interest is legally perfected
or otherwise entitled to a priority of distribution or application under
applicable law, including insolvency laws, and whether asserted against
Transferor or any other Person owned by Transferor), including, the payment of
post-petition interest on such other obligations and liabilities. This
subordination agreement shall be deemed a subordination agreement within the
meaning of Section 510(a) of the Bankruptcy Code. Each Noteholder further
acknowledges and agrees that no adequate remedy at law exists for a breach of
this Section and the terms of this Section may be enforced by an action for
specific performance.
SECTION 10.19. Title to Trust Property. In the event that applicable law in
any jurisdiction requires title to any part of the Collateral to be vested in
the Trustee, the Trustee (solely in its capacity as Trustee) by its signature
hereto on behalf of the Issuer, shall be deemed to Grant, and the Trustee
(solely in its capacity as Trustee) by its signature hereto on behalf of the
Issuer, hereby Grants, to the Indenture Trustee a security interest in all of
the Trustee's right, title and interest in, to and under the Collateral. In the
event that applicable law in any jurisdiction requires title to any part of the
Collateral to be vested in any trustee ("Other Trustee") other than the Trustee,
the Issuer shall cause such Other Trustee to Grant to the Indenture Trustee a
security interest in such Other Trustee's right, title and interest in, to and
under the Collateral.
[Signatures Follow]
87
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
GE DEALER FLOORPLAN MASTER NOTE TRUST
By: THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity,
but solely on behalf of the Issuer
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Asst. Vice President
S-1
WILMINGTON TRUST COMPANY,
not in its individual capacity, but
solely as Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
S-2
The undersigned agrees to act as Note Registrar, Paying Agent and Authenticating
Agent and to maintain an office as set forth in Section 3.2.
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
S-3
EXHIBIT A
to Indenture
FORM OF OFFICER'S CERTIFICATE (SECTION 3.9)
____________, 200_
[____________________________]
Pursuant to Section 3.9 of the Master Indenture, dated as of August 12,
2004 (the "Indenture"), between GE Dealer Floorplan Master Note Trust (the
"Issuer") and Wilmington Trust Company, as Indenture Trustee, the undersigned
hereby certifies that:
(a) a review of the activities of the Issuer during the previous
fiscal year and of the Issuer's performance under the Indenture has been
made under the supervision of the undersigned; and
(b) [to the best knowledge of the undersigned, based on such review,
the Issuer has complied with all conditions and covenants under the
Indenture throughout such year] [if there has been a default in the
compliance of any such condition or covenant, this certificate is to
specify each such default known to the undersigned and the nature and
status thereof].
GE DEALER FLOORPLAN MASTER NOTE TRUST
By: General Electric Capital
Corporation, as Administrator
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Exhibit A-1
SCHEDULE 1
to Indenture
PERFECTION REPRESENTATIONS AND WARRANTIES (SECTION 2.15)
(a) In addition to the representations, warranties and covenants
contained in the Indenture, the Issuer hereby represents, warrants and
covenants to the Indenture Trustee as follows as of the Initial Closing
Date:
(i) The Indenture creates a valid and continuing security
interest (as defined in the applicable UCC) in the Issuer's rights in
the Collateral in favor of the Indenture Trustee, which security
interest is prior to all other Liens (other than Permitted
Encumbrances (in the case of the Note Trust Certificate, upon the
Indenture Trustee obtaining and maintaining possession of the Note
Trust Certificate)), and is enforceable as such against creditors of
and purchasers from the Issuer.
(ii) The Transferred Receivables constitute "instruments,"
"general intangibles", "accounts" or "chattel paper" within the
meaning of the UCC. The Note Trust Certificate constitutes a "general
intangible", a "payment intangible" or an "instrument" or a
"certificated security" within the meaning of the applicable UCC.
(iii) The Issuer owns and has good and marketable title to the
Collateral free and clear of any Lien, claim or encumbrance of any
Person (other than Permitted Encumbrances).
(iv) There are no consents or approvals required by the terms of
the Collateral for the pledge of the Issuer's rights in the Collateral
to the Indenture Trustee pursuant to the Indenture.
(v) The Issuer has caused, or will have caused within ten (10)
days after the Closing Date or any applicable Addition Date, the
filing of all appropriate financing statements in the proper filing
office in the appropriate jurisdictions under applicable law in order
to perfect the security interest granted to the Indenture Trustee
under the Indenture in the Collateral.
(vi) Other than the security interest granted to the Indenture
Trustee pursuant to the Indenture, the Issuer has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed
the Collateral except as contemplated by the Indenture, the Second
Tier Agreement or the Servicing Agreement. The Issuer has not
authorized the filing of and is not aware of any financing statements
against the Issuer that include a description of collateral covering
the Collateral, other than any financing statement relating to the
security interest granted to the Indenture Trustee hereunder, or that
has been terminated. The Issuer is not aware of any judgment or tax
lien filings against the Issuer.
Schedule 1-1
(vii) Notwithstanding any other provision of the Indenture, the
representations and warranties set forth in this Schedule 1 shall be
continuing, and remain in full force and effect, until such time as
the Notes cease to be Outstanding.
(b) The Indenture Trustee covenants that it shall not, without the
consent of S&P, if S&P is then rating any outstanding Series, waive any
representation or warranty, or a breach of any representation or warranty,
set forth in this Schedule 1.
(c) All financing statements filed against the Issuer in favor of the
Indenture Trustee in connection herewith describing the Collateral contain
a statement to the following effect: "A purchase of or security interest in
any collateral described in this financing statement will violate the
rights of the secured party."
(d) The Issuer covenants that, in order to evidence the interests of
the Issuer and the Indenture Trustee under this Agreement, the Issuer shall
take such action, or execute and deliver such instruments (other than
effecting a Filing (as defined below), unless such Filing is effected in
accordance with this paragraph), or cause such action to be taken, as may
be necessary or advisable (including such actions as are requested by the
Indenture Trustee) to maintain and perfect, as a first priority security
interest, the Indenture Trustee's security interest in the Collateral. The
Issuer shall, from time to time and within the time limits established by
law, prepare and present to the Indenture Trustee for the Indenture Trustee
to authorize (based in reliance on the Opinion of Counsel hereinafter
provided for in this paragraph) the Issuer to file, all financing
statements, amendments, continuations, financing statements in lieu of a
continuation statement, terminations, partial terminations, releases or
partial releases, or any other filings necessary or advisable to continue,
maintain and perfect the Indenture Trustee's security interest in the
Collateral as a first priority security interest (each a "Filing"). The
Issuer shall present each such Filing to Indenture Trustee together with
(x) an Opinion of Counsel to the effect that such Filing (i) satisfies all
requirements and conditions to such Filing in this Indenture and (ii)
satisfies the requirements for a Filing of such type under the UCC in the
applicable jurisdiction, and (y) a form of authorization for Indenture
Trustee's signature. Upon receipt of such Opinion of Counsel and form of
authorization, Indenture Trustee shall promptly authorize in writing the
Issuer to, and the Issuer shall, effect such Filing under the UCC.
Notwithstanding anything else in this Agreement to the contrary, the Issuer
shall not have any authority to effect a Filing without obtaining written
authorization from Indenture Trustee in accordance with this paragraph.
Schedule 1-2