EXHIBIT 4-D
EXECUTION COPY
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DAIMLERCHRYSLER MASTER OWNER TRUST
as Issuer
and
THE BANK OF NEW YORK
as Indenture Trustee
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INDENTURE
dated as of June 1, 2002
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions...................................................................................2
Section 102. Compliance Certificates and Opinions.........................................................15
Section 103. Form of Documents Delivered to Indenture Trustee.............................................16
Section 104. Acts of Noteholders..........................................................................17
Section 105. Notices, etc., to Indenture Trustee and Issuer...............................................18
Section 106. Notices to Noteholders; Waiver...............................................................18
Section 107. Conflict with Trust Indenture Act............................................................19
Section 108. Effect of Headings and Table of Contents.....................................................19
Section 109. Successors and Assigns.......................................................................19
Section 110. Separability.................................................................................19
Section 111. Benefits of Indenture........................................................................20
Section 112. Governing Law................................................................................20
Section 113. Counterparts.................................................................................20
Section 114. Indenture Referred to in the Trust Agreement.................................................20
ARTICLE II
NOTE FORMS
Section 201. Forms Generally..............................................................................20
Section 202. Forms of Notes...............................................................................20
Section 203. Form of Indenture Trustee's Certificate of Authentication....................................21
Section 204. Notes Issuable in the Form of a Global Note..................................................21
Section 205. Temporary Global Notes and Permanent Global Notes............................................23
Section 206. Beneficial Ownership of Global Notes.........................................................24
Section 207. Notices to Depository........................................................................25
ARTICLE III
THE NOTES
Section 301. General Title; General Limitations; Issuable in Series; Terms of a Series or Class...........25
Section 302. Denominations................................................................................28
Section 303. Execution, Authentication and Delivery and Dating............................................28
Section 304. Temporary Notes..............................................................................29
Section 305. Registration, Transfer and Exchange..........................................................29
Section 306. Mutilated, Destroyed, Lost and Stolen Notes..................................................31
Section 307. Payment of Interest; Interest Rights Preserved...............................................32
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Section 308. Persons Deemed Owners........................................................................32
Section 309. Cancellation.................................................................................33
Section 310. New Issuances of Notes.......................................................................33
Section 311. Specification of Required Subordinated Amount, Overcollateralization
Amount and other Terms with Respect to each Class............................................35
Section 312. Reallocation of Available Interest Amounts and Available Principal Amounts...................35
Section 313. Excess Available Interest Amounts Sharing....................................................35
Section 314. Excess Available Principal Amounts Sharing...................................................35
ARTICLE IV
ACCOUNTS AND INVESTMENTS
Section 401. Collections..................................................................................35
Section 402. Accounts.....................................................................................36
Section 403. Investment of Funds in the Accounts..........................................................36
ARTICLE V
ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 501. Allocations of Available Interest Amounts....................................................38
Section 502. Allocations of Available Principal Amounts...................................................38
Section 503. Final Payment................................................................................38
Section 504. Payments within a Series or Class............................................................38
ARTICLE VI
SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES HELD BY THE
ISSUER OR DCWR
Section 601. Satisfaction and Discharge of Indenture......................................................39
Section 602. Application of Trust Money...................................................................39
Section 603. Cancellation of Notes Held by the Issuer or DCWR.............................................39
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 701. Events of Default............................................................................40
Section 702. Acceleration of Maturity; Rescission and Annulment...........................................41
Section 703. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee....................42
Section 704. Indenture Trustee May File Proofs of Claim...................................................43
Section 705. Indenture Trustee May Enforce Claims Without Possession of Notes.............................43
Section 706. Application of Money Collected...............................................................44
Section 707. Indenture Trustee to Hold the Collateral Certificate.........................................44
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Section 708. Sale of Receivables for Accelerated Notes....................................................44
Section 709. Noteholders Have the Right to Direct the Time, Method and Place of
Conducting Any Proceeding for Any Remedy Available to the Indenture
Trustee......................................................................................44
Section 710. Limitation on Suits..........................................................................45
Section 711. Unconditional Right of Noteholders to Receive Principal and Interest; Limited Recourse.......45
Section 712. Restoration of Rights and Remedies...........................................................46
Section 713. Rights and Remedies Cumulative...............................................................46
Section 714. Delay or Omission Not Waiver.................................................................46
Section 715. Control by Noteholders.......................................................................46
Section 716. Waiver of Past Defaults......................................................................46
Section 717. Undertaking for Costs........................................................................47
Section 718. Waiver of Stay or Extension Laws.............................................................47
ARTICLE VIII
THE INDENTURE TRUSTEE
Section 801. Certain Duties and Responsibilities..........................................................47
Section 802. Notice of Defaults...........................................................................48
Section 803. Certain Rights of Indenture Trustee..........................................................49
Section 804. Not Responsible for Recitals or Issuance of Notes............................................50
Section 805. May Hold Notes...............................................................................50
Section 806. Money Held in Trust..........................................................................50
Section 807. Compensation and Reimbursement, Limit on Compensation, Reimbursement and Indemnity...........50
Section 808. Disqualification; Conflicting Interests......................................................51
Section 809. Corporate Indenture Trustee Required; Eligibility............................................51
Section 810. Resignation and Removal; Appointment of Successor............................................51
Section 811. Acceptance of Appointment by Successor.......................................................53
Section 812. Merger, Conversion, Consolidation or Succession to Business..................................53
Section 813. Preferential Collection of Claims Against Issuer.............................................54
Section 814. Appointment of Authenticating Agent..........................................................54
Section 815. Tax Returns..................................................................................55
Section 816. Representations and Covenants of the Indenture Trustee.......................................56
Section 817. Custody of the Collateral....................................................................56
Section 818. Indenture Trustee's Application for Instructions from the Issuer.............................57
ARTICLE IX
NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY INDENTURE TRUSTEE, ISSUER
AND BENEFICIARY
Section 901. Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders.......................57
Section 902. Preservation of Information; Communications to Noteholders...................................57
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Section 903. Reports by Indenture Trustee.................................................................59
Section 904. Meetings of Noteholders; Amendments and Waivers..............................................59
Section 905. Reports by Issuer to the Commission..........................................................60
Section 906. Reports by Indenture Trustee.................................................................61
Section 907. Monthly Noteholders' Statement...............................................................61
Section 908. Payment Instruction to CARCO Trust...........................................................61
ARTICLE X
INDENTURE SUPPLEMENTS; AMENDMENTS TO THE POOLING AND SERVICING
AGREEMENT AND AMENDMENTS TO THE TRUST AGREEMENT
Section 1001. Supplemental Indentures Without Consent of Noteholders.......................................62
Section 1002. Supplemental Indentures with Consent of Noteholders..........................................63
Section 1003. Execution of Indenture Supplements...........................................................65
Section 1004. Effect of Indenture Supplements..............................................................65
Section 1005. Conformity with Trust Indenture Act..........................................................65
Section 1006. Reference in Notes to Indenture Supplements..................................................65
Section 1007. Amendments to the Pooling and Servicing Agreement............................................65
Section 1008. Amendments to the Trust Agreement............................................................66
Section 1009. Notice.......................................................................................66
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
Section 1101. Payment of Principal and Interest............................................................67
Section 1102. Maintenance of Office or Agency..............................................................67
Section 1103. Money for Note Payments to be Held in Trust..................................................67
Section 1104. Statement as to Compliance...................................................................69
Section 1105. Legal Existence..............................................................................69
Section 1106. Further Instruments and Acts.................................................................69
Section 1107. Compliance with Laws.........................................................................70
Section 1108. Notice of Events of Default..................................................................70
Section 1109. Certain Negative Covenants...................................................................70
Section 1110. No Other Business............................................................................70
Section 1111. No Borrowing.................................................................................70
Section 1112. Rule 144A Information........................................................................70
Section 1113. Performance of Obligations...................................................................71
Section 1114. Issuer May Consolidate, Etc., Only on Certain Terms..........................................72
Section 1115. Successor Substituted........................................................................73
Section 1116. Guarantees, Loans, Advances and Other Liabilities............................................74
Section 1117. Capital Expenditures.........................................................................74
Section 1118. Restricted Payments..........................................................................74
Section 1119. Representations and Warranties as to the Security Interest of the
Indenture Trustee in the Collateral Certificate..............................................74
Section 1120. Derivative Instruments.......................................................................75
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ARTICLE XII
EARLY REDEMPTION OF NOTES
Section 1201. Applicability of Article.....................................................................75
Section 1202. Optional Repurchase..........................................................................76
Section 1203. Notice.......................................................................................76
ARTICLE XIII
COLLATERAL
Section 1301. Recording, Etc...............................................................................77
Section 1302. Trust Indenture Act Requirements.............................................................78
Section 1303. Suits To Protect the Collateral..............................................................79
Section 1304. Purchaser Protected..........................................................................79
Section 1305. Powers Exercisable by Receiver or Trustee....................................................79
Section 1306. Determinations Relating to Collateral........................................................79
Section 1307. Release of Collateral........................................................................80
Section 1308. Certain Actions by Indenture Trustee.........................................................80
Section 1309. Opinions as to Collateral....................................................................80
Section 1310. Delegation of Duties.........................................................................81
ARTICLE XIV
MISCELLANEOUS
Section 1401. No Petition..................................................................................81
Section 1402. Trust Obligations............................................................................81
Section 1403. Limitations on Liability.....................................................................82
Section 1404. Tax Treatment................................................................................82
Section 1405. Actions Taken by the Issuer..................................................................82
Section 1406. Alternate Payment Provisions.................................................................82
Section 1407. Termination of Issuer........................................................................82
Section 1408. Final Distribution...........................................................................83
Section 1409. Termination Distributions....................................................................83
Section 1410. Derivative Counterparty as Third-Party Beneficiary...........................................84
EXHIBITS
EXHIBIT A FORM OF PAYMENT INSTRUCTIONS
EXHIBIT B FORM OF MONTHLY NOTEHOLDERS' STATEMENT
EXHIBIT C FORM OF INVESTMENT LETTER
EXHIBIT D-1 FORM OF CLEARANCE SYSTEM CERTIFICATE TO BE GIVEN TO
THE TRUSTEE BY EUROCLEAR OR CLEARSTREAM,
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LUXEMBOURG FOR DELIVERY OF DEFINITIVE NOTES IN
EXCHANGE FOR A PORTION OF A TEMPORARY GLOBAL NOTE
EXHIBIT D-2 FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR
CLEARSTREAM, LUXEMBOURG WITH RESPECT TO REGISTERED
NOTES SOLD TO QUALIFIED INSTITUTIONAL BUYERS
EXHIBIT D-3 FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR
CLEARSTREAM, LUXEMBOURG BY A BENEFICIAL OWNER OF
NOTES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER
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THIS INDENTURE between DAIMLER CHRYSLER MASTER OWNER TRUST, a
statutory business trust organized under the laws of the State of Delaware (the
"Issuer"), having its principal office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and The Bank of New York, a New York banking corporation, in its
capacity as Indenture Trustee (the "Indenture Trustee"), is made and entered
into as of June 1, 2002.
RECITALS OF THE ISSUER
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its notes to be issued in one or more
fully registered or bearer series or classes. All things necessary to make this
Indenture a valid agreement of the Issuer, in accordance with its terms, have
been done.
GRANTING CLAUSE
The Issuer hereby grants to the Indenture Trustee for the benefit
and security of (a) the Noteholders, (b) each Derivative Counterparty to a
Derivative Agreement entered into in connection with issuance of a class of
Notes that expressly states that such Derivative Counterparty is entitled to the
benefit of the Collateral, and (c) the Indenture Trustee, in its individual
capacity (each, a "Secured Party"), a security interest in all of its right,
title and interest, whether now owned or hereafter acquired, in and to:
(i) the Collateral Certificate;
(ii) the Collection Account;
(iii) any Supplemental Account;
(iv) all sub-Accounts in the Collection Account or any Supplemental
Account;
(v) all investment property, money and other property held in or
through the Collection Account, any Supplemental Account or
any sub-Account thereof;
(vi) all rights, benefits and powers under any Derivative Agreement
relating to any class of Notes;
(vii) all rights of enforcement against any of the representations
and warranties made by the Beneficiary pursuant to the Trust
Agreement;
(viii) all present and future claims, demands, causes of and choses
in action in respect of any of the foregoing and all interest,
principal, payments and distributions of any nature or type on
any of the foregoing;
(ix) all accounts, general intangibles, chattel paper, instruments,
documents, goods, money, investment property, deposit
accounts, certificates of deposit, letters of credit,
letter-of-credit rights and advices of credit consisting of,
arising from, or relating to any of the foregoing; and
(x) all proceeds of the foregoing.
The collateral described above is referred to as the "Collateral."
The Security Interest in the Collateral is granted to secure the Notes (and, to
the extent specified in the applicable Indenture Supplement or Derivative
Agreement, the obligations under any applicable Derivative Agreements) equally
and ratably without prejudice, priority or distinction between any Note and any
other Note by reason of difference in time of issuance or otherwise, except as
otherwise expressly provided in this Indenture or in the Indenture Supplement
which establishes any series or class of Notes, and to secure (i) the payment of
all amounts due on such Notes (and, to the extent so specified, the obligations
under any applicable Derivative Agreements) in accordance with their terms, (ii)
the payment of all other sums payable by the Issuer under this Indenture or any
Indenture Supplement and (iii) compliance by the Issuer with the provisions of
this Indenture or any Indenture Supplement. This Indenture is a security
agreement within the meaning of the UCC.
The Indenture Trustee acknowledges the grant of such Security
Interest, and accepts the Collateral in trust hereunder in accordance with the
provisions hereof and agrees to perform the duties herein to the end that the
interests of the Secured Parties may be adequately and effectively protected.
Particular Notes and Derivative Agreements will benefit from the
Security Interest to the extent (and only to the extent) proceeds of and
distributions on the Collateral are allocated for their benefit pursuant to this
Indenture and the applicable Indenture Supplement.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms and
conditions upon which the Notes are and are to be authenticated, issued and
delivered, and in consideration of the premises and the purchase of Notes by the
Holders thereof, it is mutually agreed as follows, for the equal and
proportionate benefit of all Holders of the Notes or of a series or class
thereof, as the case may be:
LIMITED RECOURSE
The obligation of the Issuer to make payments of principal, interest
and other amounts on the Notes and to make payments on Derivative Agreements is
limited in recourse as set forth in Section 711.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. For all purposes of this Indenture and of
any Indenture Supplement, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
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(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act or in the
Series 2002-CC Supplement, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder means such accounting principles as are
generally accepted in the United States of America at the date of such
computation;
(4) all references in this Indenture to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles, Sections and
other subdivisions of this Indenture as originally executed. The words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision;
(5) if any term or provision contained in an Indenture Supplement
for a series of Notes shall conflict with or be inconsistent with any term or
provision in this Indenture, the terms and provisions of such Indenture
Supplement shall control in respect of such series of Notes.
(6) "including" and words of similar import will be deemed to be
followed by "without limitation."
"Accounts" means, collectively, the Collection Account and any
Supplemental Account, in each case including any sub-Accounts therein.
"Act," when used with respect to any Noteholder, is defined in
Section 104(a).
"action," when used with respect to any Noteholder, is defined in
Section 104(a).
"Adjusted Outstanding Dollar Principal Amount" with respect to any
series or class of Notes has the meaning specified in the related Indenture
Supplement.
"Administration Agreement" means the Administration Agreement dated
as of June 1, 2002, among the Administrator, the Issuer and the Indenture
Trustee.
"Administrator" means DaimlerChrysler Services North America LLC, a
Michigan limited liability company, or any successor Administrator under the
Administration Agreement.
"Adverse Effect" means, whenever used in this Indenture with respect
to any series or class of Notes with respect to any action, that such action
will (a) at the time of its occurrence or at any future date result in the
occurrence of an Early Redemption Event or Event of Default relating to such
series or class, as applicable, (b) adversely affect the amount of funds
available to be distributed to the Noteholders of any such series or class
pursuant to this Indenture or the timing of such distributions, or (c) adversely
affect the security interest of the Indenture Trustee in the Collateral.
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"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"applicable investment category"; with respect to any series or
class of Notes, has the meaning assigned in the related Indenture Supplement.
"Authenticating Agent" means any Person authorized by the Indenture
Trustee to authenticate Notes under Section 814.
"Authorized Newspaper" means, with respect to any class of Notes,
publication in the newspaper of record specified in the applicable Indenture
Supplement for that class, or if and so long as Notes of that class are listed
on any securities exchange and that exchange so requires, in the newspaper of
record required by the applicable securities exchange, printed in any language
specified in the applicable Indenture Supplement or satisfying the requirements
of such exchange.
"Available Interest Amount" (i) with respect to all series of Notes,
means the Available Interest Amount (as defined in the Series 2002-CC
Supplement) which is payable to the Series 2002-CC Certificateholder pursuant to
Article V of the Pooling and Servicing Agreement as supplemented by the Series
2002-CC Supplement plus any amounts to be treated as Available Interest Amounts
pursuant to Section 403(d) and (ii) with respect to any series of Notes, has the
meaning specified in the related Indenture Supplement.
"Available Principal Amount" (i) with respect to all series of
Notes, means the Available Principal Amount (as defined in the Series 2002-CC
Supplement) which is payable to the Series 2002-CC Certificateholder pursuant to
Article V of the Pooling and Servicing Agreement as supplemented by the Series
2002-CC Supplement and (ii) with respect to any series of Notes, has the meaning
specified in the related Indenture Supplement.
"Bearer Note" means a Note in bearer form.
"Beneficiary" is defined in the Trust Agreement.
"Business Day," unless otherwise specified in the Indenture
Supplement for any class of Notes, means any day other than (a) a Saturday or
Sunday or (b) any other day on which national banking associations or state
banking institutions in New York, New York or Wilmington, Delaware, are
authorized or obligated by law, executive order or governmental decree to be
closed.
"CARCO Trust" means CARCO Auto Loan Master Trust, established
pursuant to the Pooling and Servicing Agreement.
"CARCO Trust Tax Opinion" means, with respect to any action, an
Opinion of Counsel to the effect that, for Federal income tax purposes, (a) such
action will not adversely
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affect the tax characterization as debt of the Investor Certificates of any
outstanding series or class under the CARCO Trust that were characterized as
debt at the time of their issuance, (b) following such action the CARCO Trust
will not be treated as an association (or a publicly traded partnership) taxable
as a corporation and (c) such action will not cause or constitute an event in
which gain or loss would be recognized by any Investor Certificateholder.
"CARCO Trust Trustee" means the trustee as defined in the Pooling
and Servicing Agreement.
"class" means, with respect to any Note, the class designated for
such Note in the applicable Indenture Supplement.
"Collateral" is defined in the Granting Clause.
"Collateral Certificate" means the Series 2002-CC Certificate issued
pursuant to the Pooling and Servicing Agreement and the Series 2002-CC
Supplement, as amended, supplemented, restated or otherwise modified from time
to time.
"Collection Account" is defined in Section 402(a).
"Collections" is defined in Section 401.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act, or, if at
any time after the execution of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Corporate Trust Office" means the principal office of the Indenture
Trustee in New York, New York at which at any particular time its corporate
trust business will be principally administered, which office at the date hereof
is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"DCWR" means DaimlerChrysler Wholesale Receivables LLC, a Delaware
limited liability company, and its successors in interest.
"Depository" means a U.S. Depository or a Foreign Depository, as the
case may be.
"Derivative Agreement" means any currency, interest rate or other
swap, cap, collar, guaranteed investment contract or other derivative agreement.
"Derivative Counterparty" means any party to any Derivative
Agreement other than the Issuer or the Indenture Trustee.
"Discount Note" means a Note that provides for an amount less than
the Stated Principal Amount (but not less than the Initial Dollar Principal
Amount) thereof to be due and payable upon the occurrence of an Early Redemption
Event or other optional or mandatory
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redemption or the occurrence of an Event of Default and the acceleration of such
Note, in each case before the Expected Principal Payment Date of the applicable
Note.
"Dollar" means (a) United States dollars or (b) denominated in
United States dollars.
"Early Redemption Event" is defined in Section 1201.
"Effective Date" means the date on which this Indenture is executed
and delivered by the parties hereto.
"Entity" means any Person other than an individual or government
(including any agency or political subdivision thereof).
"ERISA" means the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"Event of Default" is defined in Section 701.
"Exchange Date" means, with respect to any class of Notes, the
latest of:
(a) in the case of exchanges of beneficial interests in Temporary
Global Notes for beneficial interests in Permanent Global Notes in registered
form, any date that is after the related issuance date;
(b) in the case of exchanges of beneficial interests in Temporary
Global Notes for beneficial interests in Permanent Global Notes in bearer form,
the date of presentation of certification of non-United States beneficial
ownership (as described in Section 205); and
(c) the earliest date on which such an exchange of a beneficial
interest in a Temporary Global Note for a beneficial interest in a Permanent
Global Note is permitted by applicable law.
"Expected Principal Payment Date" means, with respect to any series
or class of Notes, the scheduled due date of any payment of principal on such
Notes, as specified in the related Indenture Supplement, or if such day is not a
Business Day, the next following Business Day, unless such day is in the next
calendar month, in which case such Expected Principal Payment Date, unless
otherwise specified in the related Indenture Supplement, will be the last
Business Day of the current calendar month.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"Federal Bankruptcy Code" means Title 11 of the United States Code,
as amended from time to time.
"Fitch" means Fitch, Inc., or any successor thereto.
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"foreign currency" means (a) a currency other than Dollars or (b)
denominated in a currency other than Dollars.
"Foreign Depository" means the Person specified in the applicable
Indenture Supplement, in its capacity as depository for the accounts of any
clearing agencies located outside the United States.
"Global Note" means any Note issued pursuant to Section 204.
"Holder," when used with respect to any Note, means a Noteholder.
"Indenture" or "this Indenture" means this Indenture as originally
executed and as amended, supplemented, restated or otherwise modified from time
to time by one or more indentures supplemental hereto entered into pursuant to
the applicable provisions hereof, and will include the terms of particular
series or classes of Notes created as contemplated by Section 301.
"Indenture Supplement" means, with respect to any series of Notes, a
supplement to this Indenture, executed and delivered in conjunction with the
issuance of such Notes pursuant to Section 1001, together with any applicable
terms document related to such Indenture Supplement and any amendment to the
Indenture Supplement executed pursuant to Section 1001 or 1002, and, in either
case, including all amendments thereof and supplements thereto.
"Indenture Trustee" means the Person named as the Indenture Trustee
in the first paragraph of this Indenture until a successor Indenture Trustee
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Indenture Trustee" means and includes each Person who is then an
Indenture Trustee hereunder. If at any time there is more than one such Person,
"Indenture Trustee" as used with respect to the Notes of any series or class
means the Indenture Trustee with respect to Notes of that series or class.
"Indenture Trustee Authorized Officer", when used with respect to
the Indenture Trustee, means any vice president, any assistant vice president,
the treasurer, any assistant treasurer, any senior trust officer or trust
officer, or any other officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Initial Dollar Principal Amount" means (a) unless otherwise
specified in the applicable Indenture Supplement, with respect to classes of
Dollar Interest-bearing Notes, the aggregate initial principal amount of the
Outstanding Notes of such class, and (b) with respect to classes of Discount
Notes and foreign currency Notes, the amount specified in the applicable
Indenture Supplement as the Initial Dollar Principal Amount thereof.
"Interest-bearing Note" means a Note that bears interest at a stated
or computed rate on the principal amount thereof. A Note may be both an
Interest-bearing Note and a Discount Note.
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"Interest Payment Date" means, with respect to any series or class
of Notes, the scheduled due date of any payment of interest on such Notes, as
specified in the applicable Indenture Supplement, or if such day is not a
Business Day, the next following Business Day, unless such day is in the next
calendar month, in which case the Interest Payment Date, unless otherwise
specified in the related Indenture Supplement, will be the last Business Day of
the current calendar month; provided, however, that upon the acceleration of a
series or class of Notes following an Event of Default or upon the occurrence of
an Early Redemption Event, or other optional or mandatory redemption of that
series or class of Notes, the date specified in the applicable Indenture
Supplement will be an Interest Payment Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Investor Certificates" is defined in the Pooling and Servicing
Agreement.
"Investor Certificateholder" is defined in the Pooling and Servicing
Agreement.
"Investor Interest" means, with respect to an Investor Certificate,
the interest in the CARCO Trust evidenced by such Investor Certificate.
"Investment Company Act" means the Investment Company Act of 1940,
as amended.
"Issuer" is defined in the first paragraph of this Indenture.
"Issuer Authorized Officer" means (a) an authorized signatory of the
Owner Trustee, (b) the chairman or vice-chairman of the board of directors,
chairman or vice-chairman of the executive committee of the board of directors,
the president, any vice-president, the secretary, any assistant secretary, the
treasurer, or any assistant treasurer, in each case of the Beneficiary (or a
member of the Beneficiary acting on behalf of the Beneficiary), or any other
officer or employee of the Beneficiary (or a member of the Beneficiary acting on
behalf of the Beneficiary) who is authorized to act on behalf of the Issuer or
(c) so long as the Administration Agreement is in effect, any Vice President or
more senior officer of the Administrator who is authorized to act for the
Administrator in matters relating to the Issuer and to be acted upon by the
Administrator pursuant to the Administration Agreement and who is identified on
the list of Issuer Authorized Officers delivered by the Administrator to the
Indenture Trustee as such list may be modified or supplemented from time to
time.
"Issuer Certificate" means a certificate (including an Officer's
Certificate) signed in the name of an Issuer Authorized Officer, or the Issuer
by an Issuer Authorized Officer, and in each case delivered to the Indenture
Trustee relating to, among other things, the issuance of a new class of Notes.
Wherever this Indenture requires that an Issuer Certificate be signed also by an
accountant or other expert, such accountant or other expert (except as otherwise
expressly provided in this Indenture) may be in the employ of the Beneficiary.
"Issuer Tax Opinion" means, with respect to any action, an Opinion
of Counsel to the effect that, for Federal income tax purposes, (a) such action
will not adversely affect the tax characterization as debt of any Outstanding
series or class of Notes that were characterized as
8
debt at the time of their issuance, (b) following such action the Issuer will
not be treated as an association (or publicly traded partnership) taxable as a
corporation, (c) such action will not cause or constitute an event in which gain
or loss would be recognized by any Holder of any such Notes, and (d) except as
otherwise provided in the related Indenture Supplement, where such action is the
issuance of a series or class of Notes, following such action such series or
class of Notes will be properly characterized as debt.
"Legal Maturity Date" means, with respect to a series or class of
Notes, the date specified in the Indenture Supplement, for such Note as the
fixed date on which the principal of such series or class of Notes is due and
payable.
"Majority Holders" means, with respect to any series or class of
Notes or all Outstanding Notes, the Holders of a majority in Outstanding Dollar
Principal Amount of the Outstanding Notes of that series or class or of all
Outstanding Notes, as the case may be.
[deleted because not used]
"Monthly Noteholders' Statement" means a report substantially in the
form of Exhibit B, as the same may be supplemented as set forth in the related
Indenture Supplement.
"Monthly Period" means a calendar month, except as otherwise
specified for a Series of Notes in its Indenture Supplement. The Monthly Period
with respect to a Transfer Date or Payment Date is the Monthly Period that ends
immediately prior to such date.
[deleted because not used]
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor
thereto.
"Nominal Liquidation Amount" means, with respect to any Outstanding
class of Notes, an amount determined in accordance with the applicable Indenture
Supplement.
"non-Performing," with respect to a Derivative Agreement, means not
Performing.
"Note" or "Notes" means any note or notes of any series or class
authenticated and delivered from time to time under this Indenture.
"Note Owner" means the beneficial owner of an interest in a Global
Note.
"Note Rating Agency" means, with respect to any Outstanding series
or class of Notes, each statistical rating agency selected by the Issuer to rate
such Notes.
"Note Register" is defined in Section 305.
"Note Registrar" means the Person who keeps the Note Register
specified in Section 305.
9
"Noteholder" means a Person in whose name a Note is registered in
the Note Register or the bearer of any Bearer Note (including a Global Note in
bearer form), as the case may be.
"Officer's Certificate" means a certificate signed by the
Beneficiary or the Owner Trustee and delivered to the Indenture Trustee.
Wherever this Indenture requires that an Officer's Certificate be signed also by
an accountant or other expert, such accountant or other expert (except as
otherwise expressly provided in this Indenture) may be in the employ of the
Beneficiary.
"Opinion of Counsel" means a written opinion of counsel acceptable
to the Indenture Trustee, who may, without limitation, and except as otherwise
expressly provided in this Indenture, be an employee of or of counsel to the
Issuer, the Beneficiary or any of their Affiliates.
"Outstanding," when used with respect to a Note or with respect to
Notes of any series or class means, as of the date of determination, all such
Notes theretofore authenticated and delivered under this Indenture, except:
(a) any Notes theretofore canceled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation, or canceled by the Issuer,
DCWR or any Affiliate thereof pursuant to Section 309;
(b) any Notes for whose full payment (including principal and
interest) or redemption money in the necessary amount has been theretofore
deposited with the Indenture Trustee or any Paying Agent in trust for the
Holders of such Notes; provided that, if such Notes are to be redeemed, notice
of such redemption has been duly given if required pursuant to this Indenture,
the related Indenture Supplement, or provision therefor satisfactory to the
Indenture Trustee has been made;
(c) any Notes which are deemed to have been paid in full pursuant to
Section 503; and
(d) any such Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture, or which will
have been paid pursuant to the terms of Section 306 (except with respect to any
such Note as to which proof satisfactory to the Indenture Trustee is presented
that such Note is held by a person in whose hands such Note is a legal, valid
and binding obligation of the Issuer).
For purposes of determining the amounts of deposits, allocations, reallocations
or payments to be made, unless the context clearly requires otherwise,
references to "Notes" will be deemed to be references to "Outstanding Notes." In
determining whether the Holders of the requisite principal amount of such
Outstanding Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, and for purposes of Section 904, Notes
beneficially owned by the Issuer or DCWR or any Affiliate of the Issuer or DCWR
will be disregarded and deemed not to be Outstanding. In determining whether the
Indenture Trustee will be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which an
Indenture Trustee Authorized Officer knows to be owned by the Issuer or DCWR or
10
any Affiliate of the Issuer or DCWR will be so disregarded. Notes so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
creates to the satisfaction of the Indenture Trustee the pledgee's right to act
as owner with respect to such Notes and that the pledgee is not the Issuer, DCWR
or any other obligor upon the Notes or any Affiliate of the Issuer, DCWR or such
other obligor.
"Outstanding Dollar Principal Amount" means at any time,
(a) with respect to any series or class of non-Discount Notes, the
aggregate Initial Dollar Principal Amount of the Outstanding Notes of such
series or class at such time, less the amount of any withdrawals from the
Principal Funding Account or Principal Funding sub-Account for such class of
Notes for payment of principal to the Holders of such series or class or to the
applicable Derivative Counterparty pursuant to the related Indenture Supplement,
and
(b) with respect to any series or class of Discount Notes, an amount
of the Outstanding Notes of such series or class calculated by reference to the
applicable formula set forth in the applicable Indenture Supplement, taking into
account the amount and timing of payments of principal made to the Holders of
such series or class or to the applicable Derivative Counterparty and accretions
of principal, each pursuant to the related Indenture Supplement.
"Overcollateralization Amount" has, with respect to any series of
Notes, the meaning specified in the related Indenture Supplement.
"Owner Trustee" means Chase Manhattan Bank USA, National
Association, not in its individual capacity but solely as owner trustee of the
Issuer, and each of its successors and assigns.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of or interest on any Notes on behalf of the Issuer, which shall
initially be the Indenture Trustee.
"Payment Date" means, with respect to any series or class of Notes,
the applicable Principal Payment Date or Interest Payment Date.
"Payment Instruction" means an instruction substantially in the form
of Exhibit A, or such other form as the Issuer may determine, as the same may be
supplemented as set forth in the related Indenture Supplement.
"Performing" means, with respect to any Derivative Agreement, no
payment default or repudiation of performance by a Derivative Counterparty has
occurred, and such Derivative Agreement has not been terminated.
"Permanent Global Note" is defined in Section 205.
"Permitted Investments" means, unless otherwise provided in the
Indenture Supplement with respect to any series of Notes:
(a) instruments, investment property or other property consisting
of:
11
(i) obligations of or fully guaranteed by the United States of
America;
(ii) time deposits or certificates of deposit of any depository
institution or trust company incorporated under the laws of the United
States of America or any state thereof (or domestic branches of foreign
depository institutions or trust companies) and subject to supervision and
examination by federal or state banking or depository institution
authorities; provided, however, that at the time of the Indenture
Trustee's investment or contractual commitment to invest therein, the
certificates of deposit or short-term deposits of such depository
institution or trust company shall have a credit rating from Moody's and
Standard & Poor's of P-1 and A-1+, respectively, and, if rated by Fitch,
F1+ from Fitch;
(iii) commercial paper (including but not limited to asset backed
commercial paper) having, at the time of the Indenture Trustee's
investment or contractual commitment to invest therein, a rating from
Moody's and Standard & Poor's of P-1 and A-1+, respectively, and, if rated
by Fitch, F1+ from Fitch;
(iv) bankers' acceptances issued by any depository institution or
trust company described in clause (a)(ii) above; and
(v) investments in money market funds rated AAA-m or AAA-mg by
Standard & Poor's and Aaa by Moody's or otherwise approved in writing by
each Note Rating Agency;
(b) demand deposits in the name of the Indenture Trustee in any
depository institution or trust company referred to in clause (a)(ii) above;
(c) uncertificated securities that are registered in the name of the
Indenture Trustee upon books maintained for that purpose by the issuer thereof
and identified on books maintained for that purpose by the Indenture Trustee as
held for the benefit of the Noteholders, and consisting of shares of an open end
diversified investment company which is registered under the Investment Company
Act, and which (i) invests its assets exclusively in obligations of or
guaranteed by the United States of America or any instrumentality or agency
thereof having in each instance a final maturity date of less than one year from
their date of purchase or other Permitted Investments, (ii) seeks to maintain a
constant net asset value per share, (iii) has aggregate net assets of not less
than $100,000,000 on the date of purchase of such shares and (iv) with respect
to which each Note Rating Agency confirms in writing that such investment will
not cause a Ratings Effect; and
(d) any other investment if each Note Rating Agency confirms in
writing that such investment will not cause a Ratings Effect.
"Person" means any individual, corporation, estate, partnership,
limited liability company, limited liability partnership, joint venture,
association, joint-stock company, business trust, trust, unincorporated
organization or government or any agency or political subdivision thereof.
12
"Place of Payment" means, with respect to any class of Notes issued
hereunder, the city or political subdivision so designated with respect to such
class of Notes in accordance with the provisions of Section 301.
"Pooling and Servicing Agreement" means the Amended and Restated
Pooling and Servicing Agreement, dated as of December 5, 2001, between DCWR, as
Seller, DaimlerChrysler Services North America LLC, as Servicer, and The Bank of
New York, as trustee, as amended, restated and supplemented from time to time.
"Predecessor Notes" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in lieu of a mutilated, lost,
destroyed or stolen Note will be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Principal Payment Date" means, with respect to any series or class
of Notes, each Expected Principal Payment Date, or upon the acceleration of such
series or class of Notes following an Event of Default or upon the occurrence of
an Early Redemption Event, or other optional or mandatory redemption of such
series or class of Notes, the date specified in the related Indenture
Supplement.
"Put Feature" means, with respect to a series of Notes, the
provisions in the Indenture Supplement for such series of Notes that allow the
Noteholders, under specified circumstances, to put the Notes of such series to
the Issuer in exchange for the proceeds (up to the amount specified in the
Indenture Supplement) from the sale of Receivables specified in such Indenture
Supplement.
"Qualified Account" means either (a) a segregated account (including
a securities account) with a Qualified Institution, (b) a segregated trust
account with the corporate trust department of a depository institution
organized under the laws of the United States of America or any one of the
States thereof or the District of Columbia (or any domestic branch of a foreign
bank), having corporate trust powers and acting as trustee for funds deposited
in such account, so long as any of the securities of such depository institution
shall have a credit rating from each Note Rating Agency in one of its generic
rating categories which signifies investment grade or (c) any other account in
respect of which each Note Rating Agency confirms in writing that use of such
account will not cause a Ratings Effect.
"Qualified Institution" means (a) a depository institution, which
may include the Indenture Trustee (so long as it is a paying agent under the
Indenture) or the Owner Trustee, organized under the laws of the United States
of America or any one of the States thereof or the District of Columbia, the
deposits in which are insured by the FDIC and which at all times has a
short-term unsecured debt rating in the applicable investment category of each
Note Rating Agency or (b) a depository institution as to which each Note Rating
Agency confirms in writing that such deposition institution as a Qualified
Institution will not cause a Rating Effect.
"Ratings Effect" means a reduction, qualification or withdrawal of
any then current rating of the Notes.
13
"Receivables" is defined in the Pooling and Servicing Agreement.
"Record Date" for the interest or principal payable on any Note on
any applicable Payment Date means the last day of the month before the related
Interest Payment Date or Principal Payment Date, as applicable, unless otherwise
specified in the applicable Indenture Supplement.
"Registered Note" means a Note issued in registered form.
"Registered Noteholder" means a holder of a Registered Note.
"Required Subordinated Amount" means, with respect to any class of a
senior class of Notes, the amount specified in the related Indenture Supplement.
"Secured Party" is defined in the Granting Clause.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time.
"Security Interest" means the security interest granted pursuant to
the Granting Clause.
"Seller" means DCWR in its capacity as Seller under the Pooling and
Servicing Agreement.
"senior class," with respect to a class of Notes of any series, has
the meaning specified in the related Indenture Supplement.
"series" means, with respect to any Note, the series specified in
the applicable Indenture Supplement.
"Series Available Interest Amount Shortfalls," has the meaning
specified in the related Indenture Supplement.
"Series Floating Allocation Percentage," for any series of Notes,
has the meaning specified in the related Indenture Supplement.
"Series Nominal Liquidation Amount," with respect to any series of
Notes, is defined in the related Indenture Supplement.
"Series Principal Allocation Percentage," for a series of Notes, has
the meaning specified in the related Indenture Supplement.
"Series 2002-CC Supplement" means the Series 2002-CC Supplement to
the Pooling and Servicing Agreement, dated as of June 1, 2002, as amended,
supplemented, restated or otherwise modified from time to time.
14
"Servicer" is defined in the Pooling and Servicing Agreement.
"Standard & Poor's" means Standard & Poor's Ratings Services or any
successor thereto.
"Stated Principal Amount," with respect to any Note, has the meaning
specified in the related Indenture Supplement.
"sub-Account" means each portion of an Account designated as such
pursuant to this Indenture or the related Indenture Supplement.
"subordinated class," with respect to a class of Notes of any
series, has the meaning specified in the related Indenture Supplement.
"subordinated Notes" means Notes of a subordinated class of a
series.
"Supplemental Account" means the trust account or accounts
designated as such and established pursuant to Section 402(a).
"Temporary Global Note" is defined in Section 205.
"Transfer Date" means the Business Day preceding each Payment Date.
"Trust Agreement" means the Amended and Restated Trust Agreement,
dated as of June 1, 2002, between DCWR, as Beneficiary, and Chase Manhattan Bank
USA, National Association, as Owner Trustee, as amended, supplemented or
restated from time to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, as in force at the date as of
which this Indenture was executed except as provided in Section 1005.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction.
"U.S. Depository" means, unless otherwise specified by the Issuer
pursuant to either Section 204, 206, or 301, with respect to Notes of any class
issuable or issued as Global Note within the United States, The Depository Trust
Company, New York, New York, or any successor thereto registered as a clearing
agency under the Securities Exchange Act, or other applicable statute
regulation.
Section 102. Compliance Certificates and Opinions. Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer will furnish to the Indenture
Trustee (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically
15
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.
The Indenture Trustee may rely, as to authorization by the Issuer of
any class of Notes, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and the
other documents delivered pursuant to Section 310 and this Section, as
applicable, in connection with the first authentication of Notes of such class.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for the written
statement required by Section 1104) will include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) 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;
(c) a statement that such individual has made such examination or
investigation as is necessary to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Indenture Trustee. In
any case where several matters are required to be certified by, or covered by an
opinion of, one or more specified Persons, one such Person may certify or give
an opinion with respect to some matters and one or more other such Persons as to
the 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 the Issuer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless the Issuer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations are erroneous.
Any such certificate or opinion of, or representation by, counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, the Issuer stating that the information with respect to such
factual matters is in the possession of the Issuer, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations 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.
16
Section 104. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action (collectively, "action") provided by this Indenture to be
given or taken by Noteholders of any series or class may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by an agent duly appointed in writing; and, except
as herein otherwise expressly provided, such action will become effective when
such instrument or instruments are delivered to the Indenture Trustee, and,
where it is hereby expressly required, to the Issuer. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Noteholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent will be sufficient for any purpose of this Indenture
and (subject to Section 801) conclusive in favor of the Indenture Trustee and
the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership, on
behalf of such corporation or partnership, such certificate or affidavit will
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the Indenture
Trustee deems sufficient.
(c) (i) The ownership of Registered Notes will be proved by the
Note Register.
(ii) The ownership of Bearer Notes or coupons will be proved
by the production of such Bearer Notes or coupons or by a certificate,
satisfactory to the Issuer, executed by any bank, trust company or
recognized securities dealer, wherever situated, satisfactory to the
Issuer. Each such certificate will be dated and will state that on the
date thereof a Bearer Note or coupon bearing a specified serial number was
deposited with or exhibited to such bank, trust company or recognized
securities dealer by the Person named in such certificate. Any such
certificate may be issued in respect of one or more Bearer Notes or
coupons specified therein. The holding by the Person named in any such
certificate of any Bearer Note specified therein will be presumed to
continue for a period of one year from the date of such certificate unless
at the time of any determination of such holding (A) another certificate
bearing a later date issued in respect of the same Bearer Note or coupon
produced, (B) the Bearer Note or coupon specified in such certificate is
produced by some other Person or (C) the Bearer Note or coupon specified
in such certificate has ceased to be Outstanding.
(d) If the Issuer will solicit from the Holders any action, the
Issuer may, at its option, by an Officer's Certificate, fix in advance a record
date for the determination of Holders entitled to give such action, but the
Issuer will have no obligation to do so. If the Issuer does not so fix a record
date, such record date will be the later of thirty (30) days before the first
17
solicitation of such action or the date of the most recent list of Noteholders
furnished to the Indenture Trustee pursuant to Section 901 before such
solicitation. Such action may be given before or after the record date, but only
the Holders of record at the close of business on the record date will be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Notes Outstanding have authorized or agreed or consented to such
action, and for that purpose the Notes Outstanding will be computed as of the
record date; provided that no such authorization, agreement or consent by the
Holders on the record date will be deemed effective unless it will become
effective pursuant to the provisions of this Indenture not later than six months
after the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Note will bind the Holder of every
Note issued upon the transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done or suffered to be done by the Indenture
Trustee or the Issuer in reliance thereon whether or not notation of such action
is made upon such Note.
Section 105. Notices, etc., to Indenture Trustee and Issuer. Any
action of Noteholders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(a) the Indenture Trustee by any Noteholder or by the Issuer will be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder will be
sufficient for every purpose hereunder (except as provided in Section 701(c)) if
in writing and mailed, first-class postage prepaid, to the Issuer addressed to
it at the address of its principal office specified in the first paragraph of
this Indenture or at any other address previously furnished in writing to the
Indenture Trustee by the Issuer.
Section 106. Notices to Noteholders; Waiver.
(a) Where this Indenture, any Indenture Supplement or any Registered
Note provides for notice to Registered Noteholders of any event, such notice
will be sufficiently given (unless otherwise herein, in such Indenture
Supplement or in such Registered Note expressly provided) if in writing and
mailed, first-class postage prepaid, sent by facsimile, sent by electronic
transmission or personally delivered to each Holder of Registered Note affected
by such event, at such Noteholder's address as it appears in 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 Registered
Noteholders is given by mail, facsimile, electronic transmission or delivery
neither the failure to mail, send by facsimile, electronic transmission or
deliver such notice, nor any defect in any notice so mailed, to any particular
Noteholders will affect the sufficiency of such notice with respect to other
Noteholders and any notice that is mailed, sent by facsimile, electronic
transmission or delivered in the manner herein provided shall conclusively have
been presumed to have been duly given.
18
Where this Indenture, any Indenture Supplement or any Registered
Note provides for notice in any manner, such notice may be waived in writing by
the Person entitled to receive such notice, either before or after the event,
and such waiver will be the equivalent of such notice. Waivers of notice by
Registered Noteholders will be filed with the Indenture Trustee, but such filing
will not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
(b) In case, by reason of the suspension of regular mail service as
a result of a strike, work stoppage or otherwise, it will be impractical to mail
notice of any event to any Holder of a Registered Note when such notice is
required to be given pursuant to any provision of this Indenture, then any
method of notification as will be satisfactory to the Indenture Trustee and the
Issuer will be deemed to be a sufficient giving of such notice.
(c) No notice will be given by mail, facsimile, electronic
transmission or otherwise delivered to a Holder of Bearer Notes or coupons in
bearer form. In the case of any class with respect to which any Bearer Notes are
Outstanding, any notice required or permitted to be given to Holders of such
Bearer Notes will be published in an Authorized Newspaper within the time period
prescribed in this Indenture or the applicable Indenture Supplement.
(d) With respect to any class of Notes, the applicable Indenture
Supplement may specify different or additional means of giving notice to the
Holders of the Notes of such class.
(e) Where this Indenture provides for notice to any Note Rating
Agency, failure to give such notice will not affect any other rights or
obligations created hereunder and will not under any circumstance constitute an
Adverse Effect.
Section 107. Conflict with Trust Indenture Act. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318, inclusive, of
the Trust Indenture Act, such imposed duties or incorporated provision will
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision will be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
Section 108. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and will not affect the construction hereof.
Section 109. Successors and Assigns. All covenants and agreements in
this Indenture by the Issuer will bind its successors and assigns, whether so
expressed or not. All covenants and agreements of the Indenture Trustee in this
Indenture shall bind its successors, co-trustees and agents of the Indenture
Trustee.
Section 110. Separability. In case any provision in this Indenture
or in the Notes will be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.
19
Section 111. Benefits of Indenture. Nothing in this Indenture or in
any Notes, express or implied, will give to any Person, other than the parties
hereto and their successors hereunder, any Authenticating Agent or Paying Agent,
the Note Registrar, Derivative Counterparties (to the extent specified in the
applicable Derivative Agreement) and the Holders of Notes (or such of them as
may be affected thereby), any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 112. Governing Law. THIS INDENTURE WILL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 113. Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed will be deemed to be an
original, but all such counterparts will together constitute but one and the
same instrument.
Section 114. Indenture Referred to in the Trust Agreement. This is
the Indenture referred to in the Trust Agreement.
ARTICLE II
NOTE FORMS
Section 201. Forms Generally. The Notes will have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or the applicable Indenture Supplement and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon, as may be required to comply with applicable laws
or regulations or with the rules of any securities exchange, or as may,
consistently herewith, be determined by the Issuer, as evidenced by the Issuer's
execution of such Notes. Any portion of the text of any Note may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of the
Note.
The definitive Notes will be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders) or may be produced in any other manner, all as determined by
the Issuer, as evidenced by the Issuer's execution of such Notes, subject, with
respect to the Notes of any series or class, to the rules of any securities
exchange on which such Notes are listed.
Section 202. Forms of Notes. Each Note will be in one of the forms
approved from time to time by or pursuant to an Indenture Supplement. Before the
delivery of a Note to the Indenture Trustee for authentication in any form
approved by or pursuant to an Issuer Certificate, the Issuer will deliver to the
Indenture Trustee the Issuer Certificate by or pursuant to which such form of
Note has been approved, which Issuer Certificate will have attached thereto a
true and correct copy of the form of Note which has been approved thereby or, if
an Issuer Certificate authorizes a specific officer or officers of the
Beneficiary to approve a form of Note,
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a certificate of such officer or officers approving the form of Note attached
thereto. Any form of Note approved by or pursuant to an Issuer Certificate must
be acceptable as to form to the Indenture Trustee, such acceptance to be
evidenced by the Indenture Trustee's authentication of Notes in that form or a
certificate signed by an Indenture Trustee Authorized Officer and delivered to
the Issuer.
Section 203. Form of Indenture Trustee's Certificate of
Authentication. The form of Indenture Trustee's Certificate of Authentication
for any Note issued pursuant to this Indenture will be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series or class designated therein
referred to in the within-mentioned Indenture.
The Bank of New York,
as Indenture Trustee,
By: ______________________________________
Authorized Signatory
Dated:______________________________________
Section 204. Notes Issuable in the Form of a Global Note.
(a) If the Issuer establishes pursuant to Sections 202 and 301 that
the Notes of a particular series or class are to be issued in whole or in part
in the form of one or more Global Notes, then the Issuer will execute and the
Indenture Trustee or its agent will, in accordance with Section 303 and the
Issuer Certificate delivered to the Indenture Trustee or its agent thereunder,
authenticate and deliver, such Global Note or Notes, which, unless otherwise
provided in the applicable Indenture Supplement (i) will represent, and will be
denominated in an amount equal to the aggregate Stated Principal Amount (or in
the case of Discount Notes, the aggregate Stated Principal Amount at the
Expected Principal Payment Date of such Notes) of the Outstanding Notes of such
series or class to be represented by such Global Note or Notes, or such portion
thereof as the Issuer will specify in an Issuer Certificate, (ii) in the case of
Registered Notes, will be registered in the name of the Depository for such
Global Note or Notes or its nominee, (iii) will be delivered by the Indenture
Trustee or its agent to the Depository or pursuant to the Depository's
instruction, (iv) if applicable, will bear a legend substantially to the
following effect: "Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any note
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), any transfer, pledge or other use hereof for value or
otherwise by or to any person is wrongful inasmuch as the registered owner
hereof, Cede & Co., has an interest herein" and (v) may bear such other legend
as the Issuer, upon advice of counsel, deems to be applicable.
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(b) Notwithstanding any other provisions of this Section 204 or of
Section 305, and subject to the provisions of paragraph (c) below, unless the
terms of a Global Note or the applicable Indenture Supplement expressly permit
such Global Note to be exchanged in whole or in part for individual Notes, a
Global Note may be transferred, in whole but not in part and in the manner
provided in Section 305, only to a nominee of the Depository for such Global
Note, or to the Depository, or a successor Depository for such Global Note
selected or approved by the Issuer, or to a nominee of such successor
Depository.
(c) With respect to Notes issued within the United States, unless
otherwise specified in the applicable Indenture Supplement, or with respect to
Notes issued outside the United States, if specified in the applicable Indenture
Supplement:
(i) If at any time the Depository for a Global Note notifies
the Issuer that it is unwilling or unable to continue as Depository for
such Global Note or if at any time the Depository for the Notes for such
series or class ceases to be a clearing agency registered under the
Securities Exchange Act, or other applicable statute or regulation, the
Issuer will appoint a successor Depository with respect to such Global
Note. If a successor Depository for such Global Note is not appointed by
the Issuer within ninety (90) days after the Issuer receives such notice
or becomes aware of such ineligibility, the Issuer will execute, and the
Indenture Trustee or its agent, upon receipt of an Issuer Certificate
requesting the authentication and delivery of individual Notes of such
series or class in exchange for such Global Note, will authenticate and
deliver, individual Notes of such series or class of like tenor and terms
in an aggregate Stated Principal Amount equal to the Stated Principal
Amount of the Global Note in exchange for such Global Note.
(ii) The Issuer may at any time and in its sole discretion
determine that the Notes of any series or class or portion thereof issued
or issuable in the form of one or more Global Notes will no longer be
represented by such Global Note or Notes. In such event the Issuer will
execute, and the Indenture Trustee, upon receipt of an Issuer request for
the authentication and delivery of individual Notes of such series or
class in exchange in whole or in part for such Global Note, will
authenticate and deliver individual Notes of such series or class of like
tenor and terms in definitive form in an aggregate Stated Principal Amount
equal to the Stated Principal Amount of such Global Note or Notes
representing such series or class or portion thereof in exchange for such
Global Note or Notes.
(iii) If specified by the Issuer pursuant to Sections 202 and
301 with respect to Notes issued or issuable in the form of a Global Note,
the Depository for such Global Note may surrender such Global Note in
exchange in whole or in part for individual Notes of such series or class
of like tenor and terms in definitive form on such terms as are acceptable
to the Issuer and such Depository. Thereupon the Issuer will execute, and
the Indenture Trustee or its agent will authenticate and deliver, without
service charge, (A) to each Person specified by such Depository a new Note
or Notes of the same series or class of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate Stated
Principal Amount equal to and in exchange for such Person's beneficial
interest in the Global Note; and (B) to such Depository a new Global Note
of like tenor and terms and in an authorized denomination equal to the
22
difference, if any, between the Stated Principal Amount of the surrendered
Global Note and the aggregate Stated Principal Amount of Notes delivered
to the Holders thereof.
(iv) If any Event of Default has occurred with respect to such
Global Notes, and Holders of Notes evidencing not less than 50% of the
unpaid Outstanding Dollar Principal Amount of the Global Notes of that
class advise the Indenture Trustee and the Depository that a Global Note
is no longer in the best interest of the Noteholders, the Holders of
Global Notes of that class may exchange such Notes for individual Notes.
(v) In any exchange provided for in any of the preceding three
paragraphs, the Issuer will execute and the Indenture Trustee or its agent
will authenticate and deliver individual Notes in definitive registered
form in authorized denominations. Upon the exchange of the entire Stated
Principal Amount of a Global Note for individual Notes, such Global Note
will be canceled by the Indenture Trustee or its agent. Except as provided
in the preceding paragraphs, Notes issued in exchange for a Global Note
pursuant to this Section will be registered in such names and in such
authorized denominations as the Depository for such Global Note, pursuant
to instructions from its direct or indirect participants or otherwise,
will instruct the Indenture Trustee or the Note Registrar. The Indenture
Trustee or the Note Registrar will deliver such Notes to the Persons in
whose names such Notes are so registered.
Section 205. Temporary Global Notes and Permanent Global Notes.
(a) If specified in the applicable Indenture Supplement for any
series or class, all or any portion of a Global Note may initially be issued in
the form of a single temporary Global Bearer Note or Registered Note (the
"Temporary Global Note"), without interest coupons, in the denomination of the
entire aggregate principal amount of such series or class and substantially in
the form set forth in the exhibit with respect thereto attached to the
applicable Indenture Supplement. The Temporary Global Note will be authenticated
by the Indenture Trustee upon the same conditions, in substantially the same
manner and with the same effect as the Notes in definitive form. The Temporary
Global Note may be exchanged as described below or in the applicable Indenture
Supplement for permanent global Bearer Notes or Registered Notes (the "Permanent
Global Notes").
(b) Unless otherwise provided in the applicable Indenture
Supplement, exchanges of beneficial interests in Temporary Global Notes for
beneficial interests in Permanent Global Notes will be made as provided in this
clause. The Beneficiary will, upon its determination of the date of completion
of the distribution of the Notes of such series or class, so advise the
Indenture Trustee, the Issuer, the Foreign Depository, and each foreign clearing
agency forthwith. Without unnecessary delay, but in any event not prior to the
Exchange Date, the Issuer will execute and deliver to the Indenture Trustee at
its London office or its designated agent outside the United States Permanent
Global Notes in bearer or registered form (as specified in the applicable
Indenture Supplement) in an aggregate principal amount equal to the entire
aggregate principal amount of such series or class. Bearer Notes so issued and
delivered may have coupons attached. The Temporary Global Note may be exchanged
for an equal aggregate principal amount of Permanent Global Notes only on or
after the Exchange Date. A United States Person may exchange the portion of the
Temporary Global Note beneficially owned by it
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only for an equal aggregate principal amount of Permanent Global Notes in
registered form bearing the applicable legend set forth in the form of
Registered Note attached to the applicable Indenture Supplement and having a
minimum denomination of $500,000, which may be in temporary form if the Issuer
so elects. The Issuer may waive the $500,000 minimum denomination requirement if
it so elects. Upon any demand for exchange for Permanent Global Notes in
accordance with this clause, the Issuer will cause the Indenture Trustee to
authenticate and deliver the Permanent Global Notes to the Holder (x) outside
the United States, in the case of Bearer Notes and (y) according to the
instructions of the Holder, in the case of Registered Notes, but in either case
only upon presentation to the Indenture Trustee of a written statement
substantially in the form of Exhibit D-1 (or such other form as the Issuer may
determine) with respect to the Temporary Global Note, or portion thereof being
exchanged, signed by a foreign clearing agency and dated on the Exchange Date or
a subsequent date, to the effect that it has received in writing or by tested
telex a certification substantially in the form of (i) in the case of beneficial
ownership of the Temporary Global Note, or a portion thereof being exchanged, by
a United States institutional investor pursuant to this clause, the certificate
in the form of Exhibit D-2 (or such other form as the Issuer may determine)
signed by the Beneficiary which sold the relevant Notes or (ii) in all other
cases, the certificate in the form of Exhibit D-3 (or such other form as the
Issuer may determine), the certificate referred to in this clause (ii) being
dated on the earlier of the first payment of interest in respect of such Note
and the date of the delivery of such Note in definitive form. Upon receipt of
such certification, the Indenture Trustee will cause the Temporary Global Note
to be endorsed in accordance with clause (d). Any exchange as provided in this
Section will be made free of charge to the Holders and the beneficial owners of
the Temporary Global Note and to the beneficial owners of the Permanent Global
Note issued in exchange, except that a person receiving the Permanent Global
Note must bear the cost of insurance, postage, transportation and the like in
the event that such Person does not receive such Permanent Global Note in person
at the offices of a foreign clearing agency.
(c) The delivery to the Indenture Trustee by a foreign clearing
agency of any written statement referred to above may be relied upon by the
Issuer and the Indenture Trustee as conclusive evidence that a corresponding
certification or certifications has or have been delivered to such foreign
clearing agency pursuant to the terms of this Indenture.
(d) Upon any such exchange of all or a portion of the Temporary
Global Note for a Permanent Global Note or Notes, such Temporary Global Note
will be endorsed by or on behalf of the Indenture Trustee to reflect the
reduction of its principal amount by an amount equal to the aggregate principal
amount of such Permanent Global Note or Notes. Until so exchanged in full, such
Temporary Global Note will in all respects be entitled to the same benefits
under this Indenture as Permanent Global Notes authenticated and delivered
hereunder except that the beneficial owners of such Temporary Global Note will
not be entitled to receive payments of interests on the Notes until they have
exchanged their beneficial interests in such Temporary Global Note for Permanent
Global Notes.
Section 206. Beneficial Ownership of Global Notes. Until definitive
Notes have been issued to the applicable Noteholders pursuant to Section 204 or
as otherwise specified in any applicable Indenture Supplement,
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(a) the Issuer and the Indenture Trustee may deal with the
applicable clearing agency and the clearing agency's participants for all
purposes (including the making of distributions) as the authorized
representatives of the respective Note Owners; and
(b) the rights of the respective Note Owners will be exercised only
through the applicable clearing agency and the clearing agency's participants
and will be limited to those established by law and agreements between such Note
Owners and the clearing agency and/or the clearing agency's participants.
Pursuant to the operating rules of the applicable clearing agency, unless and
until Notes in definitive form are issued pursuant to Section 204, the clearing
agency will make book-entry transfers among the clearing agency's participants
and receive and transmit distributions of principal and interest on the related
Notes to such clearing agency's participants.
For purposes of any provision of this Indenture requiring or
permitting actions with the consent of, or at the direction of, Noteholders
evidencing a specified percentage of the aggregate unpaid principal amount of
Outstanding Notes, such direction or consent may be given by Note Owners (acting
through the clearing agency and the clearing agency's participants) owning
interests in Notes evidencing the requisite percentage of principal amount of
Notes.
Section 207. Notices to Depository. Whenever any notice or other
communication is required to be given to Noteholders with respect to which
book-entry Notes have been issued, unless and until Notes in definitive form
will have been issued to the related Note Owners, the Indenture Trustee will
give all such notices and communications to the applicable Depository.
ARTICLE III
THE NOTES
Section 301. General Title; General Limitations; Issuable in Series;
Terms of a Series or Class.
(a) The aggregate Stated Principal Amount of Notes which may be
authenticated and delivered and Outstanding under this Indenture is not limited.
(b) The Notes may be issued in one or more series or classes up to
an aggregate Stated Principal Amount of Notes as from time to time may be
authorized by the Issuer. All Notes of each series or class under this Indenture
will in all respects be equally and ratably entitled to the benefits hereof with
respect to such series or class without preference, priority or distinction on
account of the actual time of the authentication and delivery or the Expected
Principal Payment Date or Legal Maturity Date of the Notes of such series or
class, except as specified in the applicable Indenture Supplement for such
series or class.
(c) Each Note issued must be part of a series or class of Notes for
purposes of allocations pursuant to Article V. A series of Notes is created
pursuant to an Indenture Supplement. A class of Notes of that series is created
pursuant to such Indenture Supplement.
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(d) Each series of Notes may, but need not be, subdivided into
multiple classes. Unless the context otherwise requires, references herein to a
class of Notes include a series of Notes that has not been subdivided into
multiple classes. Notes belonging to a class in any series may be entitled to
specified payment priorities over other classes of Notes in that series.
(e) There shall also be established in or pursuant to an Indenture
Supplement or pursuant to an Issuer Certificate or terms document related to the
applicable Indenture Supplement before the initial issuance of Notes of each
such series or class, provision for:
(i) the series designation;
(ii) the Stated Principal Amount of the Notes;
(iii) whether such Notes are of a particular class of Notes;
(iv) the Required Subordinated Amount (if any) for such class
of Notes;
(v) the currency or currencies in which such Notes will be
denominated and in which payments of principal of, and interest on, such
Notes will or may be payable;
(vi) if the principal of or interest, if any, on such Notes
are to be payable, at the election of the Issuer or a Holder thereof, in a
currency or currencies other than that in which the Notes are stated to be
payable, the period or periods within which, and the terms and conditions
upon which, such election may be made;
(vii) if the amount of payments of principal of or interest,
if any, on such Notes may be determined with reference to an index based
on (A) a currency or currencies other than that in which the Notes are
stated to be payable, (B) changes in the prices of one or more other
securities or groups or indexes of securities or (C) changes in the prices
of one or more commodities or groups or indexes of commodities, or any
combination of the foregoing, the manner in which such amounts will be
determined;
(viii) the times at which such Notes may, pursuant to any
optional or mandatory redemption provisions, be redeemed, and the other
terms and provisions of any such redemption provisions;
(ix) the rate per annum at which such Notes will bear
interest, if any, or the formula or index on which such rate will be
determined, including all relevant definitions, and the date from which
interest will accrue;
(x) each Interest Payment Date, Expected Principal Payment
Date and Legal Maturity Date for such Notes;
(xi) the Initial Dollar Principal Amount of such Notes, and
the means for calculating the Outstanding Dollar Principal Amount of such
Notes;
26
(xii) whether or not application will be made to list such
Notes on any securities exchange;
(xiii) any Events of Default or Early Redemption Events with
respect to such Notes, if not set forth herein and any additions,
deletions or other changes to the Events of Default or Early Redemption
Events set forth herein that will be applicable to such Notes (including a
provision making any Event of Default or Early Redemption Event set forth
herein inapplicable to the Notes of that series or class);
(xiv) the appointment by the Indenture Trustee of an
Authenticating Agent in one or more places other than the location of the
office of the Indenture Trustee with power to act on behalf of the
Indenture Trustee and subject to its direction in the authentication and
delivery of such Notes in connection with such transactions as will be
specified in the provisions of this Indenture or in or pursuant to the
applicable Indenture Supplement creating such series or class;
(xv) if such Notes will be issued in whole or in part in the
form of a Global Note or Global Notes, the terms and conditions, if any,
upon which such Global Note or Global Notes may be exchanged in whole or
in part for other individual Notes; and the Depository for such Global
Note or Global Notes (if other than the Depository specified in Section
101);
(xvi) the subordination of such Notes to any other
indebtedness of the Issuer, including without limitation, the Notes of any
other series or class;
(xvii) if such Notes are to have the benefit of any Derivative
Agreement, the terms and provisions of such agreement;
(xviii) the Record Date for any Payment Date of such Notes, if
different from the last day of the month before the related Payment Date;
(xix) the controlled accumulation amount, if any, the
controlled amortization amount, if any, or other principal amortization
amount, if any, scheduled for such Notes;
(xx) the Overcollateralization Amount, if any, for such series
or class of Notes; and
(xxi) any other terms of such Notes;
all upon such terms as may be determined in or pursuant to an Indenture
Supplement with respect to such series or class.
(f) The form of the Notes of each series or class will be
established pursuant to the provisions of this Indenture and the related
Indenture Supplement creating such series or class. The Notes of each series or
class will be distinguished from the Notes of each other series or class in such
manner, reasonably satisfactory to the Indenture Trustee, as the Issuer may
determine.
27
(g) Unless otherwise provided with respect to Notes of a particular
series or class, the Notes of any particular series or class will be issued in
registered form, without coupons.
(h) Any terms or provisions in respect of the Notes of any series or
class issued under this Indenture may be determined pursuant to this Section by
providing in the applicable Indenture Supplement for the method by which such
terms or provisions will be determined.
(i) The Notes of each series or class may have such Expected
Principal Payment Date or Dates or Legal Maturity Date or Dates, be issuable at
such premium over or discount from their face value, bear interest at such rate
or rates (which may be fixed or floating), from such date or dates, payable in
such installments and on such dates and at such place or places to the Holders
of Notes registered as such on such Record Dates, or may bear no interest, and
have such terms, all as will be provided for in or pursuant to the applicable
Indenture Supplement.
Section 302. Denominations. The Notes of each class will be issuable
in such denominations and currency as will be provided in the provisions of this
Indenture or in or pursuant to the applicable Indenture Supplement. In the
absence of any such provisions with respect to the Registered Notes of any
class, the Registered Notes of that class will be issued in denominations of
$1,000 and multiples thereof. In the absence of any such provisions with respect
to the Bearer Notes of any class, the Bearer Notes of that class will be issued
in denominations of 1,000, 5,000, 50,000 and 100,000 units of the applicable
currency.
Section 303. Execution, Authentication and Delivery and Dating.
(a) The Notes will be executed on behalf of the Issuer by an Issuer
Authorized Officer. The signature of any officer of the Beneficiary (or a member
of the Beneficiary acting on behalf of the Beneficiary) or the Owner Trustee on
the Notes may be manual or facsimile.
(b) Notes bearing the manual or facsimile signatures of individuals
who were at any time an Issuer Authorized Officer will bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices before the authentication and delivery of such Notes or did not hold
such offices at the date of issuance of such Notes.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer
to the Indenture Trustee for authentication; and the Indenture Trustee will,
upon request by an Officer's Certificate, authenticate and deliver such Notes as
in this Indenture provided and not otherwise.
(d) Before any such authentication and delivery, the Indenture
Trustee will be entitled to receive, in addition to any Officer's Certificate
and Opinion of Counsel required to be furnished to the Indenture Trustee
pursuant to Section 102, the Issuer Certificate and any other opinion or
certificate relating to the issuance of the series or class of Notes required to
be furnished pursuant to Section 202 or Section 310.
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(e) The Indenture Trustee will not be required to authenticate such
Notes if the issue thereof will adversely affect the Indenture Trustee's own
rights, duties or immunities under the Notes and this Indenture.
(f) Unless otherwise provided in the form of Note for any series or
class, all Notes will be dated the date of their authentication.
(g) No Note will be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by manual signature of an authorized
signatory, and such certificate upon any Note will be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder.
Section 304. Temporary Notes.
(a) Pending the preparation of definitive Notes of any class, the
Issuer may execute, and, upon receipt of the documents required by Section 303,
together with an Officer's Certificate, the Indenture Trustee will authenticate
and deliver, temporary Notes which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the Issuer may determine, as evidenced by the Issuer's execution
of such Notes.
(b) If temporary Notes of any class are issued, the Issuer will
cause definitive Notes of such class to be prepared without unreasonable delay.
After the preparation of definitive Notes, the temporary Notes of such class
will be exchangeable for definitive Notes of such class upon surrender of the
temporary Notes of such class at the office or agency of the Issuer in a Place
of Payment, without charge to the Holder; and upon surrender for cancellation of
any one or more temporary Notes the Issuer will execute and the Indenture
Trustee will authenticate and deliver in exchange therefor a like Stated
Principal Amount of definitive Notes of such class of authorized denominations
and of like tenor and terms. Until so exchanged the temporary Notes of such
class will in all respects be entitled to the same benefits under this Indenture
as definitive Notes of such class.
Section 305. Registration, Transfer and Exchange.
(a) The Issuer will keep or cause to be kept a register (herein
sometimes referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer will provide for the
registration of Registered Notes, or of Registered Notes of a particular class,
and for transfers of Registered Notes or of Registered Notes of such class. Any
such register will be in written form or in any other form capable of being
converted into written form within a reasonable time. At all reasonable times
the information contained in such register or registers will be available for
inspection by the Indenture Trustee at the office or agency to be maintained by
the Issuer as provided in Section 1102.
(b) Subject to Section 204, upon surrender for transfer of any
Registered Note of any class at the office or agency of the Issuer in a Place of
Payment, if the requirements of
29
Section 8-401(a) of the UCC are met, the Issuer will execute, and, upon receipt
of such surrendered note, the Indenture Trustee will authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Registered Notes of such class of any authorized denominations, of a like
aggregate Stated Principal Amount, Expected Principal Payment Date and Legal
Maturity Date and of like terms.
(c) Subject to Section 204, at the option of the Holder, Notes of
any class may be exchanged for other Notes of such class of any authorized
denominations, of a like aggregate Stated Principal Amount, Expected Principal
Payment Date and Legal Maturity Date and of like terms, upon surrender of the
Notes to be exchanged at such office or agency. Registered Notes, including
Registered Notes received in exchange for Bearer Notes, may not be exchanged for
Bearer Notes. At the option of the Holder of a Bearer Note, subject to
applicable laws and regulations, Bearer Notes may be exchanged for other Bearer
Notes or Registered Notes (of the same class) of authorized denominations of
like aggregate fractional undivided interests in the Noteholders' interest, upon
surrender of the Bearer Notes to be exchanged at an office or agency of the Note
Registrar located outside the United States. Each Bearer Note surrendered
pursuant to this Section will have attached thereto all unmatured coupons;
provided, however, that any Bearer Note, so surrendered after the close of
business on the last day of the month preceding the relevant Payment Date need
not have attached the coupon relating to such Payment Date. Whenever any Notes
are so surrendered for exchange, the Issuer will execute, and the Trustee will
authenticate and deliver (in the case of Bearer Notes, outside the United
States), the Notes which the Noteholders making the exchange are entitled to
receive.
(d) All Notes issued upon any transfer or exchange of Notes will be
the valid and legally binding obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such transfer or exchange.
(e) Every Note presented or surrendered for transfer or exchange
will (if so required by the Issuer or the Indenture Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Issuer and the Note Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
(f) Unless otherwise provided in the Note to be transferred or
exchanged, no service charge will be made on any Noteholder for any transfer or
exchange of Notes, but the Issuer may (unless otherwise provided in such Note)
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Notes,
other than exchanges pursuant to Section 304 or 1006 not involving any transfer.
(g) None of the Issuer, the Indenture Trustee, any agent of the
Indenture Trustee, any Paying Agent or the Note Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Note or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
(h) The Issuer initially appoints The Bank of New York to act as
Note Registrar for the Registered Notes on its behalf. The Issuer may at any
time and from time to
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time authorize any Person to act as Note Registrar in place of the Indenture
Trustee with respect to any class of Notes issued under this Indenture.
(i) Registration of transfer of Notes containing the following
legend or to which the following legend is applicable:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS NOTE NOR ANY PORTION
HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE
REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE
PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE
TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN
THE INDENTURE REFERRED TO HEREIN.
will be effected only if such transfer is made pursuant to an effective
registration statement under the Securities Act, or is exempt from the
registration requirements under the Securities Act. In the event that
registration of a transfer is to be made in reliance upon an exemption from the
registration requirements under the Securities Act other than Rule 144A under
the Securities Act or Rule 903 or Rule 904 of Regulation S under the Securities
Act, the transferor or the transferee will deliver, at its expense, to the
Issuer and the Indenture Trustee, an investment letter from the transferee,
substantially in the form of the investment letter attached hereto as Exhibit C
or such other form as the Issuer may determine, and no registration of transfer
will be made until such letter is so delivered.
Notes issued upon registration or transfer of, or Notes issued in
exchange for, Notes bearing the legend referred to above will also bear such
legend unless the Issuer, the Trustee and the Note Registrar receive an Opinion
of Counsel, satisfactory to each of them, to the effect that such legend may be
removed.
Whenever a Note containing the legend referred to above is presented
to the Note Registrar for registration of transfer, the Note Registrar will
promptly seek instructions from the Issuer regarding such transfer and will be
entitled to receive an Issuer Certificate prior to registering any such
transfer. The Issuer hereby agrees to indemnify the Note Registrar and the
Indenture Trustee and to hold each of them harmless against any loss, liability
or expense incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by them in relation to any such
instructions furnished pursuant to this clause.
Section 306. Mutilated, Destroyed, Lost and Stolen Notes.
(a) If (i) any mutilated Note (together, in the case of Bearer
Notes, with all unmatured coupons, if any, appertaining thereto) is surrendered
to the Indenture Trustee, or the Issuer and the Indenture Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Note,
and (ii) there is delivered to the Issuer and the Indenture Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Issuer or the Indenture Trustee that such
Note has been acquired by a protected
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purchaser, the Issuer will execute and upon its request the Indenture Trustee
will authenticate and deliver (in the case of Bearer Notes, outside the United
States), in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Note, a new Note of like tenor, series or class, Expected Principal
Payment Date, Legal Maturity Date and Stated Principal Amount, bearing a number
not contemporaneously Outstanding.
(b) In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Issuer in its discretion may,
instead of issuing a new Note, pay such Note.
(c) Upon the issuance of any new Note under this Section, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Indenture Trustee) connected
therewith.
(d) Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note will constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Note will be at any time enforceable by anyone, and will be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes of the same series or class duly issued hereunder.
(e) The provisions of this Section are exclusive and will preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 307. Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise provided with respect to such Note pursuant to
Section 301, interest payable on any Registered Note will be paid to the Person
in whose name that Note (or one or more Predecessor Notes) is registered at the
close of business on the most recent Record Date and interest payable on any
Bearer Note will be paid to the bearer of that Note (or the applicable coupon).
(b) Subject to clause (a), each Note delivered under this Indenture
upon transfer of or in exchange for or in lieu of any other Note will carry the
rights to interest accrued or principal accreted and unpaid, and to accrue or
accrete, which were carried by such other Note.
Section 308. Persons Deemed Owners. The Issuer, the Indenture
Trustee, the Owner Trustee, the Beneficiary and any agent of the Issuer, the
Indenture Trustee, the Owner Trustee, or the Beneficiary may treat the Person
who is proved to be the owner of such Note pursuant to Section 104(c) as the
owner of such Note for the purpose of receiving payment of principal of and
(subject to Section 307) interest on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Issuer, the
Indenture Trustee, the Owner Trustee, nor any agent of the Issuer, the Indenture
Trustee, the Owner Trustee, or the Beneficiary will be affected by notice to the
contrary.
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Section 309. Cancellation. All Notes surrendered for payment,
redemption, transfer, conversion or exchange will, if surrendered to any Person
other than the Indenture Trustee, be delivered to the Indenture Trustee and, if
not already canceled, will be promptly canceled by it. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered will be promptly canceled by the
Indenture Trustee. No Note will be authenticated in lieu of or in exchange for
any Notes canceled as provided in this Section, except as expressly permitted by
this Indenture. The Indenture Trustee will dispose of all canceled Notes in
accordance with its customary procedures and will deliver a certificate of such
disposition to the Issuer.
Section 310. New Issuances of Notes.
(a) The Issuer may issue new Notes of any series or class, so long
as the following conditions precedent are satisfied:
(i) on or before the third Business Day before the date that
the new issuance is to occur, the Issuer gives the Indenture Trustee and
the Note Rating Agencies written notice of the issuance;
(ii) on or prior to the date that the new issuance is to
occur, the Issuer delivers to the Indenture Trustee and each Note Rating
Agency an Issuer Certificate to the effect that:
(A) the Issuer reasonably believes that the new issuance
will not at the time of its occurrence or at a future date
cause an Adverse Effect on any Outstanding Notes;
(B) all instruments furnished to the Indenture Trustee
conform to the requirements of this Indenture and constitute
sufficient authority hereunder for the Indenture Trustee to
authenticate and deliver such Notes;
(C) the form and terms of such Notes have been
established in conformity with the provisions of this
Indenture;
(D) all laws and requirements with respect to the
execution and delivery by the Issuer of such Notes have been
complied with, the Issuer has the trust power and authority to
issue such Notes and such Notes have been duly authorized and
delivered by the Issuer and, assuming due authentication and
delivery by the Indenture Trustee, constitute legal, valid and
binding obligations of the Issuer enforceable in accordance
with their terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws and legal principles affecting creditors' rights
generally from time to time in effect and to general equitable
principles, whether applied in an action at law or in equity)
and entitled to the benefits of this Indenture, equally and
ratably with all other Notes, if any, of such series or class
Outstanding, subject to the terms of this Indenture and each
Indenture Supplement; and
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(E) such other matters as the Indenture Trustee may
reasonably request;
(iii) on or before the date that the new issuance is to occur,
the Issuer will have delivered to the Indenture Trustee and the Note
Rating Agencies a CARCO Trust Tax Opinion and an Issuer Tax Opinion with
respect to such issuance;
(iv) on or before the date that the new issuance is to occur,
the Issuer will have delivered to the Trustee an Indenture Supplement and,
if applicable, the Issuer Certificate or terms document relating to the
applicable series, class or classes of Notes;
(v) no Early Amortization Event as defined in the Pooling and
Servicing Agreement or the Series 2002-CC Supplement will have occurred
and be continuing as of the date of the new issuance;
(vi) in the case of foreign currency Notes, the Issuer will
have appointed one or more Paying Agents in the appropriate countries;
(vii) the Note Rating Agencies have provided written
confirmation that such issuance will not have a Ratings Effect and each
rating agency that has been selected by DCWR or any of its affiliates or
predecessors to rate any series or class of Investor Certificates has
provided written confirmation that such issuance will not result in the
reduction, qualification or withdrawal of any then current rating by it of
any series or class of Investor Certificates;
(viii) the conditions specified herein or in Section 311 are
satisfied; and
(ix) any other conditions specified herein in the applicable
Indenture Supplement;
provided, however, that any one of the aforementioned conditions (other than
clauses (iii) and (iv)) may be eliminated or modified as a condition precedent
to any new issuance of a series or class of Notes if the Issuer has obtained
written confirmation from each Note Rating Agency that there will be no Ratings
Effect with respect to any Outstanding Notes as a result of a new issuance of
Notes.
(b) The Issuer and the Indenture Trustee will not be required to
obtain the consent of any Noteholder of any Outstanding series or class to issue
any additional Notes of any series or class.
(c) There are no restrictions on the timing or amount of any
additional issuance of Notes of an Outstanding class of a multiple issuance
series, so long as the conditions described in paragraph (a) are met. As of the
date of any additional issuance of Notes of an Outstanding class of Notes, the
Stated Principal Amount, Outstanding Dollar Principal Amount and Nominal
Liquidation Amount of that class will be increased to reflect the principal
amount of the additional Notes. If the additional Notes are a class of Notes
that has the benefit of a Derivative Agreement, the Issuer will enter into a
Derivative Agreement for the benefit of the
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additional Notes. The targeted deposits, if any, to the principal funding
sub-account will be increased proportionately to reflect the principal amount of
the additional Notes.
When issued, the additional Notes of a class will be identical in
all respects to the other Outstanding Notes of that class and will be equally
and ratably entitled to the benefits of the Indenture and the related Indenture
Supplement as the other Outstanding Notes of that class without preference,
priority or distinction.
Section 311. Specification of Required Subordinated Amount,
Overcollateralization Amount and other Terms with Respect to each Class.
(a) The applicable Indenture Supplement for each class of Notes will
specify a Required Subordinated Amount, if any, of each subordinated class of
Notes, if any, and the Overcollateralization Amount, if any, for each series or
class of Notes.
(b) The Issuer may change the Required Subordinated Amount for any
class of Notes or the Overcollateralization Amount, if any, for any class or
series of Notes at any time without the consent of any Noteholders so long as
the Issuer has (i) received confirmation from the Note Rating Agencies that have
rated any Outstanding Notes of that series or class, as applicable, that the
change in the Required Subordinated Amount or Overcollateralization Amount will
not result in a Ratings Effect with respect to any Outstanding Notes in that
series or class, as applicable, and (ii) delivered to the Trustee and the Note
Rating Agencies a CARCO Trust Tax Opinion and an Issuer Tax Opinion.
Section 312. Reallocation of Available Interest Amounts and
Available Principal Amounts. Available Interest Amounts, Available Principal
Amounts and other specified amounts allocated to each series shall be
reallocated to cover interest and expenses related to each series to the extent,
if any, specified in each related Indenture Supplement.
Section 313. Excess Available Interest Amounts Sharing. The Issuer
shall reallocate and redistribute certain excess Available Interest Amounts to
cover Series Available Interest Amount Shortfalls incurred by other series as
specified in the related Indenture Supplements.
Section 314. Excess Available Principal Amounts Sharing. The Issuer
shall reallocate and redistribute certain excess Available Principal Amounts to
cover Series Available Principal Amount Shortfalls incurred by other series as
specified in the related Indenture Supplements.
ARTICLE IV
ACCOUNTS AND INVESTMENTS
Section 401. Collections. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and will
receive and collect, directly and without intervention or assistance from any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture including,
without limitation, all funds and other property payable to the Indenture
Trustee in
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connection with the Collateral (collectively, the "Collections"). The Indenture
Trustee will hold all such money and property received by it as part of the
Collateral and will apply it as provided in this Indenture.
Section 402. Accounts.
(a) Accounts; Deposits to and Distributions from Accounts. On or
before the Effective Date, the Issuer will cause to be established and
maintained one or more Qualified Accounts (collectively, the "Collection
Account") in the name of the Indenture Trustee, bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Indenture Trustee, the Noteholders and any applicable Derivative Counterparty.
All Collections received from the CARCO Trust pursuant to Article V of the
Pooling and Servicing Agreement as supplemented by the Series 2002-CC Supplement
shall be deposited into the Collection Account. From time to time in connection
with the issuance of a series or class of Notes, the Indenture Trustee may
establish one or more Qualified Accounts denominated as "Supplemental Accounts"
in the name of the Indenture Trustee. The Collection Account shall be under the
sole dominion and control of the Indenture Trustee for the benefit of the
Secured Parties. If, at any time, the institution holding the Collection Account
ceases to be a Qualified Institution, the Issuer will within ten (10) Business
Days (or such longer period, not to exceed thirty (30) calendar days, as to
which each Note Rating Agency may consent in writing) establish a new Collection
Account that is a Qualified Account and shall transfer any cash and/or
investments to such new Collection Account. From the date such new Collection
Account is established, it will be the "Collection Account." Supplemental
Accounts will be created as specified in the applicable Indenture Supplement.
Any Supplemental Account will receive deposits as set forth in the applicable
Indenture Supplement.
(b) All payments to be made from time to time by or on behalf of the
Indenture Trustee to Noteholders out of funds in the Accounts pursuant to this
Indenture will be made by or on behalf of the Indenture Trustee to the Paying
Agent not later than 12:00 noon on the applicable Payment Date or earlier, if
necessary, or as otherwise provided in Article V or the applicable Indenture
Supplement but only to the extent of available funds in the applicable
Supplemental Account or sub-Account.
Section 403. Investment of Funds in the Accounts.
(a) Funds on deposit in the Accounts will be invested and reinvested
by the Indenture Trustee at the written direction of the Issuer in one or more
Permitted Investments. The Issuer may authorize the Indenture Trustee to make
specific investments pursuant to written instructions, in such amounts as the
Issuer will specify. Notwithstanding the foregoing, funds held by the Indenture
Trustee in any of the Accounts will be invested in Permitted Investments that
will mature in each case no later than the date on which such funds in the
Accounts are scheduled to be transferred or distributed by the Indenture Trustee
pursuant to this Indenture (or as necessary to provide for timely payment of
principal or interest on the applicable Principal Payment Date or Interest
Payment Date).
(b) All funds deposited from time to time in the Accounts pursuant
to this Indenture and all investments made with such funds will be held by the
Indenture Trustee in the
36
Accounts as part of the Collateral as herein provided, subject to withdrawal by
the Indenture Trustee for the purposes set forth herein.
(c) Funds and other property in any of the Accounts will not be
commingled with any other funds or property of the Issuer or the Indenture
Trustee. The Indenture Trustee shall: (i) hold each Permitted Investment (other
than those described in clause (c) of the definition thereof) that constitutes
investment property through a securities intermediary, which securities
intermediary shall agree with the Indenture Trustee that (A) such investment
property at all times shall be credited to a securities account of the Indenture
Trustee, (B) all property credited to such securities account shall be treated
as a financial asset, (C) such securities intermediary shall treat the Indenture
Trustee as entitled to exercise the rights that comprise each financial asset
credited to such securities account, (D) such securities intermediary shall
comply with entitlement orders originated by the Indenture Trustee without the
further consent of any other person or entity, (E) such securities intermediary
shall not agree with any person or entity other than the Indenture Trustee to
comply with entitlement orders originated by any person or entity other than the
Indenture Trustee, (F) such securities account and all property credited thereto
shall not be subject to any lien, security interest, right of set-off, or
encumbrance in favor of such securities intermediary or anyone claiming through
such securities intermediary (other than the Indenture Trustee), and (G) such
agreement between such securities intermediary and the Indenture Trustee shall
be governed by the laws of the State of New York; (ii) maintain possession of
each other Permitted Investment not described in clause (i) above (other than
those described in clause (c) of the definition thereof) in the State of New
York separate and apart from all other property held by the Indenture Trustee;
and (iii) cause each Permitted Investment described in clause (c) of the
definition thereof to be registered in the name of the Indenture Trustee by the
issuer thereof; provided, that, other than following an Event of Default and
acceleration pursuant to Section 702, no Permitted Investment shall be disposed
of prior to its maturity. Notwithstanding any other provision of this Indenture,
the Indenture Trustee shall not hold any Permitted Investment through an agent
except as expressly permitted by this Section 403(c). Each term used in this
Section 403(c) and defined in the New York UCC shall have the meaning set forth
in the New York UCC.
(d) On each Payment Date, all interest and earnings (net of losses
and investment expenses) accrued since the preceding Payment Date on funds on
deposit in the Collection Account will be treated as Available Interest Amounts
and applied pursuant to Section 501 for such Payment Date. Unless otherwise
stated in the related Indenture Supplement, for purposes of determining the
availability of funds or the balance in the Accounts for any reason under this
Indenture or any Indenture Supplement, investment earnings on such funds shall
be deemed not to be available or on deposit.
Subject to Section 801(c), the Indenture Trustee will not in any way
be held liable by reason of any insufficiency in such Accounts resulting from
any loss on any Permitted Investment included therein except for losses
attributable to the Indenture Trustee's failure to make payments on such
Permitted Investments issued by the Indenture Trustee, in its commercial
capacity, in accordance with their terms.
(e) Funds on deposit in the Accounts will be invested and reinvested
by the Indenture Trustee to the fullest extent practicable, in such manner as
the Indenture Trustee will
37
from time to time determine, but only in one or more Permitted Investments, upon
the occurrence of any of the following events:
(i) the Issuer will have failed to give investment directions
to the Indenture Trustee; or
(ii) an Event of Default will have occurred and is continuing
but no Notes have been declared due and payable pursuant to Section 702.
ARTICLE V
ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 501. Allocations of Available Interest Amounts. With respect
to each Monthly Period, the Indenture Trustee will allocate to each series of
Notes its portion of the Available Interest Amount received on the Payment Date
related to such Monthly Period in an amount equal to the product of (i) the
Series Floating Allocation Percentage for such series times (ii) the Available
Interest Amount for such Monthly Period.
Section 502. Allocations of Available Principal Amounts. With
respect to each Monthly Period, the Indenture Trustee will allocate to each
series of Notes its portion of the Available Principal Amount received on the
Payment Date related to such Monthly Period in an amount equal to the product of
(i) the Series Principal Allocation Percentage for such series times (ii) the
Available Principal Amount for such Monthly Period.
Section 503. Final Payment. Each class of Notes will be considered
to be paid in full, the Holders of such class of Notes will have no further
right or claim, and the Issuer will have no further obligation or liability with
respect to such class of Notes, on the earliest to occur of:
(a) the date of the payment in full of the Stated Principal Amount
of and all accrued interest on that class of Notes;
(b) the date on which the Outstanding Dollar Principal Amount of
such Notes, after giving effect to all deposits, allocations, reallocations,
sales of Receivables and payments to be made on such date, is reduced to zero,
and all accrued interest on such Notes is paid in full; or
(c) on the Legal Maturity Date of such Notes, after giving effect to
all deposits, allocations, reallocations, sales of Receivables and payments to
be made on such date.
Section 504. Payments within a Series or Class. All payments of
principal, interest or other amounts to Holders of the Notes of a series or
class will be made in accordance with the related Indenture Supplement. Holders
of Notes of a series or class shall only be entitled to receive the payments
from amounts allocated to such series or class in accordance with the
allocation, deposit and payment provisions of this Indenture and the applicable
Indenture Supplements.
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ARTICLE VI
SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES HELD BY
THE ISSUER OR DCWR
Section 601. Satisfaction and Discharge of Indenture. This Indenture
will cease to be of further effect with respect to any series or class of Notes
(except as to any surviving rights of transfer or exchange of Notes of that
series or class expressly provided for herein or in the form of Note for that
series or class), and the Indenture Trustee, on demand of and at the expense of
the Issuer, will execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to that series or class, when:
(a) all Notes of that series or class theretofore authenticated and
delivered (other than (A) Notes of that series or class which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306, and (B) Notes of that series or class 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 that trust, as
provided in Section 1103) have been delivered to the Indenture Trustee canceled
or for cancellation;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder (including payments to the Indenture Trustee pursuant to Section 807)
by the Issuer with respect to the Notes of that series or class; and
(c) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture
with respect to the Notes of that series or class have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to
any series or class of Notes, the obligations of the Issuer to the Indenture
Trustee with respect to that series or class under Section 807 and the
obligations of the Indenture Trustee under Sections 602 and 1103 will survive
such satisfaction and discharge.
Section 602. Application of Trust Money. All money and obligations
deposited with the Indenture Trustee pursuant to Section 601 or Section 603 and
all money received by the Indenture Trustee in respect of such obligations will
be held in trust and applied by it, in accordance with the provisions of the
series or class of Notes in respect of which it was deposited and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Indenture Trustee
may determine, to the Persons entitled thereto, of the principal and interest
for whose payment that money and obligations have been deposited with or
received by the Indenture Trustee; but that money and obligations need not be
segregated from other funds held by the Indenture Trustee except to the extent
required by law.
Section 603. Cancellation of Notes Held by the Issuer or DCWR. If
the Issuer, DCWR or any of their Affiliates holds any Notes, that Holder may,
subject to any provisions of a related Indenture Supplement limiting the
repayment of subordinated classes of Notes, if any, by notice from that Holder
to the Indenture Trustee cause that Note to be canceled, whereupon (a) the Note
will no longer be Outstanding, and (b) the Issuer will cause the Investor
Interest of
39
the Collateral Certificate to be reduced by an amount equal to the Nominal
Liquidation Amount allocable to that cancelled Note.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 701. Events of Default. "Event of Default," wherever used
herein, means with respect to any series or class of Notes any one of the
following events (whatever the reason for such Event of Default and whether it
will be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body), unless such event is either
expressly stated to be inapplicable to a particular series or class or
specifically deleted or modified in the applicable Indenture Supplement creating
such series or class of Notes or in the form of Note for such series or class:
(a) with respect to any series or class of Notes, a default by the
Issuer in the payment of any interest on such Notes when such interest becomes
due and payable, and continuance of such default for a period of five (5)
Business Days following the date on which such interest became due and payable;
(b) with respect to any series or class of Notes, a default by the
Issuer in the payment of the principal amount of such Notes at the applicable
Legal Maturity Date;
(c) a default in the performance, or breach, of any covenant or
warranty of the Issuer in this Indenture in respect of the Notes of such series
or class (other than a covenant or warranty in respect of the Notes of such
series or class a default in the performance of which or the breach of which is
elsewhere in this Section specifically dealt with), all of such covenants and
warranties in this Indenture which are not expressly stated to be for the
benefit of a particular series or class of Notes being deemed to be in respect
of the Notes of all series or classes for this purpose, and continuance of such
default or breach for a period of sixty (60) days after there has been given, by
registered or certified mail, to the Issuer by the Indenture Trustee or to the
Issuer and the Indenture Trustee by the Holders of at least 25% in Outstanding
Dollar Principal Amount of the Outstanding Notes of such series or class, a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder and, as a result
of such default, the interests of the Holders of the Notes of such series or
class are materially and adversely affected and continue to be materially and
adversely affected during the sixty (60) day period;
(d) the entry of an order for relief against the Issuer under the
Federal Bankruptcy Code by a court having jurisdiction in the premises or a
decree or order by a court having jurisdiction in the premises adjudging the
Issuer a bankrupt or insolvent under any other applicable Federal or State law,
or the entry of a decree or order approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Issuer under the Federal Bankruptcy Code or any other applicable Federal or
State law, or appointing a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Issuer or of any substantial part of its
property, or ordering the winding up or liquidation of its
40
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of ninety (90) consecutive days;
(e) the consent by the Issuer to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under the Federal Bankruptcy Code or
any other applicable Federal or State law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Issuer or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the
Issuer in furtherance of any such action; or
(f) with respect to any series or class, any additional Event of
Default specified in the Indenture Supplement for such series or class as
applying to such series or class, or specified in the form of Note for such
series or class.
Section 702. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default described in clause (a), (b), (c) or (f)
(if the Event of Default under clause (c) or (f) is with respect to less than
all series and classes of Notes then Outstanding) of Section 701 occurs and is
continuing with respect to any series or class, then and in each and every such
case, unless the principal of all the Notes of such series or class shall have
already become due and payable, either the Indenture Trustee or the Majority
Holders of the Notes of such series or class then Outstanding hereunder (each
such series or class acting as a separate class), by notice in writing to the
Issuer (and to the Indenture Trustee if given by Holders), may declare the
Outstanding principal amount of all the Notes of such series or class then
Outstanding and all interest accrued or principal accreted and unpaid (if any)
thereon to be due and payable immediately, and upon any such declaration the
same will become and will be immediately due and payable, anything in this
Indenture, the related Indenture Supplement or in the Notes of such series or
class to the contrary notwithstanding. Such payments are subject to Article V
and the allocation, deposits and payment sections of the related Indenture
Supplement.
(b) If an Event of Default described in clause (c) or (f) (if the
Event of Default under clause (c) or (f) is with respect to all series and
classes of Notes then Outstanding) of Section 701 occurs and is continuing, then
and in each and every such case, unless the principal of all the Notes shall
have already become due and payable, either the Indenture Trustee or the
Majority Holders of all the Notes then Outstanding hereunder (treated as one
class), by notice in writing to the Issuer (and to the Indenture Trustee if
given by Holders), may declare the Outstanding principal amount of all the Notes
then Outstanding and all interest accrued or principal accreted and unpaid (if
any) thereon to be due and payable immediately, and upon any such declaration
the same will become and will be immediately due and payable, notwithstanding
anything in this Indenture, the related Indenture Supplements or the Notes to
the contrary.
(c) If an Event of Default described in clause (d) or (e) of Section
701 occurs and is continuing, then the Notes of all series and classes will
automatically be and become
41
immediately due and payable by the Issuer, without notice or demand to any
Person, and the Issuer will automatically and immediately be obligated to pay
off the Notes.
(d) At any time after such a declaration of acceleration has been
made with respect to the Notes of any series or class and before a judgment or
decree for payment of the money due has been obtained by the Indenture Trustee
as hereinafter in this Article VII provided, the Majority Holders of such series
or classes, by written notice to the Issuer and the Indenture Trustee, may
rescind and annul such declaration and its consequences if:
(x) the Issuer has paid or deposited with the Indenture Trustee a
sum sufficient to pay (i) all overdue installments of interest on the
Notes of such series or class, (ii) the principal of any Notes of such
series or class which have become due otherwise than by such declaration
of acceleration, and interest thereon at the rate or rates prescribed
therefor by the terms of the Notes of such series or class, to the extent
that payment of such interest is lawful, (iii) interest upon overdue
installments of interest at the rate or rates prescribed therefor by the
terms of the Notes of such series or class to the extent that payment of
such interest is lawful, and (iv) all sums paid by the Indenture Trustee
hereunder and the reasonable compensation, expenses and disbursements of
the Indenture Trustee, its agents and counsel and all other amounts due
the Indenture Trustee under Section 807; and
(y) all Events of Default with respect to such series or class of
Notes, other than the nonpayment of the principal of the Notes of such
series or class which has become due solely by such acceleration, have
been cured or waived as provided in Section 716.
No such rescission will affect any subsequent default or impair any
right consequent thereon.
Section 703. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. The Issuer covenants that if:
(a) the Issuer defaults in the payment of interest on any series or
class of Notes when such interest becomes due and payable and such default
continues for a period of five (5) Business Days following the date on which
such interest became due and payable, or
(b) the Issuer defaults in the payment of the principal of any
series or class of Notes at the Legal Maturity Date thereof,
and any such default continues beyond any specified grace period provided with
respect to such series or class of Notes, the Issuer will, upon demand of the
Indenture Trustee, pay (subject to the allocation provided in Article V, this
Article VII and any related Indenture Supplement) to the Indenture Trustee, for
the benefit of the Holders of any such Notes of the affected series or class,
the whole amount then due and payable on any such Notes for principal and
interest, with interest, to the extent that payment of such interest will be
legally enforceable, upon the overdue principal and upon overdue installments of
interest, (i) in the case of Interest-bearing Notes, at the rate of interest
applicable to the stated principal amount thereof, unless otherwise specified in
the applicable Indenture Supplement; and (ii) in the case of Discount Notes, as
specified in the
42
applicable Indenture Supplement, and in addition thereto, will pay such further
amount as will be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Indenture Trustee, its agents and counsel and all other amounts due the
Indenture Trustee under Section 807.
If the Issuer fails to pay such amounts forthwith upon such demand,
the Indenture Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Issuer or any other obligor upon the Notes of such
series or class and collect the money adjudged or decreed to be payable in the
manner provided by law out of the Collateral or any other obligor upon such
Notes, wherever situated.
Section 704. Indenture Trustee May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Issuer or any other obligor upon the Notes or the
property of the Issuer or of such other obligor or their creditors, the
Indenture Trustee (irrespective of whether the principal of the Notes will then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Indenture Trustee will have made any demand on the
Issuer for the payment of overdue principal or interest) will be entitled and
empowered, by intervention in such proceedings or otherwise,
(i) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary and advisable in
order to have the claims of the Indenture Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee, its agents and counsel and all other amounts due the
Indenture Trustee under Section 807) and of the Noteholders allowed in
such judicial proceeding, and
(ii) to collect and receive any funds or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each
Noteholder to make such payment to the Indenture Trustee and in the event that
the Indenture Trustee will consent to the making of such payments directly to
the Noteholders, to pay to the Indenture Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee, its agents and counsel, and any other amounts due the Indenture Trustee
under Section 807.
Nothing herein contained will be deemed to authorize the Indenture
Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan or reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Indenture Trustee to vote in respect of the claim of any Noteholder in any such
proceeding.
Section 705. Indenture Trustee May Enforce Claims Without Possession
of Notes. All rights of action and claims under this Indenture or the Notes of
any series or class
43
may be prosecuted and enforced by the Indenture Trustee without the possession
of any of the Notes of such series or class or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Indenture
Trustee will be brought in its own name as trustee of an express trust, and any
recovery of judgment will, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee, its
agent and counsel, be for the ratable benefit of the Holders of the Notes of the
series or class in respect of which such judgment has been recovered.
Section 706. Application of Money Collected. Any money or other
property collected by the Indenture Trustee with respect to a series or class of
Notes pursuant to this Article VII will be applied in the following order, at
the date or dates fixed by the Indenture Trustee and, in case of the
distribution of such money on account of principal or interest, upon
presentation of the Notes of such series or class and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
(a) first, to the payment of all amounts due the Indenture Trustee
under Section 807(a);
(b) second, to the payment of the amounts then due and unpaid upon
the Notes of that series or class for principal and interest, in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind (but subject to the allocation
provided in Article V of this Indenture and the related Indenture Supplements),
according to the amounts due and payable on such Notes for principal and
interest, respectively; and
(c) third, to the Issuer.
Section 707. Indenture Trustee to Hold the Collateral Certificate.
Following an acceleration of any series or class of Notes and subject to Section
708, the Indenture Trustee will continue to hold the Collateral Certificate and
apply distributions on the Collateral Certificate in accordance with the regular
distribution provisions pursuant to Article V of this Indenture, except that
principal will be paid on the accelerated series or class of Notes to the extent
funds are received from the CARCO Trust and allocated to the accelerated series
or class, and payment is permitted by the subordination provisions, if any, of
the accelerated series or class.
Section 708. Sale of Receivables for Accelerated Notes. In the case
of a series or class of Notes that has been accelerated following an Event of
Default, if the Put Feature of such series or class of Notes has been deemed to
be exercised as provided in the related Indenture Supplement, the Indenture
Trustee will cause the CARCO Trust to sell Principal Receivables and the related
Non-Principal Receivables (or interests therein) as provided in such Indenture
Supplement.
Section 709. Noteholders Have the Right to Direct the Time, Method
and Place of Conducting Any Proceeding for Any Remedy Available to the Indenture
Trustee. The Majority Holders of any accelerated series or class of Notes have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Indenture Trustee, or exercising any trust or power
conferred on the Indenture Trustee, in respect of such
44
series or class. This right may be exercised only if the direction provided by
the Noteholders does not conflict with applicable law or this Indenture and does
not have a substantial likelihood of involving the Indenture Trustee in personal
liability.
Section 710. Limitation on Suits. No Holder of any Note of any
series or class will have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default with respect to Notes of such series or
class;
(b) the Holders of not less than 25% in Outstanding Dollar Principal
Amount of the Outstanding Notes of such series or class have made written
request to the Indenture Trustee to institute proceedings in respect of such
Event of Default in its own name as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Indenture Trustee for sixty (60) days after its receipt of
such notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Indenture Trustee during such sixty (60) day period by the Majority
Holders of such series or class;
it being understood and intended that no one or more Holders of Notes of such
series or class will have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Notes of such series or class, or to obtain or to
seek to obtain priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and proportionate benefit of all the Holders of all Notes of such series
or class.
Section 711. Unconditional Right of Noteholders to Receive Principal
and Interest; Limited Recourse. Notwithstanding any other provisions in this
Indenture, the Holder of any Note will have the right, which is absolute and
unconditional, to receive payment of the principal of and interest on such Note
on the Legal Maturity Date expressed in the related Indenture Supplement and to
institute suit for the enforcement of any such payment, and such right will not
be impaired without the consent of such Holder; provided, however, that
notwithstanding any other provision of this Indenture to the contrary, the
obligation to pay principal of or interest on the Notes or any other amount
payable to any Noteholder will be without recourse to DCWR, the Indenture
Trustee, the Owner Trustee or any affiliate, officer, employee or director of
any of them, and the obligation of the Issuer to pay principal of or interest on
the Notes or any other amount payable to any Noteholder will be subject to
Article V and the allocation and payment provisions of the Indenture
Supplements.
45
Section 712. Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, then and in every such case the Issuer, the Indenture
Trustee and the Noteholders will, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Indenture Trustee and
the Noteholders will continue as though no such proceeding had been instituted.
Section 713. Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Indenture Trustee or to the Noteholders
is intended to be exclusive of any other right or remedy, and every right and
remedy will, 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, will not prevent the concurrent assertion or employment
of any other appropriate right or remedy.
Section 714. Delay or Omission Not Waiver. No delay or omission of
the Indenture Trustee or of any Holder of any Note to exercise any right or
remedy accruing upon any Event of Default will impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Indenture Trustee
or to the Noteholders may be exercised from time to time, and as often as may be
deemed expedient, by the Indenture Trustee or by the Noteholders, as the case
may be.
Section 715. Control by Noteholders. The Majority Holders of any
series or class will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee or
exercising any trust or power conferred on the Indenture Trustee with respect to
the Notes of such series or class, provided that:
(a) the Indenture Trustee will have the right to decline to follow
any such direction if the Indenture Trustee, being advised by counsel,
determines that the action so directed may not lawfully be taken or would
conflict with this Indenture or if the Indenture Trustee in good faith will, by
an Indenture Trustee Authorized Officer, determine that the proceedings so
directed would involve it in personal liability or be unjustly prejudicial to
the Holders not taking part in such direction, and
(b) the Indenture Trustee may take any other action permitted
hereunder deemed proper by the Indenture Trustee which is not inconsistent with
such direction.
Section 716. Waiver of Past Defaults. The Majority Holders of any
series or class may on behalf of the Holders of all the Notes of such series or
class waive any past default hereunder or under the related Indenture Supplement
with respect to such series or class and its consequences, except a default not
theretofore cured:
(a) in the payment of the principal of or interest on any Note of
such series or class, or
46
(b) in respect of a covenant or provision hereof which under Article
X cannot be modified or amended without the consent of the Holder of each
Outstanding Note of such series or class.
Upon any such waiver, such default will cease to exist, and any
Event of Default arising therefrom will be deemed to have been cured, for every
purpose of this Indenture; but no such waiver will extend to any subsequent or
other default or impair any right consequent thereon.
Section 717. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by his acceptance thereof will be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken or omitted by it as Indenture
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, 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 will not apply to any suit instituted by the Indenture Trustee, to any
suit instituted by any Noteholder, or group of Noteholders, holding in the
aggregate more than 25% in Outstanding Dollar Principal Amount of the
Outstanding Notes of any series or class to which the suit relates, or to any
suit instituted by any Noteholders for the enforcement of the payment of the
principal of or interest on any Note on or after the applicable Legal Maturity
Date expressed in such Note.
Section 718. Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE VIII
THE INDENTURE TRUSTEE
Section 801. Certain Duties and Responsibilities.
(a) The Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with respect to the
Notes of any series or classes, and no implied covenants or obligations will be
read into this Indenture against the Indenture Trustee.
(b) In the absence of bad faith on its part, the Indenture Trustee
may, with respect to Notes of any series or class, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the
47
Indenture Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the Indenture
Trustee will be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture but need not confirm or
investigate the accuracy of any mathematical calculations or other facts stated
therein.
(c) In case an Event of Default with respect to any series or class
of Notes has occurred and is continuing, the Indenture Trustee will exercise
with respect to the Notes of such series or class such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a fiduciary would exercise or use under the circumstances in
the conduct of such person's own affairs.
(d) No provision of this Indenture will be construed to relieve the
Indenture Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) this clause (d) will not be construed to limit the effect
of subsection (a) of this Section;
(ii) the Indenture Trustee will not be liable for any error of
judgment made in good faith by an Indenture Trustee Authorized Officer,
unless it will be proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Indenture Trustee will not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Majority Holders of any series or class relating
to the time, method and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power
conferred upon the Indenture Trustee, under this Indenture with respect to
the Notes of such series or class; and
(iv) no provision of this Indenture will require the Indenture
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it will have reasonable
grounds for believing that repayment of such funds or indemnity
satisfactory to the Indenture Trustee against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Indenture Trustee will be subject to the provisions
of this Section.
Section 802. Notice of Defaults. Within ninety (90) days after the
occurrence of any default hereunder with respect to Notes of any series or
class,
(a) the Indenture Trustee will transmit by mail to all Registered
Noteholders of such series or class, as their names and addresses appear in the
Note Register, notice of such default hereunder known to the Indenture Trustee,
48
(b) the Indenture Trustee will notify all Holders of Bearer Notes of
such series or class, by publication of notice of such default in an Authorized
Newspaper, or as otherwise provided in the applicable Indenture Supplement, and
(c) the Indenture Trustee will give prompt written notification
thereof to the Note Rating Agencies, unless such default will have been cured or
waived;
provided, however, that, except in the case of a default in the payment of the
principal of or interest on any Note of such series or class, the Indenture
Trustee will be protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of directors and/or
Indenture Trustee Authorized Officers of the Indenture Trustee in good faith
determine that the withholding of such notice is in the interests of the
Noteholders of such series or class. For the purpose of this Section, the term
"default," with respect to Notes of any series or class, means any event which
is, or after notice or lapse of time or both would become, an Event of Default
with respect to Notes of such series or class.
Section 803. Certain Rights of Indenture Trustee. Except as
otherwise provided in Section 801:
(a) the Indenture Trustee may conclusively rely and will be
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein will be
sufficiently evidenced by an Officer's Certificate;
(c) whenever in the administration of this Indenture the Indenture
Trustee will deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Indenture Trustee
(unless other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate;
(d) the Indenture Trustee may consult with counsel of its own
selection and the advice of such counsel or any Opinion of Counsel will be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Indenture Trustee will be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Noteholders pursuant to this Indenture, unless such
Noteholders shall have offered to the Indenture Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(f) the Indenture Trustee will not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document, but the Indenture Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or
49
matters as it may see fit, and, if the Indenture Trustee will determine to make
such further inquiry or investigation, it will be entitled to examine the books,
records and premises of the Issuer, personally or by agent or attorney;
(g) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Indenture Trustee will not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder; and
(h) the Indenture Trustee will not be responsible for filing any
financing statements or continuation statements in connection with the Notes,
but will cooperate with the Issuer in connection with the filing of such
financing statements or continuation statements.
Section 804. Not Responsible for Recitals or Issuance of Notes. The
recitals contained herein and in the Notes, except the certificates of
authentication, will be taken as the statements of the Issuer, and the Indenture
Trustee assumes no responsibility for their correctness. The Indenture Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes. The Indenture Trustee will not be accountable for the use or
application by the Issuer of Notes or the proceeds thereof.
Section 805. May Hold Notes. The Indenture Trustee, any Paying
Agent, the Note Registrar or any other agent of the Issuer, in its individual or
any other capacity, may become the owner or pledgee of Notes and, subject to
Sections 808 and 813, may otherwise deal with the Issuer with the same rights it
would have if it were not Indenture Trustee, Paying Agent, Note Registrar or
such other agent.
Section 806. Money Held in Trust. Money held by the Indenture
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law. The Indenture Trustee will be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Issuer.
Section 807. Compensation and Reimbursement, Limit on Compensation,
Reimbursement and Indemnity.
(a) The Issuer agrees
(i) to pay to the Indenture Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation will not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein, to
reimburse the Indenture Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Indenture
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the reasonable expenses and disbursements of
its agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
50
(iii) to indemnify the Indenture Trustee for, and to hold it
harmless against, any and all loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability (whether
asserted by the Issuer, the Servicer, any Holder or any other Person) in
connection with the exercise or performance of any of its powers or duties
hereunder.
The Indenture Trustee will have no recourse to any asset of the Issuer other
than funds available pursuant to Section 706 or to any Person other than the
Servicer or the Issuer.
(b) This Section will survive the termination of this Indenture and
the resignation or replacement of the Indenture Trustee under Section 810.
Section 808. Disqualification; Conflicting Interests. If the
Indenture Trustee has or will acquire a conflicting interest within the meaning
of the Trust Indenture Act, the Indenture Trustee will, if so required by the
Trust Indenture Act, either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture. Nothing herein will prevent the Indenture Trustee from
filing with the Commission the application referred to in the second to last
paragraph of Section 310(b) of the Trust Indenture Act.
Section 809. Corporate Indenture Trustee Required; Eligibility.
There will at all times be an Indenture Trustee hereunder with respect to each
series or class of Notes, which will be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal or State authority, and having a rating of at least BBB-
by Standard & Poor's. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation will be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. The Issuer may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Issuer, serve as
Indenture Trustee. If at any time the Indenture Trustee with respect to any
series or class of Notes will cease to be eligible in accordance with the
provisions of this Section, it will resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 810. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Indenture Trustee and no
appointment of a successor Indenture Trustee pursuant to this Article will
become effective until the acceptance of appointment by the successor Indenture
Trustee under Section 811.
(b) The Indenture Trustee may resign with respect to any series or
class of Notes at any time by giving written notice thereof to the Issuer. If an
instrument of acceptance by a successor Indenture Trustee shall not have been
delivered to the Indenture Trustee within thirty (30) days after the giving of
such notice of resignation, the resigning Indenture Trustee
51
may petition any court of competent jurisdiction for the appointment of a
successor Indenture Trustee.
(c) The Indenture Trustee may be removed with respect to any series
or class of Notes at any time by Act of the Majority Holders of that series or
class, delivered to the Indenture Trustee and to the Issuer.
(d) If at any time:
(i) the Indenture Trustee fails to comply with Section 310(b)
of the Trust Indenture Act with respect to any series or class of Notes
after written request therefor by the Issuer or by any Noteholder who has
been a bona fide Holder of a Note of that series or class for at least six
(6) months, or
(ii) the Indenture Trustee ceases to be eligible under Section
809 with respect to any series or class of Notes and fails to resign after
written request therefor by the Issuer or by any such Noteholder, or
(iii) the Indenture Trustee becomes incapable of acting with
respect to any series or class of Notes, or
(iv) the Indenture Trustee is adjudged bankrupt or insolvent
or a receiver of the Indenture Trustee or of its property is appointed or
any public officer takes charge or control of the Indenture Trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Issuer may remove the Indenture Trustee, with
respect to the series or class, or in the case of clause (iv), with respect to
all series or classes, or (B) subject to Section 717, any Noteholder who has
been a bona fide Holder of a Note of such series, class and class for at least
six (6) months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Indenture
Trustee with respect to such series or class and the appointment of a successor
Indenture Trustee with respect to the series or class, or, in the case of clause
(iv), with respect to all series and classes.
(e) If the Indenture Trustee resigns, is removed or becomes
incapable of acting with respect to any series or class of Notes, or if a
vacancy shall occur in the office of the Indenture Trustee with respect to any
series or class of Notes for any cause, the Issuer will promptly appoint a
successor Indenture Trustee for that series or class of Notes. If, within one
year after such resignation, removal or incapacity, or the occurrence of such
vacancy, a successor Indenture Trustee with respect to such series or class of
Notes is appointed by Act of the Majority Holders of such series or class
delivered to the Issuer and the retiring Indenture Trustee, the successor
Indenture Trustee so appointed will, forthwith upon its acceptance of such
appointment, become the successor Indenture Trustee with respect to such series
or class and supersede the successor Indenture Trustee appointed by the Issuer
with respect to such series or class. If no successor Indenture Trustee with
respect to such series or class shall have been so appointed by the Issuer or
the Noteholders of such series or class and accepted appointment in the manner
hereinafter provided, any Noteholder who has been a bona fide Holder of a Note
of that series or class for at least six (6) months may, on behalf of itself and
all others similarly
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situated, petition any court of competent jurisdiction for the appointment of a
successor Indenture Trustee with respect to such series or class.
(f) The Issuer will give written notice of each resignation and each
removal of the Indenture Trustee with respect to any series or class and each
appointment of a successor Indenture Trustee with respect to any series or class
to each Noteholder as provided in Section 106 and to each Note Rating Agency.
Each notice will include the name of the successor Indenture Trustee and the
address of its principal Corporate Trust Office.
Section 811. Acceptance of Appointment by Successor. Every successor
Indenture Trustee appointed hereunder will execute, acknowledge and deliver to
the Issuer and to the predecessor Indenture Trustee an instrument accepting such
appointment, with a copy to the Note Rating Agencies, and thereupon the
resignation or removal of the predecessor Indenture Trustee will become
effective with respect to any series or class as to which it is resigning or
being removed as Indenture Trustee, and such successor Indenture Trustee,
without any further act, deed or conveyance, will become vested with all the
rights, powers, trusts and duties of the predecessor Indenture Trustee with
respect to any such series or class; but, on request of the Issuer or the
successor Indenture Trustee, such predecessor Indenture Trustee will, upon
payment of its reasonable charges, if any, execute and deliver an instrument
transferring to such successor Indenture Trustee all the rights, powers and
trusts of the predecessor Indenture Trustee, and will duly assign, transfer and
deliver to such successor Indenture Trustee all property and money held by such
predecessor Indenture Trustee hereunder with respect to all or any such series
or class, subject nevertheless to its lien, if any, provided for in Section 807.
Upon request of any such successor Indenture Trustee, the Issuer will execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Indenture Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Indenture
Trustee with respect to the Notes of one or more (but not all) series or
classes, the Issuer, the predecessor Indenture Trustee and each successor
Indenture Trustee with respect to the Notes of any applicable series or class
will execute and deliver an Indenture Supplement which will contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Indenture Trustee with
respect to the Notes of any series or class as to which the predecessor
Indenture Trustee is not being succeeded will continue to be vested in the
predecessor Indenture Trustee, and will add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Indenture Trustee, it
being understood that nothing herein or in such Indenture Supplement will
constitute such Indenture Trustees co-trustees of the same trust and that each
such Indenture Trustee will be Indenture Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Indenture Trustee.
No successor Indenture Trustee with respect to any series or class
of Notes will accept its appointment unless at the time of such acceptance such
successor Indenture Trustee will be qualified and eligible with respect to that
series or class under this Article.
Section 812. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Indenture Trustee may be merged or
converted or with which it
53
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Indenture Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Indenture Trustee, will be the successor of the Indenture
Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. The Issuer will give
prompt written notice of such merger, conversion, consolidation or succession to
the Note Rating Agencies. In case any Notes shall have been authenticated, but
not delivered, by the Indenture Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Indenture Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Indenture Trustee had itself authenticated such Notes.
Section 813. Preferential Collection of Claims Against Issuer. If
and when the Indenture Trustee shall be or become a creditor of the Issuer (or
any other obligor upon the Notes), the Indenture Trustee will be subject to the
provisions of Section 311 of the Trust Indenture Act. An Indenture Trustee who
has resigned or been removed will be subject to Section 311(a) of the Trust
Indenture Act to the extent provided therein.
Section 814. Appointment of Authenticating Agent. At any time when
any of the Notes remain Outstanding, the Indenture Trustee, with the approval of
the Issuer, may appoint an Authenticating Agent or Agents with respect to one or
more series or classes of Notes which will be authorized to act on behalf of the
Indenture Trustee to authenticate Notes of such series or classes issued upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 306, and Notes so authenticated will be entitled to the benefits of this
Indenture and will be valid and obligatory for all purposes as if authenticated
by the Indenture Trustee hereunder. Wherever reference is made in this Indenture
to the authentication and delivery of Notes by the Indenture Trustee or the
Indenture Trustee's certificate of authentication, such reference will be deemed
to include authentication and delivery on behalf of the Indenture Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Indenture Trustee by an Authenticating Agent. Each Authenticating Agent will
be acceptable to the Issuer and will at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as an
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and, if other than the Issuer itself, subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
will be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
will cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent will resign immediately in the manner and with the
effect specified in this Section. The initial Authenticating Agent for the Notes
of all series and classes will be the Indenture Trustee.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
will be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, will
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continue to be an Authenticating Agent, provided such corporation will be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Indenture Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Indenture Trustee and to the Issuer. The Indenture Trustee
may at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Issuer. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent will cease to be eligible in accordance with
the provisions of this Section, the Indenture Trustee, with the approval of the
Issuer, may appoint a successor Authenticating Agent which will be acceptable to
the Issuer and will give notice to each Noteholder as provided in Section 106.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
will become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent will be appointed unless eligible under the
provisions of this Section.
The Indenture Trustee agrees to pay to each Authenticating Agent
(other than an Authenticating Agent appointed at the request of the Issuer from
time to time) reasonable compensation for its services under this Section, and
the Indenture Trustee will be entitled to be reimbursed for such payments,
subject to the provisions of Section 807.
If an appointment with respect to one or more series or classes is
made pursuant to this Section, the Notes of such series or classes may have
endorsed thereon, in addition to the Indenture Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Notes of the series or classes designated therein
referred to in the within-mentioned Indenture.
The Bank of New York,
as Indenture Trustee
By: __________________________________
As Authenticating Agent
By: __________________________________
Authorized Signatory
Section 815. Tax Returns. In the event the Issuer shall be required
to file tax returns, the Servicer shall prepare or shall cause to be prepared
such tax returns and shall provide such tax returns to the Owner Trustee or the
Beneficiary for signature at least five (5) days before such tax returns are due
to be filed. The Issuer, in accordance with the terms of each Indenture
Supplement, shall also prepare or shall cause to be prepared all tax information
required by law to be distributed to Noteholders and shall deliver such
information to the
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Indenture Trustee at least five (5) days prior to the date it is required by law
to be distributed to Noteholders. The Indenture Trustee, upon written request,
will furnish the Servicer with all such information known to the Indenture
Trustee as may be reasonably requested and required in connection with the
preparation of all tax returns of the Issuer, and shall, upon request, execute
such returns. In no event shall the Indenture Trustee or the Owner Trustee be
personally liable for any liabilities, costs or expenses of the Issuer or any
Noteholder arising under any tax law, including without limitation, federal,
state or local income or excise taxes or any other tax imposed on or measured by
income (or any interest or penalty with respect thereto arising from a failure
to comply therewith).
Section 816. Representations and Covenants of the Indenture Trustee.
The Indenture Trustee represents, warrants and covenants that:
(i) The Indenture Trustee is a banking corporation duly
organized and validly existing under the laws of the State of New York;
(ii) The Indenture Trustee has full power and authority to
deliver and perform this Indenture and has taken all necessary action to
authorize the execution, delivery and performance by it of this Indenture
and other documents to which it is a party; and
(iii) Each of this Indenture and other documents to which it
is a party has been duly executed and delivered by the Indenture Trustee
and constitutes its legal, valid and binding obligation in accordance with
its terms.
Section 817. Custody of the Collateral. The Collateral Certificate
shall be registered in the name of the Indenture Trustee and shall be delivered
to and held by the Indenture Trustee in the State of New York separate and apart
from all other property held by the Indenture Trustee. The Indenture Trustee
shall hold such of the Collateral as constitutes a Permitted Investment in
accordance with Section 403(c). All other Collateral that is not described in
the preceding two sentences (i) that constitutes investment property shall be
held by the Indenture Trustee through a securities intermediary, which
securities intermediary shall agree with the Indenture Trustee that (A) such
investment property at all times shall be credited to a securities account of
the Indenture Trustee, (B) all property credited to such securities account
shall be treated as a financial asset, (C) such securities intermediary shall
treat the Indenture Trustee as entitled to exercise the rights that comprise
each financial asset credited to such securities account, (D) such securities
intermediary shall comply with entitlement orders originated by the Indenture
Trustee without the further consent of any other person or entity, (E) such
securities intermediary shall not agree with any person or entity other than the
Indenture Trustee to comply with entitlement orders originated by any person or
entity other than the Indenture Trustee, (F) such securities account and all
property credited thereto shall not be subject to any lien, security interest,
right of set-off, or encumbrance in favor of such securities intermediary or
anyone claiming through such securities intermediary (other than the Indenture
Trustee), and (G) such agreement between such securities intermediary and the
Indenture Trustee shall be governed by the laws of the State of New York; and
(ii) not described in clause (i) above shall be held by the Indenture Trustee in
the State of New York separate and apart from all other property held by the
Indenture Trustee. Notwithstanding any other provision of this Indenture,
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the Indenture Trustee shall not hold any Collateral through an agent except as
expressly permitted by this Section 817 and Section 403(c). Each term used in
this Section 817 and defined in the New York UCC shall have the meaning set
forth in the New York UCC.
Section 818. Indenture Trustee's Application for Instructions from
the Issuer. Any application by the Indenture Trustee for written instructions
from the Issuer may, at the option of the Indenture Trustee, set forth in
writing any action proposed to be taken or omitted by the Indenture Trustee
under and in accordance with this Indenture and the date on and/or after which
such action shall be taken or such omission shall be effective, provided that
such application shall make specific reference to this Section 818. The
Indenture Trustee shall not be liable for any action taken by, or omission of,
the Indenture Trustee in accordance with a proposal included in such application
on or after the date specified in such application (which date shall not be less
than five (5) Business Days after the date any officer of the Issuer actually
receives such application, unless any such officer shall have consented in
writing to any earlier date) unless prior to taking any such action (or the
effective date in the case of an omission), the Indenture Trustee shall have
received written instructions in response to such application specifying the
action be taken or omitted.
ARTICLE IX
NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY
INDENTURE TRUSTEE, ISSUER AND BENEFICIARY
Section 901. Issuer To Furnish Indenture Trustee Names and Addresses
of Noteholders. The Issuer will furnish or cause to be furnished to the
Indenture Trustee:
(a) not more than fifteen (15) days after each Record Date, in each
year in such form as the Indenture Trustee may reasonably require, a list of the
names and addresses of the Registered Noteholders of such series or classes as
of such date, and
(b) at such other times as the Indenture Trustee may request in
writing, within thirty (30) days after the receipt by the Issuer of any such
request, a list of similar form and content as of a date not more than fifteen
(15) days before the time such list is furnished; provided, however, that so
long as the Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.
Section 902. Preservation of Information; Communications to
Noteholders.
(a) The Indenture Trustee will preserve, in as current a form as is
reasonably practicable, the names and addresses of Registered Noteholders
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 901 and the names and addresses of Registered Noteholders received by
the Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee
may destroy any list furnished to it as provided in Section 901 upon receipt of
a new list so furnished.
(b) If three (3) or more Holders of Notes of any series or class
(hereinafter referred to as "applicants") apply in writing to the Indenture
Trustee, and furnish to the Indenture Trustee reasonable proof that each such
applicant has owned a Note of such series or class for a
57
period of at least six (6) months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Notes of such series or class or with the Holders of all Notes with
respect to their rights under this Indenture or under such Notes and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Indenture Trustee will, within five (5)
Business Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Indenture Trustee in accordance with Section 902(a), or
(ii) inform such applicants as to the approximate number of
Holders of Notes of such series or class or all Notes, as the case may be,
whose names and addresses appear in the information preserved at the time
by the Indenture Trustee in accordance with Section 902(a), and as to the
approximate cost of mailing to such Noteholders the form of proxy or other
communication, if any, specified in such application.
If the Indenture Trustee shall elect not to afford such applicants
access to such information, the Indenture Trustee shall, upon the written
request of such applicants, mail to each Holder of a Registered Note of such
series or class or to all Registered Noteholders, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Indenture Trustee in accordance with Section 902(a), a copy of the form of proxy
or other communication which is specified in such request, with reasonable
promptness after a tender to the Indenture Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless, within five (5) days after such tender, the Indenture Trustee
shall mail to such applicants and file with the Commission, together with a copy
of the material to be mailed, a written statement to the effect that, in the
opinion of the Indenture Trustee, such mailing would be contrary to the best
interests of the Holders of Notes of such series or class or all Noteholders, as
the case may be, or would be in violation of applicable law. Such written
statement will specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Indenture Trustee will mail copies of such material to all Registered
Noteholders of such series or class or all Registered Noteholders, as the case
may be, with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Indenture Trustee will be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Notes, by receiving and holding the same, agrees
with the Issuer and the Indenture Trustee that neither the Issuer nor the
Indenture Trustee will be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders of Notes in
accordance with Section 902(b), regardless of the source from which such
information was derived, and that the Indenture Trustee will not be held
accountable by reason of mailing any material pursuant to a request made under
Section 902(b).
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Section 903. Reports by Indenture Trustee.
(a) The term "reporting date" as used in this Section means April 1.
Within sixty (60) days after the reporting date in each year, beginning in 2003,
the Indenture Trustee will transmit to Noteholders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, a brief report
dated as of such reporting date if required by Section 313(a) of the Trust
Indenture Act.
(b) To the extent required by the Trust Indenture Act, the Indenture
Trustee will mail each year to all Registered Noteholders, with a copy to the
Note Rating Agencies a report concerning:
(i) its eligibility and qualifications to continue as trustee
under this Indenture;
(ii) any amounts advanced by the Indenture Trustee under this
Indenture;
(iii) the amount, interest rate and maturity date or
indebtedness owing by the Issuer to the Indenture Trustee in the Indenture
Trustee's individual capacity;
(iv) the property and funds physically held by the Indenture
Trustee as Indenture Trustee;
(v) any release or release and substitution of Collateral
subject to the lien of this Indenture which has not previously been
reported; and
(vi) any action taken by the Indenture Trustee that materially
affects the Notes and that has not previously been reported.
(c) The Indenture Trustee will comply with Sections 313(b) and
313(c) of the Trust Indenture Act.
(d) A copy of each such report will, at the time of such
transmission to Noteholders, be filed by the Indenture Trustee with each stock
exchange upon which the Notes are listed, and also with the Commission. The
Issuer will notify the Indenture Trustee when the Notes are admitted to trading
on any stock exchange.
Section 904. Meetings of Noteholders; Amendments and Waivers.
(a) The Indenture Trustee may call a meeting of the Noteholders of a
series or class at any time. The Indenture Trustee will call a meeting upon
request of the Issuer or the Holders of at least 10% in aggregate Outstanding
Dollar Principal Amount of the Outstanding Notes of such series or class. In any
case, a meeting will be called after notice is given to the Noteholders pursuant
to Section 106.
(b) Except for any consent that must be given by the Holders of each
Outstanding Note affected or any action to be taken by the Issuer as holder of
the Collateral
59
Certificate, any resolution presented at any meeting at which a quorum is
present may be adopted by the affirmative vote of the Majority Holders of that
series or class, as the case may be. For any vote, request, demand,
authorization, direction, notice, consent, waiver or other action provided by
the Series 2002-CC Supplement to be given or taken by the holder of the
Collateral Certificate, any resolution presented at any meeting at which the
Majority Holders of all Outstanding Notes is present may be adopted by the
affirmative vote of the Majority Holders of all Outstanding Notes. However, any
resolution with respect to any consent, waiver, request, demand, notice,
authorization, direction or other action which may be given by the Holders of
not less than a specified percentage in aggregate Outstanding Dollar Principal
Amount of Outstanding Notes of a series or class or all Notes may be adopted at
any meeting at which a quorum is present only by the affirmative vote of the
Holders of not less than the specified percentage in aggregate Outstanding
Dollar Principal Amount of the Outstanding Notes of that series or class or all
Outstanding Notes, as the case may be. Any resolution passed or decision taken
at any meeting of Noteholders duly held in accordance with this Indenture will
be binding on all Noteholders of the affected series or class.
(c) The quorum at any meeting will be persons holding or
representing the Majority Holders of a series or class or all Notes, as the case
may be; provided, however, that if any action is to be taken at that meeting
concerning a consent, waiver, request, demand, notice, authorization, direction
or other action that may be given by the Holders of not less than a specified
percentage in aggregate Outstanding Dollar Principal Amount of the Outstanding
Notes of a series or class or all Notes, as applicable, the persons holding or
representing such specified percentage in aggregate Outstanding Dollar Principal
Amount of the Outstanding Notes of such series or class or all Notes will
constitute a quorum.
(d) The ownership of Registered Notes will be proved by the Note
Register. The Ownership of Bearer Notes will be proved as provided in Section
104(c)(ii).
(e) The Issuer may make reasonable rules for other matters relating
to action by or a meeting of Noteholders not otherwise covered by this Section.
Section 905. Reports by Issuer to the Commission. The Issuer will:
(a) file with the Indenture Trustee, within fifteen (15) days after
the Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Issuer may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act; or, if the Issuer is not required to file information, documents
or reports pursuant to either of said Sections, then it will file with the
Indenture Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
60
(b) file with the Indenture Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this Indenture as
may be required from time to time by such rules and regulations; and
(c) transmit by mail to all Registered Noteholders, as their names
and addresses appear in the Note Register, and notify all Holders of Bearer
Notes of such series or class, by publication of such notice in an Authorized
Newspaper or as otherwise provided in the applicable Indenture Supplement,
within thirty (30) days after the filing thereof with the Indenture Trustee,
such summaries of any information, documents and reports required to be filed by
the Issuer pursuant to paragraphs (a) and (b) of this Section as may be required
by rules and regulations prescribed from time to time by the Commission.
Section 906. Reports by Indenture Trustee. The Indenture Trustee
will report to the Issuer with respect to the amount on deposit in the Accounts,
and the identity of the investments included therein, as the Issuer may from
time to time reasonably request which, absent the occurrence of an Event of
Default hereunder, will not occur more often than monthly.
Section 907. Monthly Noteholders' Statement. On each Transfer Date
the Issuer will, in cooperation with the Servicer of the CARCO Trust, complete
and deliver to the Indenture Trustee and the CARCO Trust Trustee (with a copy to
each Note Rating Agency) a Monthly Noteholders' Statement. Notwithstanding
anything herein to the contrary, the Issuer may amend the form of Monthly
Noteholder's Statement from time to time without the consent of the Indenture
Trustee or any Noteholder if it receives written confirmation from each Note
Rating Agency that such amendment will not cause a Ratings Effect.
Section 908. Payment Instruction to CARCO Trust.
(a) Promptly after the receipt by the Issuer of each Monthly
Servicer's Certificate under the Series 2002-CC Supplement, the Issuer will, in
cooperation with the Servicer of the CARCO Trust, complete the Payment
Instruction and deliver a copy thereof to the Indenture Trustee and the CARCO
Trust Trustee. Notwithstanding anything herein to the contrary, the Issuer may
amend the form of Payment Instruction from time to time without the consent of
the Indenture Trustee or any Noteholder if it receives written confirmation from
each Note Rating Agency that such amendment will not cause a Ratings Effect.
(b) From time to time, the Issuer will notify the Servicer under the
Series 2002-CC Supplement of the information necessary to be provided by the
Issuer under Section 5.01 of the Pooling and Servicing Agreement as supplemented
by the Series 2002-CC Supplement to calculate the Investor Interest of the
Collateral Certificate.
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ARTICLE X
INDENTURE SUPPLEMENTS; AMENDMENTS TO THE POOLING AND SERVICING
AGREEMENT AND AMENDMENTS TO THE TRUST AGREEMENT
Section 1001. Supplemental Indentures Without Consent of
Noteholders. Without the consent of the Holders of any Notes but with prior
notice to each Note Rating Agency, the Issuer and the Indenture Trustee, at any
time and from time to time, upon delivery of a CARCO Trust Tax Opinion and an
Issuer Tax Opinion and upon delivery by the Issuer to the Indenture Trustee of
an Officer's Certificate to the effect that the Issuer reasonably believes that
such amendment will not have an Adverse Effect and is not reasonably expected to
have an Adverse Effect at any time in the future and, in the case of an
amendment pursuant to clause (a), (i), (j) or (k), upon delivery to the
Indenture Trustee of a written confirmation from each applicable Note Rating
Agency that such amendment will not have a Rating Effect, may amend this
Indenture or any Indenture Supplement or enter into one or more supplemental
indentures hereto or thereto, in form satisfactory to the Indenture Trustee, for
any of the following purposes:
(a) to evidence the succession of another Entity to the Issuer, and
the assumption by any such successor of the covenants of the Issuer herein and
in the Notes; or
(b) to add to the covenants of the Issuer, or to surrender any right
or power herein conferred upon the Issuer for the benefit of the Holders of the
Notes of any or all series or classes (and if such covenants or the surrender of
such right or power are to be for the benefit of less than all series or classes
of Notes, stating that such covenants are expressly being included or such
surrenders are expressly being made solely for the benefit of one or more
specified series or classes); or
(c) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture; or
(d) to add to this Indenture such provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at the
date as of which this Indenture was executed or any corresponding provision in
any similar federal statute hereafter enacted; or
(e) to establish any form of Note, as provided in Article II, and to
provide for the issuance of any series or class of Notes as provided in Article
III and to set forth the terms thereof, and/or to add to the rights of the
Holders of the Notes of any series or class; or
(f) to evidence and provide for the acceptance of appointment by
another corporation as a successor Indenture Trustee hereunder with respect to
one or more series or classes of Notes and to add to or change any of the
provisions of this Indenture as will be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Indenture Trustee,
pursuant to Section 811; or
(g) to add any additional Early Redemption Events or Events of
Default in respect of the Notes of any or all series or classes (and if such
additional Events of Default are to
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be in respect of less than all series or classes of Notes, stating that such
Events of Default are expressly being included solely for the benefit of one or
more specified series or classes); or
(h) to provide for the consolidation of the CARCO Trust and the
Issuer into a single Entity or the transfer of assets in the CARCO Trust to the
Issuer after the termination of all series of Investor Certificates (other than
the Collateral Certificate); or
(i) if one or more additional Sellers under the Pooling and
Servicing Agreement are added to, or replaced under, the Pooling and Servicing
Agreement, or one or more additional Beneficiaries under the Trust Agreement are
added to, or replaced under, the Trust Agreement, to make any necessary changes
to the Indenture or any other related document; or
(j) to provide for the inclusion in the Owner Trust of additional
collateral (in addition to the Collateral Certificate) and the issuance of Notes
backed by any such additional collateral;
(k) to provide for additional or alternative credit enhancement for
any class of Notes; or
(l) if the Collateral Certificate is the only outstanding Investor
Certificate issued by the CARCO Trust, to dissolve the CARCO Trust and terminate
the Pooling and Servicing Agreement, permit the Issuer to acquire the
Receivables directly and enter into a sale and servicing agreement and other
related documents that contain, to the extent applicable, the sale and servicing
provisions of the Pooling and Servicing Agreement and amend this Indenture and
all other documents to reflect the direct ownership of the Receivables by the
Issuer and the relevant provisions of the Pooling and Servicing Agreement
(including the Series 2002-CC Supplement) and other related documents.
Additionally, notwithstanding any provision of this Article X to the
contrary, this Indenture or any Indenture Supplement may be amended without the
consent of the Indenture Trustee or any of the Noteholders, upon delivery of a
CARCO Trust Tax Opinion and an Issuer Tax Opinion for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture or any Indenture Supplement or of modifying in any manner the
rights of the Holders of the Notes under this Indenture or any Indenture
Supplement; provided, however, that (i) the Issuer shall deliver to the
Indenture Trustee and the Owner Trustee an Officer's Certificate to the effect
that the Issuer reasonably believes that such amendment will not have an Adverse
Effect and is not reasonably expected to have an Adverse Effect at any time in
the future and (ii) the Note Rating Agencies have provided written confirmation
that such amendment will not have a Ratings Effect.
Section 1002. Supplemental Indentures with Consent of Noteholders.
With prior notice to each applicable Note Rating Agency and the consent of not
less than 66 2/3% in Outstanding Dollar Principal Amount of each class or
classes affected by such amendment of this Indenture or any Indenture Supplement
or any supplemental indenture hereto or thereto by Act of said Holders delivered
to the Issuer and the Indenture Trustee, the Issuer and the Indenture Trustee,
upon delivery of a CARCO Trust Tax Opinion and an Issuer Tax Opinion,
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may enter into an amendment of this Indenture or such Indenture Supplement for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or any Indenture Supplement
or of modifying in any manner the rights of the Holders of the Notes of each
such series or class under this Indenture or any Indenture Supplement; provided,
however, that no such amendment or supplemental indenture will, without the
consent of the Holder of each Outstanding Note affected thereby:
(a) change the scheduled payment date of any payment of interest on
any Note, or change an Expected Principal Payment Date or Legal Maturity Date of
any Note;
(b) reduce the Stated Principal Amount of, or the interest rate on
any Note, or change the method of computing the Outstanding Dollar Principal
Amount, the Adjusted Outstanding Dollar Principal Amount or the Nominal
Liquidation Amount in a manner that is adverse to the Holder of any Note;
(c) reduce the amount of a Discount Note payable upon the occurrence
of an Early Redemption Event or other optional or mandatory redemption or upon
the acceleration of its maturity;
(d) impair the right to institute suit for the enforcement of any
payment on any Note;
(e) reduce the percentage in Outstanding Dollar Principal Amount of
the Outstanding Notes of any series or class, the consent of whose Holders is
required for any such Indenture Supplement, or the consent of whose Holders is
required for any waiver of compliance with the provisions of this Indenture or
of defaults hereunder and their consequences, provided for in this Indenture;
(f) modify any of the provisions of this Section or Section 718,
except to increase any percentage of Holders required to consent to any such
amendment or to provide that other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding Note
affected thereby;
(g) permit the creation of any lien or other encumbrance on the
Collateral that secures any class of Notes that is prior to the lien in favor of
the Holders of the Notes of such class;
(h) change any Place of Payment where any principal of, or interest
on, any Note is payable, unless otherwise provided in the applicable Indenture
Supplement;
(i) change the method of computing the amount of principal of, or
interest on, any Note on any date; or
(j) make any other amendment not permitted by Section 1001.
An amendment of this Indenture or an Indenture Supplement which
changes or eliminates any covenant or other provision of this Indenture which
has expressly been included solely for the benefit of one or more particular
series or class of Notes, or which modifies the
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rights of the Holders of Notes of such series or class with respect to such
covenant or other provision, will be deemed not to affect the rights under this
Indenture of the Holders of Notes of any other series or class.
It will not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed amendment or supplemental
indenture, but it will be sufficient if such Act will approve the substance
thereof.
Section 1003. Execution of Indenture Supplements. In executing or
accepting the additional trusts created by any amendment of this Indenture or
Indenture Supplement or any supplemental indenture hereto or thereto permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Indenture Trustee will be entitled to receive, and (subject to
Section 801) will be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such amendment or supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent
thereto have been satisfied. The Indenture Trustee may, but will not (except to
the extent required in the case of an amendment or supplemental indenture
entered into under Section 1001(d) or 1001(f)) be obligated to, enter into any
such amendment or supplemental indenture which affects the Indenture Trustee's
own rights, duties or immunities under this Indenture or otherwise.
Section 1004. Effect of Indenture Supplements. Upon the execution of
any amendment of this Indenture or Indenture Supplement or any supplemental
indenture under this Article, this Indenture will be modified in accordance
therewith with respect to each series or class of Notes affected thereby, or all
Notes, as the case may be, and such amendment or supplemental indenture will
form a part of this Indenture for all purposes; and every Holder of Notes
theretofore or thereafter authenticated and delivered hereunder will be bound
thereby to the extent provided therein.
Section 1005. Conformity with Trust Indenture Act. Every amendment
of this Indenture or Indenture Supplement or any supplemental indenture executed
pursuant to this Article will conform to the requirements of the Trust Indenture
Act as then in effect.
Section 1006. Reference in Notes to Indenture Supplements. Notes
authenticated and delivered after the execution of any amendment of this
Indenture or Indenture Supplement or any supplemental indenture pursuant to this
Article may, and will, if required by the Indenture Trustee, bear a notation in
form approved by the Indenture Trustee as to any matter provided for in such
amendment or supplemental indenture. If the Issuer will so determine, new Notes
so modified as to conform, in the opinion of the Indenture Trustee and the
Issuer, to any such amendment or supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the Indenture Trustee
in exchange for Outstanding Notes.
Section 1007. Amendments to the Pooling and Servicing Agreement. By
their acceptance of a Note, the Noteholders acknowledge that the Seller and the
CARCO Trust Trustee may amend the Pooling and Servicing Agreement and any
supplement thereto without the consent of the Holders of any Investor
Certificates (including the Issuer) or any Noteholder, so long as such amendment
or supplement would not materially adversely affect the interest of the Holders
of any Investor Certificates and the Indenture Trustee shall have received
written
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confirmation from each Note Rating Agency that such amendment will not have a
Ratings Effect.
For purposes of any vote or consent under the Pooling and Servicing
Agreement or any supplement thereto:
(i) that requires the consent or vote of each Investor
Certificateholder, each Noteholder will be treated as an Investor
Certificateholder under the Pooling and Servicing Agreement and any
related supplement thereto;
(ii) that requires the consent or vote of any series of
Investor Certificates, each series of Notes will be treated as a series of
Investor Certificates under the Pooling and Servicing Agreement and any
related supplement thereto; and
(iii) that requires the consent or vote of any class of
Investor Certificates, each class of Notes will be treated as a class of
Investor Certificates under the Pooling and Servicing Agreement and any
related supplement thereto.
By their acceptance of a Note, each Noteholder will be deemed to have consented
to any amendment to the Pooling and Servicing Agreement, the Series 2002-CC
Supplement, the Trust Agreement and any other document or agreement relating to
any of the foregoing for the purpose of providing for the transfer of
Receivables from DCWR (or any additional seller under the Pooling and Servicing
Agreement) to a bankruptcy remote special purpose entity and from such entity to
the CARCO Trust and the substitution of a bankruptcy remote special purpose
entity as the beneficiary of the Issuer.
Section 1008. Amendments to the Trust Agreement.
(a) Subject to the provisions of the Trust Agreement, without the
consent of the Holders of any Notes or the Indenture Trustee, the Owner Trustee
(at the written direction of the Beneficiary) and the Beneficiary may amend the
Trust Agreement so long as such amendment will not have an Adverse Effect and is
not reasonably expected to have an Adverse Effect at any time in the future and
the Indenture Trustee shall have received written confirmation from each Note
Rating Agency that such amendment will not have a Ratings Effect.
(b) Subject to the provisions of the Trust Agreement, (A) in the
case of a significant change in the permitted activities of the Issuer which is
not materially adverse to Holders of the Notes, with the consent of the Majority
Holders of each class or classes of Notes affected by such change, and (B) in
all other cases, with the consent of the Holders of not less than 662/3% in
Outstanding Dollar Principal Amount of each class or classes the Outstanding
Notes affected by such amendment, by Act of said Holders delivered to the CARCO
Trust Trustee, DCWR and the Owner Trustee (at the written direction of the
Beneficiary) may amend the Trust Agreement for the purpose of adding, changing
or eliminating any provisions of the Trust Agreement or of modifying the rights
of those Noteholders.
Section 1009. Notice. If the Indenture Trustee, as holder of the
Collateral Certificate for the benefit of the Noteholders, receives a request
for a consent to any amendment,
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modification, waiver or supplement under this Indenture, the Pooling and
Servicing Agreement, the Trust Agreement or other document contemplated herein,
the Indenture Trustee will forthwith provide notice of such proposed amendment,
modification, waiver or supplement, as provided in Section 106, to each
Noteholder as of such date that is entitled to vote on a consent to such matter
and to each Note Rating Agency. The Indenture Trustee will request from such
Noteholders directions as to (i) whether or not the Indenture Trustee should
take or refrain from taking any action which the holder of the Collateral
Certificate has the option to direct, (ii) whether or not to give or execute any
waivers, consents, amendments, modifications or supplements as a holder of such
Collateral Certificate and (iii) the casting of any vote with respect to the
Collateral Certificate or the Noteholders of a series or class if a vote has
been called for with respect thereto; provided, that, in directing any action or
casting any vote or giving any consent as the holder of the Collateral
Certificate, the Indenture Trustee will vote or consent with respect to such
Collateral Certificate the applicable series or class, as the case may be, in
the same proportion as the Notes were actually voted by Holders thereof as
notified by such Noteholders to the Indenture Trustee at least two (2) Business
Days before the Indenture Trustee takes such action or casts such vote or gives
such consent.
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
Section 1101. Payment of Principal and Interest. With respect to
each series or class of Notes, the Issuer will duly and punctually pay the
principal of and interest on such Notes in accordance with their terms and this
Indenture, and will duly comply with all the other terms, agreements and
conditions contained in, or made in this Indenture for the benefit of, the Notes
of such series or class.
Section 1102. Maintenance of Office or Agency. The Issuer will
maintain an office, agency or Paying Agent in each Place of Payment where Notes
may be presented or surrendered for payment, where Notes may be surrendered for
transfer or exchange and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer will give
prompt written notice to the Indenture Trustee of the location, and of any
change in the location, of such office or agency. If at any time the Issuer will
fail to maintain such office or agency or will fail to furnish the Indenture
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Indenture
Trustee, and the Issuer hereby appoints the Indenture Trustee its agent to
receive all such presentations, surrenders, notices and demands.
Section 1103. Money for Note Payments to be Held in Trust. The
Paying Agent, on behalf of the Indenture Trustee, will make distributions to
Noteholders from the Collection Account or other applicable Account pursuant to
the provisions of Article V of this Indenture or any Indenture Supplement and
will report the amounts of such distributions to the Indenture Trustee. Any
Paying Agent will have the revocable power to withdraw funds from the Collection
Account or other applicable Account for the purpose of making the distributions
referred to above. The Indenture Trustee may revoke such power and remove the
Paying Agent if the Indenture Trustee determines in its sole discretion that the
Paying Agent has failed to
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perform its obligations under this Indenture or any Indenture Supplement in any
material respect. The Paying Agent upon removal will return all funds in its
possession to the Indenture Trustee.
The Issuer will cause each Paying Agent (other than the Indenture
Trustee) for any series or class of Notes to execute and deliver to the
Indenture Trustee an instrument in which such Paying Agent will agree with the
Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it so
agrees), subject to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of principal of or
interest on Notes of such series or class in trust for the benefit of the
Persons entitled thereto until such sums will be paid to such Persons or
otherwise disposed of as herein provided;
(b) if such Paying Agent is not the Indenture Trustee, give the
Indenture Trustee notice of any default by the Issuer (or any other obligor upon
the Notes of such series or class) in the making of any such payment of
principal or interest on the Notes of such series or class;
(c) if such Paying Agent is not the Indenture Trustee, at any time
during the continuance of any such default, upon the written request of the
Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in
trust by such Paying Agent;
(d) immediately resign as a Paying Agent and, if such Paying Agent
is not the Indenture Trustee, forthwith pay to the Indenture Trustee all sums
held by it in trust for the payment of Notes if at any time it ceases to meet
the standards described in this Section required to be met by a Paying Agent at
the time of its appointment; and
(e) comply with all requirements of the Internal Revenue 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 with respect to any series or class
of Notes or for any other purpose, pay, or by an Officer's Certificate direct
any Paying Agent to pay, to the Indenture Trustee all sums held in trust by the
Issuer or such Paying Agent in respect of each and every series or class of
Notes as to which it seeks to discharge this Indenture or, if for any other
purpose, all sums so held in trust by the Issuer in respect of all Notes, such
sums to be held by the Indenture Trustee upon the same trusts as those upon
which such sums were held by the Issuer or such Paying Agent; and, upon such
payment by any Paying Agent to the Indenture Trustee, such Paying Agent will be
released from all further liability with respect to such money.
Any money deposited with the Indenture Trustee or any Paying Agent,
or then held by the Issuer, in trust for the payment of the principal of or
interest on any Note of any series or class and remaining unclaimed for two
years after such principal or interest has become due and payable will be paid
to the Issuer upon request in an Officer's Certificate, or (if then held by the
Issuer) will be discharged from such trust; and the Holder of such Note will
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all
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liability of the Indenture Trustee or such Paying Agent with respect to such
trust money, and all liability of the Issuer as trustee thereof, will thereupon
cease. The Indenture Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Issuer give notice to the Holders
of the Notes as to which the money to be repaid was held in trust, as provided
in Section 106, a notice that such funds remain unclaimed and that, after a date
specified in the notice, which will not be less than thirty (30) days from the
date on which the notice was first mailed or published to the Holders of the
Notes as to which the money to be repaid was held in trust, any unclaimed
balance of such funds then remaining will be paid to the Issuer free of the
trust formerly impressed upon it.
The Issuer initially authorizes the Indenture Trustee to act as
Paying Agent for the Notes on its behalf. The Issuer may at any time and from
time to time authorize one or more Persons (including the Indenture Trustee) to
act as Paying Agent in addition to or in place of the Indenture Trustee with
respect to any series or class of Notes issued under this Indenture.
Each Paying Agent will at all times have a combined capital and
surplus of at least $50,000,000 and be subject to supervision or examination by
a United States Federal or State authority or be regulated by or subject to the
supervision or examination of a governmental authority of a nation that is
member of the Organization for Economic Co-operation and Development. If such
Paying Agent publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Paying Agent will be deemed to be its combined capital and surplus as set forth
in its most recent report of condition as so published.
Section 1104. Statement as to Compliance. The Issuer will deliver to
the Indenture Trustee and the Note Rating Agencies, on or before April 1 of each
year, beginning in 2003, a written statement signed by an Issuer Authorized
Officer stating that:
(a) a review of the activities of the Issuer during the prior year
and of the Issuer's performance under this Indenture and under the terms of the
Notes has been made under such Issuer Authorized Officer's supervision; and
(b) to the best of such Issuer Authorized Officer's knowledge, based
on such review, the Issuer has complied in all material respects with all
conditions and covenants under this Indenture throughout such year, or, if there
has been a default in the fulfillment of any such condition or covenant (without
regard to any grace period or requirement of notice), specifying each such
default known to such Issuer Authorized Officer and the nature and status
thereof.
Section 1105. Legal Existence. The Issuer will do or cause to be
done all things necessary to preserve and keep in full force and effect its
legal existence.
Section 1106. Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
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Section 1107. Compliance with Laws. The Issuer will comply with the
requirements of all applicable laws, the noncompliance with which would,
individually or in the aggregate, materially and adversely affect the ability of
the Issuer to perform its obligations under the Notes or this Indenture.
Section 1108. Notice of Events of Default. The Issuer agrees to give
the Indenture Trustee and the Note Rating Agencies prompt written notice of each
Event of Default hereunder and each default on the part of the CARCO Trust or
the Seller of its respective obligations under the Pooling and Servicing
Agreement and any default of a Derivative Counterparty.
Section 1109. Certain Negative Covenants. The Issuer will not:
(a) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts withheld in good
faith from such payments under the Internal Revenue Code or other applicable tax
law);
(b) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien in favor of the Indenture Trustee, the Noteholders
and any applicable Derivative Counterparty 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 except as may be expressly permitted hereby;
(c) permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien in favor of the Indenture
Trustee, the Noteholders and any applicable Derivative Counterparty created by
this Indenture) to be created on or extend to or otherwise arise upon or burden
the Collateral or any part thereof or any interest therein or the proceeds
thereof; or
(d) permit the lien in favor of the Indenture Trustee, the
Noteholders and any applicable Derivative Counterparty created by this Indenture
not to constitute a valid first priority security interest in the Collateral; or
(e) voluntarily dissolve or liquidate.
Section 1110. No Other Business. The Issuer will not engage in any
business other than as permitted under the Trust Agreement.
Section 1111. No Borrowing. The Issuer will not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness for borrowed money except for the Notes.
Section 1112. Rule 144A Information. For so long as any of the Notes
of any series or class are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Exchange Act, the Issuer agrees to provide to any
Noteholder of such series or class and to any prospective purchaser of Notes
designated by such Noteholder, upon the request of such Noteholder or
prospective purchaser, any information required to be provided to such
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Holder or prospective purchaser to satisfy the conditions set forth in Rule
144A(d)(4) under the Securities Exchange Act.
Section 1113. Performance of Obligations.
(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 Collateral or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture, the Trust Agreement or such other
instrument or agreement.
(b) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, any Indenture
Supplement, the Trust Agreement and in the instruments and agreements relating
to the Collateral, including but not limited to filing or causing to be filed
all UCC financing statements and continuation statements required to be filed by
the terms of this Indenture and the Trust Agreement in accordance with and
within the time periods provided for herein and therein. Except as otherwise
expressly provided herein or therein, the Issuer shall not waive, amend, modify,
supplement or terminate this Indenture, any Indenture Supplement or the Trust
Agreement or any provision thereof without the consent of the Holders of a
majority of the Outstanding Amount of the Notes of each adversely affected
series or class. The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer. Initially, the
Issuer has contracted with the Administrator to assist the Issuer in performing
its duties under this Indenture.
(c) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees (i) that it will not, without the
prior written consent of the Indenture Trustee and a majority in Outstanding
Amount of the Notes of each affected series or class, amend, modify, waive,
supplement, terminate or surrender, or agree to any amendment, modification,
supplement, termination, waiver or surrender of, the terms of any Collateral
(except to the extent otherwise provided in this Indenture or the Trust
Agreement), or waive timely performance or observance by the Servicer of its
obligations under the Pooling and Servicing Agreement; and (ii) that any such
amendment, modification, waiver, supplement, termination or surrender shall not
(A) increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on the Receivables or distributions that are
required to be made for the benefit of the Noteholders or (B) reduce the
aforesaid percentage of the Notes that is required to consent to any such
amendment, modification, waiver, supplement, termination or surrender without
the consent of the Holders of all the Outstanding Notes. If any such amendment,
modification, waiver, supplement, termination or surrender shall be so consented
to by the Indenture Trustee and such Noteholders, the Issuer agrees to execute
and deliver, in its own name and at its own expense, such agreements,
instruments, consents and other documents as are necessary or appropriate in the
circumstances.
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Section 1114. Issuer May Consolidate, Etc., Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(1) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger (i) shall be a Person organized and
existing under the laws of the United States of America or any state or
the District of Columbia, (ii) shall not be subject to regulation as an
"investment company" under the Investment Company Act and (iii) shall
expressly assume, by an Indenture Supplement, executed and delivered to
the Indenture Trustee, in a form satisfactory to the Indenture Trustee,
the due and punctual payment of the principal of and interest on all Notes
and the performance of every covenant of this Indenture on the part of the
Issuer to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default or Early Amortization Event shall have occurred and be
continuing;
(3) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that (i)
such consolidation or merger and such Indenture Supplement comply with
this Section 1114, (ii) all conditions precedent in this Section 1114
relating to such transaction have been complied with (including any filing
required by the Securities Exchange Act), and (iii) such Indenture
Supplement is duly authorized, executed and delivered and is valid,
binding and enforceable against such person;
(4) the Issuer shall have received written confirmation from
each Note Rating Agency that there will be no Ratings Effect with respect
to any Outstanding Notes as a result of such consolidation or merger;
(5) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to any Noteholder; and
(6) any action that is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(7) such action shall not be contrary to the status of the
Issuer as a qualified special purpose entity under existing accounting
literature.
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Collateral, substantially as an entirety
to any Person, unless:
(1) 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, or the District of Columbia, (B) expressly assume, by an
Indenture Supplement, executed and delivered to the Indenture Trustee, in
form satisfactory to the Indenture Trustee, the due and punctual payment
of the principal of
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and interest on all Notes and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to be
performed or observed, all as provided herein, (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 Indenture
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 and the Notes, (E) expressly agree by means of
such Indenture Supplement that such Person (or if a group of Persons, then
one specified Person) shall make all filings with the Commission (and any
other appropriate Person) required by the Securities Exchange Act in
connection with the Notes and (F) not be an "investment company" as
defined in the Investment Company Act;
(2) immediately after giving effect to such transaction, no
Event of Default or Early Amortization Event shall have occurred and be
continuing;
(3) the Issuer shall have received written confirmation from
each Note Rating Agency that there will be no Ratings Effect with respect
to any Outstanding Notes as a result of such conveyance or transfer;
(4) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to any Noteholder;
(5) any action that is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(6) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such Indenture Supplement comply with this
Section 1114 and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any filing
required by the Securities Exchange Act).
Section 1115. Successor Substituted. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the Issuer
substantially as an entirety in accordance with Section 1114 hereof, the Person
formed by or surviving such consolidation or merger (if other than the Issuer)
or the Person to which such conveyance or transfer is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such Person had been named as the
Issuer herein. In the event of any such conveyance or transfer, the Person named
as the Issuer in the first paragraph of this Indenture or any successor which
shall theretofore have become such in the manner prescribed in this Section 1115
shall be released from its obligations under this Indenture as issued
immediately upon the effectiveness of such conveyance or transfer, provided that
the Issuer shall not be released from any obligations or liabilities to the
Indenture Trustee or the Noteholders arising prior to such effectiveness.
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Section 1116. Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by this Indenture or the Trust Agreement, the Issuer
shall not make any loan or advance or credit to, or guarantee (directly or
indirectly or by an instrument having the effect of assuring another's payment
or performance on any obligation or capability of so doing or otherwise),
endorse or otherwise become contingently liable, directly or indirectly, in
connection with the obligations, stocks or dividends of, or own, purchase,
repurchase or acquire (or agree contingently to do so) any stock, obligations,
assets or securities of, or any other interest in, or make any capital
contribution to, any other Person.
Section 1117. Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 1118. 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 Servicer, (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, (x)
distributions as contemplated by, and to the extent funds are available for such
purpose under, the Trust Agreement and (y) payments to the Indenture Trustee
pursuant to Section 807 hereof. The Issuer will not, directly or indirectly,
make payments to or distributions from the Collection Account except in
accordance with this Indenture or any Indenture Supplement.
Section 1119. Representations and Warranties as to the Security
Interest of the Indenture Trustee in the Collateral Certificate. The Issuer
makes the following representations and warranties to the Indenture Trustee. The
representations and warranties speak as of the execution and delivery of this
Indenture and as of the issuance date of each series of Notes and shall survive
the pledge of the Collateral Certificate to the Indenture Trustee pursuant to
this Indenture.
(a) This Indenture creates a valid and continuing security interest
(as defined in the UCC) in the Collateral Certificate in favor of the Indenture
Trustee, which security interest is prior to all other liens and security
interests, and is enforceable as such as against creditors of and purchasers
from the Issuer.
(b) The Collateral Certificate constitutes a "certificated security"
within the meaning of Article 8 of the UCC.
(c) The Issuer owns and has good and marketable title to the
Collateral Certificate free and clear of any lien, claim or encumbrance of any
Person (other than the Indenture Trustee).
(d) The Issuer has caused or will have caused, within ten days after
the date of execution of this Indenture, the filing of all appropriate financing
statements in the proper filing
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office in the appropriate jurisdictions under applicable law in order to perfect
the security interest in the Collateral Certificate granted to the Issuer
hereunder.
(e) Other than the security interest granted to the Indenture
Trustee pursuant to this Indenture, the Issuer has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Collateral
Certificate. The Issuer has not authorized the filing of and is not aware of any
financing statements against the Issuer that include a description of collateral
covering the Collateral Certificate other than any financing statement relating
to the security interest granted to the Indenture Trustee hereunder or that has
been terminated. The Issuer is not aware of any judgment or tax lien filings
against it.
(f) The Issuer has caused the Collateral Certificate to be
registered in the name of the Indenture Trustee and has delivered the Collateral
Certificate to the Indenture Trustee.
Section 1120. Derivative Instruments. If the Issuer enters into any
interest rate swap or derivative instrument (each, a "derivative instrument") in
connection with its issuance of a series of Notes, such derivative instrument
shall be entered into at the time of issuance of such series of Notes, at the
time of issuance shall not have a notional amount in excess of the Stated
Principal Amount of such Notes and is not thereafter expected to exceed such
Stated Principal Amount outstanding from time to time, shall not require the
Issuer to make discretionary decisions (other than decisions relating to the
servicing of the Receivables) and shall have characteristics that relate to and
are intended to hedge (partly or fully) against some risk or risks related to
such series of Notes or the Receivables or Eligible Investments.
ARTICLE XII
EARLY REDEMPTION OF NOTES
Section 1201. Applicability of Article. Unless otherwise specified
in the applicable Indenture Supplement related to a series or class of Notes,
pursuant to the terms of this Article, the Issuer will redeem and pay, provided
that funds are available, each affected series or class of Notes upon the
occurrence of any Early Redemption Event. Unless otherwise specified in the
applicable Indenture Supplement relating to a series or class of Notes, or in
the form of Notes for such series or class, the following are "Early Redemption
Events":
(a) with respect to any class of Notes, the occurrence of the
Expected Principal Payment Date of such Note;
(b) the occurrence of any Early Amortization Event as defined in the
Pooling and Servicing Agreement or as described in the Series 2002-CC
Supplement;
(c) the Issuer becomes an investment company within the meaning of
the Investment Company Act; or
(d) with respect to any series or class of Notes, any additional
Early Redemption Event specified in the Indenture Supplement for such series or
class as applying to such series or class.
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The redemption price of a class of Notes so redeemed will equal the
Outstanding Dollar Principal Amount of such series or class, plus interest
accrued and unpaid to but excluding the date of redemption, the payment of which
will be subject to Article V, Article VII and the allocations, deposits and
payments sections of the related Indenture Supplement.
If the Issuer is unable to pay the redemption price in full on the
Payment Date following the end of the Monthly Period in which the Early
Redemption Event occurs, monthly payments on such series or class of Notes will
thereafter be made on each following Payment Date until the Outstanding Dollar
Principal Amount of such series or class, plus all accrued and unpaid interest,
is paid in full or the Legal Maturity Date occurs, whichever is earlier, subject
to Article V, Article VII and the allocations, deposits and payments provisions
of the related Indenture Supplement. Any funds in any Supplemental Account for a
redeemed class will be applied to make the principal and interest payments on
that series or class on the redemption date, subject to Article V, Article VII
and the allocations, deposits and payments sections of the related Indenture
Supplement. Principal payments on redeemed classes will be made first to the
senior-most Notes until paid in full, then to the subordinated Notes, if any,
until paid in full.
Section 1202. Optional Repurchase. Unless otherwise provided in the
applicable Indenture Supplement for a series or class of Notes, the Servicer has
the right, but not the obligation, to cause the Issuer to redeem a series or
class of Notes in whole but not in part on any day on or after the day on which
the aggregate Nominal Liquidation Amount of such series or class is reduced to
less than 10% of its Initial Dollar Principal Amount; provided, however, that if
such series or class of Notes is of a subordinated class, the Servicer will not
cause the Issuer to redeem such Notes if the provisions of the related Indenture
Supplement would prevent the payment of such subordinated Note until a level of
prefunding of the principal funding sub-accounts for the senior classes of Notes
for that series has been reached such that the amount of such deficiency in the
required subordination of a senior class of Notes is no longer required to
provide subordination protection for the senior classes of that series. If the
Servicer elects to cause the Issuer to redeem a series or class of Notes, it
will cause the Issuer to notify the Holders of such redemption at least thirty
(30) days prior to the redemption date. The redemption price of a series or
class so redeemed will equal the Outstanding Dollar Principal Amount of such
class, plus interest accrued and unpaid or principal accreted and unpaid on such
class to but excluding the date of redemption, the payment of which will be
subject to Article V, Article VII and the allocations, deposits and payments
provisions of the related Indenture Supplement.
If the Servicer is unable to pay the redemption price in full on the
redemption date, monthly payments on such class of Notes will thereafter be made
until the Outstanding Dollar Principal Amount of such class, plus all accrued
and unpaid interest, is paid in full or the Legal Maturity Date occurs,
whichever is earlier, subject to Article V, Article VII and the allocations,
deposits and payments provisions of the related Indenture Supplement. Any funds
in any Supplemental Account for a redeemed class will be applied to make the
principal and interest payments on that class on the redemption date in
accordance with the related Indenture Supplement. Principal payments on redeemed
classes will be made in accordance with the related Indenture Supplement.
Section 1203. Notice. Promptly after the occurrence of any Early
Redemption Event or a redemption pursuant to Section 1202, the Issuer will
notify the Indenture Trustee and
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the Note Rating Agencies in writing of the identity, Stated Principal Amount and
Outstanding Dollar Principal Amount of the affected series or class of Notes to
be redeemed. Notice of redemption will promptly be given as provided in Section
106. All notices of redemption will state (a) the date on which the redemption
of the applicable series or class of Notes pursuant to this Article will begin,
which will be the Principal Payment Date next following the end of the Monthly
Period in which the applicable Early Redemption Event or redemption pursuant to
Section 1202 occurs, (b) the redemption price for such series or class of Notes,
which will be equal to the Outstanding principal amount of such series or class
plus interest accrued or principal accreted and unpaid (if any), the payment of
which will be subject to Article V, Article VII and the allocations, deposits
and payments provisions of the related Indenture Supplement and (c) the series
or class of Notes to be redeemed pursuant to this Article.
ARTICLE XIII
COLLATERAL
Section 1301. Recording, Etc.
(a) The Issuer intends the Security Interest granted pursuant to
this Indenture in favor of the Indenture Trustee to be prior to all other liens
in respect of the Collateral. Subject to Section 1303, the Issuer will take all
actions necessary to obtain and maintain a perfected lien on and security
interest in the Collateral in favor of the Indenture Trustee. The Issuer will
from time to time execute and deliver all such supplements and amendments hereto
and all such financing statements, continuation statements, instruments of
further assurance and other instruments, all as prepared by the Issuer, and will
take such other action necessary or advisable to:
(i) grant a Security Interest more effectively in all or any
portion of the Collateral;
(ii) maintain or preserve the Security Interest (and the
priority thereof) created by this Indenture 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;
(iv) enforce the Collateral Certificate, the Derivative
Agreements and each other instrument or agreement included in the
Collateral;
(v) preserve and defend title to the Collateral and the rights
of the Indenture Trustee in such Collateral against the claims of all
persons and parties; or
(vi) pay all taxes or assessments levied or assessed upon the
Collateral when due.
(b) The Issuer will from time to time promptly pay and discharge all
financing and continuation statement recording and/or filing fees, charges and
taxes relating to this Indenture, any amendments thereto and any other
instruments of further assurance. The Issuer
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hereby designates the Indenture Trustee its agent and attorney- in-fact to
execute upon the Issuer's failure to do so, any financing statement,
continuation statement or other instrument required by the Indenture Trustee
pursuant to this Section.
(c) Without limiting the generality of clauses (a)(ii) or (a)(iii):
(i) The Issuer will cause this Indenture, all amendments and
supplements hereto and/or all financing statements and continuation
statements and any other necessary documents covering the Indenture
Trustee's right, title and interest to the Collateral to be promptly
recorded, registered and filed, and at all times to be kept, recorded,
registered and filed, all in such manner and in such places as may be
required by law fully to preserve and protect the right, title and
interest of the Indenture Trustee to all property comprising the
Collateral. The Issuer will deliver to the Indenture Trustee file-stamped
copies of, or filing receipts for, any document recorded, registered or
filed as provided above, as soon as available following such recording,
registration or filing.
(ii) Within 30 days after the Issuer makes any change in its
name, identity or corporate structure which would make any financing
statement or continuation statement filed in accordance with paragraph
(d)(i) seriously misleading within the meaning of Section 9-507 or 9-508
(or any comparable provision) of the UCC, the Issuer will give the
Indenture Trustee notice of any such change and will file such financing
statements or amendments as may be necessary to continue the perfection of
the Indenture Trustee's security interest in the Collateral.
(d) The Issuer will give the Indenture Trustee prompt notice of any
relocation of its chief executive office, place of business or State of
location, and any change in the jurisdiction of its organization, and whether,
as a result of such relocation or change, the applicable provision of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and will file such
financing statements or amendments as may be necessary to perfect or to continue
the perfection of the Indenture Trustee's security interest in the Collateral.
The Issuer will at all times maintain its chief executive office within the
United States.
(e) The duty of the Indenture Trustee to execute any instrument
required pursuant to this Section will arise only if the Indenture Trustee has
knowledge of the type described in Section 701(c) of any default of the Issuer
in complying with the provisions of this Section.
Section 1302. Trust Indenture Act Requirements. The release of any
Collateral from the lien created by this Indenture or the release of, in whole
or in part, such liens, will not be deemed to impair the Security Interests in
contravention of the provisions hereof if and to the extent the Collateral or
liens are released pursuant to the terms hereof. The Indenture Trustee and each
of the Noteholders and any applicable Derivative Counterparty acknowledge that a
release of Collateral or liens in accordance with the terms hereof will not be
deemed for any purpose to be an impairment of the Security Interests in
contravention of the terms of this Indenture. To the extent applicable, without
limitation, the Issuer and each other obligor on the Notes will cause Trust
Indenture Act Section 314(d) relating to the release of property or
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securities from the liens hereof to be complied with. Any certificate or opinion
required by Trust Indenture Act Section 314(d) may be made by an officer of the
appropriate obligor, except in cases in which Trust Indenture Act Section 314(d)
requires that such certificate or opinion be made by an independent person.
Section 1303. Suits To Protect the Collateral. Subject to the
provisions of this Indenture, the Indenture Trustee will have power to institute
and to maintain such suits and proceedings as it may deem expedient to prevent
any impairment of the Collateral by any acts which may be unlawful or in
violation of this Indenture, and such suits and proceedings as the Indenture
Trustee may deem expedient to preserve or protect the interests of the
Noteholders and any applicable Derivative Counterparty and the interests of the
Indenture Trustee and the Holders of the Notes in the Collateral (including
power to institute and maintain suits or proceedings to restrain the enforcement
of or compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement of,
or compliance with, such enactment, rule or order would impair the Security
Interests or be prejudicial to the interests of the Holders of the Notes or the
Indenture Trustee). No counterparties to a Derivative Agreement may direct the
Indenture Trustee to enforce the Security Interest. Each Derivative
Counterparty's rights consist solely of the right to receive collections
allocated for its benefit pursuant to the related Indenture Supplement.
Section 1304. Purchaser Protected. In no event will any purchaser in
good faith of any property purported to be released hereunder be bound to
ascertain the authority of the Indenture Trustee to execute the release or to
inquire as to the satisfaction of any conditions required by the provisions
hereof for the exercise of such authority or to see to the application of any
consideration given by such purchaser or other transferee; nor will any
purchaser or other transferee of any property or rights permitted by this
Article to be sold be under any obligation to ascertain or inquire into the
authority of the Issuer or any other obligor, as applicable, to make any such
sale or other transfer.
Section 1305. Powers Exercisable by Receiver or Trustee. In case the
Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article upon the Issuer or any other
obligor, as applicable, with respect to the release, sale or other disposition
of such property may be exercised by such receiver or trustee, and an instrument
signed by such receiver or trustee shall be deemed the equivalent of any similar
instrument of the Issuer or any other obligor, as applicable, or of any officer
or officers thereof required by the provisions of this Article.
Section 1306. Determinations Relating to Collateral. In the event
(i) the Indenture Trustee shall receive any written request from the Issuer or
any other obligor for consent or approval with respect to any matter or thing
relating to any Collateral or the Issuer's or any other obligor's obligations
with respect thereto or (ii) there shall be due to or from the Indenture Trustee
under the provisions hereof any performance or the delivery of any instrument or
(iii) the Indenture Trustee shall become aware of any nonperformance by the
Issuer or any other obligor of any covenant or any breach of any representation
or warranty of the Issuer or any other obligor set forth in this Indenture,
then, in each such event, the Indenture Trustee shall be entitled to hire
experts, consultants, agents and attorneys to advise the Indenture Trustee on
the manner in which the Indenture Trustee should respond to such request or
render any
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requested performance or response to such nonperformance or breach (the expenses
of which will be reimbursed to the Agent and the Indenture Trustee pursuant to
Section 807). The Indenture Trustee will be fully protected in the taking of any
action recommended or approved by any such expert, consultant, agent or attorney
or agreed to by the Majority Holders of the Outstanding Notes.
Section 1307. Release of Collateral.
(a) Subject to the payment of its fees and expenses pursuant to
Section 807, the Indenture Trustee will, at the request of the Issuer or when
otherwise required by the provisions of this Indenture, execute instruments to
release property from the lien of this Indenture, or convey the Indenture
Trustee's interest in the same, in a manner and under circumstances which are
not inconsistent with the provisions of this Indenture. No party relying upon an
instrument executed by the Indenture Trustee as provided in this Article will be
bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any funds.
(b) Upon delivery of an Officer's Certificate certifying that the
Issuer's obligations under this Indenture have been satisfied and discharged by
complying with the provisions of this Article, the Indenture Trustee will (i)
execute and deliver such releases, termination statements and other instruments
(in recordable form, where appropriate) as the Issuer or any other obligor, as
applicable, may reasonably request evidencing the termination of the Security
Interests created by this Indenture and (ii) not to be deemed to hold the
Security Interests for the benefit of the Indenture Trustee, the Noteholders and
any applicable Derivative Counterparty.
(c) DCWR and the Noteholders will be entitled to receive at least
ten (10) days written notice when the Indenture Trustee proposes to take any
action pursuant to clause (a), accompanied by copies of any instruments
involved, and the Indenture Trustee will also be entitled to require, as a
condition to such action, an Opinion of Counsel, stating the legal effect of any
such action, outlining the steps required to complete the same, and concluding
that all conditions precedent to the taking of such action have been complied
with. Counsel rendering any such opinion may rely, without independent
investigation, on the accuracy and validity of any certificate or other
instrument delivered to the Indenture Trustee in connection with any such
action.
Section 1308. Certain Actions by Indenture Trustee. Any action taken
by the Indenture Trustee pursuant to this Article in respect of the release of
Collateral will be taken by the Indenture Trustee as its interest in such
Collateral may appear, and no provision of this Article is intended to, or will,
excuse compliance with any provision hereof.
Section 1309. Opinions as to Collateral.
(a) On the Effective Date, the Issuer will furnish to the Indenture
Trustee an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording and filing of
this Indenture, any indentures supplemental hereto, and any other requisite
documents, and with respect to the execution and filing of any financing
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statements and continuation statements, as are necessary to perfect and maintain
the perfection of the Security Interest in the Collateral Certificate and the
proceeds thereof granted by this Indenture in favor of the Indenture Trustee 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
perfected.
(b) On or before March 31 in each calendar year, beginning in 2003,
the Issuer will furnish to the Indenture Trustee an Opinion of Counsel with
respect to each Uniform Commercial Code financing statement which has been filed
by the Issuer either stating that, (i) 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 indentures supplemental hereto and any other
requisite documents and with respect to the execution and filing of any
financing statements and continuation statements as is necessary to maintain the
first priority lien and Security Interest in the Collateral Certificate and the
proceeds thereof created by this Indenture and reciting the details of such
action or (ii) in the opinion of such counsel no such action is necessary to
maintain such lien and Security Interest. Such Opinion of Counsel will 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 until March 31 in the following calendar
year.
Section 1310. Delegation of Duties. The Issuer may contract with or
appoint other Persons (including DCWR and its Affiliates) to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate will
be deemed to be action taken by the Issuer.
ARTICLE XIV
MISCELLANEOUS
Section 1401. No Petition. The Indenture Trustee, by entering into
this Indenture, each Derivative Counterparty, by designating that the
obligations of the Issuer pursuant to the applicable Derivative Agreement are
secured by the Collateral, and each Noteholder, by accepting a Note, agrees that
it will not at any time institute against DCWR, the CARCO Trust or the Issuer,
or join in any institution against DCWR, the CARCO Trust 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 Derivative Agreement.
Section 1402. Trust Obligations. No recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer on the Notes or
under this Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) the 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 Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer or the Owner Trustee or of any successor or assign of the Owner Trustee
in its individual capacity, except as
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any such Person may have expressly agreed (it being understood that the Owner
Trustee has no such obligations in its individual capacity).
Section 1403. Limitations on Liability.
(a) It is expressly understood and agreed by the parties hereto that
(i) this Indenture is executed and delivered by the Beneficiary not individually
or personally but solely as Beneficiary, in the exercise of the powers and
authority conferred and vested in it, (ii) each of the representations,
undertakings and agreements herein made on the part of the Issuer is made and
intended not as a personal representation, undertaking or agreement by the
Beneficiary but is made and intended for the purpose of binding only the Issuer,
(iii) nothing herein contained will be construed as creating any liability on
the Beneficiary individually or personally, to perform any covenant of the
Issuer either expressed or implied contained herein, all such liability, if any,
being expressly waived by the parties to this Indenture and by any Person
claiming by, through or under them and (iv) under no circumstances will the
Beneficiary 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 undertaken by the Issuer under this
Indenture or any related documents.
(b) None of the Indenture Trustee, the Owner Trustee, DCWR or any
other beneficiary of the Issuer or any of their respective officers, directors,
employers or agents will have any liability with respect to this Indenture, and
recourse may be had solely to the Collateral pledged to secure the Notes issued
by Daimler Chrysler Master Owner Trust.
Section 1404. Tax Treatment. The Issuer and the Noteholders agree
that the Notes are intended to be debt of DCWR for federal, state and local
income, franchise and single business tax purposes and agree to treat the Notes
accordingly for all such purposes, unless otherwise required by a taxing
authority.
Section 1405. Actions Taken by the Issuer. Any and all actions that
are to be taken by the Issuer may be taken by either the Beneficiary or the
Owner Trustee on behalf of the Issuer.
Section 1406. Alternate Payment Provisions. Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, the Issuer,
with the written consent of the Indenture Trustee, may enter into any agreement
with any Holder of a Note providing for a method of payment or notice that is
different from the methods provided for in this Indenture for such payments or
notices. The Issuer will furnish to the Indenture Trustee a copy of each such
agreement and the Indenture Trustee will cause payments or notices, as
applicable, to be made in accordance with such agreements.
Section 1407. Termination of Issuer. The Issuer and the respective
obligations and responsibilities of the Indenture Trustee created hereby (other
than the obligation of the Indenture Trustee to make payments to Noteholders as
hereinafter set forth) shall terminate, except with respect to the duties
described in Section 1408(b), as provided in the Trust Agreement.
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Section 1408. Final Distribution.
(a) The Servicer shall give the Indenture Trustee at least thirty
(30) days prior written notice of the Payment Date on which the Noteholders of
any series or class may surrender their Notes for payment of the final
distribution on and cancellation of such Notes. Not later than the fifth day of
the month in which the final distribution in respect of such Series or Class is
payable to Noteholders, the Indenture Trustee shall provide notice to
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 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 (which, in the case of Bearer Notes, shall be outside the United
States). The Indenture Trustee shall give such notice to the Note Registrar and
the Paying Agent at the time such notice is given to Noteholders.
(b) Notwithstanding a final distribution to the Noteholders of any
series or class (or the termination of the Issuer), except as otherwise provided
in this paragraph, all funds then on deposit in any Account allocated to such
Noteholders shall continue to be held in trust for the benefit of such
Noteholders, and the Paying Agent or the Indenture Trustee shall pay such funds
to such Noteholders upon surrender of their Notes, if certificated. In the event
that all such Noteholders shall not surrender their Notes for cancellation
within six (6) months after the date specified in the notice from the Indenture
Trustee described in paragraph (a), the Indenture Trustee shall give a second
notice to the remaining such Noteholders to surrender their Notes for
cancellation and receive the final distribution with respect thereto (which
surrender and payment, in the case of Bearer Notes, shall be outside the United
States). If within one year after the second notice all such Notes shall not
have been surrendered for cancellation, the Indenture Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining such Noteholders concerning surrender of their Notes, and the cost
thereof shall be paid out of the funds in the Collection Account or any
Supplemental Account held for the benefit of such Noteholders. The Indenture
Trustee and the Paying Agent shall pay to the Issuer any monies held by them for
the payment of principal or interest that remains unclaimed for two (2) years.
After payment to the Issuer, Noteholders entitled to the money must look to the
Issuer for payment as general creditors unless an applicable abandoned property
law designates another Person.
Section 1409. Termination Distributions. Upon the termination of the
Issuer pursuant to the terms of the Trust Agreement, the Indenture Trustee shall
release, assign and convey to the Beneficiary or any of its designees, without
recourse, representation or warranty, all of its right, title and interest in
the Collateral, whether then existing or thereafter created, all monies due or
to become due and all amounts received or receivable with respect thereto
(including all moneys then held in any Account) and all proceeds thereof, except
for amounts held by the Indenture Trustee pursuant to Section 1408(b). The
Indenture Trustee shall execute and deliver such instruments of transfer and
assignment as shall be provided to it, in each case without recourse, as shall
be reasonably requested by the Beneficiary to vest in the Beneficiary or any of
its designees all right, title and interest which the Indenture Trustee had in
the Collateral and such other property.
83
Section 1410. Derivative Counterparty as Third-Party Beneficiary.
Each Derivative Counterparty is a third-party beneficiary of this Indenture to
the extent specified in the applicable Derivative Agreement or Indenture
Supplement.
[END OF ARTICLE XIV]
84
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
DAIMLER CHRYSLER MASTER OWNER TRUST, by
DaimlerChrysler Wholesale Receivables
LLC, as Beneficiary, by Chrysler
Financial Receivables Corporation, a
member
By:
-------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Indenture
Trustee and not in its individual
capacity
By:
-------------------------------------
Name:
Title:
Acknowledged and Accepted:
DAIMLERCHRYSLER SERVICES
NORTH AMERICA LLC,
as Servicer
By:
---------------------------------
Name:
Title:
85
EXHIBIT A
FORM OF PAYMENT INSTRUCTION
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC
DAIMLERCHRYSLER MASTER OWNER TRUST
Unless otherwise indicated, capitalized terms used in this Payment
Instruction have their respective meanings set forth in the Indenture;
provided, that the "preceding Monthly Period" shall mean the Monthly
Period immediately preceding the calendar month in which this Payment
Instruction is delivered. This Payment Instruction is delivered pursuant
to Section 908 of the Indenture.
The date of this Payment Instruction is a Transfer Date.
I. Allocations of Available Interest Amounts:
A. Available Interest Amounts paid to Series [______]. $_______
[B. Available Interest Amounts paid to Series [______]. $_______
C. Available Interest Amounts paid to Series [______]. $_______
Total $_______]
II. Allocations of Available Principal Amounts:
A. Available Principal Amounts paid to Series [____].. $_______
[B. Available Principal Amounts paid to Series [____].. $_______
C. Available Principal Amounts paid to Series [____].. $_______
Total $_______]
A-1
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Payment Instruction this ____ day of __________, ____.
DAIMLERCHRYSLER WHOLESALE RECEIVABLES
LLC, as Beneficiary of the Daimler
Chrysler Master Owner Trust
By DaimlerChrysler Services (North
America) LLC, as Servicer of the
CARCO Trust and Administrator of the
Daimler Chrysler Master Owner Trust
By:
-----------------------------------
Name:
Title:
A-2
Schedule to Payment Instruction*
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC
--------------------------------------------------------------------------------
DAIMLERCHRYSLER MASTER OWNER TRUST
--------------------------------------------------------------------------------
* A separate schedule is to be attached for each series, with appropriate
changes and additions to reflect the specifics of the related Indenture
Supplement.
A-3
EXHIBIT B
FORM OF MONTHLY NOTEHOLDERS' STATEMENT
Date: ______ __, ____
DAIMLER CHRYSLER MASTER OWNER TRUST
MONTHLY PERIOD ENDING _______ __, ____
Reference is made to the Series 2002-CC Supplement (the "Series
2002-CC Supplement"), dated as of June 1, 2002, between DaimlerChrysler
Wholesale Receivables LLC, as Seller, DaimlerChrysler Services (North America)
LLC, as Servicer, and The Bank of New York, as Trustee, and the Indenture (the
"Indenture"), dated as of June 1, 2002, between Daimler Chrysler Master Owner
Trust, as Issuer, and The Bank of New York, as Indenture Trustee. Terms used
herein and not defined herein have the meanings ascribed to them in the Series
2002-CC Supplement, the Indenture and the related Indenture Supplements, as
applicable.
The following computations are prepared with respect to the Transfer
Date of _______ __, ____ and with respect to the performance of the
DaimlerChrysler Master Owner Trust during the related Monthly Period.
A. Reductions of and Increases to Series Nominal Liquidation Amount:
[Increases
from
amounts
withdrawn
from the Reductions
Principal due to
Series Nominal Increases Funding Reductions amounts on
Liquidation from sub-Account Reimburse- due to deposits
Amount for accretions in respect of ments from reallocations Reductions in the Current
prior on Principal Prefunding Available of Available due to Principal Nominal
Monthly for Discount Excess Interest Principal Investor Funding Liquidation
Series Period Notes Account] Amounts Amounts Charge-Offs Sub-Account Amount
------ ------ ----- -------- ------- ------- ----------- ----------- ------
[Series [___]
[Series [___]
[Total:]
B-1
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Monthly Noteholders' Statement this __th day of __________, _____.
DAIMLERCHRYSLER WHOLESALE
RECEIVABLES LLC,
as Beneficiary of the Daimler
Chrysler Master Owner Trust
By DaimlerChrysler Services North
America LLC, as Administrator of the
CARCO Trust and Administrator of the
Daimler Chrysler Master Owner Trust
By:
-----------------------------------
Name:
Title:
B-2
Schedule to Monthly Noteholders' Statement*
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC
--------------------------------------------------------------------------------
DAIMLERCHRYSLER MASTER OWNER TRUST
--------------------------------------------------------------------------------
* A separate schedule is to be attached for each series, with appropriate
changes and additions to reflect the specifics of the related Indenture
Supplement.
B-3
EXHIBIT C
FORM OF INVESTMENT LETTER
[Date]
The Bank of New York
as Indenture Trustee,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
DaimlerChrysler Master Owner Trust
c/o DaimlerChrysler Wholesale Receivables LLC, as Beneficiary
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: [ ]
Re: Purchase of $___________ principal amount of DaimlerChrysler
Master Owner Trust, Series , Class Notes
Ladies and Gentlemen:
In connection with our purchase of the above Notes (the "Notes") we confirm
that:
(1) We understand that the Notes are not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), and are being sold to
us in a transaction that is exempt from the registration requirements of the
Securities Act.
(2) Any information we desire concerning the Notes or any other matter
relevant to our decision to purchase the Notes is or has been made available to
us.
(3) We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment in
the Notes, and we (and any account for which we are purchasing under paragraph
(iv) below) are able to bear the economic risk of an investment in the Notes. We
(and any account for which we are purchasing under paragraph (iv) below) are an
"accredited investor" (as such term is defined in Rule 501(a)(1), (2) or (3) of
Regulation D under the Securities Act).
(4) We are acquiring the Notes for our own account or for accounts as to
which we exercise sole investment discretion and not with a view to any
distribution of the Notes, subject, nevertheless, to the understanding that the
disposition of our property shall at all times be and remain within our control;
C-1
(5) We agree that the Notes must be held indefinitely by us unless
subsequently registered under the Securities Act or an exemption from any
registration requirements of the Securities Act and any applicable state
securities law is available;
(6) We agree that in the event that at some future time we wish to dispose
of or exchange any of the Notes (such disposition or exchange not being
currently foreseen or contemplated), we will not transfer or exchange any of the
Notes unless:
(a)(i) the sale is of at least U.S. $250,000 principal amount of
Notes to an Eligible Purchaser (as defined below), (ii) a letter to
substantially the same effect as paragraphs (1), (2), (3), (4), (5) and
(6) of this letter is executed promptly by the purchaser and (3) all
offers or solicitations in connection with the sale, whether directly or
through any agent acting on our behalf, are limited only to Eligible
Purchasers and are not made by means of any form of general solicitation
or general advertising whatsoever; or
(b) the Notes are transferred pursuant to Rule 144 under the
Securities Act by us after we have held them for more than three years; or
(c) the Notes are sold in any other transaction that does not
require registration under the Securities Act and, if the Issuer, the
Servicer, the Trustee or the Note Registrar so requests, we theretofore
have furnished to such party an opinion of counsel satisfactory to such
party, in form and substance satisfactory to such party, to such effect;
or
(d) the Notes are transferred pursuant to an exception from the
registration requirements of the Securities Act under Rule 144A under the
Securities Act; and
(7) We understand that the Notes will bear a legend to substantially the
following effect:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS NOTE NOR ANY PORTION
HEREOF MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT
AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES
LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH PROVISIONS. THE
TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN
THE INDENTURE REFERRED TO HEREIN."
This legend may be removed if the Issuer, the Trustee and the Note
Registrar have received an opinion of counsel satisfactory to them, in form and
substance satisfactory to them, to the effect that the legend may be removed.
C-2
"Eligible Purchaser" means either an Eligible Dealer or a corporation,
partnership or other entity which we have reasonable grounds to believe and do
believe can make representations with respect to itself to substantially the
same effect as the representations set forth herein.
"Eligible Dealer" means any corporation or other entity the principal
business of which is acting as a broker and/or dealer in securities. Capitalized
terms used but not defined herein shall have the meanings given to such terms in
the Indenture dated as of _______ __, 2002, between DaimlerChrysler Master Owner
Trust and The Bank of New York, as indenture trustee.
Very truly yours,
---------------------------------
(Name of Purchaser)
By
------------------------------
(Authorized officer)
C-3
EXHIBIT D-1
FORM OF CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE TRUSTEE BY
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG FOR
DELIVERY OF DEFINITIVE NOTES IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL NOTE
DAIMLERCHRYSLER MASTER OWNER TRUST,
Series , Class Notes
[Insert title or sufficient description of Notes to be delivered]
We refer to that portion of the Temporary Global Note in respect of the
series, Class Notes to be exchanged for definitive Notes (the "Submitted
Portion") pursuant to this certificate (the "Notes") as provided in the
Indenture dated as of [ ], 2002, (as amended and supplemented, the "Indenture")
in respect of such issue. This is to certify that (i) we have received a
certificate or certificates, in writing or by tested telex, with respect to each
of the persons appearing in our records as being entitled to a beneficial
interest in the Submitted Portion and with respect to such person's beneficial
interest either (a) from such person, substantially in the form of Exhibit D-2
to the Indenture Supplement, or (b) from _____________ ___, ______,
substantially in the form of Exhibit D-3 to the Indenture Supplement, and (ii)
the Submitted Portion includes no part of the Temporary Global Note excepted in
such certificates.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
We understand that this certificate is required in connection with certain
securities and tax laws in the United States of America. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy hereof to any interested party in such proceedings.
Dated: _____________ ___, ______,
[as operator of the Euroclear System]
[Clearstream, Luxembourg]
By
---------------------------------
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE TO
BE DELIVERED TO EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
WITH RESPECT TO REGISTERED NOTES SOLD TO QUALIFIED
INSTITUTIONAL BUYERS
DAIMLERCHRYSLER MASTER OWNER TRUST,
Series , Class Notes
In connection with the initial issuance and placement of the Series ,
Class Notes (the "Notes"), an institutional investor in the United States (an
"institutional investor") is purchasing [U.S.$/(pound)/(U)/SF] aggregate
principal amount of the Notes hold in our account at
[________________________________________________, as operator of the Euroclear
System] [Clearstream, Luxembourg] on behalf of such investor.
We reasonably believe that such institutional investor is a qualified
institutional buyer as such term is defined under Rule 144A of the Securities
Act of 1933, as amended.
[We understand that this certificate is required in connection with United
States laws. We irrevocably authorize you to produce this certificate or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered by this certificate.]
The Definitive Notes in respect of this certificate are to be issued in
registered form in the minimum denomination of [U.S.$/(pound)/(U)/SF] and such
Definitive Notes (and, unless the Indenture or terms document relating to the
Notes otherwise provides, any Notes issued in exchange or substitution for or on
registration of transfer of Notes) shall bear the following legend:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933. NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY
BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR
TO U.S. PERSONS (EACH AS DEFINED HEREIN), EXCEPT IN COMPLIANCE WITH
THE REGISTRATION PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE TRANSFER OF THIS
NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE INDENTURE
REFERRED TO HEREIN. THIS NOTE CANNOT BE EXCHANGED FOR A BEARER
NOTE."
Dated: , , [ ]
------------- --- ------
By
-----------------------------------
Authorized officer
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
BY A BENEFICIAL OWNER OF NOTES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER
DAIMLERCHRYSLER MASTER OWNER TRUST,
Series , Class Notes
This is to certify that as of the date hereof and except as provided in
the third paragraph hereof, the Series , Class Notes held by you for our account
(the "Notes") (i) are owned by a person that is a United States person, or (ii)
are owned by a United States person that is (A) the foreign branch of a United
States financial institution (as defined in U.S. Treasury Regulations Section
1.165- 12(c)(1)(v)) (a "financial institution") purchasing for its own account
or for resale, or (B) a United States person who acquired the Notes through the
foreign branch of a financial institution and who holds the Notes through the
financial institution on the date hereof (and in either case (A) or (B), the
financial institution hereby agrees to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by a financial institution for
purposes of resale during the Restricted Period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)). In addition, financial institutions
described in clause (iii) of the preceding sentence (whether or not also
described in clause (i) or (ii)) certify that they have not acquired the Notes
for purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
We undertake to advise you by tested telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the Notes in
bearer form with respect to such of the Notes as then appear in your books as
being held for our account.
This certificate excepts and does not relate to [U.S.$/(pound)/(U)/SF]
principal amount of Notes held by you for our account, as to which we are not
yet able to certify beneficial ownership. We understand that delivery of
Definitive Notes in such principal amount cannot be made until we are able to so
certify.
We understand that this certificate is required in connection with certain
securities and tax laws in the United States of America. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy hereof to any interested party in such proceedings.
As used herein, "United States" means the United States of America, including
the States and the District of Columbia, its territories, its possessions and
other areas subject to its jurisdiction; and "United States Person" means a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States, or any
political subdivision thereof, or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
Dated: , By
------------- --- ------ ------------------------------------
Name:
As , or as agent
for, the beneficial owner(s) of the
interest in the Notes to which this
certificate relates.
D-3-1