EXHIBIT 4.2
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HOUSEHOLD AUTOMOTIVE TRUST ___
Issuer
INDENTURE
Dated as of ____ __, ____
[Name of Trustee]
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....................................................................................8
SECTION 2.1 Form; Amount Limited; Issuable in Series......................................8
SECTION 2.2 Execution, Authentication and Delivery........................................8
SECTION 2.3 Temporary Notes...............................................................9
SECTION 2.4 Registration; Registration of Transfer and Exchange...........................9
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes...................................12
SECTION 2.6 Persons Deemed Owner.........................................................13
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest........................13
SECTION 2.8 Cancellation.................................................................14
SECTION 2.9 Release of Collateral........................................................14
SECTION 2.10 Book-Entry Notes.............................................................15
SECTION 2.11 Notices to Clearing Agency...................................................15
SECTION 2.12 Definitive Notes.............................................................16
SECTION 2.13 Final Distribution...........................................................16
ARTICLE III. Covenants..................................................................................17
SECTION 3.1 Payment of Principal and Interest............................................17
SECTION 3.2 Maintenance of Office or Agency..............................................17
SECTION 3.3 Money for Payments to be Held in Trust.......................................18
SECTION 3.4 Existence....................................................................19
SECTION 3.5 Protection of Trust Property.................................................19
SECTION 3.6 Opinions as to Trust Property................................................20
SECTION 3.7 Performance of Obligations; Servicing of Receivables.........................21
SECTION 3.8 Negative Covenants...........................................................22
SECTION 3.9 Annual Statement as to Compliance............................................22
SECTION 3.10 Issuer May Consolidate, Etc. Only on Certain Terms...........................23
SECTION 3.11 Successor or Transferee......................................................24
SECTION 3.12 No Other Business............................................................25
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.........................................................26
SECTION 3.18 Restricted Payments..........................................................26
SECTION 3.19 Notice of Events of Default..................................................26
SECTION 3.20 Further Instruments and Acts.................................................26
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SECTION 3.21 Amendments of Master Sale and Servicing Agreement and Trust Agreement........26
SECTION 3.22 Income Tax Characterization..................................................26
ARTICLE IV. Satisfaction and Discharge..................................................................27
SECTION 4.1 Satisfaction and Discharge of Indenture......................................27
SECTION 4.2 Application of Trust Money...................................................28
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 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...............................................32
SECTION 5.8 Control by Noteholders.......................................................32
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 Trustee.................................................................................34
SECTION 6.1 Duties of Trustee............................................................34
SECTION 6.2 Rights of Trustee............................................................36
SECTION 6.3 Individual Rights of Trustee.................................................37
SECTION 6.4 Trustee's Disclaimer.........................................................38
SECTION 6.5 Notice of Defaults...........................................................38
SECTION 6.6 Reports by Trustee to Holders................................................38
SECTION 6.7 Compensation and Indemnity...................................................38
SECTION 6.8 Replacement of Trustee.......................................................39
SECTION 6.9 Successor Trustee by Merger..................................................40
SECTION 6.10 Appointment of Co-Trustee or Separate 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 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 Trustee Names and Addresses of Noteholders..............43
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SECTION 7.2 Preservation of Information; Communications to Noteholders...................43
SECTION 7.3 Reports by Issuer............................................................44
SECTION 7.4 Reports by Trustee...........................................................44
ARTICLE VIII. Accounts, Disbursements and Releases......................................................45
SECTION 8.1 Collection of Money..........................................................45
SECTION 8.2 Release of Trust Property....................................................45
SECTION 8.3 Opinion of Counsel...........................................................45
ARTICLE IX. Amendments; Series Supplements..............................................................46
SECTION 9.1 Amendments Without Consent of Noteholders....................................46
SECTION 9.2 Amendments With Consent of Noteholders.......................................47
SECTION 9.3 Supplements Authorizing a Series of Notes....................................49
SECTION 9.4 Execution of Series Supplements..............................................49
SECTION 9.5 Effect of Series Supplement..................................................49
SECTION 9.6 Conformity With Trust Indenture Act..........................................49
SECTION 9.7 Reference in Notes to Series Supplements.....................................49
ARTICLE X. Reserved.....................................................................................50
ARTICLE XI. Miscellaneous...............................................................................50
SECTION 11.1 Compliance Certificates and Opinions, etc....................................50
SECTION 11.2 Form of Documents Delivered to Trustee.......................................52
SECTION 11.3 Acts of Noteholders..........................................................53
SECTION 11.4 Notices, etc., to Trustee, Issuer and Rating Agencies........................53
SECTION 11.5 Notices to Noteholders; Waiver...............................................54
SECTION 11.6 Alternate Payment and Notice Provisions......................................54
SECTION 11.7 Conflict with Trust Indenture Act............................................55
SECTION 11.8 Effect of Headings and Table of Contents.....................................55
SECTION 11.9 Successors and Assigns.......................................................55
SECTION 11.10 Separability.................................................................55
SECTION 11.11 Benefits of Indenture........................................................55
SECTION 11.12 Legal Holidays...............................................................55
SECTION 11.13 GOVERNING LAW................................................................55
SECTION 11.14 Counterparts.................................................................56
SECTION 11.15 Recording of Indenture.......................................................56
SECTION 11.16 Trust Obligation.............................................................56
SECTION 11.17 No Petition..................................................................56
SECTION 11.18 Limited Recourse.............................................................56
SECTION 11.19 Inspection...................................................................57
SECTION 11.20 Limitation of Liability......................................................57
EXHIBIT A -- Form of Transferee Certificate
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INDENTURE dated as of _____ __, ____, between HOUSEHOLD
AUTOMOTIVE TRUST ___, a Delaware business trust (the "Issuer")
___________________, a [New York] banking corporation, as trustee (the
"Trustee").
In consideration of the mutual agreements contained herein,
and of other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
GRANTING CLAUSE
In order to secure the due and punctual payment of the
principal of and interest on the Notes of the related Series when and as the
same shall become due and payable, whether as scheduled, by declaration of
acceleration, prepayment or otherwise, according to the terms of this Indenture,
the related Series Supplement and the related Notes, the Issuer, pursuant to the
related Series Supplement, shall pledge the related Series Trust Estate to the
Trustee, all for the benefit of the Trustee for the benefit of the Holders of
the related Series.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
.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 Trustee on the Closing Date (as such list may be
modified or supplemented from time to time thereafter).
"Book Entry Notes" means any beneficial interest in the Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.10.
"Class" means, with respect to any Series, all the Notes of
such Series having the same specified payment terms and priority of payment.
"Class SV Preferred Stock" means the preferred stock of the
Seller.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and Treasury Regulations promulgated thereunder.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered which office at date of the execution of this Agreement is located
at ___________, ________, ____________, Attention: _____________________ or at
such other address as the Trustee may designate from time to time by notice to
the Noteholders, the Master Servicer and the Issuer, or the principal corporate
trust office of any successor Trustee (the address of which the successor
Trustee will notify the Noteholders and the Issuer).
"Default" means any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
"Definitive Notes" has the meaning specified in Section 2.10.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Executive Officer" means, with respect to any corporation,
the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Executive Vice President, any Vice President, the Secretary, the
Treasurer, or any Assistant Treasurer of such corporation.
"Grant" means mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, ▇▇▇▇▇ ▇ ▇▇▇▇
upon and a security interest in and right of set-off against, deposit, set
over and confirm pursuant to this Indenture. A Grant of a Series Trust Estate
or of any other agreement or instrument shall include all rights, powers and
options (but none of the obligations) of the granting party thereunder,
including the immediate and continuing right to claim for, collect, receive
and give receipt for principal and interest payments in respect of a Series
Trust Estate and all other monies payable thereunder, to give and receive
notices and other communications, to make waivers or other agreements, to
exercise all rights and options, to bring proceedings in the name of the
granting party or otherwise and generally to do and receive anything that the
granting party is or may be entitled to do or receive thereunder or with
respect thereto.
"Holder" or "Noteholder" means the Person in whose name a Note
is registered on the Note Register.
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"Indebtedness" means, with respect to any Person at any
time, (a) indebtedness or liability of such Person for borrowed money whether
or not evidenced by bonds, debentures, notes or other instruments, or for the
deferred purchase price of property or services (including trade
obligations); (b) obligations of such Person as lessee under leases which
should have been or should be, in accordance with generally accepted
accounting principles, recorded as capital leases; (c) current liabilities of
such Person in respect of unfunded vested benefits under plans covered by
Title IV of ERISA; (d) obligations issued for or liabilities incurred on the
account of such Person; (e) obligations or liabilities of such Person arising
under acceptance facilities; (f) obligations of such Person under any
guarantees, endorsements (other than for collection or deposit in the
ordinary course of business) and other contingent obligations to purchase, to
provide funds for payment, to supply funds to invest in any Person or
otherwise to assure a creditor against loss; (g) obligations of such Person
secured by any lien on property or assets of such Person, whether or not the
obligations have been assumed by such Person; or (h) obligations of such
Person under any interest rate or currency exchange agreement.
"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 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 Trustee in the exercise of reasonable care,
and such opinion or certificate shall state that the signer has read the
definition of "Independent" in this Indenture and that the signer is
Independent within the meaning thereof.
"Issuer Order" and "Issuer Request" means a written order
or request signed in the name of the Issuer by any one of its Authorized
Officers and delivered to the Trustee.
"Master Sale and Servicing Agreement" means the Master Sale
and Servicing Agreement dated as of ____ __, ____, among the Issuer, the
Seller, the Master Servicer and the Trustee, as the same may be amended or
supplemented from time to time.
"Note" means any Note authenticated and delivered under this
Indenture.
"Note Owner" means, with respect to a Book-Entry Note, the
person who is the owner of such Book-Entry Note, as reflected on the books of
the Clearing Agency,
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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 Trustee or any other Person
that meets the eligibility standards for the Trustee specified in Section
6.11 and is authorized by the Issuer to make payments to and distributions
from the Master Collection Account and the Series ______ 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 Trustee. Unless otherwise specified, any
reference in this Indenture to an Officer's Certificate shall be to an
Officer's Certificate of any Authorized Officer of the Issuer. Each
certificate with respect to compliance with a condition or covenant provided
for in this Agreement shall include (1) a statement that the Authorized
Officer signing the certificate has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or
investigation upon which the statements contained in such certificate are
based; (3) a statement that in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
"Outstanding" means, as of the date of determination, all
Notes theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore canceled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the Trustee or
any Note Paying Agent in trust for the Holders of such Notes (PROVIDED,
HOWEVER, that if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to a Series Supplement or
provision therefor, satisfactory to the 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 Trustee is presented that any such Notes are
held by a bona fide purchaser;
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PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any
Basic Document, Notes owned by the Issuer, any other obligor upon the Notes,
the Seller or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the 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 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 Trustee the pledgee's right so
to act with respect to such Notes and that the pledgee is not the Issuer, any
other obligor upon the Notes, the Seller or any Affiliate of any of the
foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of
all Notes, or Class of Notes, as applicable, outstanding at the date of
determination.
"Predecessor Note" means, with respect to any particular
Note, every previous Note evidencing all or a portion of the same debt as
that evidenced by such particular Note; and, for the purpose of this
definition, any Note authenticated and delivered under Section 2.5 in lieu of
a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Note.
"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 Trustee or
the Owner Trustee (as defined in the Trust Agreement), any officer within the
Corporate Trust Office of the 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
Trustee or the Owner Trustee, as the case may be, customarily performing
functions similar to those performed by any of the above designated officers and
having direct responsibility for the administration of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
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"State" means any one of the 50 states of the United States
of America or the District of Columbia.
"Tranche" means all of the Notes of a Series (or a Class
within a Series) having the same date of authentication.
"Trust Agreement" means the Trust Agreement dated as of ______
__, ____ between the Seller and the Owner Trustee, as the same may be amended
and supplemented from time to time.
"Trust Property" means all money, instruments, rights and
other property that are subject or intended to be subject to the lien and
security interest of this Indenture for the benefit of the Noteholders
(including all property and interests Granted to the Trustee), including all
proceeds thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended and as in force on the date hereof, unless otherwise
specifically provided.
"Trustee" means, initially, _____________________, a
[New York] banking corporation, not in its individual capacity but as trustee
under this Indenture, or any successor trustee under this Indenture.
"Trustee Fee" means the fees due to the Trustee, as may be set
forth in that certain fee letter, dated as of the date hereof between the Master
Servicer and the Trustee.
"UCC" means, unless the context otherwise requires, the
Uniform Commercial Code, as in effect in the relevant jurisdiction, as amended
from time to time.
"Unregistered Note" means a Note which is not being offered
for sale hereunder pursuant to a Registration Statement.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Master Sale and Servicing
Agreement or the Trust Agreement.
.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.
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"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Issuer.
All other TIA terms used in this Indenture that are defined by
the TIA, or defined by Commission rule have the meaning assigned to them by such
definitions.
.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.
.4 ACTION BY OR CONSENT OF NOTEHOLDERS AND CERTIFICATEHOLDERS.
Whenever any provision of this Agreement refers to action to be taken, or
consented to, by Noteholders or Certificateholders, such provision shall be
deemed to refer to the Certificateholder or Noteholder, as the case may be,
of record as of the Record Date immediately preceding the date on which such
action is to be taken, or consent given, by Noteholders or
Certificateholders. Solely for the purposes of any action to be taken, or
consented to, by Noteholders or Certificateholders, any Note or Certificate
registered in the name of Seller or any Affiliate thereof shall be deemed not
to be outstanding (except in the event that the Seller and/or an Affiliate
thereof then owns all outstanding Notes and Certificates); PROVIDED, HOWEVER,
that, solely for the purpose of determining whether the Trustee is entitled
to rely upon any such action or consent, only Notes or Certificates which the
Owner Trustee or the Trustee, respectively, knows to be so owned shall be so
disregarded.
.5 CONFLICT WITH TIA. If this Indenture is qualified under the
TIA, and if any provision hereof limits, qualifies or conflicts with a
provision of the TIA that is required under the TIA to be part of and govern
this Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the TIA that may be so
modified or excluded, the latter provisions shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
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ARTICLE II.
THE NOTES
.1 FORM; AMOUNT LIMITED; ISSUABLE IN SERIES.
(a) Notes of each Series, together with the Trustee's
certificate of authentication, shall be in substantially the form set forth
in the related Series Supplement, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture or the related Series Supplement and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may, consistently herewith, be determined by the officers
executing such Notes, as evidenced by their execution of the Notes. Any
portion of the text of any Note may be set forth on the reverse thereof, with
an appropriate reference thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods
(with or without steel engraved borders), all as determined by the officers
executing such Notes, as evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication.
The terms of the Notes set forth in the related Series Supplement are part of
the terms of this Indenture.
(b) The aggregate principal amount of Notes which may be
authenticated and delivered and Outstanding at any time under this Indenture
is not limited; PROVIDED that any Series Supplement may so limit the
aggregate principal amount of Notes of the related Series. The Notes shall be
issued in one or more Series, and may be issued in Classes and/or Tranches
within a Series (and Tranches within a Class).
No Series of Notes shall be issued under this Indenture
unless such Notes have been authorized pursuant to a Series Supplement, and
all conditions precedent to the issuance thereof, as specified in the related
Series Supplement, shall have been satisfied.
All Notes of each Series issued under this Indenture shall
be in all respects equally and ratably entitled to the benefits hereof and
secured by the related Series Trust Estate without preference, priority or
distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions hereof and the
related Series Supplement.
.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
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that such individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Notes or did not hold such offices
at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture and the related Series Supplement, and upon
satisfaction of all the conditions set forth in the related Series
Supplement, the Trustee shall, upon receipt of an Issuer Order and an
Officer's Certificate prepared and delivered by the Seller that all
conditions precedent for such issuance have been satisfied, deliver Notes of
the related Series (including Notes of any Class or Tranche within such
Series.)
The Notes of a Series shall be issuable in the
denominations specified in the related Series Supplement.
No Note shall be entitled to any benefit under this
Indenture or any Series Supplement or be valid or obligatory for any purpose,
unless there appears attached to such Note a certificate of authentication
substantially in the form provided for herein executed by the Trustee by the
manual signature of one of its authorized signatories, and such certificate
attached to any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder.
.3 TEMPORARY NOTES. Pending the preparation of Definitive
Notes of any Series (or of any Class or Tranche within a Series), the Issuer
may execute, and upon receipt of an Issuer Order prepared and delivered by
the Master Servicer, the Trustee shall authenticate and deliver, temporary
Notes which are printed, lithographed, typewritten, mimeographed or otherwise
produced, of the tenor of the Definitive Notes in lieu of which they are
issued and with such variations not inconsistent with the terms of this
Indenture as the officers executing such Notes may determine, as evidenced by
their execution of such Notes.
If temporary Notes of any Series (or of any Class or
Tranche within a Series) are issued, the Issuer will cause Definitive Notes
of such Series (or Class or Tranche) to be prepared without unreasonable
delay. After the preparation of Definitive Notes of such Series (or Class or
Tranche), the temporary Notes shall be exchangeable for Definitive Notes of
such Series (or Class or Tranche) upon surrender of the temporary Notes at
the office or agency of the Issuer to be maintained as provided in Section
3.2, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Notes, the Issuer shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
Definitive Notes of such Series (or Class or Tranche) of authorized
denominations. Until so exchanged, the temporary Notes of any Series (or
Class or Tranche) shall in all respects be entitled to the same benefits
under this Indenture and the related Series Supplement as Definitive Notes of
such Series (or Class or Tranche).
.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
9
regulations as it may prescribe, the Issuer shall provide for the
registration of Notes and the registration of transfers of Notes. The 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 Trustee is appointed by the
Issuer as Note Registrar, the Issuer will give the 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 Trustee shall have the
right to inspect the Note Register at all reasonable times and to obtain
copies thereof. The 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 Trustee to authenticate one or more new
Notes, in any authorized denominations, of the same class and a like
aggregate principal amount. A Noteholder may also obtain from the 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 Trustee to monitor the compliance by
the Issuer with Section 8-401 of the UCC.
At the option of the Holder, Notes of a Series (or Class or
Tranche) may be exchanged for other Notes of such Series (or Class or
Tranche) in any authorized denominations, of the same Class (and Tranche, if
applicable) and a like aggregate principal amount, upon surrender of the
Notes to be exchanged at such office or agency. Whenever any Notes are so
surrendered for exchange, and if the requirements of Section 8-401(1) of the
UCC are met, the Issuer shall execute and upon its written request the
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 Trustee to monitor the compliance by the Issuer with Section
8-401 of the UCC.
All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this Indenture and the
related Series Supplement, as the Notes surrendered upon such registration of
transfer or exchange.
Unless specified in a Series Supplement, every Note
presented or surrendered for registration of transfer or exchange shall,
unless specified in a Series Supplement, be (i) duly endorsed by, or be
accompanied by a written instrument of transfer in the form attached as an
exhibit to the Note duly executed by the Holder thereof or such Holder's
attorney duly authorized in writing, with such signature guaranteed by
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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
Trustee a certification, in the form of EXHIBIT A hereto, to the effect that
either (i) the transferee is not (A) an employee benefit plan (within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) that is subject to Title I of ERISA or (B) a plan
(within the meaning of Section 4975(e)(1) of the Code) that is subject to
Section 4975 of the Code (each of the foregoing, a "Plan"), and is not acting
on behalf of or investing the assets of a Plan or (ii) that the transferee's
acquisition and continued holding of the Definitive Note will be covered by a
prohibited transaction class exemption issued by the U.S. Department of
Labor. Each Note Owner that purchases a Book-Entry Note, or to whom a
Book-Entry Note is transferred, shall be deemed to represent that either (i)
it is not a Plan and is not acting on behalf of or investing the assets of a
Plan or (ii) its acquisition and continued holding of the Book-Entry Note
will be covered by a prohibited transaction class exemption issued by the
U.S. Department of Labor.
No Holder of an Unregistered Note shall transfer its Note,
unless (i) such transfer is made in accordance with Rule 144A under the
Securities Act or (ii) pursuant to an exemption from registration provided by
Rule 144 under the Securities Act (if available) and the registration and
qualification requirements under applicable state securities laws.
Each Unregistered Note issued hereunder will contain the
following legend limiting sales to "Qualified Institutional Buyers" within
the meaning of Rule 144A under the Securities Act:
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
11
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.
.5 MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If (i) any
mutilated Note is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note,
and (ii) there is delivered to each of the Issuer and the Trustee such
security or indemnity as may be required by it to hold the Issuer and the
Trustee harmless, then, in the absence of notice to the Issuer, the Note
Registrar or the Trustee that such Note has been acquired by a bona fide
purchaser, and provided that the requirements of Section 8-405 of the UCC are
met, the Issuer shall execute and upon its request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note of the same Series (or
Class or Tranche) (such requirement shall not be deemed to create a duty in
the Trustee to monitor the compliance by the Issuer with Section 8-405);
PROVIDED, HOWEVER, that if any such destroyed, lost or stolen Note, but not a
mutilated Note, shall have become or within seven days shall be due and
payable, or shall have been called for redemption pursuant to the terms of
the related Series Supplement, the Issuer may, instead of issuing a
replacement Note, direct the Trustee, in writing, to pay such destroyed, lost
or stolen Note when so due or payable or upon the redemption date without
surrender thereof. If, after the delivery of such replacement Note or payment
of a destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a bona fide purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the
Issuer and the 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 Trustee in connection therewith.
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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 Trustee) connected therewith.
Every replacement Note of any Series issued pursuant to
this Section in replacement of any mutilated, destroyed, lost or stolen Note
shall constitute an original additional contractual obligation of the Issuer,
whether or not the mutilated, destroyed, lost or stolen Note shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture and the related Series Supplement equally and proportionately with
any and all other Notes of the same Series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
.6 PERSONS DEEMED OWNER. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Trustee and any agent
of Issuer or the Trustee may treat the Person in whose name any Note is
registered (as of the Record Date) as the owner of such Note for the purpose
of receiving payments of principal of and interest, if any on such Note and
for all other purposes whatsoever, whether or not such Note be overdue, and
none of the Issuer, the Trustee nor any agent of the Issuer or the Trustee
shall be affected by notice to the contrary.
.7 PAYMENT OF PRINCIPAL AND INTEREST; DEFAULTED INTEREST.
(a) The Notes shall accrue interest as provided in the form
of Note set forth in the related Series Supplement and such interest shall be
due and payable on each Distribution Date as specified therein. Any
installment of interest or principal, if any, payable on any Note which is
punctually or duly provided for by the Issuer on the applicable Distribution
Date shall be paid, as provided in the related Series Supplement, or if not
so provided to the Person in whose name such Note (or one or more Predecessor
Notes) is registered on the Record Date, by check mailed first-class, postage
prepaid, to such Person's address as it appears on the Note Register on such
Record Date, except that, if the Notes of a Series are Book Entry Notes,
unless Definitive Notes have been issued for such Series pursuant to Section
2.12, with respect to Notes of such Series registered on the Record Date in
the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payment will be made by wire transfer in immediately available
funds to the account designated by such nominee and except for the final
installment of principal payable with respect to such Note on a Distribution
Date or on the Final Scheduled Distribution Date with respect to a Series as
set forth in the relevant Series Supplement which shall be payable as
provided below. The funds represented by any such checks returned undelivered
shall be held in accordance with Section 3.3.
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(b) The principal of each Note shall be payable in
installments on each Distribution Date as provided in the form of Note set
forth in the related Series Supplement. Notwithstanding the foregoing, the
entire unpaid principal amount of the Notes shall be due and payable, if not
previously paid, on the date on which an Event of Default shall have occurred
and be continuing, if the Notes are declared to be immediately due and
payable in the manner provided in the related Series Supplement. Upon written
notice from the Master Servicer on behalf of the Issuer, the Trustee shall
notify the Person in whose name a Note is registered at the close of business
on the Record Date preceding the Distribution Date on which the Issuer
expects that the final installment of principal of and interest on such Note
will be paid. Such notice may be mailed or transmitted by facsimile prior to
such final Distribution Date and may specify that such final installment will
be payable only upon presentation and surrender of such Note and shall
specify the place where such Note may be presented and surrendered for
payment of such installment.
(c) If the Issuer defaults in a payment of interest on the
Notes, the Issuer shall pay defaulted interest (plus interest on such
defaulted interest to the extent lawful) at the applicable Note Rate to the
extent lawful. Unless otherwise provided in the related Series Supplements,
the Issuer may pay such defaulted interest to the Persons who are Noteholders
on a subsequent special record date, which date shall be at least five
Business Days prior to the payment date. The Issuer shall fix or cause to be
fixed any such special record date and payment date, and, at least 15 days
before any such special record date, the Issuer shall mail to each Noteholder
and the Trustee a notice that states the special record date, the payment
date and the amount of defaulted interest to be paid.
.8 CANCELLATION. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be
promptly canceled by the Trustee in accordance with its customary procedures.
The Issuer may at any time deliver to the 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 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 Trustee in
accordance with its standard retention or disposal policy as in effect at the
time.
.9 RELEASE OF COLLATERAL. The Trustee shall, on or after a
Series Termination Date, release any remaining portion of the related Series
Trust Estate from the lien created by this Indenture and deposit in the
applicable Series Collection Account any funds then on deposit in any other
Trust Account. The Trustee shall release property from the lien created by
this Indenture pursuant to this Section 2.9 only upon receipt of an Issuer
Request by it and the Trustee 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.
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.10 BOOK-ENTRY NOTES. The Notes, upon original issuance,
may be issued in the form of typewritten Notes representing the Book-Entry
Notes, to be delivered to The Depository Trust Company, the initial Clearing
Agency, by, or on behalf of, the Issuer. Such Notes may initially be
registered on the Note Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Note Owner will receive a Definitive Note
representing such Note Owner's interest in such Note, except as provided in
Section 2.12. Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to Note Owners pursuant to Section 2.12:
(i) the provisions of this Section shall be in full force
and effect;
(ii) the Note Registrar and the 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;
(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 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 Trustee at the Corporate
Trust Office.
.11 NOTICES TO CLEARING AGENCY. With respect to each Series
of Notes which are Book Entry Notes, whenever a notice or other communication
to the Noteholders of such Series is required under this Indenture, unless
and until Definitive
15
Notes shall have been issued to Note Owners pursuant to Section 2.12, the
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.
.12 DEFINITIVE NOTES. If the Notes of a Series are
Book-Entry Notes and if (i) the Master Servicer advises the Trustee in
writing that the Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Notes of such Series, and
the Master Servicer is unable to locate a qualified successor, (ii) the
Master Servicer at its option advises the Trustee in writing that it elects
to terminate the book-entry system through the Clearing Agency or (iii) after
the occurrence of an Event of Default with respect to such Series, Note
Owners representing beneficial interests aggregating at least a majority of
the Outstanding Amount of the Notes advise the 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 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 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 Trustee shall authenticate
the Definitive Notes in accordance with the instructions of the Clearing
Agency. None of the Issuer, the Note Registrar or the 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 Trustee shall recognize the Holders of the Definitive
Notes as Noteholders.
.13 FINAL DISTRIBUTION.
(a) The Master Servicer on behalf of the Issuer shall give
the Trustee at least 15 days prior notice of the Distribution Date on which
the Noteholders of any Series or Class may surrender their Notes for payment
of the final distribution on and cancellation of such Notes. Not later than
the fifth day of the month in which the final distribution in respect of such
Series or Class is payable to Noteholders, the Trustee shall provide notice
to the Noteholders of such Series or Class specifying (i) the date upon which
final payment of such Series or Class will be made upon presentation and
surrender of Notes (if required) of such Series or Class at the office or
offices therein designated, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such payment date is not
applicable, payments being made only upon presentation and surrender of such
Notes at the office or offices therein specified. The Trustee shall give such
notice to the Registrar and the Note Paying Agent at the time such notice is
given to Noteholders.
(b) Notwithstanding a final distribution to the Noteholders
of any Series or Class, except as otherwise provided in this paragraph, all
funds then on deposit in the Master Collection Account and any Series Trust
Account allocated to such Noteholders shall continue to be held in trust for
the benefit of such Noteholders, and the Note Paying
16
Agent or the 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 Trustee described in paragraph (a), the 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 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 Trustee and the Note Paying Agent shall upon written
request pay to the related Issuer any moneys held by them for the payment of
principal or interest that remains unclaimed for two years. After payment to
the related Issuers, Noteholders entitled to the money must look to the
related Issuers for payment as general unsecured creditors unless an
applicable abandoned property law designates another Person and all liability
of the 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
.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer will duly
and punctually pay or cause to be paid the principal of and interest on the
Notes in accordance with the terms of the Notes, this Indenture and the
related Series Supplement. Amounts properly withheld under the Code by any
Person from a payment to any Noteholder of interest and/or principal shall be
considered as having been paid by the Issuer to such Noteholder for all
purposes of this Indenture.
.2 MAINTENANCE OF OFFICE OR AGENCY. The Issuer will
maintain in New York 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 Trustee to serve as its
agent for the foregoing purposes. The Issuer will give prompt written notice
to the 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 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 Trustee as its
agent to receive all such surrenders, notices and demands.
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.3 MONEY FOR PAYMENTS TO BE HELD IN TRUST. One Business Day
prior to each Distribution Date, the Issuer shall deposit or cause to be
deposited to the related Series Collection Account Available Funds (which
shall be immediately available) with respect to the related Collection
Period. Such sum shall be held in trust for the benefit of the Persons
entitled thereto and (unless the Note Paying Agent is the Trustee), the
Issuer shall promptly notify the Trustee of its action or failure so to act.
The Issuer will cause each Note Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Note Paying Agent shall agree with the Trustee (and if the 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 Trustee written notice of any default by
the Issuer of which a Responsible Officer of the Note Paying Agent
has actual knowledge (or any other obligor upon the Notes) in the
making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to
the 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 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 any Series Supplement or
for any other purpose, by Issuer Order direct any Note Paying Agent to pay to
the Trustee all sums held in trust by such Note Paying Agent, such sums to be
held by the 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 Trustee, such Note Paying Agent shall be released from all
further liability with respect to such money.
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The Trust hereby appoints [Name of Trustee] as Certificate
Paying Agent to make payments to Certificateholders on behalf of the Issuer
in accordance with the provisions of the Certificates, this Agreement and the
Trust Agreement, and [Name of Trustee] hereby accepts such appointment
(subject to removal in the event it not longer serves as 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:
(vi) 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;
(vii) give the Owner Trustee notice of any default by
the Issuer of which a Responsible Officer of the Trustee has actual
knowledge in the making of any payment required to be made with
respect to the Certificates;
(viii) 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;
(ix) 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
(x) 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.
.4 EXISTENCE. Except as otherwise permitted by the
provisions of Section 3.10, the Issuer will keep in full effect its
existence, rights and franchises as a business trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other state or of the United States
of America, in which case the Issuer will keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and will
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, each Series Supplement, the Notes and each
other instrument or agreement included in the related Series Trust Estate.
.5 PROTECTION OF TRUST PROPERTY. The Issuer intends the
security interest Granted pursuant to this Indenture and the related Series
Supplement in favor of the Holders to be prior to all other liens in respect
of the related Series Trust Estate, and the Issuer shall take all actions
necessary to obtain and maintain, in favor of the Trustee for
19
the benefit of the Holders a first lien on and a first priority, perfected
security interest in the related Series Trust Estate. The Issuer will from
time to time prepare (or shall cause to be prepared), execute and deliver all
such supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other
instruments, and will take such other action necessary or advisable to:
(i) Grant more effectively all or any portion of the
related Series Trust Estate;
(ii) maintain or preserve the lien and security
interest (and the priority thereof) in favor of the Trustee for the
benefit of the Holders created by this Indenture and the related
Series Supplement or carry out more effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity
of any Grant made or to be made by this Indenture and the related
Series Supplement ;
(iv) enforce any of the related Series Trust Estate;
(v) preserve and defend title to the related Series
Trust Estate and the rights of the Trustee in such Trust Property
against the claims of all persons and parties; and
(vi) pay all taxes or assessments levied or assessed
upon the related Series Trust Estate when due.
.6 OPINIONS AS TO TRUST PROPERTY.
(a) On the Closing Date, the Issuer shall furnish to the
Trustee an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording and filing
of this Indenture, Series Supplement, and any other requisite documents, and
with respect to the execution and filing of any financing statements and
continuation statements, as are necessary to perfect and make effective the
first priority lien and security interest in favor of the Trustee for the
benefit of the Holders, created by this Indenture and the related Series
Supplement and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such lien and
security interest effective.
(b) Within 90 days after the beginning of each calendar
year, beginning with ____ the Master Servicer on behalf of the Issuer shall
furnish to the Trustee an Opinion of Counsel either stating that, in the
opinion of such counsel, such action has been taken with respect to the
recording, filing, re-recording and refiling of this Indenture, any Series
Supplement and any other requisite documents and with respect to the
execution and filing of any financing statements and continuation statements
as are necessary to maintain the lien and security interest created by this
Indenture and the related Series Supplement and reciting the details of such
action or stating that in the
20
opinion of such counsel no such action is necessary to maintain such lien and
security interest. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and the execution and
filing of any financing statements and continuation statements that will, in
the opinion of such counsel, be required to maintain the lien and security
interest of this Indenture and the related Series Supplement until December
31 of the following calendar year.
.7 PERFORMANCE OF OBLIGATIONS; SERVICING OF RECEIVABLES.
(a) The Issuer will not take any action and will use its
best efforts not to permit any action to be taken by others that would
release any Person from any of such Person's material covenants or
obligations under any instrument or agreement included in the related Series
Trust Estate or that would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the validity or
effectiveness of, any such instrument or agreement, except as ordered by any
bankruptcy or other court or as expressly provided in this Indenture, the
Basic Documents and the related Series Related Documents or such other
instrument or agreement.
(b) The Issuer may contract with other Persons to assist it
in performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Trustee in an Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer. Initially, the
Issuer has contracted with the Master Servicer to assist the Issuer in
performing its duties under this Indenture and each Series Supplement.
(c) The Issuer will punctually perform and observe all of
its obligations and agreements contained in this Indenture, the Basic
Documents, all Series Related Documents and in the instruments and agreements
included in the related Series Trust Estate, including, but not limited, to
preparing (or causing to be prepared) and filing (or causing to be filed) all
UCC financing statements and continuation statements required to be filed by
the terms of this Indenture, the related Series Supplement and the Master
Sale and Servicing Agreement in accordance with and within the time periods
provided for herein and therein. Except as otherwise expressly provided
therein, the Issuer shall not waive, amend, modify, supplement or terminate
any Basic Document or any provision thereof without the consent of the
Trustee.
(d) If a Responsible Officer of the Owner Trustee shall
have actual knowledge of the occurrence of a Master Servicer Termination
Event under the Master Sale and Servicing Agreement, the Issuer shall
promptly notify the Trustee and the Rating Agencies thereof in accordance
with Section 11.4, and shall specify in such notice the action, if any, the
Issuer is taking in respect of such default. If a Master Servicer Termination
Event shall arise from the failure of the Master Servicer to perform any of
its duties or obligations under the Master Sale and Servicing Agreement with
respect to the Receivables, the Issuer shall take all reasonable steps
available to it to remedy such failure.
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.8 NEGATIVE COVENANTS. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture or
the Basic Documents or the related Series Related Documents, sell,
transfer, exchange or otherwise dispose of any of the properties or
assets of the Issuer, including those included in the related Series
Trust Estate;
(ii) claim any credit on, or make any deduction from
the principal or interest payable in respect of, the Notes of a
Series (other than amounts properly withheld from such payments
under the Code) or assert any claim against any present or former
Noteholder by reason of the payment of the taxes levied or assessed
upon any part of the related Series Trust Estate; or
(iii) (A) permit the validity or effectiveness of this
Indenture or any Series Supplement to be impaired, or permit the
lien in favor of the Trustee created by this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or
permit any Person to be released from any covenants or obligations
with respect to the Notes under this Indenture or any Series
Supplement except as may be expressly permitted hereby, (B) permit
any lien, charge, excise, claim, security interest, mortgage or
other encumbrance (other than the lien of this Indenture and the
related Series Supplement) to be created on or extend to or
otherwise arise upon or burden the related Series Trust Estate or
any part thereof or any interest therein or the proceeds thereof
(other than tax liens, mechanics' liens and other liens that arise
by operation of law, in each case on a Financed Vehicle and arising
solely as a result of an action or omission of the related Obligor),
(C) permit the lien of this Indenture and the related Series
Supplement not to constitute a valid first priority (other than with
respect to any such tax, mechanics' or other lien) security interest
in the related Series Trust Estate, (D) except as expressly
permitted therein, amend, modify or fail to comply with the
provisions of the Basic Documents or (E) except as expressly
permitted therein, amend, modify or fail to comply with the
provisions of the Series Related Documents.
.9 ANNUAL STATEMENT AS TO COMPLIANCE. The Master Servicer
on behalf of the Issuer will deliver to the Trustee, within 90 days after the
end of each fiscal year of the Issuer (commencing with the fiscal year ended
December 31, ____), 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
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(ii) to the best of such Authorized Officer's
knowledge, based on such review, the Issuer has complied with all
conditions and covenants under this Indenture and each Series
Supplement throughout such year, or, if there has been a default in
the compliance of any such condition or covenant, specifying each
such default known to such Authorized Officer and the nature and
status thereof.
.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 Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of and
interest on all Notes and the performance or observance of every
agreement and covenant of this Indenture and each Series Supplement
on the part of the Issuer to be performed or observed, all as
provided herein;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and
be continuing under any Series Supplement;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the Trustee and
the Owner Trustee) to the effect that such transaction will not have
any material adverse tax consequence to the Trust, any Noteholder or
any Certificateholder;
(v) any action as is necessary to maintain the lien
and security interest created by this Indenture and each Series
Supplement shall have been taken; and
(vi) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel each stating that
such consolidation or merger comply with this Article III and that
all conditions precedent herein provided for relating to such
transaction have been complied with (including any filing required
by the Exchange Act).
(b) The Issuer shall not convey or transfer all or
substantially all of its properties or assets, including those included in
each Series Trust Estate, to any Person, unless
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(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 Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture, each
Supplement, each of the Basic Documents and each of the Series
Related Documents on the part of the Issuer to be performed or
observed, all as provided herein, (C) expressly agree by means of
such Indenture Supplement that all right, title and interest so
conveyed or transferred shall be subject and subordinate to the
rights of Holders of the Notes, (D) unless otherwise provided in
such Series Supplement, expressly agree to indemnify, defend and
hold harmless the Issuer against and from any loss, liability or
expense arising under or related to this Indenture, each Series
Supplement and the Notes and (E) expressly agree by means of such
Series Supplement that such Person (or if a group of persons, then
one specified Person) shall prepare (or cause to be prepared) and
make all filings with the Commission (and any other appropriate
Person) required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and
be continuing under any Series Supplement;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the Trustee) to
the effect that such transaction will not have any material adverse
tax consequence to the Trust, any Noteholder or any
Certificateholder;
(v) any action as is necessary to maintain the lien
and security interest created by this Indenture and each Series
Supplement shall have been taken; and
(vi) the Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that
such conveyance or transfer and such Indenture Supplement complies
with this Article III and that all conditions precedent herein
provided for relating to such transaction have been complied with
(including any filing required by the Exchange Act).
.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
24
power of, the Issuer under this Indenture and each Series Supplement with the
same effect as if such Person had been named as each Issuer herein.
(b) Upon a conveyance or transfer of all the assets and
properties of the Issuer pursuant to Section 3.10 (b), Household Automotive
Trust ___ will be released from every covenant and agreement of this
Indenture and each Series Supplement to be observed or performed on the part
of the Issuer with respect to the Notes immediately upon the delivery of
written notice to the Trustee stating that Household Automotive Trust ___ is
to be so released.
.12 NO OTHER BUSINESS. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the
Receivables, entering and maintaining any ancillary agreement related to
issuance of the Notes and owning the Class SV Preferred Stock of the Seller
in the manner contemplated by this Indenture, the Basic Documents and each
Series Supplement and all Series Related Documents and activities incidental
thereto.
.13 NO BORROWING. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
Indebtedness except for (i) the Notes, (ii) obligations owing from time to
time to a related Series Support Provider under the related agreement
regarding Series Support, if any and (iii) any other Indebtedness permitted
by or arising under the Basic Documents and each Series Supplement. The
proceeds of the Notes and the Certificates of a Series shall be used
exclusively to fund the Issuer's purchase of the Receivables of such Series,
or to obtain release of the lien relating to the pledge of the Receivables
for a prior series of notes issued by the Issuer, the purchase of related
property of the Series Trust Estate, to fund any trust account and to pay the
Issuer's organizational, transactional and start-up expenses.
.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.
.15 GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES.
Except as contemplated by the Master Sale and Servicing Agreement or this
Indenture or any Series Supplement, the Issuer shall not make any loan or
advance or credit to, or guarantee (directly or indirectly or by an
instrument having the effect of assuring another's payment or performance on
any obligation or capability of so doing or otherwise), endorse or otherwise
become continently liable, directly or indirectly, in connection with the
obligations, stocks or dividends of, or own, purchase, repurchase or acquire
(or agree continently to do so) any stock, obligations, assets or securities
of, or any other interest in, or make any capital contribution to, any other
Person.
.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).
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.17 COMPLIANCE WITH LAWS. The Issuer shall comply with the
requirements of all applicable laws, the non-compliance with which would,
individually or in the aggregate, materially and adversely affect the ability
of the Issuer to perform its obligations under the Notes, this Indenture, or
any Basic Document, any Series Supplement or any Series Related Document.
.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 Trustee
and the Certificateholders as permitted by, and to the extent funds are
available for such purpose under, the Master Sale and Servicing Agreement or
Trust Agreement. The Issuer will not, directly or indirectly, make payments
to or distributions from the Master Collection Account except in accordance
with this Indenture, the Basic Documents, any Series Supplement or any Series
Related Document.
.19 NOTICE OF EVENTS OF DEFAULT. Upon a Responsible Officer
of the Owner Trustee having actual knowledge thereof, the Issuer agrees to
give the Trustee and the Rating Agencies prompt written notice of each Event
of Default under any Series Supplement and each default on the part of the
Master Servicer or the Seller of its obligations under the Master Sale and
Servicing Agreement.
.20 FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Issuer will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
.21 AMENDMENTS OF MASTER SALE AND SERVICING AGREEMENT AND
TRUST AGREEMENT. The Issuer shall not agree to any amendment to Section 13.1
of the Master Sale and Servicing Agreement or Section 13.1 of the Trust
Agreement to eliminate the requirements thereunder that the Trustee or the
Holders of the Notes consent to amendments thereto as provided therein.
.22 INCOME TAX CHARACTERIZATION. For purposes of federal
income, state and local income and franchise and any other income taxes, the
Issuer, the Noteholders, the Certificateholders and the Trustee will treat
the Notes as indebtedness and hereby instructs the Trustee to treat the Notes
as indebtedness for federal and state tax reporting purposes.
26
ARTICLE IV.
SATISFACTION AND DISCHARGE
.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 Trustee hereunder (including the rights of the Trustee
under Section 6.7 and the obligations of the Trustee under Section 4.2) and
(vi) the rights of Noteholders as beneficiaries hereof with respect to the
related Series Trust Estate so deposited with the Trustee payable to all or
any of them, and the Trustee, on demand of and at the expense of the Issuer,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to the Notes, when
(A) either
(1) all Notes theretofore authenticated and
delivered (other than (i) Notes that have been destroyed,
lost or stolen and that have been replaced or paid as
provided in Section 2.5 and (ii) Notes for whose payment
money has theretofore been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to
the Issuer or discharged from such trust, as provided in
Section 3.3) have been delivered to the Trustee for
cancellation and the related Series Support, if any, has
been returned to the related Series Support Provider; or
(2) all Notes not theretofore delivered to the
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
Trustee for the giving of notice of redemption by the
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 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 Trustee
27
for cancellation when due on the Final Scheduled
Distribution Date or tender date (if Notes shall have been
called for redemption or tender pursuant to the related Series
Supplement, as the case may be; and
(B) the Issuer has paid or caused to be paid all other
amounts owing hereunder by the Issuer.
.2 APPLICATION OF TRUST MONEY. All monies deposited with
the Trustee pursuant to Section 4.1 hereof shall be held in trust and applied
by it, in accordance with the provisions of the Notes, this Indenture and the
related Series Supplement, to the payment, either directly or through any
Note Paying Agent, as the Trustee may determine, to the Holders of the
particular Notes for the payment or redemption of which such monies have been
deposited with the 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.
.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
Trustee under the provisions of this Indenture with respect to such Notes
shall, upon demand of the Issuer, be paid to the 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
.1 EVENTS OF DEFAULT. The definition of "Event of Default"
with respect to a Series, together with certain rights and remedies
consequent thereto, shall be set forth in the related Series Supplement.
.2 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
(a) Subject to the terms of the related Series Supplement,
the Issuer covenants that if (i) default is made in the payment of any
interest on any Note when the same becomes due and payable, and such default
continues for a period of five days, or (ii) default is made in the payment
of the principal of or any installment of the principal of any Note when the
same becomes due and payable, and such default continues for a period of five
days, the Issuer will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of the Notes, the whole amount then due and payable on such
Notes for principal and interest, with interest upon the overdue principal,
and, to the extent payment at such rate of interest shall be legally
enforceable, upon overdue installments of interest, at the applicable Note
Rate and in addition thereto such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
28
compensation, expenses, disbursements and advances of the Trustee and its
agents and outside counsel.
(b) If an Event of Default occurs and is continuing with
respect to a Series, the Trustee may in its discretion proceed to protect and
enforce the rights of the Noteholders of each Series by such appropriate
Proceedings as the Trustee shall deem most effective to protect and enforce
any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or the related Series Supplement or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy
or legal or equitable right vested in the Trustee by this Indenture, the
related Series Supplement or by law.
(c) In case there shall be pending, relative to the Issuer
or any other obligor upon the Notes or any Person having or claiming an
ownership interest in the related Series Trust Estate, proceedings under
Title 11 of the United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Issuer or its property or such other obligor or Person, or in case of any
other comparable judicial proceedings relative to the Issuer or other obligor
upon the Notes of such Series, or to the creditors or property of the Issuer
or such other obligor, the 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 Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect of such
Notes and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee against the
related Series Trust Estate (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and outside counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except
as a result of negligence, bad faith or willful misconduct) and of
the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of Notes of such
Series in any election of a trustee, a standby trustee or person
performing similar functions in any such proceedings;
(iii) to collect and receive any monies or other
property payable or deliverable on any such claims and received with
respect to the related Series Trust Estate and to distribute all
amounts received with respect to the claims of the Noteholders and
of the Trustee on their behalf; and
29
(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 Trustee or the Holders of Notes of such Series, in
each case against the related Series Trust Estate allowed in any
judicial proceedings relative to the Issuer, its creditors and its
property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Noteholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to
the making of payments directly to such Noteholders, to pay to the Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith.
(d) Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment
or composition affecting the Notes or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Noteholder in
any such proceeding except, as aforesaid, to vote for the election of a
trustee in bankruptcy or similar person.
(e) All rights of action and of asserting claims under this
Indenture, the related Series Supplement or under any of the Notes, may be
enforced by the 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 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
Trustee, each predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Notes.
(f) In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture
or the related Series Supplement), the Trustee shall be held to represent all
the Holders of the Notes, and it shall not be necessary to make any
Noteholder a party to any such proceedings.
.3 LIMITATION OF SUITS. No Holder of any Note shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture or the related Series Supplement, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Notes of the related Series;
(ii) the Holders of not less than 25% of the
Outstanding Amount of the Notes of the related Series have made
written request to the Trustee to institute
30
such proceeding in respect of such Event of Default in its own name
as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to it against the costs, expenses
and liabilities to be incurred in complying with such request;
(iv) the 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 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.
.4 UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST. Notwithstanding any other provisions in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional,
to receive payment of the principal of and interest, if any, on such Note on
or after the respective due dates thereof expressed in such Note or in this
Indenture or the related Series Supplement (or, in the case of redemption or
tender pursuant to any Series Supplement, on or after the related redemption
or tender date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
.5 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Noteholder has instituted any Proceeding to enforce any right or remedy
under this Indenture or the related Series Supplement and such Proceeding has
been discontinued or abandoned for any reason, then and in every such case
the Issuer, the Trustee, and the related Noteholders shall, subject to any
determination in such Proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Trustee, and the related Noteholders shall continue as though no such
proceeding had been instituted.
.6 RIGHTS AND REMEDIES CUMULATIVE. No right or remedy
herein conferred upon or reserved to the related Noteholders is intended to
be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
31
.7 DELAY OR OMISSION NOT A WAIVER. No delay or omission of
the Trustee or any Holder of any related Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by
law to the Trustee, the Trustee or to the related Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the related Noteholders, as the case may be.
.8 CONTROL BY NOTEHOLDERS. The Holders of a majority of the
Outstanding Amount of the Notes with respect to such Series shall have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee with respect to the Notes of such Series
or exercising any trust or power conferred on the Trustee; PROVIDED that
(i) such direction shall not be in conflict with any
rule of law or with this Indenture or with the related Series
Supplement; and
(ii) the Trustee may take any other action deemed proper
by the Trustee that is not inconsistent with such direction;
PROVIDED, HOWEVER, that, subject to Section 6.1, the 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.
.9 WAIVER OF PAST DEFAULTS. Unless otherwise provided in
the related Series Related Documents, a majority of the Noteholders of a
Series may waive any past Default or Event of Default relating to such Series
and its consequences except a Default relating to such Series (a) in payment
of principal of or interest on any of the Notes of the related Series or (b)
in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of the Holder of each Note of the related Series.
In the case of any such waiver, the Issuer, the Trustee and the Holders of
the Notes of the related Series shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and
be deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this Indenture and the related Series
Supplement; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereto.
.10 UNDERTAKING FOR COSTS. All parties to this Indenture
and the related 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 related Series Supplement, or in any
suit against the Trustee for any action taken, suffered or omitted by
32
it as 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
Trustee, (b) any suit instituted by any Noteholder, or group of Noteholders,
in each case holding in the aggregate more than 10% of the Outstanding Amount
of the Notes of the related Series or (c) any suit instituted by any
Noteholder for the enforcement of the payment of principal of or interest on
any Note on or after the respective due dates expressed in such Note and in
this Indenture and the related Series Supplement.
.11 WAIVER OF STAY OR EXTENSION LAWS. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead or in any manner whatsoever, claim or take the benefit
of, any stay or extension law wherever enacted, now or at any time hereafter
in force, that may affect the covenants or the performance of this Indenture
and the related Series Supplement; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
.12 ACTION ON NOTES. The Trustee's right to seek and
recover judgment on the Notes or under this Indenture or any Series
Supplement shall not be affected by the seeking, obtaining or application of
any other relief under or with respect to this Indenture or the related
Series Supplement. Neither the lien of this Indenture or the related Series
Supplement nor any rights or remedies of the Trustee or the Noteholders shall
be impaired by the recovery of any judgment by the Trustee against the Issuer
or by the levy of any execution under such judgment upon any portion of the
related Series Trust Estate or upon any of the assets of the Issuer.
.13 PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS.
(a) Promptly following a request from the Trustee to do so
and at the Master Servicer's expense, the Issuer agrees to take all such
lawful action as the Trustee may request to compel or secure the performance
and observance by the Seller and the Master Servicer, as applicable, of each
of their obligations to the Issuer under or in connection with the Master
Sale and Servicing Agreement in accordance with the terms thereof, and to
exercise any and all rights, remedies, powers and privileges lawfully
available to the Issuer under or in connection with the Master Sale and
Servicing Agreement to the extent and in the manner directed by the Trustee,
including the transmission of notices of default on the part of the Seller or
the Master Servicer thereunder and the institution of legal or administrative
actions or proceedings to compel or secure performance by the Seller or the
Master Servicer of each of their obligations under the Master Sale and
Servicing Agreement.
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(b) If an Event of Default has occurred and is continuing with
respect to a Series, the Trustee may, and, at the written direction of the
Holders of 66-2/3% of the Outstanding Amount of the Notes of such Series
shall, exercise all rights, remedies, powers, privileges and claims of the
Issuer against the Seller or the Master Servicer under or in connection with
the Master Sale and Servicing Agreement, including the right or power to take
any action to compel or secure performance or observance by the Seller or the
Master Servicer of each of their obligations to the Issuer thereunder and to
give any consent, request, notice, direction, approval, extension or waiver
under the Master Sale and Servicing Agreement, and any right of the Issuer to
take such action shall be suspended.
ARTICLE VI.
THE TRUSTEE
.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing of which
Responsible Officer of the Trustee has actual knowledge, the 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 Trustee has actual
knowledge:
(i) the Trustee undertakes to perform with respect to such Series
such duties and only such duties as are specifically set forth in
this Indenture and the related Series Supplement and no implied
covenants or obligations shall be read into this Indenture or the
related Series Supplement against the Trustee; and
(ii) in the absence of bad faith on its part, the 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 Trustee as the case may be and conforming to the
requirements of this Indenture and the related Series Supplement;
however, the Trustee shall examine the certificates and opinions to
determine whether or not they conform on their face to the requirements
of this Indenture or the related Series Supplement provided, further,
that the 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 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:
34
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the 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 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 Trustee need not be segregated from
other funds except to the extent required by law or the terms of this
Indenture, the related Series Supplement or the Master Sale and Servicing
Agreement.
(f) No provision of this Indenture or the related Series Supplement
shall require the 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 related Series
Supplement relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
and to the provisions of the TIA.
(h) The Trustee shall, and hereby agrees that it will, perform all
of the obligations and duties required of it under the Master Sale and
Servicing Agreement.
(i) Without limiting the generality of this Section 6.1, the
Trustee shall have no duty (i) to see to any recording, filing or depositing
of this Indenture, any Series Supplement or any agreement referred to herein
or any financing statement evidencing a security interest in the Financed
Vehicles, or to see to the maintenance of any such recording or filing or
depositing or to any recording, refiling or redepositing of any thereof, (ii)
to see to any insurance of the Financed Vehicles or Obligors or to effect or
maintain any such insurance, (iii) to see to the payment or discharge of any
tax, assessment or other governmental charge or any Lien or encumbrance of
any kind owing with respect to, assessed or levied against any part of the
Trust, (iv) to confirm or verify the contents of any reports or certificates
delivered to the Trustee pursuant to this Indenture, any Series Supplement or
the Master Sale and Servicing Agreement believed by the 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 of observance of any of the Issuer's, the Seller's or the
Master Servicer's
35
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 [Name of Trustee], in any of its capacities
hereunder, be deemed to have assumed any duties of the Owner Trustee under
the Delaware Business Trust Statute, common law, or the Trust Agreement.
.2 RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officer's Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
the Officer's Certificate or Opinion of Counsel.
(c) The 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 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 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 Trustee's conduct does not
constitute willful misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture, the
Basic Documents, any Series Supplement, any Series Related Documents and the
Notes and such advice or opinion of counsel shall be full and complete
authorization and protection from liability in respect to any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to institute, conduct
or defend any litigation under this Indenture or any Series Supplement or in
relation to this Indenture or any Series Supplement, at the request, order or
direction of any of the Holders of Notes, pursuant to the provisions of this
Indenture or any Series Supplement, unless such Holders of Notes shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred therein or thereby; PROVIDED,
HOWEVER, that the 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
36
Indenture and any Series Supplement with reasonable care and skill customary
for the care and skill exercised by trustees under similar circumstances.
(g) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond
or other paper or document, PROVIDED, HOWEVER, that if the payment within a
reasonable time to the 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 Trustee not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, any Series Supplement or the Master
Sale and Servicing Agreement, the Trustee may require indemnity reasonably
satisfactory to it against such cost, expense or liability as a condition to
so proceeding; the reasonable expense of every such examination shall be paid
by the Person making such request, or, if paid by the Trustee shall be
reimbursed by the Person making such request upon demand.
(h) The right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of such act.
(i) The 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 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 Trustee has been
advised of the likelihood of such loss or damage and regardless of the form
of action.
(k) The Trustee shall not be required to take notice or be deemed
to have notice or knowledge of any default, Event of Default, Master Servicer
Termination Event unless a Responsible Officer of the Trustee shall have
actual notice thereof.
(l) The Trustee shall not in any way be held liable by reason of
any insufficiency in any Trust Account (including, without limitation, the
Master Collection Account, the Series _______ Reserve Account and the Series
______ Collection Account or any subaccount thereof) held by or on behalf of
the Trustee resulting from any investment loss on any Eligible Investment
included therein.
.3 INDIVIDUAL RIGHTS OF TRUSTEE. The 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 Trustee. Any Note Paying Agent, Note Registrar, co-registrar or
co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 6.11 and 6.12.
37
.4 TRUSTEE'S DISCLAIMER. The Trustee shall not be responsible for
and makes no representation as to the validity or adequacy of this Indenture,
any Series Supplement, the related Series Trust Estate or the Notes, it shall
not be accountable for the Issuer's use of the proceeds from the Notes, and
it shall not be responsible for any statement of the Issuer in the Indenture,
in any Series Supplement or in any document issued in connection with the
sale of the Notes or in the Notes other than the Trustee's certificate of
authentication.
.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
Trustee, the Trustee shall mail to each Noteholder notice of the Default
within 90 days after such knowledge or notice occurs. Except in the case of a
Default in payment of principal of or interest on any Note, the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers
in good faith determines that withholding the notice is in the interests of
Noteholders.
.6 REPORTS BY TRUSTEE TO HOLDERS. Upon written request, the Note
Paying Agent or the Master Servicer shall on behalf of the Issuer deliver to
each Noteholder such information as may be reasonably required to enable such
Holder to prepare its Federal and state income tax returns required by law.
.7 COMPENSATION AND INDEMNITY.
(a) As payable in each Series Supplement, the Issuer shall, or
shall cause the Master Servicer to, pay to the Trustee from time to time the
Trustee Fee as compensation for its services. The 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
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 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 Trustee shall notify the Issuer and
the Master Servicer promptly of any claim for which it may seek indemnity.
Failure by the 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 Trustee, or the 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 Trustee through such Person's own
willful misconduct, negligence or bad faith.
38
(b) The Issuer's payment obligations to the Trustee pursuant to
this Section shall survive the resignation or removal of the Trustee and the
discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of an Insolvency Event with respect to the Issuer, the expenses
are intended to constitute expenses of administration under Title 11 of the
United States Code or any other applicable Federal or state bankruptcy,
insolvency or similar law. Notwithstanding anything else set forth in this
Indenture, the Basic Documents, any Series Supplement or any Series Related
Documents, the Trustee agrees that the obligations of the Issuer (but not the
Master Servicer) to the Trustee hereunder and under any Series Supplement or
any Series Related Documents, shall be recourse to the related Series Trust
Estate only and specifically shall not be recourse to the assets of the
Issuer or any Securityholder. In addition, the Trustee agrees that its
recourse to the Issuer, the related Series Trust Estate, the Seller and
amounts held pursuant to the related Series Support shall be limited to the
right to receive the distributions as provided for in the payment priority
provisions of the related Series Supplement.
.8 REPLACEMENT OF TRUSTEE. The Trustee may, and in the
circumstances specified in subparagraph (i) shall, resign at any time upon 60
days' prior written notice by so notifying the Issuer. Holders of a majority
of Outstanding Amount of the Notes and the Master Servicer. In addition, the
Master Servicer may remove the Trustee by so notifying the Trustee upon 60
days' written notice. The Issuer may and, at the request of the Noteholders
shall, remove the Trustee, if:
(i) the Trustee fails to comply with Section 6.11;
(ii) a court having jurisdiction in the premises in respect of
the 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 Trustee or for any
substantial part of the Trustee's property, or ordering the winding-up
or liquidation of the 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 Trustee and such case is not dismissed within 60
days;
(iv) the 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 Trustee
or for any substantial part of the Trustee's property, or makes any
39
assignment for the benefit of creditors or fails generally to pay its
debts as such debts become due or takes any corporate action in
furtherance of any of the foregoing;
(v) the Trustee otherwise becomes incapable of acting; or
(vi) the rating assigned to the long-term unsecured debt
obligations of the 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 Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Issuer shall promptly deliver a notice
of such removal, resignation or vacancy to the Master Servicer and the Master
Servicer may appoint a successor Trustee. If the Master Servicer fails to
appoint such a successor Trustee, the Issuer or a resigning Trustee may
petition any court of competent jurisdiction to appoint a successor Trustee.
If the Trustee resigns or is removed, the Trustee shall also resign or be
removed, as the case may be, as Certificate Paying Agent.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
retiring Trustee under this Indenture and the Series Supplement. The
successor Trustee shall mail a notice of its succession to Noteholders. The
retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee.
If the Trustee fails to comply with Section 6.11, any Noteholder
may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the 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 Trustee.
.9 SUCCESSOR TRUSTEE BY MERGER. If the 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 Trustee; PROVIDED that such corporation or banking association
shall otherwise be eligible under Section 6.11 hereof. The Trustee shall
provide the Rating Agencies with written notice of any such transaction as
soon as practical thereafter.
In case at the time such successor or successors by merger,
conversion or consolidation to the 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 Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such
40
Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any successor to the Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the 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 Trustee shall have.
.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust may at the time be located, the Trustee shall
have the power and may execute and deliver all instruments to appoint one or
more Persons to act as a co-trustee or co-trustees, or separate trustee or
separate trustees, of all or any part of the related Series Trust Estate, and
to vest in such Person or Persons, in such capacity and for the benefit of
the Noteholders, such title to the related Series Trust Estate, or any part
hereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 6.11
and no notice to Noteholders of the appointment of any co-trustee or separate
trustee shall be required under Section 6.8 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the 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 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 Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof
in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of the
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 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 Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee
41
or co-trustee shall refer to this Agreement and the conditions of this
Article VI. Each separate trustee and co-trustee, upon its acceptance of the
trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the 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
Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
the Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, dissolve, become insolvent, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Trustee, to the extent permitted
by law, without the appointment of a new or successor trustee.
.11 ELIGIBILITY: DISQUALIFICATION. The 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 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.
.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. The Trustee
shall comply with TIA Section 311(a), excluding any creditor relationship
listed in TIA Section 311(b). A Trustee who has resigned or been removed
shall be subject to TIA Section 311(a) to the extent indicated.
.13 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE. The Trustee
represents and warrants to the Issuer as follows:
(a) DUE ORGANIZATION. The Trustee is a [New York] banking
corporation, duly organized, validly existing and in good standing under the
laws of the State of [New York] and is duly authorized and licensed under
applicable law to conduct its business as presently conducted.
(b) CORPORATE POWER. The Trustee has all requisite right, power and
authority to execute and deliver this Indenture and each Series Supplement
and to perform all of its duties as the Trustee hereunder.
(c) DUE AUTHORIZATION. The execution and delivery by the Trustee of
this Indenture, each Series Supplement and the other Series Related
Transaction Documents to which it is a party, and the performance by the
Trustee of its duties hereunder and
42
thereunder, have been duly authorized by all necessary corporate proceedings
which are required for the valid execution and delivery by the Trustee, or
the performance by the Trustee, of this Indenture, each Series Supplement and
such other Series Related Documents.
(d) VALID AND BINDING INDENTURE. The Trustee has duly executed and
delivered this Indenture, each Series Supplement, each other Basic Document
and each Series Related Document to which it is a party, and each of this
Indenture, any Series Supplement, each other Basic Document and each other
Series Related Document constitutes the legal, valid and binding obligation
of the Trustee enforceable against the 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.
.14 WAIVER OF SETOFFS. The Trustee hereby expressly waives any and
all rights of setoff that the Trustee may otherwise at any time have under
applicable law with respect to any Trust Account and Series Trust Account and
agrees that amounts in the Trust Accounts and Series Trust Accounts shall at
all times be held and applied solely in accordance with the provisions hereof.
.15 NO CONSENT TO CERTAIN ACTS OF SELLER. The Seller shall not
request that the Trustee consent to, nor shall the 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
.1 ISSUER TO FURNISH TO TRUSTEE NAMES AND ADDRESSES OF NOTEHOLDERS.
The Issuer will furnish or cause to be furnished to the Trustee with respect
to each Series of Notes (a) not more than five days after the earlier of (i)
each Record Date with respect to such Series and (ii) three months after the
last Record Date, a list, in such form as the 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 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
Trustee is the Note Registrar, no such list shall be required to be furnished.
.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO NOTEHOLDERS. The
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 Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee
43
in its capacity as Note Registrar. The 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 Trustee and the Note Registrar shall have the
protection of TIA Section 312(c).
.3 REPORTS BY ISSUER.
If this Indenture is qualified under the TIA, the Issuer shall:
(i) file with the Trustee, within 15 days after the Issuer
is required tofile 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 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 Trustee (and the Trustee shall transmit by
mail to all Noteholders described in TIA Section 313(c)) such summaries
of any information, documents and reports required to be filed by the
Issuer pursuant to clauses (i) and (ii) of this Section 7.3(a) as may be
required by rules and regulations prescribed from time to time by the
Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
(c) The 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.
.4 REPORTS BY TRUSTEE. If required by TIA Section 313(a), within
60 days after each March 31 beginning with March 31, ____ the 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 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 Trustee with the Commission and each stock exchange, if
any, on which the
44
Notes are listed. The Issuer shall notify the Trustee if and when the Notes
are listed on any stock exchange.
ARTICLE VIII.
ACCOUNTS, DISBURSEMENTS AND RELEASES
.1 COLLECTION OF MONEY. Except as otherwise expressly provided
herein, the 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 Trustee pursuant to this Indenture and the Master Sale and Servicing
Agreement. The 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 Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings. Any such action shall be without prejudice to any right to claim
a Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in Article V.
.2 RELEASE OF TRUST PROPERTY.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.7, the 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 Trustee as provided in this Article VIII shall
be bound to ascertain the Trustee's authority, inquire into the satisfaction
of any conditions precedent or see to the application of any monies.
(b) The Trustee shall, at such time as there are no Notes
outstanding and all sums due the Trustee pursuant to Section 6.7 have been
paid, release any remaining portion of the related Series Trust Estate that
secured the Notes from the lien of this Indenture and release to the Issuer
or any other Person entitled thereto any funds then on deposit in the Trust
Accounts. The 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.
.3 OPINION OF COUNSEL. The 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
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
45
conditions precedent to the taking of such action have been complied with and
such action will not materially and adversely impair the security for the
Notes or the rights of the Noteholders in contravention of the provisions of
this Indenture; PROVIDED, HOWEVER, that such Opinion of Counsel shall not be
required to express an opinion as to the fair value of the related Series
Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Trustee in connection with any such action.
ARTICLE IX.
AMENDMENTS; SERIES SUPPLEMENTS
.1 AMENDMENTS WITHOUT CONSENT OF NOTEHOLDERS.
(a) Except as otherwise provided in the Series Supplement, without
the consent of the Holders of any Notes but with prior written notice to the
Rating Agencies, as evidenced to the 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
Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Trustee any property subject or required
to be subjected to the lien of this Indenture, or to subject to the
lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and
the assumption by any such successor of the covenants of the Issuer
herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit
of the Holders of the Notes, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any Series Supplement which may be inconsistent
with any other provision herein or in any Series Supplement or to make
any other provisions with respect to matters or questions arising under
this Indenture or in any Series Supplement; PROVIDED that such action
shall not adversely affect the interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes
and to add to or change any of the provisions of this Indenture as
shall be necessary to facilitate the
46
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 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 Trustee, when authorized by an Issuer Order, may, also without
the consent of any of the Holders of the Notes but with prior written notice
to the Rating Agencies by the Issuer, as evidenced to the Trustee, enter into
an amendment hereto for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; PROVIDED, HOWEVER, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Noteholder.
.2 AMENDMENTS WITH CONSENT OF NOTEHOLDERS. Except as otherwise
provided in the Series Supplement, the Issuer and the Trustee, when
authorized by an Issuer Order provided by the Master Servicer, also may, upon
satisfaction of the Rating Agency Condition and with the consent of the
Holders of not less than a majority of the Outstanding Amount of each class
of Notes affected thereby, by Act of such Holders delivered to the Issuer and
the Trustee, enter into an amendment hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture or of modifying in any manner the rights of the Holders of
the Notes under this Indenture; PROVIDED, HOWEVER, that no such amendment
shall, without the consent of the Holder of each Outstanding Note affected
thereby:
(i) change the date of payment of any installment of principal of
or interest on any Note, or reduce the principal amount
thereof, the interest rate thereon, change the provision of
this Indenture relating to the application of collections on,
or the proceeds of the sale of, any Series Trust Estate to
payment of principal of or interest on the Notes, or change
any place of payment where, or the coin or currency in which,
any Note or the interest thereon is payable;
(ii) impair the right to institute suit for the enforcement of the
provisions of this Indenture requiring the application of
funds available therefor, as provided in Article V, to the
payment of any such amount due on the Notes on or after the
respective due dates thereof;
47
(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 Trustee to direct the Issuer to sell or
liquidate the Series Trust Estate pursuant to Section 5.4;
(vi) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain
additional provisions of this Indenture or the Basic Documents
cannot be modified or waived without the consent of the Holder
of each Outstanding Note affected thereby;
(vii) modify any of the provisions of this Indenture in such manner
as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Distribution Date
(including the calculation of any of the individual components
of such calculation) or to affect the rights of the Holders of
Notes to the benefit of any provisions for the mandatory
redemption of the Notes contained in the Series Supplement; or
(viii) permit the creation of any lien ranking prior to or on a
parity with the lien of this Indenture with respect to any
part of the Series Trust Estate or, except as otherwise
permitted or contemplated herein or in the Series Supplement
or the Series Related Documents, terminate the lien of this
Indenture on any property at any time subject hereto or
deprive the Holder of any Note of the security provided by the
lien of this Indenture.
It shall not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
amendment pursuant to this Section, the 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 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
48
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.
.3 SUPPLEMENTS AUTHORIZING A SERIES OF NOTES.
(a) Each Series of Notes issued hereunder shall be issued pursuant
to a Series Supplement, which shall set forth the terms and provisions of
such Series.
(b) Amendments to Series Supplements shall be governed by the
provisions of the relevant Series Supplement. The Trustee may conclusively
rely on an Opinion of Counsel as to which Series Supplements relate to which
Series, or to this Indenture (and thus all Series) as a whole.
.4 EXECUTION OF SERIES SUPPLEMENTS. In executing, or permitting the
additional trusts created by, any Series Supplement permitted by this Article
IX or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and subject to Sections 6.1 and 6.2,
shall be fully protected in relying upon, an Opinion of Counsel (and, if
requested, an Officer's Certificate) stating that the execution of such
Series Supplement is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such Series Supplement
that affects the Trustee's own rights, duties, liabilities or immunities
under this Indenture or otherwise.
.5 EFFECT OF SERIES SUPPLEMENT. Upon the execution of any Series
Supplement or amendment pursuant to the provisions of such Series Supplement
or hereof, this Indenture shall be and be deemed to be modified and amended
in accordance therewith with respect to the Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities
and immunities under this Indenture of the Trustee, the Issuer and the
Holders of the Notes shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and
all the terms and conditions of any such Series Supplement or amendment shall
be and be deemed to be part of the terms and conditions of this Indenture for
any and all purposes.
.6 CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of this
Indenture and every Series Supplement executed pursuant to this Article IX
shall conform to the requirements of the Trust Indenture Act as then in
effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
.7 REFERENCE IN NOTES TO SERIES SUPPLEMENTS. Notes authenticated
and delivered after the execution of any Series Supplement pursuant to this
Article IX may, and if required by the Issuer shall, bear a notation as to
any matter provided for in such Series Supplement. If the Issuer shall so
determine, new Notes so modified as to conform, in the opinion of the Issuer,
to any such Series Supplement may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
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ARTICLE X.
RESERVED
ARTICLE XI.
MISCELLANEOUS
.1 COMPLIANCE CERTIFICATES AND OPINIONS, ETC.
(a) Upon any application or request by the Issuer to the Trustee to
take any action under any provision of this Indenture or any Series
Supplement, the Issuer shall furnish to the Trustee (i) an Officer's
Certificate stating that all conditions precedent, if any, provided for in
this Indenture or any Series Supplement relating to the proposed action have
been complied with, (ii) an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with
and (iii) (if required by the TIA) an Independent Certificate from a firm of
certified public accountants meeting the applicable requirements of this
Section, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture or any Series Supplement, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture or any Series Supplement
shall include:
(i) a statement that each signatory of such certificate or opinion
has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any property or securities with
the Trustee that is to be made the basis for the release of any property
or securities subject to the lien of this Indenture and the related
Series Supplement, the Issuer
50
shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture or the related Series Supplement, furnish to
the 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 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 Trustee an Independent Certificate as to the
same matters, if the fair value to the Issuer of the securities to be
so deposited and of all other such securities made the basis of any
such withdrawal or release since the commencement of the then-current
fiscal year of the Issuer, as set forth in the certificates delivered
pursuant to clause (i) above and this clause (ii), is 10% or more of
the Outstanding Amount of the Notes; PROVIDED, that such a certificate
need not be furnished with respect to any securities so deposited,
if the fair value thereof to the Issuer as set forth in the related
Officer's Certificate is less than $25,000 or less than 1% percent of
the Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any Repurchased
Receivables or Liquidated Receivables (as such terms are defined in
the Master Sale and Servicing Agreement), whenever any property or
securities are to be released from the lien of this Indenture and the
related Series Supplement, the Issuer shall also furnish to the
Trustee an Officer's Certificate certifying or stating the opinion of
each person signing such certificate as to the fair value (within 90
days of such release) of the property or securities proposed to be
released and stating that in the opinion of such person the proposed
release will not impair the security under this Indenture and the
related Series Supplement in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the 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 Trustee an Independent Certificate as to the
same matters if the fair value of the property or securities and of
all other property other than Repurchased Receivables and Defaulted
Receivables (as such terms are defined in the Master Sale and
Servicing Agreement), or securities released from the lien of this
Indenture since the commencement of the then current calendar year, as
set forth in the certificates required by clause (ii) above and this
clause (iii), equals 10% or more of the Outstanding Amount of the
Notes; PROVIDED, that such certificate need not be furnished in the
case of any release of property or securities if the fair value
thereof as set forth in the related Officer's Certificate is less
than $25,000 or less than 1 percent of the then Outstanding Amount
of the Notes.
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(v) Notwithstanding Section 2.9 or any other provision of this
Section, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of Receivables as and to the extent permitted or required by
the Basic Documents and (B) make cash payments out of the Trust
Accounts as and to the extent permitted or required by the Basic
Documents.
.2 FORM OF DOCUMENTS DELIVERED TO 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 any Series Supplement, in connection
with any application or certificate or report to the 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 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.
52
.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 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 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 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 Trustee or the Issuer in reliance thereon, whether or not notation of
such action is made upon such Note.
.4 NOTICES, ETC., TO TRUSTEE, ISSUER AND RATING AGENCIES. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Noteholders or other documents provided or permitted by this Indenture or any
Series Supplement to be made upon, given or furnished to or filed with:
(a) The 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 Trustee at its Corporate Trust Office, or
(b) The Issuer by the Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if personally delivered, delivered by
facsimile or overnight courier or mailed first class, and shall deemed to
have been duly given upon receipt to the Issuer addressed to: Household
Automotive Trust ___, in care of [Name and Address of Owner Trustee),
Attention: __________________, or at any other address previously furnished
in writing to the Trustee by Issuer. The Issuer shall promptly transmit any
notice received by it from the Noteholders to the Trustee.
Notices required to be given to the Rating Agencies by the Issuer,
the Trustee or the Owner Trustee shall be in writing, personally delivered,
delivered by
53
overnight courier or first class or via facsimile to (i) in the case of
Moody's, at the following address: ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Fax No: (▇▇▇) ▇▇▇-▇▇▇▇ and (ii) in the case
of S&P, at the following address: Standard & Poor's Ratings Group, ▇▇
▇▇▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇), ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed
Surveillance Department, Fax No: (▇▇▇) ▇▇▇-▇▇▇▇; or as to each of the
foregoing, at such other address as shall be designated by written notice to
the other parties.
.5 NOTICES TO NOTEHOLDERS; WAIVER. Where this Indenture or any
Series Supplement provides for notice to Noteholders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class, postage prepaid to each
Noteholder affected by such event, at his address as it appears on the Note
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Noteholders is given by mail, neither the failure to mail such notice nor any
defect in any notice so mailed to any particular Noteholder shall affect the
sufficiency of such notice with respect to other Noteholders, and any notice
that is mailed in the manner herein provided shall conclusively be presumed
to have been duly given.
Where this Indenture or any Series Supplement provides for notice
in any manner, such notice may be waived in writing by any Person entitled to
receive such notice, either before or after the event, and such waiver shall
be the equivalent of such notice. Waivers of notice by Noteholders shall be
filed with the 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 Trustee shall be
deemed to be a sufficient giving of such notice.
Where this Indenture or any Series Supplement provides for notice
to the Rating Agencies, failure to give such notice shall not affect any
other rights or obligations created hereunder, and shall not under any
circumstance constitute a Default or Event of Default.
.6 ALTERNATE PAYMENT AND NOTICE PROVISIONS. Notwithstanding any
provision of this Indenture, any Series Supplement or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Trustee or any Note
Paying Agent to such Holder, that is different from the methods provided for
in this Indenture or the related Series Supplement for such payments or
notices, provided that such methods are reasonable and consented to by the
Trustee (which consent shall not be unreasonably withheld). The
54
Issuer will furnish to the Trustee a copy of each such agreement and the
Trustee will cause payments to be made and notices to be given in accordance
with such agreements.
.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.
.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.
.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 Trustee in this Indenture,
any Series Supplement shall bind its successors. All agreements of the Master
Servicer in this Indenture or any Series Supplement shall bind its successors
and assigns.
.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.
.11 BENEFITS OF INDENTURE. Nothing in this Indenture or any Series
Supplement or in the Notes, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Noteholders, and any other party secured hereunder, and any other person with
an ownership interest in any part of the related Series Trust Estate, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
.12 LEGAL HOLIDAYS. In any case where the date on which any payment
is due shall not be a Business Day, then (notwithstanding any other provision
of the Notes, this Indenture or any Series Supplement) payment need not be
made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the date an which nominally due, and
no interest shall accrue for the period from and after any such nominal date.
.13 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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.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.
.15 RECORDING OF INDENTURE. If this Indenture or any Series
Supplement is subject to recording in any appropriate public recording
offices, such recording is to be effected by the Issuer and at its expense
accompanied by an Opinion of Counsel (which may be counsel to the Trust or
any other counsel reasonably acceptable to the 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 Trustee under this Indenture or any Series Supplement.
.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 Trustee on the Notes or under this
Indenture or any Series Supplement or any certificate or other writing
delivered in connection herewith or therewith, against (i) the Seller, the
Master Servicer, the 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 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 Trustee or of any
successor or assign of the Seller, the Master Servicer, the Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed (it being understood that the 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.
.17 NO PETITION. The Trustee, by entering into this Indenture, and
each Noteholder, by accepting a Note, hereby covenant and agree that they
will not at any time institute against the Seller, or the Issuer, or join in,
cooperate with or encourage others in connection with the institution against
the Seller, or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, this Indenture or any of the Basic
Documents or any of the Series Related Documents.
.18 LIMITED RECOURSE.
(a) Notwithstanding anything in the Series ______ Related Documents
to the contrary, the Series ______ Notes constitute limited recourse
obligations of the Issuer and are limited in recourse to the Series ______
Trust Estate. The Trustee, by
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entering into this Indenture and the related Series ______ Supplement, and
each Series ______ Noteholder agree that recourse for the Series ______ 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 Series
______, 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 Series ______
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 Series ______ Notes, the Trustee, by entering into this
Indenture and the related Series ______ Supplement, and each Series ______
Noteholder agree that any such interest is subordinate to the claims of the
holders of any such debt obligations, and the Series ______ Noteholders shall
have no rights in such assets until such other debt obligations are
indefeasibly paid in full. The agreement of the Trustee and the Series ______
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.
.19 INSPECTION. The Issuer agrees that, on reasonable prior notice,
it will permit any representative of the 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
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 Trustee may reasonably determine that such
disclosure is consistent with its Obligations hereunder.
.20 LIMITATION OF LIABILITY. It is expressly understood and agreed
by the parties hereto that (a) this Agreement is executed and delivered by
[Name of 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 [Name of Owner Trustee] but is made and intended for the
purpose for binding only the Issuer, (c) nothing herein contained shall be
construed as creating any liability on [Name of 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 Agreement and by any person claiming by, through or under them and (d)
under no circumstances shall [Name of Owner Trustee] be personally liable for
the payment of any indebtedness or expenses of the Issuer or be liable for
the breach or failure of any obligation, representation, warranty or covenant
made or undertaking by the Issuer under this Agreement or any related
documents.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the Issuer and the 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 ___
By: [Name of Owner Trustee], not in
its individual capacity but solely
as Owner Trustee
By:
---------------------------------
Name:
Title:
[Name of Trustee], not in its
individual capacity but solely as Trustee
By:
---------------------------------
Name:
Title:
[Signature Page for the Indenture]
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EXHIBIT A
FORM OF TRANSFEREE CERTIFICATE
Pursuant to Section 2.4 of the Indenture dated as of __________
between the Household Automotive Trust ___ and ____________________,
___________ (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]
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