Exhibit 4.1
EXECUTION COPY
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INDENTURE
Dated as of November 18, 2002
between
HOUSEHOLD AUTOMOTIVE TRUST 2002-3
Issuer
and
U.S. BANK NATIONAL ASSOCIATION
Indenture Trustee
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TABLE OF CONTENTS
PAGE
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ARTICLE I. Definitions and Incorporation by Reference............................................1
SECTION 1.1 Definitions...................................................................1
SECTION 1.2 Incorporation by Reference of the Trust Indenture Act.........................6
SECTION 1.3 Rules of Construction.........................................................7
SECTION 1.4 Action by or Consent of Noteholders and Certificateholders....................7
SECTION 1.5 Conflict with TIA.............................................................7
ARTICLE II. The Notes............................................................................7
SECTION 2.1 Form; Amount Limited; Issuable in Series......................................7
SECTION 2.2 Execution, Authentication and Delivery........................................8
SECTION 2.3 Temporary Notes...............................................................9
SECTION 2.4 Registration; Registration of Transfer and Exchange...........................9
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes...................................11
SECTION 2.6 Persons Deemed Owner.........................................................12
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest........................13
SECTION 2.8 Cancellation.................................................................14
SECTION 2.9 Reserved.....................................................................14
SECTION 2.10 Book-Entry Notes.............................................................14
SECTION 2.11 Notices to Clearing Agency...................................................15
SECTION 2.12 Definitive Notes.............................................................15
SECTION 2.13 Final Distribution...........................................................16
ARTICLE III. Covenants..........................................................................16
SECTION 3.1 Payment of Principal and Interest............................................16
SECTION 3.2 Maintenance of Office or Agency..............................................17
SECTION 3.3 Money for Payments to be Held in Trust.......................................17
SECTION 3.4 Existence....................................................................19
SECTION 3.5 Protection of Series Trust Estate............................................19
SECTION 3.6 Opinions as to Series Trust Estate...........................................20
SECTION 3.7 Performance of Obligations; Servicing of Receivables.........................20
SECTION 3.8 Negative Covenants...........................................................21
SECTION 3.9 Annual Statement as to Compliance............................................22
SECTION 3.10 Issuer May Consolidate, Etc. Only on Certain Terms...........................22
SECTION 3.11 Successor or Transferee......................................................24
SECTION 3.12 No Other Business............................................................24
SECTION 3.13 No Borrowing.................................................................25
SECTION 3.14 Master Servicer's Obligations................................................25
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities............................25
SECTION 3.16 Capital Expenditures.........................................................25
SECTION 3.17 Compliance with Laws.........................................................25
SECTION 3.18 Restricted Payments..........................................................25
SECTION 3.19 Notice of Events of Default..................................................26
SECTION 3.20 Further Instruments and Acts.................................................26
SECTION 3.21 Amendments of Master Sale and Servicing Agreement and Trust Agreement........26
SECTION 3.22 Income Tax Characterization..................................................26
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ARTICLE IV. Satisfaction and Discharge..........................................................26
SECTION 4.1 Satisfaction and Discharge of
Indenture......................................26
SECTION 4.2 Application of Trust Money...................................................27
SECTION 4.3 Repayment of Monies Held by Note Paying Agent................................28
ARTICLE V. Remedies.............................................................................28
SECTION 5.1 Events of Default............................................................28
SECTION 5.2 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee....28
SECTION 5.3 Limitation of Suits..........................................................30
SECTION 5.4 Unconditional Rights of Noteholders To Receive Principal and Interest........31
SECTION 5.5 Restoration of Rights and Remedies...........................................31
SECTION 5.6 Rights and Remedies Cumulative...............................................31
SECTION 5.7 Delay or Omission Not a Waiver...............................................31
SECTION 5.8 Limitation on Voting of Preferred Stock; Control by Insurer/Noteholders......31
SECTION 5.9 Waiver of Past Defaults......................................................32
SECTION 5.10 Undertaking for Costs........................................................32
SECTION 5.11 Waiver of Stay or Extension Laws.............................................33
SECTION 5.12 Action on Notes..............................................................33
SECTION 5.13 Performance and Enforcement of Certain Obligations...........................33
ARTICLE VI. The
Indenture Trustee...............................................................34
SECTION 6.1 Duties of
Indenture Trustee..................................................34
SECTION 6.2 Rights of
Indenture Trustee..................................................36
SECTION 6.3 Individual Rights of
Indenture Trustee.......................................37
SECTION 6.4
Indenture Trustee's Disclaimer...............................................37
SECTION 6.5 Notice of Defaults...........................................................38
SECTION 6.6 Reports by Master Servicer to Holders........................................38
SECTION 6.7 Compensation and Indemnity...................................................38
SECTION 6.8 Replacement of Indenture Trustee.............................................39
SECTION 6.9 Successor Indenture Trustee by Merger........................................40
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee............41
SECTION 6.11 Eligibility: Disqualification................................................42
SECTION 6.12 Preferential Collection of Claims Against Issuer.............................42
SECTION 6.13 Representations and Warranties of the Indenture Trustee......................42
SECTION 6.14 Waiver of Setoffs............................................................43
SECTION 6.15 No Consent to Certain Acts of Seller.........................................43
ARTICLE VII. Noteholders' Lists and Reports.....................................................43
SECTION 7.1 Issuer To Furnish To Indenture Trustee Names and Addresses of Noteholders....43
SECTION 7.2 Preservation of Information; Communications to Noteholders...................44
SECTION 7.3 Reports by Issuer............................................................44
SECTION 7.4 Reports by Indenture Trustee.................................................45
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ARTICLE VIII. Accounts, Disbursements and Releases..............................................45
SECTION 8.1 Collection of Money..........................................................45
SECTION 8.2 Release of Series Trust Estate...............................................45
SECTION 8.3 Opinion of Counsel...........................................................46
ARTICLE IX. Amendments; the Series Supplement...................................................46
SECTION 9.1 Amendments Without Consent of Noteholders....................................46
SECTION 9.2 Amendments With Consent of Noteholders.......................................47
SECTION 9.3 Series Supplement Authorizing the Notes......................................49
SECTION 9.4 Execution of the Series Supplement...........................................49
SECTION 9.5 Effect of Series Supplement..................................................49
SECTION 9.6 Conformity With Trust Indenture Act..........................................50
SECTION 9.7 Reference in Notes to the Series Supplement..................................50
ARTICLE X.......................................................................................50
SECTION 10.1 Note Insurer's Rights Regarding Actions, Proceedings or Investigations.......50
ARTICLE XI. Miscellaneous.......................................................................51
SECTION 11.1 Compliance Certificates and Opinions, etc....................................51
SECTION 11.2 Form of Documents Delivered to Indenture Trustee.............................53
SECTION 11.3 Acts of Noteholders..........................................................54
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies..............54
SECTION 11.5 Notices to Noteholders; Waiver...............................................55
SECTION 11.6 Alternate Payment and Notice Provisions......................................55
SECTION 11.7 Conflict with Trust Indenture Act............................................56
SECTION 11.8 Effect of Headings and Table of Contents.....................................56
SECTION 11.9 Successors and Assigns.......................................................56
SECTION 11.10 Separability.................................................................56
SECTION 11.11 Benefits of Indenture........................................................56
SECTION 11.12 Legal Holidays...............................................................56
SECTION 11.13 GOVERNING LAW................................................................56
SECTION 11.14 Counterparts.................................................................57
SECTION 11.15 Recording of Indenture.......................................................57
SECTION 11.16 Trust Obligation.............................................................57
SECTION 11.17 No Petition..................................................................57
SECTION 11.18 Limited Recourse.............................................................58
SECTION 11.19 Inspection...................................................................58
SECTION 11.20 Limitation of Liability......................................................58
EXHIBIT A -- Form of Transferee Certificate
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INDENTURE dated as of November 18, 2002, between HOUSEHOLD AUTOMOTIVE
TRUST 2002-3, a Delaware statutory trust (the "Issuer") and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as indenture trustee (the
"Indenture Trustee").
In consideration of the mutual agreements contained herein, and of
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
GRANTING CLAUSE
In order to secure the due and punctual payment of the principal of
and interest on the Notes when and as the same shall become due and payable,
whether as scheduled, by declaration of acceleration, prepayment or otherwise,
and all amounts payable to the Insurer according to the terms of this Indenture,
the Series Supplement, the Notes and the Insurance Agreement, the Issuer,
pursuant to the Series Supplement, shall pledge the Series Trust Estate to the
Indenture Trustee, all for the benefit of the Indenture Trustee for the benefit
of the Secured Parties.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS. Except as otherwise specified herein, the
following terms have the respective meanings set forth below for all purposes of
this Indenture.
"Act" has the meaning specified in Section 11.3(a).
"Authorized Officer" means, with respect to the Issuer and the Master
Servicer, any officer or agent acting pursuant to a power of attorney of the
Owner Trustee or the Master Servicer, as applicable, who is authorized to act
for the Owner Trustee or the Master Servicer, as applicable, in matters relating
to the Issuer and who is identified on the list of Authorized Officers delivered
by each of the Owner Trustee and the Master Servicer to the Indenture Trustee on
the Closing Date (as such list may be modified or supplemented from time to time
thereafter).
"Book Entry Notes" means any beneficial interest in the Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.10.
"Class" means all of the Notes having the same specified payment terms
and priority of payment.
"Class SV Preferred Stock" means the preferred stock of the Seller.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
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"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and Treasury Regulations promulgated thereunder.
"Corporate Trust Office" has the meaning assigned to such term in the
Series Supplement.
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Definitive Notes" has the meaning specified in Section 2.10.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
Executive Vice President, any Vice President, the Secretary, the Treasurer, or
any Assistant Treasurer of such corporation.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create, ▇▇▇▇▇ ▇ ▇▇▇▇ upon and a
security interest in and right of set-off against, deposit, set over and confirm
pursuant to this Indenture. A Grant of the Series Trust Estate or of any other
agreement or instrument shall include all rights, powers and options (but none
of the obligations) of the granting party thereunder, including the immediate
and continuing right to claim for, collect, receive and give receipt for
principal and interest payments in respect of the Series Trust Estate and all
other monies payable thereunder, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights and
options, to bring proceedings in the name of the granting party or otherwise and
generally to do and receive anything that the granting party is or may be
entitled to do or receive thereunder or with respect thereto.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Note Register.
"Indebtedness" means, with respect to any Person at any time, (a)
indebtedness or liability of such Person for borrowed money whether or not
evidenced by bonds, debentures, notes or other instruments, or for the deferred
purchase price of property or services (including trade obligations); (b)
obligations of such Person as lessee under leases which should have been or
should be, in accordance with generally accepted accounting principles, recorded
as capital leases; (c) current liabilities of such Person in respect of unfunded
vested benefits under plans covered by Title IV of ERISA; (d) obligations issued
for or liabilities incurred on the account of such Person; (e) obligations
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or liabilities of such Person arising under acceptance facilities; (f)
obligations of such Person under any guarantees, endorsements (other than for
collection or deposit in the ordinary course of business) and other contingent
obligations to purchase, to provide funds for payment, to supply funds to invest
in any Person or otherwise to assure a creditor against loss; (g) obligations of
such Person secured by any lien on property or assets of such Person, whether or
not the obligations have been assumed by such Person; or (h) obligations of such
Person under any interest rate or currency exchange agreement.
"Indenture Trustee" means, initially, U.S. Bank National Association,
a national banking association, not in its individual capacity but as trustee
under this Indenture, or any successor trustee under this Indenture.
"Indenture Trustee Fee" means the fees due to the Indenture Trustee,
as may be set forth in that certain fee letter, dated as of the date hereof
between the Master Servicer and the Indenture Trustee.
"Independent" means, when used with respect to any specified Person,
that the person (a) is in fact independent of the Issuer, any other obligor upon
the Notes, the Seller and any Affiliate of any of the foregoing persons, (b)
does not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Seller or any Affiliate of
any of the foregoing Persons and (c) is not connected with the Issuer, any such
other obligor, the Seller or any Affiliate of any of the foregoing Persons as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1, prepared
by an Independent appraiser or other expert appointed pursuant to an Issuer
Order and approved by the Indenture Trustee in the exercise of reasonable care,
and such opinion or certificate shall state that the signer has read the
definition of "Independent" in this Indenture and that the signer is Independent
within the meaning thereof.
"Insurer" has the meaning assigned to such term in the Series
Supplement.
"Issuer Order" and "Issuer Request" means a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee.
"Master Sale and Servicing Agreement" has the meaning assigned to such
term in the Series Supplement.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or its successor.
"Notes" means the Notes authenticated and delivered under this
Indenture.
"Note Owner" means, with respect to a Book-Entry Note, the person who
is the owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency,
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or on the books of a Person maintaining an account with such Clearing Agency
(directly as a Clearing Agency Participant or as an indirect participant, in
each case in accordance with the rules of such Clearing Agency).
"Note Paying Agent" means the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 and is authorized by the Issuer to make payments to and
distributions from the Collection Account, including payment of principal of or
interest on the Notes on behalf of the Issuer.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.4.
"Officer's Certificate" means a certificate signed by any Authorized
Officer of the Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1 and TIA Section 314,
and delivered to the Indenture Trustee. Unless otherwise specified, any
reference in this Indenture to an Officer's Certificate shall be to an Officer's
Certificate of any Authorized Officer of the Issuer. Each certificate with
respect to compliance with a condition or covenant provided for in this
Indenture shall include (1) a statement that the Authorized Officer signing the
certificate has read such covenant or condition; (2) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
contained in such certificate are based; (3) a statement that in the opinion of
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore canceled by the Note Registrar or delivered
to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture Trustee
or any Note Paying Agent in trust for the Holders of such Notes (PROVIDED,
HOWEVER, that if such Notes are to be redeemed, notice of such redemption
has been duly given pursuant to the Series Supplement or provision
therefor, satisfactory to the Indenture Trustee, has been made); and
(iii) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes are
held by a bona fide purchaser;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand, authorization,
direction, notice,
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consent or waiver hereunder or under any Basic Document, Notes owned by the
Issuer, any other obligor upon the Notes, the Seller or any Affiliate of any of
the foregoing Persons shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Indenture Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Notes that a Responsible Officer of the Indenture Trustee either
actually knows to be so owned or has received written notice thereof shall be so
disregarded. Notes so owned that have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Indenture
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Issuer, any other obligor upon the Notes, the Seller or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all
Notes, or Class of Notes, as applicable, Outstanding at the date of
determination.
"Owner Trustee" has the meaning assigned to such term in the Trust
Agreement.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.5 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
"Record Date" means, with respect to a Distribution Date, the close of
business on the Business Day immediately preceding such Distribution Date.
However, if Definitive Notes are issued, the Record Date shall be the last
Business Day of the month preceding a Distribution Date.
"Registration Statement" has the meaning specified therefor in the
Securities Act.
"Responsible Officer" means, with respect to the Indenture Trustee or
the Owner Trustee, any officer within the Corporate Trust Office of the
Indenture Trustee or the Owner Trustee, as the case may be, including any Vice
President, Assistant Vice President, Assistant Treasurer, Assistant Secretary,
Financial Services Officer or any other officer of the Indenture Trustee or the
Owner Trustee, as the case may be, customarily performing functions similar to
those performed by any of the above designated officers and having direct
responsibility for the administration of this Indenture.
"Secured Parties" has the meaning assigned to such term in the Series
Supplement.
"Securities Act" means the Securities Act of 1933, as amended.
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"Series Supplement" means the Series Supplement, dated as of November
18, 2002, among the Master Servicer, the Issuer, the Seller, the Indenture
Trustee and the Owner Trustee, as such agreement may be amended or supplemented
from time to time.
"Series Trust Estate" has the meaning assigned to such term in the
Series Supplement.
"S&P" means Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or its successor.
"State" means any one of the 50 states of the United States of America
or the District of Columbia.
"Tranche" means all of the Notes having the same date of
authentication.
"Trust Agreement" has the meaning assigned to such term in the Series
Supplement.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and as in force on the date hereof, unless otherwise specifically
provided.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from time
to time.
"Unregistered Note" means a Note which is not being offered for sale
hereunder pursuant to a Registration Statement.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Master Sale and Servicing Agreement,
the Series Supplement or the Trust Agreement.
SECTION 1.2 INCORPORATION BY REFERENCE OF THE TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer.
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All other TIA terms used in this Indenture that are defined by the
TIA, or defined by Commission rule have the meaning assigned to them by such
definitions.
SECTION 1.3 RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles
as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation; and
(v) words in the singular include the plural and words in the
plural include the singular.
SECTION 1.4 ACTION BY OR CONSENT OF NOTEHOLDERS AND
CERTIFICATEHOLDERS. Whenever any provision of this Indenture refers to action to
be taken, or consented to, by Noteholders or Certificateholders, such provision
shall be deemed to refer to the Certificateholder or Noteholder, as the case may
be, of record as of the Record Date immediately preceding the date on which such
action is to be taken, or consent given, by Noteholders or Certificateholders.
Solely for the purposes of any action to be taken, or consented to, by
Noteholders or Certificateholders, any Note or Certificate registered in the
name of Seller or any Affiliate thereof shall be deemed not to be Outstanding
(except in the event that the Seller and/or an Affiliate thereof then owns all
outstanding Certificates and Outstanding Notes); PROVIDED, HOWEVER, that, solely
for the purpose of determining whether the Indenture Trustee is entitled to rely
upon any such action or consent, only Notes or Certificates which the Owner
Trustee or the Indenture Trustee, respectively, knows to be so owned shall be so
disregarded.
SECTION 1.5 CONFLICT WITH TIA. If this Indenture is qualified under
the TIA, and if any provision hereof limits, qualifies or conflicts with a
provision of the TIA that is required under the TIA to be part of and govern
this Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the TIA that may be so modified
or excluded, the latter provisions shall be deemed to apply to this Indenture as
so modified or to be excluded, as the case may be.
ARTICLE II.
THE NOTES
SECTION 2.1 FORM; AMOUNT LIMITED; ISSUABLE IN SERIES.
(a) The Notes shall be in substantially the form set forth in the
Series Supplement, with such appropriate insertions, omissions, substitutions
and other
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variations as are required or permitted by this Indenture or the Series
Supplement and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may, consistently herewith,
be determined by the officers executing such Notes, as evidenced by their
execution of the Notes. Any portion of the text of any Note may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of the
Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in the Series Supplement are part of the terms of this
Indenture.
(b) The aggregate principal amount of Notes which may be authenticated
and delivered and Outstanding at any time under this Indenture is not limited;
PROVIDED that the Series Supplement may so limit the aggregate principal amount
of Notes. The Notes shall be issued in a series, and may be issued in Classes
and/or Tranches within such series (and Tranches within a Class).
No Notes shall be issued under this Indenture unless such Notes have
been authorized pursuant to the Series Supplement, and all conditions precedent
to the issuance thereof, as specified in the Series Supplement, shall have been
satisfied.
All Notes issued under this Indenture shall be in all respects equally
and ratably entitled to the benefits hereof and secured by the Series Trust
Estate without preference, priority or distinction on account of the actual time
or times of authentication and delivery, all in accordance with the terms and
provisions hereof and the Series Supplement.
SECTION 2.2 EXECUTION, AUTHENTICATION AND DELIVERY. The Notes shall
be executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be original or
facsimile.
Notes bearing the original or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the issuance date of such Notes.
The Notes shall be issuable in the denominations specified in the
Series Supplement.
No Note shall be entitled to any benefit under this Indenture or the
Series Supplement or be valid or obligatory for any purpose, unless there
appears attached to such Note a certificate of authentication, substantially in
the form attached as Exhibit B to the Series Supplement, executed by the
Indenture Trustee by the manual signature of
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one of its authorized signatories, and such certificate attached to any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
SECTION 2.3 TEMPORARY NOTES. Pending the preparation of Definitive
Notes of any Class or Tranche, the Issuer may execute, and upon receipt of an
Issuer Order prepared and delivered by the Master Servicer, the Indenture
Trustee shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
not inconsistent with the terms of this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes of any Class or Tranche are issued, the Issuer will
cause Definitive Notes of such Class or Tranche to be prepared without
unreasonable delay. After the preparation of Definitive Notes of such Class or
Tranche, the temporary Notes shall be exchangeable for Definitive Notes of such
Class or Tranche upon surrender of the temporary Notes at the office or agency
of the Issuer to be maintained as provided in Section 3.2, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the
Issuer shall execute and the Indenture Trustee shall authenticate and deliver in
exchange therefor a like principal amount of Definitive Notes of such Class or
Tranche of authorized denominations. Until so exchanged, the temporary Notes of
any Class or Tranche shall in all respects be entitled to the same benefits
under this Indenture and the Series Supplement as Definitive Notes of such Class
or Tranche.
SECTION 2.4 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE. The
Issuer shall cause to be kept a register (the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The
Indenture Trustee shall be "Note Registrar" for the purpose of registering Notes
and transfers of Notes as herein provided. Upon any resignation of any Note
Registrar, the Issuer shall promptly appoint a successor or, if it elects not to
make such an appointment, assume the duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the
Issuer as Note Registrar, the Issuer will give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location,
and any change in the location, of the Note Register, and the Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof. The Indenture Trustee shall have the right to rely upon a
certificate executed on behalf of the Note Registrar by an Authorized Officer
thereof as to the names and addresses of the Holders of the Notes and the
principal amounts and number of such Notes.
Upon surrender for registration or transfer of any Note at the office
or agency of the Issuer to be maintained as provided in Section 3.2, and if the
requirements of Section 8-401(1) of the UCC are met, the Issuer shall execute
and cause the Indenture Trustee to authenticate one or more new Notes, in any
authorized denominations, of the
9
same class and a like aggregate principal amount. A Noteholder may also obtain
from the Indenture Trustee, in the name of the designated transferee or
transferees one or more new Notes, in any authorized denominations, of the same
Class and Tranche, as applicable, and a like aggregate principal amount. Such
requirements shall not be deemed to create a duty in the Indenture Trustee to
monitor the compliance by the Issuer with Section 8-401 of the UCC.
At the option of the Holder, Notes of any Class or Tranche may be
exchanged for other Notes of such Class or Tranche in any authorized
denominations of the same Class (and Tranche, if applicable) and a like
aggregate principal amount, upon surrender of the Notes to be exchanged at such
office or agency. Whenever any Notes are so surrendered for exchange, and if the
requirements of Section 8-401(1) of the UCC are met, the Issuer shall execute
and upon its written request the Indenture Trustee shall authenticate the Notes
which the Noteholder making the exchange is entitled to receive. Such
requirements shall not be deemed to create a duty in the Indenture Trustee to
monitor the compliance by the Issuer with Section 8-401 of the UCC.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture and the Series
Supplement, as the Notes surrendered upon such registration of transfer or
exchange.
Unless specified in the Series Supplement, every Note presented or
surrendered for registration of transfer or exchange shall, unless specified in
the Series Supplement, be (i) duly endorsed by, or be accompanied by a written
instrument of transfer in the form attached as an exhibit to the Note duly
executed by the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar which requirements include
membership or participation in Securities Transfer Agents Medallion Program
("Stamp") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, Stamp, all in
accordance with the Exchange Act, and (ii) accompanied by such other documents
as the Note Registrar may require.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Note Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Notes.
Notwithstanding, the preceding provisions of this section, the Issuer
shall not be required to make, and the Note Registrar shall not register,
transfers or exchanges of Notes selected for redemption for a period of 15 days
preceding the Distribution Date.
The Note Registrar shall not register the transfer of a Definitive
Note unless the transferee has executed and delivered to the Indenture Trustee a
certification, in the form of EXHIBIT A hereto, to the effect that either (i)
the transferee is not (A) an employee benefit plan (within the meaning of
Section 3(3) of the Employee Retirement
10
Income Security Act of 1974, as amended ("ERISA")) that is subject to Title I of
ERISA or (B) a plan (within the meaning of Section 4975(e)(1) of the Code) that
is subject to Section 4975 of the Code (each of the foregoing, a "Plan"), and is
not acting on behalf of or investing the assets of a Plan or (ii) that the
transferee's acquisition and continued holding of the Definitive Note will be
covered by a prohibited transaction class exemption issued by the U.S.
Department of Labor. Each Note Owner that purchases a Book-Entry Note, or to
whom a Book-Entry Note is transferred, shall be deemed to represent that either
(i) it is not a Plan and is not acting on behalf of or investing the assets of a
Plan or (ii) its acquisition and continued holding of the Book-Entry Note will
be covered by a prohibited transaction class exemption issued by the U.S.
Department of Labor.
No Holder of an Unregistered Note shall transfer its Note, unless (i)
such transfer is made in accordance with Rule 144A under the Securities Act or
(ii) pursuant to an exemption from registration provided by Rule 144 under the
Securities Act (if available) and the registration and qualification
requirements under applicable state securities laws.
Each Unregistered Note issued hereunder will contain the following
legend limiting sales to "Qualified Institutional Buyers" within the meaning of
Rule 144A under the Securities Act:
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND HAS NOT BEEN
APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR
REGULATORY AUTHORITY OF ANY STATE. THIS NOTE HAS BEEN OFFERED AND SOLD
PRIVATELY. THE HOLDER HEREOF ACKNOWLEDGES THAT THESE SECURITIES ARE
"RESTRICTED SECURITIES" THAT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT AND AGREES FOR THE BENEFIT OF THE OBLIGORS AND ITS AFFILIATES THAT
THESE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES
ACT IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (B) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION.
SECTION 2.5 MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is
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delivered to each of the Issuer, the Indenture Trustee and the Insurer (for so
long as it is the Controlling Party) such security or indemnity as may be
required by it to hold the Issuer, the Indenture Trustee and the Insurer (for so
long as it is the Controlling Party) harmless, then, in the absence of notice to
the Issuer, the Note Registrar or the Indenture Trustee that such Note has been
acquired by a bona fide purchaser, and provided that the requirements of Section
8-405 of the UCC are met, the Issuer shall execute and upon its written request
the Indenture Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Note, a replacement Note of the
same Class or Tranche (such requirement shall not be deemed to create a duty in
the Indenture Trustee to monitor the compliance by the Issuer with Section
8-405); PROVIDED, HOWEVER, that if any such destroyed, lost or stolen Note, but
not a mutilated Note, shall have become, or within seven days shall be due and
payable, or shall have been called for redemption pursuant to the terms of the
Series Supplement, the Issuer may, instead of issuing a replacement Note, direct
the Indenture Trustee, in writing, to pay such destroyed, lost or stolen Note
when so due or payable or upon the redemption date without surrender thereof.
If, after the delivery of such replacement Note or payment of a destroyed, lost
or stolen Note pursuant to the proviso in the preceding sentence, a bona fide
purchaser of the original Note in lieu of which such replacement Note was issued
presents for payment such original Note, the Issuer and the Indenture Trustee
shall be entitled to recover such replacement Note (or such payment) from the
Person to whom it was delivered or any Person taking such replacement Note from
such Person to whom such replacement Note was delivered or any assignee of such
Person, except a bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Issuer or the Indenture Trustee in connection
therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer may require the payment by the Holder of such Note of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture and the Series
Supplement equally and proportionately with any and all other Notes duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 PERSONS DEEMED OWNER. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of Issuer or the Indenture Trustee may treat the Person in whose name any
Note is registered (as of the Record Date) as the owner of such Note for the
purpose of receiving payments
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of principal of and interest, if any on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and none of the Issuer, the
Indenture Trustee, the Insurer nor any agent of the Issuer, the Indenture
Trustee or the Insurer shall be affected by notice to the contrary.
SECTION 2.7 PAYMENT OF PRINCIPAL AND INTEREST; DEFAULTED INTEREST.
(a) The Notes shall accrue interest as provided in the form of Note
set forth in the Series Supplement and such interest shall be due and payable on
each Distribution Date as specified therein. Any installment of interest or
principal, if any, payable on any Note which is punctually or duly provided for
by the Issuer on the applicable Distribution Date shall be paid, as provided in
the Series Supplement, or if not so provided to the Person in whose name such
Note (or one or more Predecessor Notes) is registered on the Record Date, by
check mailed first-class, postage prepaid, to such Person's address as it
appears on the Note Register on such Record Date, except that, if the Notes are
Book Entry Notes, unless Definitive Notes have been issued pursuant to Section
2.12, with respect to Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payment will be made by wire transfer in immediately available funds to the
account designated by such nominee and except for the final installment of
principal payable with respect to such Note on a Distribution Date or on the
Final Scheduled Distribution Date as set forth in the Series Supplement which
shall be payable as provided below. The funds represented by any such checks
returned undelivered shall be held in accordance with Section 3.3.
(b) The principal of each Note shall be payable in installments on
each Distribution Date as provided in the form of Note set forth in the Series
Supplement. Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable, if not previously paid, on the date on which
an Event of Default shall have occurred and be continuing, if the Notes are
declared to be immediately due and payable in the manner provided in the Series
Supplement. Upon written notice from the Master Servicer on behalf of the
Issuer, the Indenture Trustee shall notify the Person in whose name a Note is
registered at the close of business on the Record Date preceding the
Distribution Date on which the Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice may be mailed
or transmitted by facsimile prior to such final Distribution Date and may
specify that such final installment will be payable only upon presentation and
surrender of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such installment.
(c) If the Issuer defaults in a payment of interest on the Notes, the
Issuer shall pay defaulted interest (plus interest on such defaulted interest to
the extent lawful) at the applicable Note Rate to the extent lawful. Unless
otherwise provided in the Series Supplement, the Issuer may pay such defaulted
interest to the Persons who are Noteholders on a subsequent special record date,
which date shall be at least five Business Days prior to the payment date. The
Issuer shall fix or cause to be fixed any such special record date and payment
date, and, at least 15 days before any such special
13
record date, the Issuer shall mail to each Noteholder and the Indenture Trustee
a notice that states the special record date, the payment date and the amount of
defaulted interest to be paid.
SECTION 2.8 CANCELLATION. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly canceled by the Indenture Trustee in accordance with its
customary procedures. The Issuer may at any time deliver to the Indenture
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Issuer may have acquired in any manner whatsoever, and all
Notes so delivered shall be promptly canceled by the Indenture Trustee in
accordance with its customary procedures. No Notes shall be authenticated in
lieu of or in exchange for any Notes canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Notes may be held
or disposed of by the Indenture Trustee in accordance with its standard
retention or disposal policy as in effect at the time.
SECTION 2.9 RESERVED.
SECTION 2.10 BOOK-ENTRY NOTES. The Notes, upon original issuance, may
be issued in the form of typewritten Notes representing the Book-Entry Notes, to
be delivered to The Depository Trust Company or its agent, the initial Clearing
Agency, by, or on behalf of, the Issuer. Such Notes may initially be registered
on the Note Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Note Owner will receive a Definitive Note representing
such Note Owner's interest in such Note, except as provided in Section 2.12.
Unless and until definitive, fully registered Notes (the "Definitive Notes")
have been issued to Note Owners pursuant to Section 2.12:
(i) the provisions of this Section shall be in full force and
effect;
(ii) the Note Registrar and the Indenture Trustee shall be entitled
to deal with the Clearing Agency for all purposes of this Indenture
(including the payment of principal of and interest on the Notes and the
giving of instructions or directions hereunder) as the sole Holder of the
Notes, and shall have no obligation to the Note Owners;
(iii) to the extent that the provisions of this Section conflict with
any other provisions of this Indenture, the provisions of this Section
shall control;
(iv) the rights of Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Note Owners and the Clearing Agency and/or the
Clearing Agency Participants. Unless and until Definitive Notes are issued
pursuant to Section 2.12, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and transmit
payments of principal of and interest on the Notes to such Clearing Agency
Participants;
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(v) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Holders of Notes evidencing a
specified percentage of the Outstanding Amount of the Notes, the Clearing
Agency shall be deemed to represent such percentage only to the extent that
it has received instructions to such effect from Note Owners and/or
Clearing Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in the Notes or in the Notes
of a Class, as the case maybe, and has delivered such instructions to the
Indenture Trustee; and
(vi) Note Owners may receive copies of any reports sent to
Noteholders pursuant to this Indenture, upon written request, together with
a certification that they are Note Owners and payment of reproduction and
postage expenses associated with the distribution of such reports, from the
Indenture Trustee at the Corporate Trust Office or, if applicable, on the
Indenture Trustee's web-site specified in the Series Supplement.
SECTION 2.11 NOTICES TO CLEARING AGENCY. With respect to any Notes
which are Book Entry Notes, whenever a notice or other communication to the
Noteholders is required under this Indenture, unless and until Definitive Notes
shall have been issued to Note Owners pursuant to Section 2.12, the Indenture
Trustee shall give all such notices and communications specified herein to be
given to Holders of the Notes to the Clearing Agency, and shall have no
obligation to the Note Owners.
SECTION 2.12 DEFINITIVE NOTES. If any Notes are Book-Entry Notes and
if (i) the Master Servicer advises the Indenture Trustee in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to such Notes, and the Master Servicer is unable
to locate a qualified successor, (ii) the Master Servicer at its option advises
the Indenture Trustee in writing that it elects to terminate the book-entry
system through the Clearing Agency or (iii) after the occurrence of an Event of
Default, Note Owners representing beneficial interests aggregating at least a
majority of the Outstanding Amount of the Notes advise the Indenture Trustee
through the Clearing Agency in writing that the continuation of a book entry
system through the Clearing Agency is no longer in the best interests of the
Note Owners, then the Clearing Agency shall notify all Note Owners and the
Indenture Trustee of the occurrence of any such event and of the availability of
Definitive Notes to Note Owners requesting the same. Upon surrender to the
Indenture Trustee of the typewritten Note or Notes representing the Book-Entry
Notes by the Clearing Agency, accompanied by registration instructions, the
Issuer shall execute and upon the written direction of the Issuer the Indenture
Trustee shall authenticate the Definitive Notes in accordance with the
instructions of the Clearing Agency. None of the Issuer, the Note Registrar or
the Indenture Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Notes, the Indenture Trustee
shall recognize the Holders of the Definitive Notes as Noteholders.
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SECTION 2.13 FINAL DISTRIBUTION.
(a) The Master Servicer on behalf of the Issuer shall give the
Indenture Trustee at least 15 days prior written notice of the Distribution Date
(or other date) on which the Noteholders of any Class may surrender their Notes
for payment of the final distribution on and cancellation of such Notes. Not
later than the fifth day of the month in which the final distribution in respect
of such Class is payable to Noteholders, the Indenture Trustee shall provide
notice to the Noteholders of such Class specifying (i) the date upon which final
payment of such Class will be made upon presentation and surrender of Notes (if
required) of such Class at the office or offices therein designated, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such payment date is not applicable, payments being made only upon
presentation and surrender of such Notes at the office or offices therein
specified. Unless it is serving in the related functions, the Indenture Trustee
shall give such notice to the Note Registrar and the Note Paying Agent at the
time such notice is given to Noteholders.
(b) Notwithstanding a final distribution to the Noteholders of any
Class, except as otherwise provided in this paragraph, all funds then on deposit
in the Collection Account and the Trust Accounts shall continue to be held in
trust for the benefit of such Noteholders, and the Note Paying Agent or the
Indenture Trustee shall pay such funds to such Noteholders upon surrender of
their Notes. In the event that all such Noteholders shall not surrender their
Notes for cancellation within six months after the date specified in the notice
from the Indenture Trustee described in paragraph (a), the Indenture Trustee
shall give a second notice to the remaining such Noteholders to surrender their
Notes for cancellation and receive the final distribution with respect thereto.
If within one year after the second notice all such Notes shall not have been
surrendered for cancellation, the Indenture Trustee may take appropriate steps,
or may appoint an agent to take appropriate steps, to contact the remaining such
Noteholders concerning surrender of their Notes, and the cost thereof shall be
paid out of the funds in the account held for the benefit of such Noteholders.
The Indenture Trustee and the Note Paying Agent shall upon written request pay
to the Issuer any moneys held by them for the payment of principal or interest
that remains unclaimed for two years. After payment to the Issuer, Noteholders
entitled to the money must look to the Issuer for payment as general unsecured
creditors unless an applicable abandoned property law designates another Person
and all liability of the Insurer under the Note Policy, the Indenture Trustee or
such Note Paying Agent with respect to such trust money shall thereupon cease.
(c) Any notice required or permitted to be given to a Holder of
Registered Notes shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Note Register.
ARTICLE III.
COVENANTS
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer will duly
and punctually pay or cause to be paid the principal of and interest on the
Notes in
16
accordance with the terms of the Notes, this Indenture and the Series
Supplement. Amounts properly withheld under the Code by any Person from a
payment to any Noteholder of interest and/or principal shall be considered as
having been paid by the Issuer to such Noteholder for all purposes of this
Indenture.
SECTION 3.2 MAINTENANCE OF OFFICE OR AGENCY. The Issuer will
maintain an office or agency where Notes may be surrendered for registration,
transfer or exchange of the Notes, and where notices and demands to or upon the
Issuer in respect of the Notes and this Indenture may be served. The Issuer
hereby initially appoints the Indenture Trustee to serve as its agent for the
foregoing purposes. The Issuer will give prompt written notice to the Indenture
Trustee of the location, and of any change in the location, of any such office
or agency. If at any time the Issuer shall fail to maintain any such office or
agency or shall fail to furnish the Indenture Trustee with the address thereof,
such surrenders, notices and demands may be made or served at the Corporate
Trust Office, and the Issuer hereby appoints the Indenture Trustee as its agent
to receive all such surrenders, notices and demands.
SECTION 3.3 MONEY FOR PAYMENTS TO BE HELD IN TRUST. One Business Day
prior to each Distribution Date, the Issuer shall deposit or cause to be
deposited to the Collection Account Available Funds (which shall be immediately
available) with respect to the related Collection Period. Such sum shall be held
in trust for the benefit of the Persons entitled thereto and (unless the Note
Paying Agent is the Indenture Trustee), the Issuer shall promptly notify the
Indenture Trustee of its action or failure so to act.
The Issuer hereby appoints the Person serving as Indenture Trustee as
Note Paying Agent to make payments to Noteholders on behalf of the Issuer in
accordance with the provisions of the Notes, this Indenture and the Series
Supplement, and such Person hereby accepts such appointment (subject to removal
in the event it no longer serves as Indenture Trustee pursuant to Section 6.8).
The Issuer will cause each Note Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Note Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Note Paying Agent with respect to clauses (i) and (v),
it hereby so agrees), subject to the provisions of this Section, that such Note
Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee written notice of any default by the
Issuer of which a Responsible Officer of the Note Paying Agent has actual
knowledge (or any other obligor upon the Notes) in the making of any
payment required to be made with respect to the Notes;
17
(iii) at any time during the continuance of any such default, upon
the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Note Paying Agent;
(iv) immediately resign as a Note Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the payment of Notes
if at any time it ceases to meet the standards required to be met by a Note
Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture and the Series Supplement or for
any other purpose, by Issuer Order direct any Note Paying Agent to pay to the
Indenture Trustee all sums held in trust by such Note Paying Agent, such sums to
be held by the Indenture Trustee upon the same trusts as those upon which the
sums were held by such Note Paying Agent; and upon such a payment by any Note
Paying Agent to the Indenture Trustee, such Note Paying Agent shall be released
from all further liability with respect to such money.
The Issuer hereby appoints the Person serving as Indenture Trustee, as
Certificate Paying Agent to make payments to Certificateholders on behalf of the
Issuer in accordance with the provisions of the Certificates, this Indenture and
the Trust Agreement, and such Person hereby accepts such appointment (subject to
removal in the event it no longer serves as Indenture Trustee pursuant to
Section 6.8) and further agrees that it will be bound by the provisions of the
Trust Agreement relating to the Certificate Paying Agent and will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Certificates in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and as provided in the Trust Agreement and
pay such sums to such Persons as herein and therein provided;
(ii) give the Owner Trustee notice of any default by the Issuer of
which a Responsible Officer of the Indenture Trustee has actual knowledge
in the making of any payment required to be made with respect to the
Certificates;
(iii) at any time during the continuance of any such default, upon
the written request of the Owner Trustee forthwith pay to the Owner Trustee
on behalf of the Issuer all sums so held in Trust by such Certificate
Paying Agent;
(iv) immediately resign as a Certificate Paying Agent and forthwith
pay to the Owner Trustee on behalf of the Issuer all sums held by it in
trust for the payment of Certificates if at any time it ceases to meet the
standards required to be met by a Note Paying Agent at the time of its
appointment; and
18
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Certificates of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
SECTION 3.4 EXISTENCE. Except as otherwise permitted by the
provisions of Section 3.10, the Issuer will keep in full effect its existence,
rights and franchises as a statutory trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other state or of the United States of America,
in which case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Series Supplement, the Notes and each
other instrument or agreement included in the Series Trust Estate.
SECTION 3.5 PROTECTION OF SERIES TRUST ESTATE. The Issuer intends
the security interest Granted pursuant to this Indenture and the Series
Supplement in favor of the Secured Parties to be prior to all other liens in
respect of the Series Trust Estate, and the Issuer shall take all actions
necessary to obtain and maintain, in favor of the Indenture Trustee for the
benefit of the Secured Parties a first lien on and a first priority, perfected
security interest in the Series Trust Estate. The Issuer will: (a) from time to
time prepare (or shall cause to be prepared), execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
(b) authenticate such records, and (c) take such other action necessary or
advisable to:
(i) Grant more effectively all or any portion of the Series Trust
Estate;
(ii) maintain or preserve the lien and security interest (and the
priority thereof) in favor of the Indenture Trustee for the benefit of the
Secured Parties created by this Indenture and the Series Supplement or
carry out more effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture and the Series Supplement;
(iv) enforce any of the Series Trust Estate;
(v) preserve and defend title to the Series Trust Estate and the
rights of the Indenture Trustee in such Series Trust Estate against the
claims of all persons and parties; and
(vi) pay all taxes or assessments levied or assessed upon the Series
Trust Estate when due.
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SECTION 3.6 OPINIONS AS TO SERIES TRUST ESTATE.
(a) On the Closing Date, the Issuer shall furnish to the Indenture
Trustee and the Insurer an Opinion of Counsel either stating that, in the
opinion of such counsel, such action has been taken with respect to the
recording and filing of this Indenture, the Series Supplement, and any other
requisite documents, and with respect to the execution and filing of any
financing statements and continuation statements, as are necessary to perfect
and make effective the first priority lien and security interest in favor of the
Indenture Trustee for the benefit of the Secured Parties, created by this
Indenture and the Series Supplement and reciting the details of such action, or
stating that, in the opinion of such counsel, no such action is necessary to
make such perfected lien and security interest effective.
(b) Within 90 days after the beginning of each calendar year,
beginning with the calendar year succeeding the Closing Date, the Master
Servicer on behalf of the Issuer shall furnish to the Indenture Trustee and the
Insurer an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording, filing,
re-recording and refiling of this Indenture, the Series Supplement and any other
requisite documents, with respect to the execution and filing of any financing
statements and continuation statements, and with respect to the authentication
of such records as are necessary to maintain the lien and security interest
created by this Indenture and the Series Supplement and reciting the details of
such action or stating that in the opinion of such counsel no such action is
necessary to maintain such lien and security interest. Such Opinion of Counsel
shall also describe the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite documents,
the execution and filing of any financing statements and continuation statements
and the authentication of such records that will, in the opinion of such
counsel, be required to maintain the lien and security interest of this
Indenture and the Series Supplement until March 31 of the following calendar
year.
SECTION 3.7 PERFORMANCE OF OBLIGATIONS; SERVICING OF RECEIVABLES.
(a) The Issuer will not take any action and will use its best efforts
not to permit any action to be taken by others that would release any Person
from any of such Person's material covenants or obligations under any instrument
or agreement included in the Series Trust Estate or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
ordered by any bankruptcy or other court or as expressly provided in this
Indenture and the Basic Documents or such other instrument or agreement.
(b) The Issuer has contracted with the Master Servicer to assist the
Issuer in performing its duties under this Indenture and the Series Supplement.
The Issuer may contract with Persons other than the Master Servicer to assist it
in performing its duties under this Indenture and the Series Supplement with the
consent of the Insurer (for so long as it is the Controlling Party), and any
performance of such duties by a Person identified to the Indenture Trustee and
the Insurer (for so long as it is the
20
Controlling Party) in an Officer's Certificate of the Issuer shall be deemed to
be action taken by the Issuer.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture and the Basic Documents
and in the instruments and agreements included in the Series Trust Estate,
including, but not limited, to preparing (or causing to be prepared) and filing
(or causing to be filed) all UCC financing statements and continuation
statements required to be filed by the terms of this Indenture, the Series
Supplement and the Master Sale and Servicing Agreement in accordance with and
within the time periods provided for herein and therein. Except as otherwise
expressly provided therein, the Issuer shall not waive, amend, modify,
supplement or terminate any Basic Document or any provision thereof without the
consent of the Indenture Trustee and the Insurer (for so long as it is the
Controlling Party).
(d) If a Responsible Officer of the Owner Trustee shall have actual
knowledge of the occurrence of a Master Servicer Termination Event under the
Master Sale and Servicing Agreement, the Issuer shall promptly notify the
Indenture Trustee, the Insurer and the Rating Agencies thereof in accordance
with Section 11.4, and shall specify in such notice the action, if any, the
Issuer is taking in respect of such default. If a Master Servicer Termination
Event shall arise from the failure of the Master Servicer to perform any of its
duties or obligations under the Master Sale and Servicing Agreement with respect
to the Receivables, the Issuer shall take all reasonable steps available to it
to remedy such failure.
SECTION 3.8 NEGATIVE COVENANTS. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture or the Basic
Documents, sell, transfer, exchange or otherwise dispose of any of the
properties or assets of the Issuer, including those included in the Series
Trust Estate;
(ii) claim any credit on, or make any deduction from the principal
or interest payable in respect of, the Notes of a Series (other than
amounts properly withheld from such payments under the Code) or assert any
claim against any present or former Noteholder by reason of the payment of
the taxes levied or assessed upon any part of the Series Trust Estate; or
(iii) (A) permit the validity or effectiveness of this Indenture or
the Series Supplement to be impaired, or permit the lien in favor of the
Indenture Trustee created by this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released
from any covenants or obligations with respect to the Notes under this
Indenture or the Series Supplement except as may be expressly permitted
hereby, (B) permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien of this Indenture and
the Series Supplement) to be created on or extend to or otherwise arise
upon or burden the Series Trust Estate or any part
21
thereof or any interest therein or the proceeds thereof (other than tax
liens, mechanics' liens and other liens that arise by operation of law, in
each case on a Financed Vehicle and arising solely as a result of an action
or omission of the related Obligor), (C) permit the lien of this Indenture
and the Series Supplement not to constitute a valid first priority (other
than with respect to any such tax, mechanics' or other lien) security
interest in the Series Trust Estate, (D) except as expressly permitted
therein, amend, modify or fail to comply with the provisions of the Basic
Documents or (E) except as expressly permitted therein, amend, modify or
fail to comply with the provisions of the Related Documents.
SECTION 3.9 ANNUAL STATEMENT AS TO COMPLIANCE. The Master Servicer
on behalf of the Issuer will deliver to the Indenture Trustee and the Insurer,
within 90 days after the end of each fiscal year of the Issuer (commencing with
the fiscal year ended December 31 in the calendar year in which the Closing Date
occurs), and otherwise in compliance with the requirements of TIA Section
314(a)(4) an Officer's Certificate stating, as to the Authorized Officer signing
such Officer's Certificate, that
(i) a review of the activities of the Issuer during such year and
of performance under this Indenture has been made under such Authorized
Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge, based on
such review, the Issuer has complied with all conditions and covenants
under this Indenture and the Series Supplement throughout such year, or, if
there has been a default in the compliance of any such condition or
covenant, specifying each such default known to such Authorized Officer and
the nature and status thereof.
SECTION 3.10 ISSUER MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless
(i) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing under
the laws of the United States of America or any State and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Indenture Trustee and the Insurer (for so long as it is the Controlling
Party), in form satisfactory to the Indenture Trustee and the Insurer (for
so long as it is the Controlling Party), the due and punctual payment of
the principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture and the Series
Supplement on the part of the Issuer to be performed or observed, all as
provided herein;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing under the Series
Supplement;
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(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee, the Owner Trustee
and the Insurer (for so long as it is the Controlling Party)) to the effect
that such transaction will not have any material adverse tax consequence to
the Trust, any Noteholder, any Certificateholder or the Insurer;
(v) any action as is necessary to maintain the lien and security
interest created by this Indenture and the Series Supplement shall have
been taken;
(vi) the Issuer shall have delivered to the Indenture Trustee and
the Insurer (for so long as it is the Controlling Party) an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation
or merger comply with this Article III and that all conditions precedent
herein provided for relating to such transaction have been complied with
(including any filing required by the Exchange Act); and
(vii) such consolidation or merger is approved in writing by the
Insurer (for so long as it is the Controlling Party).
(b) The Issuer shall not convey or transfer all or substantially all
of its properties or assets, including those included in the Series Trust
Estate, to any Person, unless
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of which is
hereby restricted shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States of America or
any state, (B) expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee and the Insurer, in form
satisfactory to the Indenture Trustee and the Insurer, the due and punctual
payment of the principal of and interest on all Notes and the performance
or observance of every agreement and covenant of this Indenture, the Series
Supplement, each of the Basic Documents and each of the Related Documents
on the part of the Issuer to be performed or observed, all as provided
herein, (C) expressly agree by means of such Indenture Supplement that all
right, title and interest so conveyed or transferred shall be subject and
subordinate to the rights of Holders of the Notes, (D) unless otherwise
provided in such Series Supplement, expressly agree to indemnify, defend
and hold harmless the Issuer against and from any loss, liability or
expense arising under or related to this Indenture, the Series Supplement
and the Notes and (E) expressly agree by means of such Series Supplement
that such Person (or if a group of persons, then one specified Person)
shall prepare (or cause to be prepared) and make all filings with the
Commission (and any other appropriate Person) required by the Exchange Act
in connection with the Notes;
23
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing under the Series
Supplement;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee and the Insurer) to
the effect that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder, any Certificateholder or the
Insurer;
(v) any action as is necessary to maintain the lien and security
interest created by this Indenture and the Series Supplement shall have
been taken;
(vi) the Issuer shall have delivered to the Indenture Trustee and
the Insurer an Officers' Certificate and an Opinion of Counsel each stating
that such conveyance or transfer and such Indenture Supplement complies
with this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any filing
required by the Exchange Act); and
(vii) such conveyance or transfer is approved in writing by the
Insurer (for so long as it is the Controlling Party).
SECTION 3.11 SUCCESSOR OR TRANSFEREE.
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.10(a), the Person formed by or surviving such consolidation or merger
(if other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture and the
Series Supplement with the same effect as if such Person had been named as
Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer pursuant to Section 3.10(b), Household Automotive Trust 2002-3 will
be released from every covenant and agreement of this Indenture and the Series
Supplement to be observed or performed on the part of the Issuer with respect to
the Notes immediately upon the delivery of written notice to the Indenture
Trustee and the Insurer stating that Household Automotive Trust 2002-3 is to be
so released.
SECTION 3.12 NO OTHER BUSINESS. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the
Receivables, entering and maintaining any ancillary agreement related to
issuance of the Notes and owning the Class SV Preferred Stock of the Seller in
the manner contemplated by this Indenture, the Basic Documents and the Series
Supplement and all Related Documents and activities incidental thereto.
24
SECTION 3.13 NO BORROWING. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
Indebtedness except for (i) the Notes, (ii) obligations owing from time to time
to a Series Support Provider under the related agreement regarding Series
Support, if any and (iii) any other Indebtedness permitted by or arising under
the Basic Documents and the Series Supplement. The proceeds of the Notes and the
Certificates of a Series shall be used exclusively to fund the Issuer's purchase
of the Receivables of such Series, or to obtain release of the lien relating to
the pledge of the Receivables for a prior series of notes issued by the Issuer,
the purchase of related property of the Series Trust Estate, to fund any trust
account and to pay the Issuer's organizational, transactional and start-up
expenses.
SECTION 3.14 MASTER SERVICER'S OBLIGATIONS. The Issuer shall enforce
the provisions of Sections 4.9, 4.10 and 4.11 of the Master Sale and Servicing
Agreement with respect to the duties of Master Servicer thereunder.
SECTION 3.15 GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES.
Except as contemplated by the Master Sale and Servicing Agreement or this
Indenture or the Series Supplement, the Issuer shall not make any loan or
advance or credit to, or guarantee (directly or indirectly or by an instrument
having the effect of assuring another's payment or performance on any obligation
or capability of so doing or otherwise), endorse or otherwise become
contingently liable, directly or indirectly, in connection with the obligations,
stocks or dividends of, or own, purchase, repurchase or acquire (or agree
continently to do so) any stock, obligations, assets or securities of, or any
other interest in, or make any capital contribution to, any other Person.
SECTION 3.16 CAPITAL EXPENDITURES. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personally).
SECTION 3.17 COMPLIANCE WITH LAWS. The Issuer shall comply with the
requirements of all applicable laws, the non-compliance with which would,
individually or in the aggregate, materially and adversely affect the ability of
the Issuer to perform its obligations under the Notes, this Indenture, or any
Basic Document, the Series Supplement or any Related Document.
SECTION 3.18 RESTRICTED PAYMENTS. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or security
in or of the Issuer or to the Seller, (ii) redeem, purchase, retire or otherwise
acquire for value any such ownership or equity interest or security or (iii) set
aside or otherwise segregate any amounts for any such purpose; PROVIDED,
HOWEVER, that the Issuer may make, or cause to be made, distributions to the
Seller, Master Servicer, the Owner Trustee, the Indenture Trustee and the
Certificateholders as permitted by, and to the extent funds are available for
such purpose under, the Master Sale and Servicing Agreement or Trust Agreement.
The Issuer will
25
not, directly or indirectly, make payments to or distributions from the
Collection Account except in accordance with this Indenture, the Basic
Documents, the Series Supplement or any Related Document.
SECTION 3.19 NOTICE OF EVENTS OF DEFAULT. Upon a Responsible Officer
of the Owner Trustee having actual knowledge thereof, the Issuer agrees to give
the Indenture Trustee, the Insurer and the Rating Agencies prompt written notice
of each Event of Default under the Series Supplement and each default on the
part of the Master Servicer or the Seller of its obligations under the Master
Sale and Servicing Agreement.
SECTION 3.20 FURTHER INSTRUMENTS AND ACTS. Upon request of the
Indenture Trustee or the Insurer (for so long as it is the Controlling Party),
the Issuer will execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out more effectively the
purpose of this Indenture.
SECTION 3.21 AMENDMENTS OF MASTER SALE AND SERVICING AGREEMENT AND
TRUST AGREEMENT. The Issuer shall not agree to any amendment to Section 13.1 of
the Master Sale and Servicing Agreement or Section 11.1 of the Trust Agreement
to eliminate the requirements thereunder that the Indenture Trustee, the Insurer
or the Holders of the Notes consent to amendments thereto as provided therein.
SECTION 3.22 INCOME TAX CHARACTERIZATION. For purposes of federal
income, state and local income and franchise and any other income taxes, the
Issuer, the Noteholders and the Certificateholders will treat the Notes as
indebtedness and hereby instruct the Indenture Trustee to treat the Notes as
indebtedness for federal and state tax reporting purposes.
ARTICLE IV.
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8,
3.10, 3.12, 3.13, 3.20, 3.21 and 3.22, (v) the rights and immunities of the
Indenture Trustee hereunder (including the rights of the Indenture Trustee under
Section 6.7 and the obligations of the Indenture Trustee under Section 4.2) and
(vi) the rights of the Secured Parties as beneficiaries hereof with respect to
the Series Trust Estate so deposited with the Indenture Trustee payable to all
or any of them, and the Indenture Trustee, on written demand of and at the
expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Notes, when
(A) either
26
(1) all Notes theretofore authenticated and delivered (other
than (i) Notes that have been destroyed, lost or stolen and that have
been replaced or paid as provided in Section 2.5 and (ii) Notes for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to
the Issuer or discharged from such trust, as provided in Section 3.3)
have been delivered to the Indenture Trustee for cancellation and the
Series Support, if any, has been returned to the Series Support
Provider; or
(2) all Notes not theretofore delivered to the Indenture Trustee
for cancellation
(i) have become due and payable,
(ii) will become due and payable at their respective Final
Scheduled Distribution Dates within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving
of notice of redemption by the Indenture Trustee in the name, and
at the expense, of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited with the
Indenture Trustee cash or direct obligations of or obligations
guaranteed by the United States of America (which will mature prior to
the date such amounts are payable), in trust for such purpose, in an
amount sufficient to pay and discharge the entire indebtedness on such
Notes not theretofore delivered to the Indenture Trustee for
cancellation when due on the Final Scheduled Distribution Date or
tender date (if Notes shall have been called for redemption or tender
pursuant to the Series Supplement), as the case may be; and
(B) the Note Policy has terminated in accordance with its terms and
the Issuer has paid or caused to be paid all other amounts owing hereunder
or under the Insurance Agreement by the Issuer.
SECTION 4.2 APPLICATION OF TRUST MONEY. All monies deposited with
the Indenture Trustee pursuant to Section 4.1 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes, this Indenture
and the Series Supplement, to the payment, either directly or through any Note
Paying Agent, as the Indenture Trustee may determine, to the Secured Parties for
the payment or redemption of which such monies have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal and
interest; but such monies need not be segregated from other funds except to the
extent required herein or in the Master Sale and Servicing Agreement or required
by law.
27
SECTION 4.3 REPAYMENT OF MONIES HELD BY NOTE PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture with respect to
the Notes, all monies then held by any Note Paying Agent other than the
Indenture Trustee under the provisions of this Indenture with respect to such
Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee to be
held and applied according to Section 3.3 and thereupon such Note Paying Agent
shall be released from all further liability with respect to such monies.
ARTICLE V.
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT. The definition of "Event of Default"
with respect to a Series, together with certain rights and remedies consequent
thereto, shall be set forth in the Series Supplement.
SECTION 5.2 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE.
(a) Subject to the terms of the Series Supplement, the Issuer
covenants that if (i) default is made in the payment of any interest on any Note
when the same becomes due and payable, and such default continues for a period
of five days, or (ii) default is made in the payment of the principal of or any
installment of the principal of any Note when the same becomes due and payable,
and such default continues for a period of five days, the Issuer will, upon
demand of the Indenture Trustee, pay to it, for the benefit of the Secured
Parties, the whole amount then due and payable on such Notes for principal and
interest, with interest upon the overdue principal, and, to the extent payment
at such rate of interest shall be legally enforceable, upon overdue installments
of interest, at the applicable Note Rate and in addition thereto such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Indenture Trustee and its agents and outside counsel.
(b) If an Event of Default occurs and is continuing with respect to a
Series, the Indenture Trustee may in its discretion proceed to protect and
enforce the rights of the Secured Parties by such appropriate Proceedings as the
Indenture Trustee shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or the Series Supplement or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in the Indenture Trustee by this Indenture, the Series Supplement
or by law.
(c) In case there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Series Trust Estate, proceedings under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or
28
similar official shall have been appointed for or taken possession of the Issuer
or its property or such other obligor or Person, or in case of any other
comparable judicial proceedings relative to the Issuer or other obligor upon the
Notes of such Series, or to the creditors or property of the Issuer or such
other obligor, the Indenture Trustee, irrespective of whether the principal of
any Notes of such Series shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Indenture Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid to the Secured Parties and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee against the Series Trust Estate
(including any claim for reasonable compensation to the Indenture Trustee
and each predecessor Indenture Trustee, and their respective agents,
attorneys and outside counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and
each predecessor Indenture Trustee, except as a result of negligence, bad
faith or willful misconduct), of the Insurer and of the Noteholders allowed
in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Secured Parties of such Series in any election of a trustee,
a standby trustee or person performing similar functions in any such
proceedings;
(iii) to collect and receive any monies or other property payable or
deliverable on any such claims and received with respect to the Series
Trust Estate and to distribute all amounts received with respect to the
claims of the Secured Parties and of the Indenture Trustee on their behalf;
and
(iv) to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee or the Secured Parties, in each case against the Series Trust
Estate allowed in any judicial proceedings relative to the Issuer, its
creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by the Secured Parties to make payments
to the Indenture Trustee, and, in the event that the Indenture Trustee shall
consent to the making of payments directly to the Secured Parties, to pay to the
Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad faith.
(d) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Secured Party any plan of reorganization, arrangement, adjustment
or composition
29
affecting the Notes or the rights of any Holder thereof or to authorize the
Indenture Trustee to vote in respect of the claim of any Secured Party in any
such proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar person.
(e) All rights of action and of asserting claims under this Indenture,
the Series Supplement or under any of the Notes, may be enforced by the
Indenture Trustee without the possession of any of the Notes or the production
thereof in any trial or other proceedings relative thereto, and any such action
or proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Secured Parties.
(f) In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture or
the Series Supplement), the Indenture Trustee shall be held to represent all the
Secured Parties, and it shall not be necessary to make any Secured Party a party
to any such proceedings.
SECTION 5.3 LIMITATION OF SUITS. No Holder of any Note shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture or the Series Supplement, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default with respect to the
Notes;
(ii) the Holders of not less than 25% of the Outstanding Amount of
the Notes have made written request to the Indenture Trustee to institute
such proceeding in respect of such Event of Default in its own name as
Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the Indenture Trustee
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceedings; and
(v) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 60-day period by the Holders of
a majority of the Outstanding Amount of the Notes of such Series.
it being understood and intended that no Holders of Notes shall have any right
in any manner whatsoever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holders of
Notes or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the manner
herein provided. Nothing herein shall be construed as giving Holders of Notes
any right to make a direct claim under the Note Policy.
30
SECTION 5.4 UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST. Notwithstanding any other provisions in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Note on or
after the respective due dates thereof expressed in such Note or in this
Indenture or the Series Supplement (or, in the case of redemption or tender
pursuant to the Series Supplement, on or after the related redemption or tender
date) and to institute a suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.
SECTION 5.5 RESTORATION OF RIGHTS AND REMEDIES. If the Indenture
Trustee, the Insurer or any Noteholder has instituted any Proceeding to enforce
any right or remedy under this Indenture or the Series Supplement and such
Proceeding has been discontinued or abandoned for any reason, then and in every
such case the Issuer, the Indenture Trustee, the Insurer and the related
Noteholders shall, subject to any determination in such Proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Indenture Trustee, the Insurer and the related
Noteholders shall continue as though no such proceeding had been instituted.
SECTION 5.6 RIGHTS AND REMEDIES CUMULATIVE. No right or remedy
herein conferred upon or reserved to the Insurer or any Noteholders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.7 DELAY OR OMISSION NOT A WAIVER. No delay or omission of
the Indenture Trustee, any Controlling Party or any Holder of any related Note
to exercise any right or remedy accruing upon any Default or Event of Default
shall impair any such right or remedy or constitute a waiver of any such Default
or Event of Default or an acquiescence therein. Every right and remedy given by
this Article V or by law to the Indenture Trustee, to the Insurer or to any
Noteholders may be exercised from time to time, and as often as may be deemed
expedient, by the Indenture Trustee, by the Insurer or by the related
Noteholders, as the case may be.
SECTION 5.8 LIMITATION ON VOTING OF PREFERRED STOCK; CONTROL BY
INSURER/NOTEHOLDERS.
(a) Notwithstanding any provision of any Related Document to the
contrary, the Indenture Trustee shall hold the Class SV Preferred Stock in trust
for the benefit of the Secured Parties and shall vote such stock only pursuant
to the written instructions of the Insurer (for so long as it is the Controlling
Party) and, if the Insurer is no longer the Controlling Party, the Holders of a
majority of the Outstanding Amount of the Notes.
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(b) The Controlling Party shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Indenture Trustee with respect to the Notes of such Series or exercising any
trust or power conferred on the Indenture Trustee; PROVIDED that
(i) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Series Supplement; and
(ii) the Indenture Trustee may take any other action deemed proper
by the Indenture Trustee that is not inconsistent with such direction;
PROVIDED, HOWEVER, that, subject to Section 6.1, the Indenture Trustee need not
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholders not consenting to such
action.
SECTION 5.9 WAIVER OF PAST DEFAULTS. The Controlling Party may waive
any Default or Event of Default relating to the Notes and its consequences
except a Default (a) in payment of principal of or interest on any of the Notes
or (b) in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of the Holder of each Note. In the case of any such
waiver, the Issuer, the Indenture Trustee, the Insurer and the Holders of the
Notes shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture and the Series Supplement; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
SECTION 5.10 UNDERTAKING FOR COSTS. All parties to this Indenture and
the Series Supplement agree, and each Holder of any Note by such Holder's
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture and the Series Supplement, or in any suit against the Indenture
Trustee for any action taken, suffered or omitted by it as Indenture Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to (a)
any suit instituted by the Indenture Trustee, (b) any suit instituted by the
Insurer, (c) any suit instituted by any Noteholder, or group of Noteholders, in
each case holding in the aggregate more than 10% of the Outstanding Amount of
the Notes or (d) any suit instituted by any Noteholder for the enforcement of
the payment of principal of or interest on any Note on or after the respective
due dates expressed in such Note and in this Indenture and the Series
Supplement.
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SECTION 5.11 WAIVER OF STAY OR EXTENSION LAWS. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit of, any
stay or extension law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture and the
Series Supplement; and the Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit of any such law, and covenants that it will
not hinder, delay or impede the execution of any power herein granted to the
Indenture Trustee or the Insurer, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 5.12 ACTION ON NOTES. The Indenture Trustee's right to seek
and recover judgment on the Notes or under this Indenture or the Series
Supplement shall not be affected by the seeking, obtaining or application of any
other relief under or with respect to this Indenture or the Series Supplement.
Neither the lien of this Indenture or the Series Supplement nor any rights or
remedies of the Indenture Trustee, the Insurer or the Noteholders shall be
impaired by the recovery of any judgment by the Indenture Trustee or the Insurer
against the Issuer or by the levy of any execution under such judgment upon any
portion of the Series Trust Estate or upon any of the assets of the Issuer.
SECTION 5.13 PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS.
(a) Promptly following a request from the Indenture Trustee or the
Insurer (for so long as it is the Controlling Party) to do so and at the Master
Servicer's expense, the Issuer agrees to take all such lawful action as the
Indenture Trustee or the Insurer (for so long as it is the Controlling Party)
may request to compel or secure the performance and observance by the Seller and
the Master Servicer, as applicable, of each of their obligations to the Issuer
under or in connection with the Master Sale and Servicing Agreement in
accordance with the terms thereof, and to exercise any and all rights, remedies,
powers and privileges lawfully available to the Issuer under or in connection
with the Master Sale and Servicing Agreement to the extent and in the manner
directed by the Indenture Trustee or the Insurer (for so long as it is the
Controlling Party), including the transmission of notices of default on the part
of the Seller or the Master Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Seller or the Master Servicer of each of their obligations under the Master Sale
and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, or, if at
such time as there are no Notes Outstanding there remain sums due to the Insurer
pursuant to the Insurance Agreement, the Indenture Trustee may, with the consent
of the Insurer (for so long as it is the Controlling Party) and shall, at the
written direction of the Insurer (for so long as it is the Controlling Party)
or, if the Insurer is not the Controlling Party, at the written direction of the
Holders of 66-2/3% of the Outstanding Amount of the Notes, exercise all rights,
remedies, powers, privileges and claims of the Issuer against the Seller or the
Master Servicer under or in connection with the Master Sale and Servicing
Agreement, including the right or power to take any action to compel or secure
performance or observance by the Seller or the Master Servicer of each of their
33
obligations to the Issuer thereunder and to give any consent, request, notice,
direction, approval, extension or waiver under the Master Sale and Servicing
Agreement, and any right of the Issuer to take such action shall be suspended.
ARTICLE VI.
THE INDENTURE TRUSTEE
SECTION 6.1 DUTIES OF INDENTURE TRUSTEE.
(a) If an Event of Default has occurred and is continuing of which a
Responsible Officer of the Indenture Trustee has actual knowledge, the Indenture
Trustee shall exercise the rights and powers vested in it by this Indenture and
the Basic Documents and use the same degree of care and skill in its exercise as
a prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default with respect
to a Series of which a Responsible Officer of the Indenture Trustee has actual
knowledge:
(i) the Indenture Trustee undertakes to perform with respect to
such Series such duties and only such duties as are specifically set forth
in this Indenture and the Series Supplement and no implied covenants or
obligations shall be read into this Indenture or the Series Supplement
against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee as the case may be and
conforming to the requirements of this Indenture and the Series Supplement;
however, the Indenture Trustee shall examine the certificates and opinions
to determine whether or not they conform on their face to the requirements
of this Indenture or the Series Supplement provided, further, that the
Indenture Trustee shall not be responsible for the accuracy or content of
any resolution, certificate, statement, opinion, report, document, order or
other instrument furnished to it, including, without limitation, any
statistical, numerical or financial data contained therein.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proven
that the Indenture Trustee was negligent in ascertaining the pertinent
facts; and
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(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.8.
(d) The Indenture Trustee shall not be liable for interest on any
money received by it except as such Person may agree in writing with the Issuer.
(e) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms of
this Indenture, the Series Supplement or the Master Sale and Servicing
Agreement.
(f) No provision of this Indenture or the Series Supplement shall
require the Indenture Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall have reasonable grounds to
believe that repayment of such funds or indemnity reasonably satisfactory to it
against such risk or liability is not reasonably assured to it.
(g) Every provision of this Indenture and the Series Supplement
relating to the conduct or affecting the liability of or affording protection to
the Indenture Trustee shall be subject to the provisions of this Section and to
the provisions of the TIA.
(h) The Indenture Trustee shall, and hereby agrees that it will,
perform all of the obligations and duties required of it under each Related
Document to which it is a party.
(i) Without limiting the generality of this Section 6.1, the Indenture
Trustee shall have no duty (i) to see to any recording, filing or depositing of
this Indenture, the Series Supplement or any agreement referred to herein or any
financing statement evidencing a security interest in the Financed Vehicles, or
to see to the maintenance of any such recording or filing or depositing or to
any recording, refiling or redepositing of any thereof, (ii) to see to any
insurance of the Financed Vehicles or Obligors or to effect or maintain any such
insurance, (iii) to see to the payment or discharge of any tax, assessment or
other governmental charge or any Lien or encumbrance of any kind owing with
respect to, assessed or levied against any part of the Trust, (iv) to confirm or
verify the contents of any reports or certificates delivered to the Indenture
Trustee pursuant to this Indenture, the Series Supplement or the Master Sale and
Servicing Agreement believed by the Indenture Trustee to be genuine and to have
been signed or presented by the proper party or parties, or (v) to inspect the
Financed Vehicles at any time or ascertain or inquire as to the performance or
observance of any of the Issuer's, the Seller's or the Master Servicer's
representations, warranties or covenants or the Master Servicer's duties and
obligations as Master Servicer and as custodian of the Receivable Files under
the Master Sale and Servicing Agreement.
(j) In no event shall the Indenture Trustee, in any of its capacities
hereunder, be deemed to have assumed any duties of the Owner Trustee under the
Delaware Statutory Trust Statute, common law, or the Trust Agreement.
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SECTION 6.2 RIGHTS OF INDENTURE TRUSTEE.
(a) The Indenture Trustee may rely on any document believed by it to
be genuine and to have been signed or presented by the proper person. The
Indenture Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate and/or an Opinion of Counsel. The Indenture
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on the Officer's Certificate and/or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of the Master Servicer or any other agent, attorney, custodian or
nominee appointed with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers; PROVIDED, HOWEVER, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture, the
Basic Documents, the Series Supplement, any Related Documents and the Notes and
such advice or opinion of counsel shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Indenture Trustee shall be under no obligation to institute,
conduct or defend any litigation under this Indenture or the Series Supplement
or in relation to this Indenture or the Series Supplement, at the request, order
or direction of any of the Holders of Notes or the Insurer (for so long as it is
the Controlling Party), pursuant to the provisions of this Indenture or the
Series Supplement, unless such Holders of Notes or the Insurer shall have
offered to the Indenture Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or thereby;
PROVIDED, HOWEVER, that the Indenture Trustee shall, upon the occurrence of an
Event of Default (that has not been cured), exercise the rights and powers
vested in it by this Indenture and the Series Supplement with reasonable care
and skill customary for the care and skill exercised by Indenture Trustees under
similar circumstances.
(g) The Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do by the Insurer (for
so long as it is the Controlling Party); PROVIDED, HOWEVER, that if the payment
within a reasonable time to the
36
Indenture Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the Indenture
Trustee not reasonably assured to the Indenture Trustee by the security afforded
to it by the terms of this Indenture, the Series Supplement or the Master Sale
and Servicing Agreement, the Indenture Trustee may require indemnity reasonably
satisfactory to it against such cost, expense or liability as a condition to so
proceeding; the reasonable expense of every such examination shall be paid by
the Person making such request.
(h) The right of the Indenture Trustee to perform any discretionary
act enumerated in this Indenture shall not be construed as a duty, and the
Indenture Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of such act.
(i) The Indenture Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust Estate created hereby or the
powers granted hereunder.
(j) Anything in this Indenture or any Supplement hereto to the
contrary notwithstanding, in no event shall the Indenture Trustee be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Indenture Trustee has
been advised of the likelihood of such loss or damage and regardless of the form
of action.
(k) The Indenture Trustee shall not be required to take notice or be
deemed to have notice or knowledge of any default, Event of Default or Master
Servicer Termination Event unless a Responsible Officer of the Indenture Trustee
shall have actual notice thereof.
(l) The Indenture Trustee shall not in any way be held liable by
reason of any insufficiency in any Trust Account (including, without limitation,
the Reserve Account and the Collection Account or any subaccount thereof) held
by or on behalf of the Indenture Trustee resulting from any investment loss on
any Eligible Investment included therein.
SECTION 6.3 INDIVIDUAL RIGHTS OF INDENTURE TRUSTEE. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or its Affiliates with the same
rights it would have if it were not Indenture Trustee. Any Note Paying Agent,
Note Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Indenture Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4 INDENTURE TRUSTEE'S DISCLAIMER. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture, the Series Supplement, the Series Trust Estate or
the Notes, it shall not be accountable for the Issuer's use of the proceeds from
the Notes, and it shall not be responsible for any statement of the Issuer in
the Indenture, in the Series Supplement or
37
in any document issued in connection with the sale of the Notes or in the Notes
other than the Indenture Trustee's certificate of authentication.
SECTION 6.5 NOTICE OF DEFAULTS. If an Event of Default occurs and is
continuing and if it is either actually known by, or written notice of the
existence thereof has been delivered to, a Responsible Officer of the Indenture
Trustee, the Indenture Trustee shall promptly notify the Insurer in writing and
mail to each Noteholder notice of the Default within 90 days after such
knowledge or notice occurs. Except in the case of a Default in payment of
principal of or interest on any Note, the Indenture Trustee may withhold the
notice to Noteholders if and so long as a committee of its Responsible Officers
in good faith determines that withholding the notice is in the interests of
Noteholders.
SECTION 6.6 REPORTS BY MASTER SERVICER TO HOLDERS. Upon the written
request of any Noteholder, the Master Servicer shall on behalf of the Issuer
deliver to the Indenture Trustee for distribution to any Noteholder such
information as may be reasonably required by such Noteholder to enable such
Noteholder to prepare its Federal and state income tax returns required by law.
SECTION 6.7 COMPENSATION AND INDEMNITY.
(a) As payable in the Series Supplement, the Issuer shall, or shall
cause the Master Servicer to, pay to the Indenture Trustee from time to time the
Indenture Trustee Fee as compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall or shall cause the Master Servicer to reimburse
the Indenture Trustee for all reasonable out-of-pocket expenses incurred or made
by it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, outside counsel, accountants
and experts. The Issuer shall or shall cause the Master Servicer to indemnify
the Indenture Trustee, and its respective officers, directors, employees and
agents against any and all loss, liability or expense (including attorneys' fees
and expenses) incurred by each of them in connection with the acceptance or the
administration of this trust and the performance of its duties hereunder. The
Indenture Trustee shall notify the Issuer and the Master Servicer promptly of
any claim for which it may seek indemnity. Failure by the Indenture Trustee to
so notify the Issuer and the Master Servicer shall not relieve the Issuer of its
obligations hereunder or the Master Servicer of its obligations under Article
XII of the Master Sale and Servicing Agreement. The Issuer shall defend or shall
cause the Master Servicer to defend any claim for indemnity that may arise
against the Indenture Trustee, or the Indenture Trustee may have separate
counsel and the Issuer shall or shall cause the Master Servicer to pay the fees
and expenses of such counsel. Neither the Issuer nor the Master Servicer need
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Indenture Trustee through such Person's own willful misconduct,
negligence or bad faith.
(b) The Issuer's payment obligations to the Indenture Trustee pursuant
to this Section shall survive the resignation or removal of the Indenture
Trustee and the
38
discharge of this Indenture. When the Indenture Trustee incurs expenses after
the occurrence of an Insolvency Event with respect to the Issuer, the expenses
are intended to constitute expenses of administration under Title 11 of the
United States Code or any other applicable Federal or state bankruptcy,
insolvency or similar law. Notwithstanding anything else set forth in this
Indenture, the Basic Documents, the Series Supplement or any Related Documents,
the Indenture Trustee agrees that the obligations of the Issuer (but not the
Master Servicer) to the Indenture Trustee hereunder and under the Series
Supplement or any Related Documents, shall be recourse to the Series Trust
Estate only and specifically shall not be recourse to the assets of any
Securityholder. In addition, the Indenture Trustee agrees that its recourse to
the Issuer, the Series Trust Estate, the Seller and amounts held pursuant to the
Series Support shall be limited to the right to receive the distributions as
provided for in the payment priority provisions of the Series Supplement.
SECTION 6.8 REPLACEMENT OF INDENTURE TRUSTEE. The Indenture Trustee
may, and in the circumstances specified in subparagraph (i) shall, resign at any
time upon 60 days' prior written notice by so notifying the Issuer, the Insurer,
Holders of a majority of Outstanding Amount of the Notes and the Master
Servicer. In addition, the Master Servicer may remove the Indenture Trustee by
so notifying the Indenture Trustee with the consent of the Insurer (for so long
as it is the Controlling Party) upon 60 days' written notice. The Issuer may,
with the consent of the Insurer (for so long as it is the Controlling Party) and
shall, at the direction of the Insurer (for so long as it is the Controlling
Party) or the Noteholders, remove the Indenture Trustee, if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) a court having jurisdiction in the premises in respect of the
Indenture Trustee in an involuntary case or proceeding under Federal or
state banking or bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or state bankruptcy, insolvency or other similar
law, shall have entered a decree or order granting relief or appointing a
receiver, liquidator, assignee, custodian, trustee, conservator,
sequestrator (or similar official) for the Indenture Trustee or for any
substantial part of the Indenture Trustee's property, or ordering the
winding-up or liquidation of the Indenture Trustee's affairs;
(iii) an involuntary case under the Federal bankruptcy laws, as now
or hereafter in effect, or another present or future Federal or state
bankruptcy, insolvency or similar law is commenced with respect to the
Indenture Trustee and such case is not dismissed within 60 days;
(iv) the Indenture Trustee commences a voluntary case under any
Federal or state banking or bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
conservator, sequestrator (or other similar official) for the Indenture
Trustee or for any substantial part of the Indenture Trustee's property, or
makes any assignment for the benefit of creditors or fails generally to
39
pay its debts as such debts become due or takes any corporate action in
furtherance of any of the foregoing;
(v) the Indenture Trustee otherwise becomes incapable of acting; or
(vi) the rating assigned to the long-term unsecured debt obligations
of the Indenture Trustee by the Rating Agencies shall be lowered below the
rating of "BBB", "Baa2" or equivalent rating or be withdrawn by either of
the Rating Agencies.
If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly deliver a written notice of such removal, resignation or vacancy
to the Master Servicer and the Insurer, and the Master Servicer may appoint a
successor Indenture Trustee with the consent of the Insurer (for so long as it
is the Controlling Party). If the Master Servicer fails to appoint such a
successor Indenture Trustee, the Issuer, the Insurer (for so long as it is the
Controlling Party) or a resigning Indenture Trustee may petition any court of
competent jurisdiction to appoint a successor Indenture Trustee. If the
Indenture Trustee resigns or is removed, the Indenture Trustee shall also resign
or be removed, as the case may be, as Note Paying Agent, Note Registrar and
Certificate Paying Agent.
A successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee, to the Insurer and to the
Issuer. Thereupon the resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the retiring Indenture Trustee under the Basic
Documents. The successor Indenture Trustee shall mail a notice of its succession
to Noteholders. The retiring Indenture Trustee shall promptly transfer all
property held by it as Indenture Trustee to the successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder or the Insurer (for so long as it is the Controlling Party) may
petition any court of competent jurisdiction for the removal of the Indenture
Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's and the Master Servicer's obligations under Section
6.7 shall continue for the benefit of the retiring Indenture Trustee.
SECTION 6.9 SUCCESSOR INDENTURE TRUSTEE BY MERGER. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee entity without
any further act shall be the successor Indenture Trustee; PROVIDED that such
corporation or banking association shall otherwise be eligible under Section
6.11 hereof. The Indenture Trustee shall
40
provide the Rating Agencies and the Insurer with written notice of any such
transaction as soon as practical thereafter.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
SECTION 6.10 APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE
INDENTURE TRUSTEE.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust may at the time be located, the Indenture Trustee,
with the consent of the Insurer (for so long as it is the Controlling Party),
shall have the power and may execute and deliver all instruments to appoint one
or more Persons to act as a co-trustee or co-trustees, or separate trustee or
separate trustees, of all or any part of the Series Trust Estate, and to vest in
such Person or Persons, in such capacity and for the benefit of the Secured
Parties, such title to the Series Trust Estate, or any part hereof, and, subject
to the other provisions of this Section, such powers, duties, obligations,
rights and trusts as the Indenture Trustee may consider necessary or desirable.
No co-trustee or separate trustee hereunder shall be required to meet the terms
of eligibility as a successor trustee under Section 6.11 and no notice to
Noteholders of the appointment of any co-trustee or separate trustee shall be
required under Section 6.8 hereof. The cost and expense of such co-trustee or
co-trustees, and/or separate trustee or separate trustees, shall be a cost and
expense of the Indenture Trustee pursuant to Section 3.03(a)(iii) of the Series
Supplement.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and exercised
or performed by the Indenture Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Indenture
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed
the Indenture Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in any
such
41
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Indenture
Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder, including acts or
omissions of predecessor or successor trustees; and
(iii) the Indenture Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each separate trustee and
co-trustee, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, dissolve, become insolvent, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Indenture Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
SECTION 6.11 ELIGIBILITY: DISQUALIFICATION. The Indenture Trustee
shall at all times: satisfy TIA Section 310(a), have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition, and have a long-term debt rating of at ▇▇▇▇▇ "▇▇▇", "▇▇▇▇"
or equivalent rating from each of the Rating Agencies. The Indenture Trustee
shall comply with TIA Section 310(b), including the optional provision permitted
by the second sentence of TIA Section 310(b)(9); PROVIDED, HOWEVER, that there
shall be excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities of the Issuer are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 6.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.13 REPRESENTATIONS AND WARRANTIES OF THE INDENTURE TRUSTEE.
The Indenture Trustee represents and warrants to the Issuer as follows:
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(a) DUE ORGANIZATION. The Indenture Trustee is a national banking
association, duly organized, validly existing and in good standing under the
laws of the United States and is duly authorized and licensed under applicable
law to conduct its business as presently conducted.
(b) CORPORATE POWER. The Indenture Trustee has all requisite right,
power and authority to execute and deliver this Indenture, the Series Supplement
and any other Related Document to which it is a party and to perform all of its
duties as the Indenture Trustee hereunder.
(c) DUE AUTHORIZATION. The execution and delivery by the Indenture
Trustee of this Indenture, the Series Supplement and any other Related Documents
to which it is a party, and the performance by the Indenture Trustee of its
duties hereunder and thereunder, have been duly authorized by all necessary
corporate proceedings which are required for the valid execution and delivery by
the Indenture Trustee, or the performance by the Indenture Trustee, of this
Indenture, the Series Supplement and such other Related Documents.
(d) VALID AND BINDING INDENTURE. The Indenture Trustee has duly
executed and delivered this Indenture, the Series Supplement and each other
Related Document to which it is a party, and each of this Indenture, the Series
Supplement and each other Related Document constitutes the legal, valid and
binding obligation of the Indenture Trustee enforceable against the Indenture
Trustee in accordance with its terms, except as (i) such enforceability may be
limited by bankruptcy, insolvency, reorganization and similar laws relating to
or affecting the enforcement of creditors' rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles of
general applicability.
SECTION 6.14 WAIVER OF SETOFFS. The Indenture Trustee hereby
expressly waives any and all rights of setoff that the Indenture Trustee may
otherwise at any time have under applicable law with respect to any Trust
Account and agrees that amounts in the Trust Accounts shall at all times be held
and applied solely in accordance with the provisions hereof.
SECTION 6.15 NO CONSENT TO CERTAIN ACTS OF SELLER. The Seller shall
not request that the Indenture Trustee consent to, nor shall the Indenture
Trustee consent to any action proposed to be taken by the Seller pursuant to
Article FIFTEENTH of the Seller's Articles of Incorporation.
ARTICLE VII.
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 ISSUER TO FURNISH TO INDENTURE TRUSTEE NAMES AND
ADDRESSES OF NOTEHOLDERS. The Issuer will furnish or cause to be furnished to
the Indenture Trustee with respect to each Series of Notes (a) not more than
five days after the earlier of (i) each Record Date with respect to such Series
and (ii) three months after
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the last Record Date, a list, in such form as the Indenture Trustee may
reasonably require, of the names and addresses of the Holders with respect to
such Series as of such Record Date, (b) at such other times as the Indenture
Trustee may request in writing, within 30 days after receipt by the Issuer of
any such request, a list of similar form and content as of a date not more than
10 days prior to the time such list is furnished; PROVIDED, HOWEVER, that so
long as the Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.
SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO
NOTEHOLDERS. The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders contained in the
most recent list furnished to the Indenture Trustee as provided in Section 7.1
and the names and addresses of Holders received by the Indenture Trustee in its
capacity as Note Registrar. The Indenture Trustee may destroy any list furnished
to it as provided in such Section 7.1 upon receipt of a new list so furnished.
(a) Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or under the
Notes.
(b) The Issuer, the Indenture Trustee and the Note Registrar shall
have the protection of TIA Section 312(c).
SECTION 7.3 REPORTS BY ISSUER.
(a) If this Indenture is qualified under the TIA, the Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of the
annual reports and copies of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the Issuer may
be required to file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports with respect
to compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee
shall transmit by mail to all Noteholders described in TIA Section 313(c))
such summaries of any information, documents and reports required to be
filed by the Issuer pursuant to clauses (i) and (ii) of this Section 7.3(a)
as may be required by rules and regulations prescribed from time to time by
the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
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(c) The Indenture Trustee shall not have any duty or obligation with
respect to any reports or other information delivered to it pursuant to this
Section 7.3.
SECTION 7.4 REPORTS BY INDENTURE TRUSTEE. If required by TIA Section
313(a), within 60 days after each March 31 beginning with March 31, 2003 the
Indenture Trustee shall mail to each Noteholder as required by TIA Section
313(c) a brief report dated as of such date that complies with TIA Section
313(a). The Indenture Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Noteholders shall
be filed by the Indenture Trustee with the Commission and each stock exchange,
if any, on which the Notes are listed. The Issuer shall notify the Indenture
Trustee if and when the Notes are listed on any stock exchange.
ARTICLE VIII.
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 COLLECTION OF MONEY. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture and the Master
Sale and Servicing Agreement. The Indenture Trustee shall apply all such money
received by it as provided in this Indenture and the Series Supplement. Except
as otherwise expressly provided in this Indenture or in the Master Sale and
Servicing Agreement, if any default occurs in the making of any payment or
performance under any agreement or instrument that is part of the Series Trust
Estate, the Indenture Trustee may, with the consent of the Insurer (for so long
as it is the Controlling Party) and shall, at the direction of the Insurer (for
so long as it is the Controlling Party), take such action as may be appropriate
to enforce such payment or performance, including the institution and
prosecution of appropriate proceedings. Any such action shall be without
prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
SECTION 8.2 RELEASE OF SERIES TRUST ESTATE.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.7, and to the extent not covered by Section 8.2(b), the Indenture
Trustee may, and when required by the Issuer and the provisions of this
Indenture shall, execute instruments to release property from the lien of this
Indenture, in a manner and under circumstances that are not inconsistent with
the provisions of this Indenture. No party relying upon an instrument executed
by the Indenture Trustee as provided in this Article VIII shall be bound to
ascertain the Indenture Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any monies.
45
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding, the Note Policy has terminated in accordance with its terms and all
sums due the Indenture Trustee pursuant to Section 6.7 and due the Insurer
pursuant to the Insurance Agreement and the Basic Documents have been paid,
release any remaining portion of the Series Trust Estate that secured the Notes
from the lien of this Indenture and release to the Issuer or any other Person
entitled thereto any funds then on deposit in the Trust Accounts. The Indenture
Trustee shall release property from the lien of this Indenture pursuant to this
Section 8.2(b) only upon receipt of an Issuer Request accompanied by an
Officer's Certificate, an Opinion of Counsel and (if required by the TIA)
Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1)
meeting the applicable requirements of Section 11.1.
SECTION 8.3 OPINION OF COUNSEL. The Indenture Trustee shall receive
at least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.2(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require as a condition to such action, an
Opinion of Counsel, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
will not materially and adversely impair the security for the Notes or the
rights of the Secured Parties in contravention of the provisions of this
Indenture; PROVIDED, HOWEVER, that such Opinion of Counsel shall not be required
to express an opinion as to the fair value of the Series Trust Estate. Counsel
rendering any such opinion may rely, without independent investigation, on the
accuracy and validity of any certificate or other instrument delivered to the
Indenture Trustee in connection with any such action.
ARTICLE IX.
AMENDMENTS; THE SERIES SUPPLEMENT
SECTION 9.1 AMENDMENTS WITHOUT CONSENT OF NOTEHOLDERS.
(a) Except as otherwise provided in the Series Supplement, without the
consent of the Holders of any Notes but with the prior written consent of the
Insurer (for so long as the Insurer is the Controlling Party) and with prior
written notice to the Rating Agencies, as evidenced to the Indenture Trustee and
the Issuer, when authorized by an Issuer Order, at any time and from time to
time, the parties hereto may enter into one or more amendments hereto, in form
satisfactory to the Indenture Trustee and the Insurer (for so long as it is the
Controlling Party), for any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject to the lien of this
Indenture additional property;
46
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another person to the Issuer, and the assumption by
any such successor of the covenants of the Issuer herein and in the Notes
contained;
(iii) to add to the covenants of the Issuer, for the benefit of the
Holders of the Notes, or to surrender any right or power herein conferred
upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in the Series Supplement which may be inconsistent with any other
provision herein or in the Series Supplement or to make any other
provisions with respect to matters or questions arising under this
Indenture or in the Series Supplement; PROVIDED that such action shall not,
as evidenced by an Opinion of Counsel, adversely affect the interests of
the Holders of the Notes or the Insurer;
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the TIA or under any similar federal statute hereafter
enacted and to add to this Indenture such other provisions as may be
expressly required by the TIA.
The Indenture Trustee is hereby authorized to join in the execution of
any amendment and to make any further appropriate agreements and stipulations
that may be therein contained.
(b) Except as otherwise provided in the Series Supplement, the Issuer
and the Indenture Trustee, when authorized by an Issuer Order, may, also without
the consent of any of the Holders of the Notes but with the prior written
consent of the Insurer (for so long as it is the Controlling Party) and with
prior written notice to the Rating Agencies by the Issuer, as evidenced to the
Indenture Trustee, enter into an amendment hereto in form satisfactory to the
Insurer (for so long as it is the Controlling Party) for the purpose of adding
any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; PROVIDED, HOWEVER, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder or the Insurer.
SECTION 9.2 AMENDMENTS WITH CONSENT OF NOTEHOLDERS. Except as
otherwise provided in the Series Supplement, the Issuer and the Indenture
Trustee, when authorized by an Issuer Order provided by the Master Servicer,
also may, with prior
47
written notice to the Rating Agencies and with the consent of the Insurer (for
so long as it is the Controlling Party) and the Holders of not less than a
majority of the Outstanding Amount of each Class of Notes affected thereby, by
Act of such Holders delivered to the Issuer and the Indenture Trustee, enter
into an amendment hereto for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this Indenture
or of modifying in any manner the rights of the Holders of the Notes under this
Indenture; PROVIDED, HOWEVER, that if the Controlling Party is not the Insurer,
no such amendment shall adversely affect the interests of the Insurer; and
PROVIDED, FURTHER that no such amendment shall, without the consent of the
Holder of each Outstanding Note affected thereby:
(i) change the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof, the
interest rate thereon, change the provision of this Indenture relating
to the application of collections on, or the proceeds of the sale of,
the Series Trust Estate to payment of principal of or interest on the
Notes, or change any place of payment where, or the coin or currency
in which, any Note or the interest thereon is payable;
(ii) impair the right to institute suit for the enforcement of the
provisions of this Indenture requiring the application of funds
available therefor, as provided in Article V, to the payment of any
such amount due on the Notes on or after the respective due dates
thereof;
(iii) reduce the percentage of the Outstanding Amount of the Notes, the
consent of the Holders of which is required for any such Series
Supplement, or the consent of the Holders of which is required for any
waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture;
(iv) modify or alter the provisions of the proviso to the definition of the
term "Outstanding";
(v) reduce the percentage of the Outstanding Amount of the Notes required
to direct the Indenture Trustee to direct the Issuer to sell or
liquidate the Series Trust Estate pursuant to Section 4.03 of the
Series Supplement;
(vi) modify any provision of this Section except to increase any percentage
specified herein or to provide that certain additional provisions of
this Indenture or the Basic Documents cannot be modified or waived
without the consent of the Holder of each Outstanding Note affected
thereby;
(vii) modify any of the provisions of this Indenture in such manner as to
affect the calculation of the amount of any payment of interest or
principal due on any Note on any Distribution Date (including the
calculation of any of the individual components of such calculation)
or to affect the rights of the
48
Holders of Notes to the benefit of any provisions for the mandatory
redemption of the Notes contained in the Series Supplement; or
(viii) permit the creation of any lien ranking prior to or on a parity with
the lien of this Indenture with respect to any part of the Series
Trust Estate or, except as otherwise permitted or contemplated herein
or in the Series Supplement or the Related Documents, terminate the
lien of this Indenture on any property at any time subject hereto or
deprive the Holder of any Note of the security provided by the lien of
this Indenture.
It shall not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee
of any amendment pursuant to this Section, the Indenture Trustee shall mail to
the Holders of the Notes to which such amendment relates a notice setting forth
in general terms the substance of such amendment. Any failure of the Indenture
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amendment.
Prior to the execution of any amendment to this Indenture, the
Indenture Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Indenture. The Indenture Trustee may, but shall not be obligated to,
enter into any such amendment which affects the Indenture Trustee's own rights,
duties or immunities under this Indenture.
SECTION 9.3 SERIES SUPPLEMENT AUTHORIZING THE NOTES.
(a) The Notes issued hereunder shall be issued pursuant to the Series
Supplement, which shall set forth the terms and provisions of the Notes.
(b) Amendments to the Series Supplement shall be governed by the
provisions of the Series Supplement.
SECTION 9.4 EXECUTION OF THE SERIES SUPPLEMENT. The Indenture
Trustee shall be entitled to receive, and subject to Sections 6.1 and 6.2, shall
be fully protected in relying upon, an Opinion of Counsel (and, if requested, an
Officer's Certificate) stating that the execution of the Series Supplement is
authorized or permitted by this Indenture.
SECTION 9.5 EFFECT OF SERIES SUPPLEMENT. Upon the execution of the
Series Supplement or any amendment pursuant to the provisions of the Series
Supplement or hereof, this Indenture shall be and be deemed to be modified and
amended in accordance therewith with respect to the Notes affected thereby, and
the respective rights, limitations of rights, obligations, duties, liabilities
and immunities under this Indenture of the Indenture Trustee, the Issuer and the
Holders of the Notes shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such
49
modifications and amendments, and all the terms and conditions of the Series
Supplement or any amendment shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.6 CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of
this Indenture and the Series Supplement executed pursuant to this Article IX
shall conform to the requirements of the Trust Indenture Act as then in effect
so long as this Indenture shall then be qualified under the Trust Indenture Act.
SECTION 9.7 REFERENCE IN NOTES TO THE SERIES SUPPLEMENT. Notes
authenticated and delivered after the execution of the Series Supplement
pursuant to this Article IX may, and if required by the Issuer shall, bear a
notation as to any matter provided for in the Series Supplement. If the Issuer
shall so determine, new Notes so modified as to conform, in the opinion of the
Issuer, to the Series Supplement may be prepared and executed by the Issuer and
authenticated and delivered by the Indenture Trustee in exchange for Outstanding
Notes.
ARTICLE X.
SECTION 10.1 NOTE INSURER'S RIGHTS REGARDING ACTIONS, PROCEEDINGS OR
INVESTIGATIONS.
(a) In connection with any action, proceeding or investigation against
or with respect to the Issuer, for so long as the Insurer is the Controlling
Party the Indenture Trustee and the Issuer hereby agree to cooperate with, and
to take such action as directed in writing by, the Insurer, including, without
limitation, entering into such agreements and settlements as the Insurer shall
direct in writing, in its sole discretion, without the consent of any other
Person. Notwithstanding any other provision herein or in any of the other Basic
Documents, the Indenture Trustee shall not require any bond or indemnification
from any Person for taking of any action at the direction of the Insurer given
at a time when the Insurer is the Controlling Party, and the Indenture Trustee
shall not be liable to the Issuer or the Insurer for any such action that
conforms to the direction of the Insurer given at a time when the Insurer is the
Controlling Party. The Indenture Trustee's reasonable out-of-pocket costs and
expenses (including attorneys' fees and expenses) with respect to any such
action shall be reimbursed pursuant to Section 3.03(a) of the Series Supplement.
(b) The Issuer and the Indenture Trustee hereby agree to provide to
the Insurer prompt written notice of any action, proceeding or investigation
that names the Issuer or the Indenture Trustee as a party or that involves the
Issuer or the Series Trust Estate or the rights or obligations of the Insurer
under the Related Documents or under the Note Policy, including, without
limitation, any insolvency or bankruptcy proceeding in respect of the Issuer.
(c) Notwithstanding anything contained herein or in any of the other
Basic Documents to the contrary, the Issuer and the Indenture Trustee shall not,
without the Insurer's prior written consent so long as the Insurer is the
Controlling Party, which
50
consent shall not be unreasonably withheld, or unless directed by the Insurer in
writing so long as the Insurer is the Controlling Party, undertake or join any
litigation or agree to any settlement of any action, proceeding or investigation
affecting the Series Trust Estate or the Issuer or the rights or obligations of
the Insurer under the Basic Documents or under the Note Policy.
(d) The Insurer shall have such rights as set forth in this Section,
which are in addition to any rights of the Insurer pursuant to the other
provisions of the Basic Documents and the rights set forth in this Section may
be exercised by the Insurer so long as the Insurer is the Controlling Party, in
its sole discretion, without the need for the consent or approval of the Issuer,
the Indenture Trustee or any other Person, notwithstanding any other provision
contained herein or in any of the other Basic Documents. Nothing contained in
this Section shall be deemed to create or constitute an obligation of the
Insurer to exercise any of the rights provided for herein.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.1 COMPLIANCE CERTIFICATES AND OPINIONS, ETC.
(a) Upon any application or request by the Issuer to the Indenture
Trustee to take any action under any provision of this Indenture or the Series
Supplement, the Issuer shall furnish to the Indenture Trustee (i) an Officer's
Certificate stating that all conditions precedent, if any, provided for in this
Indenture or the Series Supplement relating to the proposed action have been
complied with, (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with and (iii)
(if required by the TIA) an Independent Certificate from a firm of certified
public accountants meeting the applicable requirements of this Section, except
that, in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture or
the Series Supplement, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture or the Series Supplement
shall include:
(i) a statement that each signatory of such certificate or opinion
has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
51
(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any property or securities with the
Indenture Trustee that is to be made the basis for the release of any
property or securities subject to the lien of this Indenture and the Series
Supplement, the Issuer shall, in addition to any obligation imposed in
Section 11.1(a) or elsewhere in this Indenture or the Series Supplement,
furnish to the Indenture Trustee an Officer's Certificate certifying or
stating the opinion of each person signing such certificate as to the fair
value (within 90 days of such deposit) to the Issuer of the property or
securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (i) above, the Issuer
shall also deliver to the Indenture Trustee an Independent Certificate as
to the same matters, if the fair value to the Issuer of the securities to
be so deposited and of all other such securities made the basis of any such
withdrawal or release since the commencement of then-current fiscal year of
the Issuer, as set forth in the certificates delivered pursuant to clause
(i) above and this clause (ii), is 10% or more of the Outstanding Amount of
the Notes; PROVIDED, that such a certificate need not be furnished with
respect to any securities so deposited, if the fair value thereof to the
Issuer as set forth in the related Officer's Certificate is less than
$25,000 or less than 1% percent of the Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any Repurchased
Receivables or Liquidated Receivables (as such terms are defined in the
Master Sale and Servicing Agreement), whenever any property or securities
are to be released from the lien of this Indenture and the Series
Supplement, the Issuer shall also furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within 90 days of such
release) of the property or securities proposed to be released and stating
that in the opinion of such person the proposed release will not impair the
security under this Indenture and the Series Supplement in contravention of
the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (i) above, the Issuer
shall also furnish to the Indenture Trustee an Independent Certificate as
to the same matters if the fair value of the property or securities and of
all other property other than Repurchased Receivables and Defaulted
Receivables (as such terms are defined in the Master Sale and Servicing
Agreement), or securities released from the lien of this Indenture since
the commencement of then current calendar year, as set forth in the
certificates required by clause (ii) above and this clause (iv), equals 10%
or more of the Outstanding Amount of the Notes; PROVIDED, that such
certificate need not be furnished in the case of any release of property or
securities if the fair value
52
thereof as set forth in the related Officer's Certificate is less than
$25,000 or less than 1 percent of then Outstanding Amount of the Notes.
(v) Notwithstanding any other provision of this Section, the Issuer
may (A) collect, liquidate, sell or otherwise dispose of Receivables as and
to the extent permitted or required by the Basic Documents and (B) make
cash payments out of the Trust Accounts as and to the extent permitted or
required by the Basic Documents.
SECTION 11.2 FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Master Servicer, the Seller or the Issuer, stating that the information with
respect to such factual matters is in the possession of the Master Servicer, the
Seller or the Issuer, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture or the Series Supplement, in connection
with any application or certificate or report to the Indenture Trustee, it is
provided that the Issuer shall deliver any document as a condition of the
granting of such application, or as evidence of the Issuer's compliance with any
term hereof, it is intended that the truth and accuracy, at the time of the
granting of such application or at the effective date of such certificate or
report (as the case may be), of the facts and opinions stated in such document
shall in such case be conditions precedent to the right of the Issuer to have
such application granted or to the sufficiency of such certificate or report.
The foregoing shall not, however, be construed to affect the Indenture Trustee's
right to conclusively rely upon the truth and accuracy of any statement or
opinion contained in any such document as provided in Article VI.
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SECTION 11.3 ACTS OF NOTEHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agents
duly appointed in writing; and except as herein otherwise expressly provided
such action shall become effective when such instrument or instruments are
delivered to the Indenture Trustee, and, where it is hereby expressly required,
to the Issuer. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.1) conclusive in
favor of the Indenture Trustee and the Issuer, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any customary manner of the Indenture
Trustee.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of every
Note issued upon the registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon, whether or not notation of
such action is made upon such Note.
SECTION 11.4 NOTICES, ETC., TO INDENTURE TRUSTEE, ISSUER AND RATING
AGENCIES. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or permitted by this Indenture
or the Series Supplement to be made upon, given or furnished to or filed with:
(a) The Indenture Trustee by any Noteholder or by the Issuer shall be
sufficient for every purpose hereunder if personally delivered, delivered by
overnight courier or mailed first-class and shall be deemed to have been duly
given upon receipt to the Indenture Trustee at its Corporate Trust Office, or
(b) The Issuer by the Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if personally delivered, delivered by
facsimile or overnight courier or mailed first class, and shall be deemed to
have been duly given upon receipt to the Issuer addressed to: Household
Automotive Trust 2002-3, in care of the Owner Trustee at its Corporate Trust
Office, or at any other address previously furnished in writing to the Indenture
Trustee by the Issuer. The Issuer shall promptly transmit any notice received by
it from the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, personally
delivered, delivered by overnight courier or first class or via facsimile to (i)
in the case of Moody's, at the following address: ▇▇▇▇▇'▇ Investors Service,
Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Fax No: (▇▇▇) ▇▇▇-▇▇▇▇, (ii) in the case of S&P, at the
following address: Standard & Poor's Ratings Group, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Surveillance Department, Fax No: (212)
▇▇▇-▇▇▇▇ and (iii) in the case of Fitch, Inc., at the following address: ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Fax No. (▇▇▇) ▇▇▇-▇▇▇▇; or as to
each of the foregoing, at such other address as shall be designated by written
notice to the other parties.
SECTION 11.5 NOTICES TO NOTEHOLDERS; WAIVER. Where this Indenture or
the Series Supplement provides for notice to Noteholders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class, postage prepaid to each Noteholder
affected by such event, at his address as it appears on the Note Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Noteholders is given
by mail, neither the failure to mail such notice nor any defect in any notice so
mailed to any particular Noteholder shall affect the sufficiency of such notice
with respect to other Noteholders, and any notice that is mailed in the manner
herein provided shall conclusively be presumed to have been duly given.
Where this Indenture or the Series Supplement provides for notice in
any manner, such notice may be waived in writing by any Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Noteholders shall be filed
with the Indenture Trustee but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
Where this Indenture or the Series Supplement provides for notice to
the Rating Agencies, failure to give such notice shall not affect any other
rights or obligations created hereunder, and shall not under any circumstance
constitute a Default or Event of Default.
SECTION 11.6 ALTERNATE PAYMENT AND NOTICE PROVISIONS. Notwithstanding
any provision of this Indenture, the Series Supplement or any of the Notes to
the contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Indenture Trustee or any
Note Paying Agent to such Holder, that is different from the methods provided
for in this Indenture or the Series Supplement for such payments or notices,
provided that such methods are reasonable and consented to by the Indenture
Trustee and the Insurer (for so long as it is the Controlling Party) (which
consent, in each case, shall not be unreasonably withheld). The Issuer will
furnish to the Indenture Trustee a copy of each such agreement and the Indenture
Trustee will cause payments to be made and notices to be given in accordance
with such agreements. Any additional costs and expenses incurred
55
by the Indenture Trustee pursuant to this Section shall be a cost and expense of
the Indenture Trustee pursuant to Section 3.03(a)(iii) of the Series Supplement.
SECTION 11.7 CONFLICT WITH TRUST INDENTURE ACT. If this Indenture is
qualified under the Trust Indenture Act and if any provision hereof limits,
qualifies or conflicts with another provision hereof that is required to be
included in this indenture by any of the provisions of the Trust Indenture Act,
such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 11.9 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture, the Series Supplement shall bind its successors. All agreements
of the Master Servicer in this Indenture or the Series Supplement shall bind its
successors and assigns.
SECTION 11.10 SEPARABILITY. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 11.11 BENEFITS OF INDENTURE. Nothing in this Indenture or the
Series Supplement or in the Notes, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Insurer and
its successors, and the Noteholders, and any other party secured hereunder, and
any other person with an ownership interest in any part of the Series Trust
Estate, any benefit or any legal or equitable right, remedy or claim under this
Indenture. The parties hereto agree that the Insurer is a third-party
beneficiary hereof and the Insurer shall be entitled to rely upon and directly
enforce the provisions of this Indenture for so long as the Insurer is the
Controlling Party; PROVIDED that nothing herein shall affect or limit the
Insurer's rights as subrogee to the Noteholders.
SECTION 11.12 LEGAL HOLIDAYS. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes, this Indenture or the Series Supplement) payment need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the date an which nominally due,
and no interest shall accrue for the period from and after any such nominal
date.
SECTION 11.13 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
56
YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS WHICH WOULD REQUIRE
THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
SECTION 11.14 COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.15 RECORDING OF INDENTURE. If this Indenture or the Series
Supplement is subject to recording in any appropriate public recording offices,
such recording is to be effected by the Issuer and at its expense accompanied by
an Opinion of Counsel (which may be counsel to the Trust or any other counsel
reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Noteholders or any other
person secured hereunder or for the enforcement of any right or remedy granted
to the Indenture Trustee under this Indenture or the Series Supplement.
SECTION 11.16 TRUST OBLIGATION. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Seller, the
Master Servicer, the Owner Trustee or the Indenture Trustee on the Notes or
under this Indenture or the Series Supplement or any certificate or other
writing delivered in connection herewith or therewith, against (i) the Seller,
the Master Servicer, the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Seller, the Master Servicer, the Indenture Trustee or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Seller, the Master Servicer, the Owner Trustee or the Indenture
Trustee or of any successor or assign of the Seller, the Master Servicer, the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any
such Person may have expressly agreed (it being understood that the Indenture
Trustee and the Owner Trustee have no such obligations in their individual
capacity) and except that any such owner or beneficiary shall be fully liable,
to the extent provided by applicable law, for any unpaid consideration for
stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity. For all purposes of this Indenture, in the performance of
any duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles VI, VII, and VIII of the Trust Agreement.
SECTION 11.17 NO PETITION. The Indenture Trustee, by entering into
this Indenture, and each Noteholder, by accepting a Note, hereby covenant and
agree that they will not at any time institute against the Seller, or the
Issuer, or join in, cooperate with or encourage others in connection with the
institution against the Seller, or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes, this Indenture or any
of the Basic Documents or any of the Related Documents.
57
SECTION 11.18 LIMITED RECOURSE.
(a) Notwithstanding anything in the Related Documents to the contrary,
the Notes constitute limited recourse obligations of the Issuer and are limited
in recourse to the Series Trust Estate. The Indenture Trustee, by entering into
this Indenture and the Series Supplement, and each Noteholder agree that
recourse for the Notes is limited to the Series Trust Estate and, if the Series
Trust Estate shall prove to be insufficient to pay amounts due under the Notes,
the Noteholders shall have no claim against the assets of the Issuer or the
Seller other than the Series Trust Estate.
(b) If, notwithstanding paragraph (a) above, the Noteholders are
deemed to have any interest in any asset of the Seller other than the Seller's
interest in the Series Trust Estate, including any interest in assets of the
Seller pledged to secure debt obligations of the Seller other than the Notes,
the Indenture Trustee, by entering into this Indenture and the Series
Supplement, and each Noteholder agree that any such interest is subordinate to
the claims of the holders of any such debt obligations, and the Noteholders
shall have no rights in such assets until such other debt obligations are
indefeasibly paid in full. The agreement of the Indenture Trustee and the
Noteholders pursuant to this Section 11.18(b) is intended to constitute a
subordination agreement for the purposes of Section 510(a) of the Bankruptcy
Code.
SECTION 11.19 INSPECTION. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports, and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees, and independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing) and except to
the extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its Obligations hereunder.
SECTION 11.20 LIMITATION OF LIABILITY. It is expressly understood and
agreed by the parties hereto that (a) this Indenture is executed and delivered
by the Owner Trustee, not individually or personally but solely as Owner Trustee
of the Issuer under the Trust Agreement, in the exercise of the powers and
authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Issuer is made and
intended not as personal representations, undertakings and agreements by the
Owner Trustee but is made and intended for the purpose of binding only the
Issuer, (c) nothing herein contained shall be construed as creating any
liability on the Owner Trustee individually or personally, to perform any
covenant either expressed or implied contained herein, all such liability, if
any, being expressly waived by the parties to this Indenture and by any person
claiming by, through or under them and (d) under no circumstances shall the
Owner Trustee be personally liable for the payment of any indebtedness or
expenses of the Issuer or be liable for the breach or failure of any
58
obligation, representation, warranty or covenant made or undertaking by the
Issuer under this Indenture or any related documents.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, hereunto duly
authorized, all as of the day and year first above written.
HOUSEHOLD AUTOMOTIVE TRUST 2002-3
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but solely as
Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Financial Services Officer
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
EXHIBIT A
FORM OF TRANSFEREE CERTIFICATE
Pursuant to Section 2.4 of the Indenture dated as of November 18, 2002
between Household Automotive Trust 2002-3 and U.S. Bank National Association,
___________ (the "Transferee") hereby certifies on the date hereof that either
(check appropriate certification):
____ (i) the Transferee is not (A) an employee benefit plan (within
the meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) that is subject to Title I of ERISA or (B) a plan
(within the meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986,
as amended (the "Code")) that is subject to Section 4975 of the Code (each of
the foregoing, a "Plan"), and is not acting on behalf of or investing the assets
of a Plan; or
____ (ii) that the Transferee's acquisition and continued holding of
the Definitive Note will be covered by a prohibited transaction class exemption
issued by the U.S. Department of Labor.
By:
----------------------
[Name of Transferee]
A-1