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CNH EQUIPMENT TRUST 2000-A
INDENTURE
between
CNH EQUIPMENT TRUST 2000-A
and
HARRIS TRUST AND SAVINGS BANK,
as Indenture Trustee.
Dated as of March 1, 2000
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TABLE OF CONTENTS
Page
ARTICLE I1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.....................................................3
SECTION 1.2. Incorporation by Reference of Trust Indenture Act...............3
SECTION 1.3. Rules of Construction...........................................3
ARTICLE II
THE NOTES
SECTION 2.1. Form............................................................4
SECTION 2.2. Execution, Authentication and Delivery..........................4
SECTION 2.3. Temporary Notes.................................................5
SECTION 2.4. Registration; Registration of Transfer and Exchange.............5
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes......................7
SECTION 2.6. Persons Deemed Owner............................................8
SECTION 2.7. Payment of Principal and Interest; Defaulted Interest...........8
SECTION 2.8. Cancellation....................................................9
SECTION 2.9. Release of Collateral...........................................9
SECTION 2.10. Book-Entry Notes...............................................10
SECTION 2.11. Notices to Clearing Agency.....................................10
SECTION 2.12. Definitive Notes...............................................11
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Principal and Interest..............................11
SECTION 3.2. Maintenance of Office or Agency................................12
SECTION 3.3. Money for Payments To Be Held in Trust.........................12
SECTION 3.4. Existence......................................................14
SECTION 3.5. Protection of the Trust Estate.................................14
SECTION 3.6. Opinions as to the Trust Estate................................15
SECTION 3.7. Performance of Obligations; Servicing of Receivables...........15
SECTION 3.8. Negative Covenants.............................................18
SECTION 3.9. Annual Statement as to Compliance..............................18
SECTION 3.10. Issuer May Consolidate, etc., Only on Certain Terms............19
SECTION 3.11. Successor or Transferee........................................21
SECTION 3.12. No Other Business..............................................21
SECTION 3.13. No Borrowing...................................................21
SECTION 3.14. Servicer's Obligations.........................................21
SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities..............21
SECTION 3.16. Capital Expenditures...........................................22
SECTION 3.17. Removal of Administrator.......................................22
SECTION 3.18. Restricted Payments............................................22
SECTION 3.19. Notice of Events of Default....................................22
SECTION 3.20. Further Instruments and Acts...................................22
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture........................22
SECTION 4.2. Application of Trust Money.....................................24
SECTION 4.3. Repayment of Moneys Held by Paying Agent.......................24
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default..............................................24
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.............26
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee...........................................27
SECTION 5.4. Remedies; Priorities...........................................29
SECTION 5.5. Optional Preservation of the Receivables.......................31
SECTION 5.6. Limitation of Suits............................................31
SECTION 5.7. Unconditional Rights of Noteholders To Receive Principal
and Interest...................................................32
SECTION 5.8. Restoration of Rights and Remedies.............................32
SECTION 5.9. Rights and Remedies Cumulative.................................32
SECTION 5.10. Delay or Omission Not a Waiver.................................33
SECTION 5.11. Control by Noteholders.........................................33
SECTION 5.12. Waiver of Past Defaults........................................34
SECTION 5.13. Undertaking for Costs..........................................34
SECTION 5.14. Waiver of Stay or Extension Laws...............................34
SECTION 5.15. Action on Notes................................................35
SECTION 5.16. Performance and Enforcement of Certain Obligations.............35
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1. Duties of the Indenture Trustee................................36
SECTION 6.2. Rights of Indenture Trustee....................................38
SECTION 6.3. Individual Rights of the Indenture Trustee.....................39
SECTION 6.4. Indenture Trustee's Disclaimer.................................39
SECTION 6.5. Notice of Defaults.............................................39
SECTION 6.6. Reports by Indenture Trustee to the Holders....................39
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SECTION 6.7. Compensation and Indemnity.....................................39
SECTION 6.8. Replacement of the Indenture Trustee...........................40
SECTION 6.9. Successor Indenture Trustee by Merger..........................41
SECTION 6.10. Appointment of Co-Trustee or Separate Trustee..................42
SECTION 6.11. Eligibility; Disqualification..................................43
SECTION 6.12. Preferential Collection of Claims Against the Issuer...........44
SECTION 6.13. Representations and Warranties.................................44
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders.......................................45
SECTION 7.2. Preservation of Information; Communications to Noteholders.....46
SECTION 7.3. Reports by Issuer..............................................46
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1. Collection of Money............................................47
SECTION 8.2. Trust Accounts.................................................47
SECTION 8.3. General Provisions Regarding Accounts..........................48
SECTION 8.4. Release of Trust Estate........................................49
SECTION 8.5. Opinion of Counsel.............................................49
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Noteholders.........50
SECTION 9.2. Supplemental Indentures With Consent of Noteholders............51
SECTION 9.3. Execution of Supplemental Indentures...........................53
SECTION 9.4. Effect of Supplemental Indenture...............................53
SECTION 9.5. Conformity with Trust Indenture Act............................54
SECTION 9.6. Reference in Notes to Supplemental Indentures..................54
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1. Redemption.....................................................54
SECTION 10.2. Form of Redemption Notice......................................54
SECTION 10.3. Notes Payable on Redemption Date...............................55
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Compliance Certificates and Opinions, etc......................55
SECTION 11.2. Form of Documents Delivered to Indenture Trustee...............57
SECTION 11.3. Acts of Noteholders............................................58
SECTION 11.4. Notices, etc., to the Indenture Trustee, Issuer and Rating
Agencies.......................................................59
SECTION 11.5. Notices to Noteholders; Waiver.................................60
SECTION 11.6. Alternate Payment and Notice Provisions........................60
SECTION 11.7. Conflict with Trust Indenture Act..............................61
SECTION 11.8. Effect of Headings and Table of Contents.......................61
SECTION 11.9. Successors and Assigns.........................................61
SECTION 11.10. Severability...................................................61
SECTION 11.11. Benefits of Indenture..........................................61
SECTION 11.12. Legal Holidays.................................................61
SECTION 11.13. Governing Law..................................................61
SECTION 11.14. Counterparts...................................................62
SECTION 11.15. Recording of Indenture.........................................62
SECTION 11.16. Trust Obligation...............................................62
SECTION 11.17. No Petition....................................................62
SECTION 11.18. Inspection.....................................................63
SECTION 11.19 Subordination..................................................63
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EXHIBITS
EXHIBIT A-1 Form of A-1 Notes
EXHIBIT A-2 Form of A-2 Notes
EXHIBIT A-3 Form of A-3 Notes
EXHIBIT A-4 Form of A-4 Notes
EXHIBIT A-5 Form of Class B Notes
EXHIBIT B Form of Section 3.9 Officers' Certificate
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INDENTURE, dated as of March 1, 2000, between CNH EQUIPMENT TRUST 2000-A, a
Delaware business trust (the "ISSUER"), and HARRIS TRUST AND SAVINGS BANK, an
Illinois banking corporation ("HARRIS"), as trustee and not in its individual
capacity (the "INDENTURE TRUSTEE").
Each party agrees as follows for the benefit of the other party, for the
equal and ratable benefit of the Holders of the Issuer's 6.178% Class A-1 Asset
Backed Notes (each an "A-1 NOTE"), 6.80% Class A-2 Asset Backed Notes (each an
"A-2 NOTE"), 7.14% Class A-3 Asset Backed Notes (each an "A-3 NOTE"), 7.34%
Class A-4 Asset Backed Notes (each an "A-4 NOTE") and 7.32% Class B Notes (each
a "CLASS B NOTE"; and together with the A-1 Notes, the A-2 Notes, the A-3 Notes,
and the A-4 Notes, the "NOTES").
GRANTING CLAUSE
The Issuer hereby Grants to Harris at the Closing Date, as Indenture
Trustee for the benefit of the Holders of the Notes, all of the Issuer's right,
title and interest in, to and under the following, whether now existing or
hereafter arising or acquired (collectively, the "COLLATERAL"):
(a) the Receivables, including all documents constituting chattel
paper included therewith, and all obligations of the Obligors thereunder,
including all moneys paid thereunder on or after the Initial Cutoff Date or the
applicable Subsequent Cutoff Date;
(b) the security interests in the Financed Equipment granted by
Obligors pursuant to the Receivables and any other interest of the Issuer in the
Financed Equipment;
(c) any proceeds with respect to the Receivables from claims on
insurance policies covering Financed Equipment or Obligors;
(d) the Liquidity Receivables Purchase Agreement (only with respect to
Owned Contracts included in the Receivables) and the Purchase Agreement,
including the right of the Issuer to cause Case Credit to repurchase Receivables
from the Seller under the circumstances described therein;
(e) any proceeds from recourse to Dealers with respect to the
Receivables other than any interest in the Dealers' reserve accounts maintained
with Case Credit or NH Credit;
(f) any Financed Equipment that shall have secured a Receivable and
that shall have been acquired by or on behalf of the Trust;
(g) all funds on deposit from time to time in the Trust Accounts,
including the Spread Account Initial Deposit, any Principal Supplement Account
Deposit, the Negative Carry Account Initial Deposit and the Pre Funded Amount,
and in all investments and proceeds thereof (including all income thereon);
(h) the Sale and Servicing Agreement (including all rights of the
Seller under the Liquidity Receivables Purchase Agreement and the Purchase
Agreement assigned to the Issuer pursuant to the Sale and Servicing Agreement);
(i) all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing and all payments on or under
and all proceeds of every kind and nature whatsoever in respect of any or all of
the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property that at any time constitute all or part of or are included in the
proceeds of any and all of the foregoing; and
(j) any True Lease Equipment that is subject to any Receivable.
The foregoing Grant is made in trust to secure (x) first, the payment of
principal of and interest on, and any other amounts owing in respect of, the
Class A Notes, equally and ratably without prejudice, priority or distinction,
and (y) second, the payment of principal of and interest on, and any other
amounts owing in respect of, the Class B Notes, equally and ratably without
prejudice, priority or distinction, and to secure compliance with this
Indenture.
Harris, as Indenture Trustee on behalf of the Noteholders, (1) acknowledges
such Grant, and (2) accepts the trusts under this Indenture in accordance with
this Indenture and agrees to perform its duties required in this Indenture to
the best of its ability to the end that the interests of the Noteholders may be
adequately and effectively protected.
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. DEFINITIONS. Capitalized terms used but not otherwise defined
herein are defined in Appendix A hereto.
SECTION 1.2. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following terms, where
used in the TIA, shall have the following meanings for the purposes hereof:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
SECTION 1.3. RULES OF CONSTRUCTION. Unless the context otherwise requires:
(i) a term has the meaning assigned to it; (ii) an accounting term not otherwise
defined has the meaning assigned to it in accordance with generally accepted
accounting principles as in effect on the date hereof; (iii) "or" is not
exclusive; (iv) "including" means "including, without limitation"; and (v) words
in the singular include the plural and words in the plural include the singular.
ARTICLE II
THE NOTES
SECTION 2.1. FORM. The A-1 Notes, A-2 Notes, A-3 Notes, A-4 Notes and Class
B Notes, together with the Indenture Trustee's certificate of
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authentication, shall be in substantially the forms set forth in Exhibits A-1,
A-2, A-3, A-4 and A-5 respectively, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon, as may, consistently herewith,
be determined by the officers executing such Notes, as evidenced by their
execution of the Notes. Any portion of the text of any Note may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of the
Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of the
Notes set forth in Exhibits A-1, A-2, A-3, A-4 and A-5 are part of the terms of
this Indenture.
SECTION 2.2. EXECUTION, AUTHENTICATION AND DELIVERY. The Notes shall be
executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who were at
the time of signature Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Indenture Trustee shall upon Issuer Order authenticate and deliver A-1
Notes, A-2 Notes, A-3 Notes, A-4 Notes and Class B Notes for original issue in
an aggregate principal amount of $150,000,000, $360,000,000, $260,000,000,
$311,000,000 and $46,000,000, respectively. The Outstanding Amount of A-1 Notes,
A-2 Notes, A-3 Notes, A-4 Notes and Class B Notes at any time may not exceed
such respective amounts except as provided in Section 2.5.
Each Note shall be dated the date of its authentication. The Notes shall be
issuable as registered Notes in the minimum denomination of $1,000 and in
greater whole-dollar denominations in excess thereof.
No Note shall 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 the manual signature of one of its authorized signatories,
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and such certificate of authentication shall be conclusive evidence, and the
only evidence, that such Note has been duly authenticated and delivered
hereunder.
SECTION 2.3. TEMPORARY NOTES. Pending the preparation of Definitive Notes,
the Issuer may execute, and upon receipt of an Issuer Order, the Indenture
Trustee shall authenticate and deliver, temporary Notes that are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
not inconsistent with this Indenture as the officers executing such Notes may
determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer will cause Definitive Notes to be
prepared without unreasonable delay. After the preparation of Definitive Notes,
the temporary Notes shall be exchangeable for Definitive Notes upon surrender of
the temporary Notes at the office or agency of the Issuer to be maintained as
provided in Section 3.2, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes, the Issuer shall execute and
the Indenture Trustee shall authenticate and deliver in exchange therefor a like
principal amount of Definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as if they were Definitive Notes.
SECTION 2.4. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE. The
Issuer shall cause to be kept a register (the "NOTE REGISTER") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The
Indenture Trustee shall be the "NOTE REGISTRAR" for the purpose of registering
Notes and transfers of Notes as herein provided. Upon any resignation of any
Note Registrar, the Issuer shall promptly appoint a successor or, if it elects
not to make such an appointment, assume the duties of the Note Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer as
the Note Registrar, the Issuer will give the Indenture Trustee prompt written
notice of the appointment of such Note Registrar and of the location, and any
change in the location, of the Note Register, and the Indenture Trustee shall
have the right to inspect the Note Register at all reasonable times, to obtain
copies thereof and to rely upon a certificate executed on behalf of the Note
Registrar by an Executive Officer thereof as to the names and addresses of the
Holders of the Notes and the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office or
agency of the Issuer to be maintained as provided in Section 3.2, if the
requirements of Section 8-401(1) of the UCC are met, the Issuer shall execute,
the Indenture Trustee shall authenticate and the Noteholder shall obtain from
the
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Indenture Trustee, in the name of the designated transferee or transferees, one
or more new Notes in any authorized denominations of a like aggregate principal
amount.
At the option of the Holder, Notes may be exchanged for other new Notes of
the same Class in any authorized denominations of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, if the requirements of
Section 8-401(1) of the UCC are met, the Issuer shall execute, the Indenture
Trustee shall authenticate and the Noteholder shall obtain from the Indenture
Trustee, the Notes that the Noteholder making the exchange is entitled to
receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer, evidencing the same debt and
entitled to the same benefits under this Indenture as the Notes surrendered upon
such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by, the
Holder thereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Exchange Act.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
SECTION 2.5. MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If: (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by the Indenture Trustee and the Issuer to hold the
Indenture Trustee and the Issuer, respectively, harmless, then, in the absence
of notice to the Issuer, the Note Registrar or the Indenture Trustee that such
Note has been acquired by a bona fide purchaser, and provided that the
requirements of Section 8-405 of the UCC are met, the Issuer shall execute, and
upon its request the Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any
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such mutilated, destroyed, lost or stolen Note, a replacement Note of the same
Class; PROVIDED, HOWEVER, that if any such destroyed, lost or stolen Note, but
not a mutilated Note, shall have become, or within seven days shall be, due and
payable, or shall have been called for redemption, instead of issuing a
replacement Note, the Issuer may pay such destroyed, lost or stolen Note when so
due or payable or upon the Redemption Date without surrender thereof. If, after
the delivery of such replacement Note (or payment of a destroyed, lost or stolen
Note pursuant to the proviso to the preceding sentence), a bona fide purchaser
of the original Note in lieu of which such replacement Note was issued presents
for payment such original Note, the Issuer and the Indenture Trustee shall be
entitled to recover such replacement Note (or such payment) from the Person to
whom it was delivered or any Person taking such replacement Note from such
Person to whom such replacement Note was delivered (or payment made) or any
assignee of such Person, except a bona fide purchaser, and shall be entitled to
recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Issuer or the Indenture Trustee in
connection therewith.
Upon the issuance of any replacement Note under this Section, the Issuer
may require the payment by the Holder of such Note of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other reasonable expenses (including the fees and expenses of the Indenture
Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in replacement of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6. PERSONS DEEMED OWNER. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of and interest, if any,
on such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and neither the Issuer, the Indenture Trustee nor any agent of the
Issuer or the Indenture Trustee shall be affected by notice to the contrary.
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SECTION 2.7. PAYMENT OF PRINCIPAL AND INTEREST; DEFAULTED INTEREST. (a) The
A-1 Notes, A-2 Notes, A-3 Notes, A-4 Notes and Class B Notes shall accrue
interest at the A-1 Note Rate, the A-2 Note Rate, the A-3 Note Rate, the A-4
Note Rate and the Class B Note Rate, respectively, and such interest shall be
payable on each Payment Date, subject to Section 3.1. Any installment of
interest or principal, if any, payable on any Note that is punctually paid or
duly provided for by the Issuer on the applicable Payment Date shall be paid to
the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the Record Date by check mailed first-class, postage prepaid, to
such Person's address as it appears on the Note Register on such Record Date.
However, unless Definitive Notes have been issued, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Notwithstanding the above, the final installment of principal payable
with respect to such Note (and except for the Redemption Price for any Note
called for redemption pursuant to Section 10.1(a)) shall be payable as provided
in clause (b)(ii). The funds represented by any such checks returned undelivered
shall be held in accordance with Section 3.3.
(b)(i) The principal of each Note shall be payable in installments on each
Payment Date as provided in this Indenture. Notwithstanding the foregoing, the
entire Outstanding Amount shall be due and payable, ratably to all Noteholders,
on: (A) the date on which an Event of Default shall have occurred and be
continuing if the Indenture Trustee or the Holders of Notes representing not
less than a majority of the Outstanding Amount of the Notes have declared the
Notes to be immediately due and payable in the manner provided in Section 5.2,
and (B) if any Notes remain Outstanding, on and after the February 2007 Payment
Date. In all other circumstances, all principal payments on each Class of Notes
shall be made pro rata to the Noteholders of such Class entitled thereto.
(ii) The Indenture Trustee shall notify the Person in whose name a
Note is registered at the close of business on the Record Date preceding
the Payment Date on which the Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall be
mailed no later than five days prior to such final Payment Date and shall
specify that such final installment will be payable only upon presentation
and surrender of such Note and shall specify the place where such Note may
be presented and surrendered for payment of such installment. Notices in
connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2.
(c) If the Issuer defaults in a payment of interest on the Notes, the
Issuer shall pay, in any lawful manner, defaulted interest (PLUS interest on
such defaulted
8
interest to the extent lawful) at the applicable interest rate from the Payment
Date for which such payment is in default. The Issuer may pay such defaulted
interest to the Persons who are Noteholders on a subsequent special record date,
which date shall be at least five Business Days prior to the special payment
date. The Issuer shall fix or cause to be fixed any such special record date and
special payment date, and, at least 15 days before any such special record date,
shall mail to each Noteholder a notice that states the special record date, the
special payment date and the amount of defaulted interest to be paid.
SECTION 2.8. CANCELLATION. All Notes surrendered for payment, registration
of transfer, exchange or redemption shall, if surrendered to any Person other
than the Indenture Trustee, be delivered to the Indenture Trustee and shall be
promptly canceled by the Indenture Trustee. The Issuer may at any time deliver
to the Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder that the Issuer may have acquired in any manner whatsoever,
and all Notes so delivered shall be promptly canceled by the Indenture Trustee.
No Notes shall be authenticated in lieu of or in exchange for any Notes canceled
as provided in this Section except as expressly permitted by this Indenture. All
canceled Notes may be held or disposed of by the Indenture Trustee in accordance
with its standard retention or disposal policy as in effect at the time unless
the Issuer shall direct by an Issuer Order that they be returned to it;
PROVIDED, that such Issuer Order is timely and the Notes have not been
previously disposed of by the Indenture Trustee.
SECTION 2.9. RELEASE OF COLLATERAL. Subject to Section 11.1 and the Basic
Documents, the Indenture Trustee shall release property from the Lien of this
Indenture only upon receipt of an Issuer Request accompanied by an Officers'
Certificate, an Opinion of Counsel and Independent Certificates in accordance
with TIA Secs. 314(c) and 314(d)(l), or an Opinion of Counsel in lieu of such
Independent Certificates to the effect that the TIA does not require any such
Independent Certificates.
SECTION 2.10. BOOK-ENTRY NOTES. The Notes, upon original issuance, will be
issued in the form of typewritten Notes representing the Book-Entry Notes, to be
delivered to The Depository Trust Company (the initial Clearing Agency), or its
custodian, by, or on behalf of, the Issuer. Such Notes shall initially be
registered on the Note Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Note Owner of such Note will receive a
Definitive Note representing such Note Owner's interest in such Note, except as
provided in Section 2.12. Unless and until definitive, fully registered Notes
(the "DEFINITIVE NOTES") representing Notes have been issued to Note Owners:
(i) this Section shall be in full force and effect;
9
(ii) the Note Registrar and the Indenture Trustee may deal with the
Clearing Agency for all purposes (including the payment of principal of and
interest on the Notes) as the authorized representative of the Note Owners;
(iii) to the extent that this Section conflicts with any other
provisions of this Indenture, this Section shall control;
(iv) the rights of Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Note Owners and the Clearing Agency and/or the
Clearing Agency Participants pursuant to the Note Depository Agreement.
Unless and until Definitive Notes are issued, the Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Notes to such
Clearing Agency Participants; and
(v) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Holders of Notes evidencing a
specified percentage of the Outstanding Amount of the Notes (or a Class of
Notes), the Clearing Agency shall be deemed to represent such percentage
only to the extent that it has received instructions to such effect from
Note Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the
Notes (or Class of Notes) and has delivered such instructions to the
Indenture Trustee.
SECTION 2.11. NOTICES TO CLEARING AGENCY. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes have been issued to Note Owners, the Indenture Trustee
shall give all such notices and communications to the Clearing Agency.
SECTION 2.12. DEFINITIVE NOTES. If: (i) the Administrator advises the
Indenture Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities with respect to the Notes, and
the Administrator is unable to locate a qualified successor, (ii) the
Administrator at its option advises the Indenture Trustee in writing that it
elects to terminate the book entry system through the Clearing Agency or (iii)
after the occurrence of an Event of Default or a Servicer Default, Note Owners
representing beneficial interests aggregating at least a majority of the
Outstanding Amount of the Notes advise the Clearing Agency in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of the Note Owners, then the Clearing Agency has undertaken
to notify all Note Owners and the Indenture Trustee of the occurrence of any
such event and of the availability of Definitive
10
Notes to Note Owners requesting the same. Upon surrender to the Indenture
Trustee of the typewritten Notes representing the Book-Entry Notes by the
Clearing Agency, accompanied by registration instructions, the Issuer shall
execute, and the Indenture Trustee shall authenticate, the Definitive Notes in
accordance with the instructions of the Clearing Agency. None of the Issuer, the
Note Registrar or the Indenture Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Notes, the Indenture Trustee shall recognize the Holders of the Definitive Notes
as Noteholders.
SECTION 2.13. TAX TREATMENT. It is the intent of the Seller, the Servicer,
the Noteholders and the Note Owners that, for purposes of Federal and State
income tax and any other tax measured in whole or in part by income, the Notes
will qualify as indebtedness of the Trust. Each Noteholder or Note Owner, by
acceptance of a Note, or, in the case of a Note Owner, a beneficial interest in
a Note, agrees to treat, and to take no action inconsistent with the treatment
of, the Notes for such tax purposes as indebtedness of the Trust.
ARTICLE III
Covenants
SECTION 3.1. PAYMENT OF PRINCIPAL AND INTEREST. The Issuer will duly and
punctually pay the principal and interest, if any, on the Notes in accordance
with the terms of the Notes and this Indenture. Without limiting the foregoing,
subject to Section 8.2(c), the Issuer will cause to be distributed all amounts
on deposit in the Note Distribution Account on a Payment Date deposited therein
for the benefit of the Notes pursuant to the Sale and Servicing Agreement to
Holders of the Notes. Amounts properly withheld under the Code or any applicable
State law by any Person from a payment to any Noteholder of interest and/or
principal shall be considered as having been paid by the Issuer to such
Noteholder for all purposes of this Indenture.
SECTION 3.2. Maintenance of Office or Agency. The Issuer will maintain in
the Borough of Manhattan, The City of New York, an office or agency where Notes
may be surrendered for registration of transfer or exchange, and where notices
and demands to or upon the Issuer in respect of the Notes and this Indenture may
be served. The Issuer hereby initially appoints the Indenture Trustee to serve
as its agent for the foregoing purposes. The Issuer will give prompt written
notice to the Indenture Trustee of the location, and of any change in the
location, of any such office or agency. If at any time the Issuer shall fail to
maintain any such office or agency or shall fail to furnish the Indenture
Trustee with the address thereof, such surrenders, notices and demands may be
made or
11
served at the Corporate Trust Office, and the Issuer hereby appoints the
Indenture Trustee as its agent to receive all such surrenders, notices and
demands.
SECTION 3.3. MONEY FOR PAYMENTS TO BE HELD IN TRUST. As provided in Section
8.2(a) and (b), all payments of amounts due and payable with respect to any
Notes that are to be made from amounts withdrawn from the Collection Account and
the Note Distribution Account pursuant to Section 8.2(c) shall be made on behalf
of the Issuer by the Indenture Trustee or by another Paying Agent, and no
amounts so withdrawn from the Collection Account and the Note Distribution
Account for payments of Notes shall be paid over to the Issuer except as
provided in this Section.
On or before each Payment Date and Redemption Date, the Issuer shall
deposit or cause to be deposited in the Note Distribution Account an aggregate
sum sufficient to pay the amounts then becoming due under the Notes, such sum to
be held in trust for the benefit of the Persons entitled thereto and (unless the
Paying Agent is the Indenture Trustee) shall promptly notify the Indenture
Trustee of its action or failure so to act.
Any Paying Agent shall be appointed by Issuer Order with written notice
thereof to the Indenture Trustee. Any Paying Agent appointed by the Issuer shall
be a Person who would be eligible to be Indenture Trustee hereunder as provided
in Section 6.11. The Issuer shall not appoint any Paying Agent (other than the
Indenture Trustee) which is not, at the time of such appointment, a depository
institution or trust company, including the Indenture Trustee, that (a) is
incorporated under the laws of the United States of America or any State
thereof, (b) is subject to supervision and examination by federal or state
banking authorities and (c) has outstanding unsecured commercial paper or other
short- term unsecured debt obligations that are rated "A-1+" by Standard &
Poor's or "Prime-1" by Moody's (or its equivalent).
The Issuer will cause each Paying Agent other than the Indenture Trustee to
execute and deliver to the Indenture Trustee an instrument in which such Paying
Agent shall agree with the Indenture Trustee (and if the Indenture Trustee acts
as Paying Agent, it hereby so agrees), subject to the provisions of this
Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and pay such sums to such Persons as herein provided;
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(ii) give the Indenture Trustee notice of any default by the Issuer
(or any other obligor upon the Notes) of which it has actual knowledge in
the making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon the
written request of the Indenture Trustee, forthwith pay to the Indenture
Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes if
at any time it ceases to meet the standards required to be met by a Paying
Agent; and
(v) comply with all requirements of the Code and any applicable State
law with respect to the withholding from any payments made by it on any
Notes of any applicable withholding taxes imposed thereon and with respect
to any applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Order,
direct any Paying Agent to pay to the Indenture Trustee all sums held in trust
by such Paying Agent, such sums to be held by the Indenture Trustee upon the
same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money held
by the Indenture Trustee or any Paying Agent in trust for the payment of any
amount due with respect to any Note and remaining unclaimed for two years after
such amount has become due and payable shall be discharged from such trust and
be paid to the Issuer on Issuer Request; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; PROVIDED, HOWEVER, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense and direction of the Issuer cause to be published once, in
a newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Issuer. The Indenture
Trustee shall also adopt and employ, at the expense of the Issuer, any other
reasonable means
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of notification of such repayment (including mailing notice of such repayment to
Holders whose Notes have been called but have not been surrendered for
redemption or whose right to or interest in moneys due and payable but not
claimed is determinable from the records of the Indenture Trustee or of any
Paying Agent, at the last address of record for each such Holder).
SECTION 3.4. EXISTENCE. The Issuer will keep in full effect its existence,
rights and franchises as a business trust under the laws of the jurisdiction of
its organization and will obtain and preserve its qualification to do business
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Notes, the
Collateral and each other instrument or agreement included in the Trust Estate.
SECTION 3.5. PROTECTION OF THE TRUST ESTATE. 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, and will take such other action necessary or advisable
to:
(i) maintain or preserve the Lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and the rights of
the Indenture Trustee and the Noteholders in such Trust Estate against the
claims of all Persons.
The Issuer hereby designates the Indenture Trustee as its agent and attorney in
fact to execute any financing statement, continuation statement, instrument of
further assurance or other instrument required to be executed to accomplish the
foregoing.
SECTION 3.6. OPINIONS AS TO THE TRUST ESTATE. (a) On the Closing Date, the
Issuer shall 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 statements and continuation statements, as
are necessary to perfect and make effective the Lien and security interest
created by this Indenture
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and reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such Lien and security interest
effective.
(b) On or before April 30 in each calendar year, the Issuer shall 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, 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 Lien and security interest of this Indenture and
reciting the details of such action, or stating that in the opinion of such
counsel no such action is necessary to maintain such Lien and security interest.
Such Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents, 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
April 30 in the following calendar year.
SECTION 3.7. PERFORMANCE OF OBLIGATIONS; SERVICING OF RECEIVABLES. (a) The
Issuer will not take any action and will use its best efforts not to permit any
action to be taken by others that would release any Person from any material
covenants or obligations under any instrument or agreement included in the Trust
Estate or that would result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of, any
such instrument or agreement, except as expressly provided in this Indenture,
the Sale and Servicing Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in performing
its duties under this Indenture, and any performance of such duties by a Person
identified to the Indenture Trustee in an Officers' Certificate of the Issuer
shall be deemed to be action taken by the Issuer. Initially, the Issuer has
contracted with the Servicer and the Administrator to assist the Issuer in
performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of its obligations
and agreements contained in this Indenture, the other Basic Documents and in the
instruments and agreements included in the Trust Estate, including filing or
causing to be filed all UCC financing statements and continuation statements
required to be filed by this Indenture and the Sale and Servicing Agreement in
accordance with and within the time periods provided for herein and therein.
Except as otherwise expressly provided therein, the Issuer shall not waive,
amend, modify, supplement or terminate any Basic Document or any provision
thereof
15
without the consent of the Indenture Trustee or the Holders of at least a
majority of the Outstanding Amount of the Notes.
(d) If the Issuer shall have knowledge of the occurrence of a Servicer
Default, the Issuer shall promptly notify the Indenture Trustee and the Rating
Agencies thereof, and shall specify in such notice the action, if any, the
Issuer is taking with respect to such default. If a Servicer Default shall arise
from the failure of the Servicer to perform any of its duties or obligations
under the Sale and Servicing Agreement with respect to the Receivables, the
Issuer shall take all reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of termination to
the Servicer of the Servicer's rights and powers pursuant to Section 8.1 of the
Sale and Servicing Agreement, the Issuer shall appoint a successor servicer (the
"SUCCESSOR SERVICER"), and such Successor Servicer shall accept its appointment
by a written assumption in a form acceptable to the Indenture Trustee. In the
event that a Successor Servicer has not been appointed and accepted its
appointment at the time when the previous Servicer ceases to act as Servicer,
the Indenture Trustee without further action shall automatically be appointed
the Successor Servicer. The Indenture Trustee may resign as the Servicer by
giving written notice of such resignation to the Issuer and in such event will
be released from such duties and obligations, such release not to be effective
until the date a Successor Servicer enters into a servicing agreement with the
Issuer as provided below. Upon delivery of any such notice to the Issuer, the
Issuer shall obtain a new servicer as the Successor Servicer under the Sale and
Servicing Agreement. Any Successor Servicer other than the Indenture Trustee
shall: (i) be an established financial institution having a net worth of not
less than $50,000,000 and whose regular business includes the servicing of
receivables and (ii) enter into a servicing agreement with the Issuer having
substantially the same provisions as the provisions of the Sale and Servicing
Agreement applicable to the Servicer. If within 30 days after the delivery of
the notice referred to above, the Issuer shall not have obtained such a
Successor Servicer, the Indenture Trustee may appoint, or may petition a court
of competent jurisdiction to appoint, a Successor Servicer. In connection with
any such appointment, the Indenture Trustee may make such arrangements for the
compensation of such Successor Servicer as it and such Successor Servicer shall
agree, subject to the limitations set forth below and in the Sale and Servicing
Agreement, and in accordance with Section 8.2 of the Sale and Servicing
Agreement, the Issuer shall enter into an agreement with such Successor Servicer
for the servicing of the Receivables (such agreement to be in form and substance
satisfactory to the Indenture Trustee). If the Indenture Trustee shall succeed
to the previous Servicer's duties as servicer of the Receivables as provided
herein, it shall do so in its individual capacity and not in its capacity as
Indenture Trustee and, accordingly, the provisions of Article VI shall be
inapplicable to the Indenture Trustee in its duties
16
as the Successor Servicer and the servicing of the Receivables. In case the
Indenture Trustee shall become the Successor Servicer under the Sale and
Servicing Agreement, the Indenture Trustee shall be entitled to appoint as
Servicer any one of its Affiliates; PROVIDED, that it shall be fully liable for
the actions and omissions of such Affiliate in its capacity as Successor
Servicer.
(f) Upon any termination of the Servicer's rights and powers pursuant to
the Sale and Servicing Agreement, the Issuer shall promptly notify the Indenture
Trustee. As soon as a Successor Servicer is appointed, the Issuer shall notify
the Indenture Trustee of such appointment, specifying in such notice the name
and address of such Successor Servicer.
(g) 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 that it will not, without the prior written
consent of the Indenture Trustee or the Holders of at least a majority of the
Outstanding Amount, 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 the Sale and Servicing Agreement) or the Basic Documents, or waive
timely performance or observance by the Servicer or the Seller under the Sale
and Servicing Agreement or Case Credit under the Purchase Agreement; PROVIDED,
HOWEVER, that no such amendment shall: (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, distributions that are required
to be made for the benefit of the Noteholders, or (ii) reduce the aforesaid
percentage of the Notes that are required to consent to any such amendment, in
either case without the consent of the Holders of all the Outstanding Notes. If
any such amendment, modification, supplement or waiver shall be so consented to
by the Indenture Trustee or such Holders, the Issuer agrees, promptly following
a request by the Indenture Trustee to do so, to execute and deliver, in its own
name and at its own expense, such agreements, instruments, consents and other
documents as the Indenture Trustee may deem necessary or appropriate in the
circumstances.
SECTION 3.8. NEGATIVE COVENANTS. So long as any Notes are Outstanding, the
Issuer shall not:
(i) except as expressly permitted by this Indenture, the Purchase
Agreement or the Sale and Servicing Agreement, sell, transfer, exchange or
otherwise dispose of any of the properties or assets of the Issuer,
including those included in the Trust Estate, unless directed to do so by
the Indenture Trustee;
17
(ii) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly
withheld from such payments under the Code or applicable State law) or
assert any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Trust Estate;
or
(iii)(A) permit the validity or effectiveness of this Indenture to be
impaired, or permit the Lien of 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, (B) permit any Lien
(other than the Lien of this Indenture) to be created on or extend to or
otherwise arise upon or burden the Trust Estate or any part thereof or any
interest therein or the proceeds thereof or (C) permit the Lien of this
Indenture not to constitute a valid first priority (other than with respect
to any tax lien, mechanics' lien or other lien not considered a Lien)
security interest in the Trust Estate.
SECTION 3.9. ANNUAL STATEMENT AS TO COMPLIANCE. The Issuer will deliver to
the Indenture Trustee, within 120 days after the end of each fiscal year of the
Issuer (commencing with the fiscal year 2000), an Officers' Certificate,
substantially in the form of Exhibit B, stating that:
(i) a review of the activities of the Issuer during such year and of
performance under this Indenture has been made under such Authorized
Officers' supervision; and
(ii) to the best of such Authorized Officers' knowledge, based on such
review, the Issuer has complied with all conditions and covenants under
this Indenture throughout such year or, if there has been a default in the
compliance of any such condition or covenant, specifying each such default
known to such Authorized Officers and the nature and status thereof.
SECTION 3.10. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. (a) The
Issuer shall not consolidate or merge with or into any other Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving such
consolidation or merger shall be a Person organized and existing under the
laws of the United States of America or any State and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture Trustee, the due
and punctual payment of the principal of and interest on all Notes and the
18
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;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee) to the effect that
such transaction will not have any material adverse tax consequence to the
Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain the Lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for relating
to such transaction have been complied with (including any filing required
by the Exchange Act).
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the properties
and assets of the Issuer the conveyance or transfer of which is hereby
restricted shall: (A) be a United States citizen or a Person organized and
existing under the laws of the United States of America or any State, (B)
expressly assumes, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the principal of and interest on
all Notes and the performance or observance of every agreement and covenant
of this Indenture on the part of the Issuer to be performed or observed,
all as provided herein, (C) expressly agrees by means of such supplemental
indenture 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 supplemental indenture, expressly agrees
to indemnify, defend and hold harmless the Issuer against and from any
loss, liability or expense arising under or related to this Indenture and
19
the Notes and (E) expressly agrees by means of such supplemental indenture
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 Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee) to the effect that
such transaction will not have any material adverse tax consequence to the
Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain the Lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with (including any filing required by
the Exchange Act).
SECTION 3.11. SUCCESSOR OR TRANSFEREE. (a) Upon any consolidation or merger
of the Issuer in accordance with Section 3.10(a), the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of the
Issuer pursuant to Section 3.10(b), the Issuer will be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of the Issuer with respect to the Notes immediately upon the delivery of written
notice to the Indenture Trustee stating that the Issuer is to be so released.
SECTION 3.12. NO OTHER BUSINESS. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing of the
Receivables in the manner contemplated by this Indenture and the Basic Documents
and activities incidental thereto.
20
SECTION 3.13. NO BORROWING. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
SECTION 3.14. SERVICER'S OBLIGATIONS. The Issuer shall cause the Servicer
to comply with Sections 4.8, 4.9, 4.10, 4.11 and 5.9 of the Sale and Servicing
Agreement.
SECTION 3.15. GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Except as
contemplated by the Sale and Servicing Agreement or this Indenture, 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 3.16. CAPITAL EXPENDITURES. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
SECTION 3.17. REMOVAL OF ADMINISTRATOR. So long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause unless
the Rating Agency Condition shall have been satisfied in connection with such
removal.
SECTION 3.18. RESTRICTED PAYMENTS. The Issuer shall not, directly or
indirectly: (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the 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 or the Administrator, (ii) redeem, purchase,
retire or otherwise acquire for value any such ownership or equity interest or
security or (iii) set aside or otherwise segregate any amounts for any such
purpose; PROVIDED, HOWEVER, that the Issuer may make, or cause to be made,
distributions to the Servicer, the Trustee, the Certificateholders and the
Administrator as contemplated by, and to the extent funds are available for such
purpose under, the Sale and Servicing Agreement. The Issuer will not, directly
or indirectly, make payments to or distributions from the Collection Account
except in accordance with this Indenture and the Basic Documents.
SECTION 3.19. NOTICE OF EVENTS OF DEFAULT. The Issuer shall give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
21
Default hereunder, each default on the part of the Servicer or the Seller of its
obligations under the Sale and Servicing Agreement and each default on the part
of Case Credit of its obligations under the Purchase Agreement.
SECTION 3.20. 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.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture shall
cease to be of further effect with respect to the Notes except as to: (i) rights
of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8,
3.10, 3.12 and 3.13, (v) the rights, obligations and immunities of the Indenture
Trustee hereunder (including the rights of the Indenture Trustee under Section
6.7 and the obligations of the Indenture Trustee under Section 4.2) and (vi) the
rights of Noteholders as beneficiaries hereof with respect to the property so
deposited with the Indenture Trustee payable to all or any of them, and the
Indenture Trustee, on demand of and at the expense of the Issuer, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to the Notes, when:
(A) either:
(1) all Notes theretofore authenticated and delivered (other than: (i)
Notes that have been destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.5 and (ii) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 3.3) have been delivered to the Indenture Trustee for
cancellation; or
(2) all Notes not theretofore delivered to the Indenture Trustee for
cancellation:
(i) have become due and payable,
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(ii) will become due and payable on the Final Scheduled Maturity
Date within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving of
notice of redemption by the Indenture Trustee in the name, and at the
expense, of the Issuer,
and the Issuer, in the case of clause (2)(i), (ii) or (iii), has
irrevocably deposited or caused to be irrevocably deposited with the Indenture
Trustee cash or direct obligations of or obligations guaranteed by the United
States of America (which will mature prior to the date such amounts are
payable), in trust for such purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore delivered to the
Indenture Trustee for cancellation when due to the Final Scheduled Maturity Date
or Redemption Date (if Notes shall have been called for redemption pursuant to
Section 10.1(a)), as the case may be;
(B) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(C) the Issuer has delivered to the Indenture Trustee an Officers'
Certificate, an Opinion of Counsel and (if required by the TIA or the Indenture
Trustee) an Independent Certificate from a firm of certified public accountants,
each meeting the applicable requirements of Section 11.1(a) and, subject to
Section 11.2, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been complied
with.
SECTION 4.2. APPLICATION OF TRUST MONEY. All moneys deposited with the
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Holders of the particular Notes for the payment or
redemption of which such moneys have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest; but such
moneys need not be segregated from other funds except to the extent required
herein or in the Sale and Servicing Agreement or as required by law.
SECTION 4.3. REPAYMENT OF MONEYS HELD BY PAYING AGENT. In connection with
the satisfaction and discharge of this Indenture with respect to the Notes, all
moneys then held by any Paying Agent other than the Indenture Trustee under this
Indenture with respect to such Notes shall, upon demand of the Issuer,
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be paid to the Indenture Trustee to be held and applied according to Section
3.3, and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
ARTICLE V
Remedies
SECTION 5.1. EVENTS OF DEFAULT. "Event of Default", wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) default in the payment of any interest on any Note when the same
becomes due and payable, and such default shall continue for a period of
five days;
(ii) default in the payment of the principal of any Note when the same
becomes due and payable;
(iii) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture (other than a covenant or
agreement a default in the observance or performance of which is elsewhere
in this Section specifically dealt with), or any representation or warranty
of the Issuer made in this Indenture or in any certificate or other writing
delivered pursuant hereto or in connection herewith proving to have been
incorrect in any material respect as of the time when the same shall have
been made, and such default shall continue or not be cured, or the
circumstance or condition in respect of which such misrepresentation or
warranty was incorrect shall not have been eliminated or otherwise cured,
for a period of 30 days after there shall have been given, by registered or
certified mail, to the Issuer by the Indenture Trustee or to the Issuer and
the Indenture Trustee by the Holders of at least 25% of the Outstanding
Amount of the Notes, a written notice specifying such default or incorrect
representation or warranty and requiring it to be remedied and stating that
such notice is a notice of Default hereunder;
(iv) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial
part of the Trust Estate in an involuntary case under any applicable
Federal or State bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
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custodian, trustee,sequestrator or similar official of the Issuer or for
any substantial part of the Trust Estate, or ordering the winding-up or
liquidation of the Issuer's affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(v) the commencement by the Issuer of a voluntary case under any
applicable Federal or State bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Issuer to the entry of an
order for relief in an involuntary case under any such law, or the consent
by the Issuer to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of the Issuer or for any substantial part of the Trust Estate, or the
making by the Issuer of any general assignment for the benefit of
creditors, or the failure by the Issuer generally to pay its debts as such
debts become due, or the taking of action by the Issuer in furtherance of
any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five days after
the Issuer or the Administrator obtains actual knowledge thereof, written notice
in the form of an Officers' Certificate of any event that, with the giving of
notice or the lapse of time or both, would become an Event of Default under
clause (iii), its status and what action the Issuer is taking or proposes to
take with respect thereto.
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default should occur and be continuing, then and in every such case the
Indenture Trustee or the Holders of Notes representing not less than a majority
of the Outstanding Amount may declare all the Notes to be immediately due and
payable, by a notice in writing to the Issuer (and to the Indenture Trustee if
given by Noteholders), and upon any such declaration the Outstanding Amount,
together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter in this Article V provided, the
Holders of Notes representing not less than a majority of the Outstanding
Amount, by written notice to the Issuer and the Indenture Trustee, may rescind
and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay:
(A) all payments of principal of and interest on all Notes and
all other amounts that would then be due hereunder or upon such Notes
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if the Event of Default giving rise to such acceleration had not
occurred; and
(B) all sums paid or advanced by the Indenture Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances
of the Indenture Trustee and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the principal
of the Notes that has become due solely by such acceleration, have been
cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE. (a) The Issuer covenants that if an Event of Default
described in Section 5.1(i) or (ii) occurs, the Issuer will, upon demand of the
Indenture Trustee, pay to it, for the benefit of the Holders of Notes, the whole
amount then due and payable on such Notes for principal and interest, with
interest upon the overdue principal at the applicable interest rate, and, to the
extent payment at such rate of interest shall be legally enforceable, upon
overdue installments of interest, at the applicable interest rate, and in
addition thereto such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a 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 other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the moneys adjudged or decreed to be
payable.
(c) In case an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.4, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders, by
such appropriate Proceedings as the Indenture Trustee shall deem most effective
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy or legal or
equitable right vested in the Indenture Trustee by this Indenture or by law.
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(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Trust Estate, Proceedings under Title 11 of the United States Code or any
other applicable Federal or State bankruptcy, insolvency or other similar law,
or in case a receiver, assignee, trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to this Section, shall be entitled and empowered,
by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor Indenture
Trustee, except as a result of negligence or bad faith) and of the
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law or regulations, to vote on
behalf of the Holders of the Notes in any election of a trustee, a standby
trustee or any Person performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Noteholders and of the Indenture Trustee on
their behalf; and
(iv) to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Indenture
Trustee or the Holders of Notes allowed in any judicial Proceedings
relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, assignee, custodian, sequestrator or
other similar official in any such Proceeding is hereby authorized by each of
such Noteholders to make payments to the Indenture Trustee, and, in the event
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that the Indenture Trustee shall consent to the making of payments directly to
such Noteholders, to pay to the Indenture Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Indenture Trustee and each predecessor Indenture Trustee except as a
result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Indenture Trustee shall be brought in its own name and as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents and attorneys, shall
be for the ratable benefit of the Holders of the Notes.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Holders of the Notes, and it shall not be necessary to
make any Noteholder a party to any such Proceedings.
SECTION 5.4. REMEDIES; PRIORITIES. (a) If an Event of Default shall have
occurred and be continuing, the Indenture Trustee may do one or more of the
following (subject to Section 5.5):
(i) institute Proceedings in its own name and as trustee of an express
trust for the collection of all amounts then payable on the Notes or under
this Indenture with respect thereto, whether by declaration or otherwise,
enforce any judgment obtained, and collect from the Issuer and any other
obligor upon such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust Estate;
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(iii) exercise any remedies of a secured party under the UCC and take
any other appropriate action to protect and enforce the rights and remedies
of the Indenture Trustee and the Holders of the Notes;
(iv) sell the Trust Estate, or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law; and
(v) make demand upon the Servicer, by written notice, that the
Servicer deliver to the Indenture Trustee all Receivable Files;
PROVIDED, HOWEVER, that the Indenture Trustee may not sell or otherwise
liquidate the Trust Estate following an Event of Default, other than an Event of
Default described in Section 5.1(i) or (ii), unless: (A) all the Noteholders
consent thereto, (B) the proceeds of such sale or liquidation distributable to
the Noteholders are sufficient to discharge in full all amounts then due and
unpaid upon such Notes for principal and interest or (C) the Indenture Trustee
determines that the Trust Estate will not continue to provide sufficient funds
for the payment of principal of and interest on the Notes as they would have
become due if the Notes had not been declared due and payable, and the Indenture
Trustee obtains the consent of Holders of 66-2/3% of the Outstanding Amount. In
determining such sufficiency or insufficiency with respect to clauses (B) and
(C), the Indenture Trustee may, but need not, obtain and rely upon an opinion of
an Independent investment banking or accounting firm of national reputation as
to the feasibility of such proposed action and as to the sufficiency of the
Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out such money or property in the following order:
FIRST: to the Indenture Trustee for amounts due under Section 6.7;
SECOND: to Class A Noteholders for amounts due and unpaid on the Class
A Notes for interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Class A Notes for interest;
THIRD: to Class B Noteholders for amounts due and unpaid on the Class
B Notes for interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Class B Notes for interest;
FOURTH: to Class A Noteholders for amounts due and unpaid on the Class
A Notes for principal, ratably, without preference or priority of any kind,
29
according to the amounts due and payable on the Class A Notes for
principal;
FIFTH: to Class B Noteholders for amounts due and unpaid on the Class
B Notes for principal, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Class B Notes for
principal; and
SIXTH: to the Issuer for distribution to the Certificateholders.
The Indenture Trustee may fix a special record date and special payment
date for any payment to Noteholders pursuant to this Section. At least 15 days
before such special record date, the Issuer shall mail to each Noteholder and
the Indenture Trustee a notice that states the special record date, the special
payment date and the amount to be paid.
SECTION 5.5. OPTIONAL PRESERVATION OF THE RECEIVABLES. If the Notes have
been declared to be due and payable under Section 5.2 following an Event of
Default, and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, but need not, elect to maintain possession
of the Trust Estate. It is the desire of the parties hereto and the Noteholders
that there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Indenture Trustee shall take such desire into
account when determining whether or not to maintain possession of the Trust
Estate. In determining whether to maintain possession of the Trust Estate, the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
SECTION 5.6. LIMITATION OF SUITS. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(i) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(ii) the Holder(s) of not less than 25% of the Outstanding Amount of
the Notes have made written request to the Indenture Trustee to institute
such Proceeding in respect of such Event of Default in its own name as
Indenture Trustee hereunder;
30
(iii) such Holder(s) have offered to the Indenture Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceeding; and
(v) no direction inconsistent with such written request has been given
to the Indenture Trustee during such 60-day period by the Holders of a
majority of the Outstanding Amount of the Notes;
it being understood and intended that no one or more Holder(s) of Notes shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holder(s) of Notes or to obtain or to seek to obtain priority or
preference over any other Holder(s) or to enforce any right under this
Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Noteholders, each
representing less than a majority of the Outstanding Amount of the Notes, the
Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7. UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST. Notwithstanding any other provisions in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Note on or after the
respective due dates thereof expressed in such Note or in this Indenture (or, in
the case of redemption, on or after the Redemption Date) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
SECTION 5.8. RESTORATION OF RIGHTS AND REMEDIES. If the Indenture Trustee
or any Noteholder has instituted any Proceeding to enforce any right or remedy
under this Indenture and such Proceeding has been discontinued or abandoned for
any reason or has been determined adversely to the Indenture Trustee or to such
Noteholder, then and in every such case the Issuer, the Indenture Trustee and
the Noteholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
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SECTION 5.9. 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 shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10. DELAY OR OMISSION NOT A WAIVER. No delay or omission of the
Indenture Trustee or any Holder of Notes to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Indenture Trustee or to the Noteholders may be exercised from time to time,
and as often as may be deemed expedient, by the Indenture Trustee or by the
Noteholders, as the case may be.
SECTION 5.11. CONTROL BY NOTEHOLDERS. The Holders of not less than a
majority of the Outstanding Amount of the Notes shall have the right to direct
the time, method and place of conducting any Proceeding for any remedy available
to the Indenture Trustee with respect to the Notes or exercising any trust or
power conferred on the Indenture Trustee; PROVIDED, that:
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) subject to the express terms of Section 5.4, any direction to the
Indenture Trustee to sell or liquidate the Trust Estate shall be by all the
Noteholders;
(iii) if the conditions set forth in Section 5.5 have been satisfied
and the Indenture Trustee elects to retain the Trust Estate pursuant to
such Section, then any direction to the Indenture Trustee by Holders of
Notes representing less than 100% of the Outstanding Amount of the Notes to
sell or liquidate the Trust Estate shall be of no force and effect; and
(iv) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction;
PROVIDED, HOWEVER, that, subject to Section 6.1, the Indenture Trustee need not
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholder(s) not consenting to
such action.
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SECTION 5.12. WAIVER OF PAST DEFAULTS. Prior to the time a judgment or
decree for payment of money due has been obtained as described in Section 5.3,
the Holders of Notes of not less than a majority of the Outstanding Amount of
the Notes may waive any past Default or Event of Default and its consequences
except a Default: (a) in payment of principal of or interest on any of the Notes
or (b) in respect of a covenant or provision hereof that cannot be modified or
amended without the consent of the Holder of each Note. In the case of any such
waiver, the Issuer, the Indenture Trustee and the Holders of the Notes shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
SECTION 5.13. UNDERTAKING FOR COSTS. All parties to this Indenture agree,
and each Holder of any Note by such Holder's acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorney's fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to: (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder(s) holding in the
aggregate more than 10% of the Outstanding Amount of the Notes or (c) any suit
instituted by any Noteholder for the enforcement of the payment of principal of
or interest on any Note on or after the respective due dates expressed in such
Note and in this Indenture (or, in the case of redemption, on or after the
Redemption Date).
SECTION 5.14. WAIVER OF STAY OR EXTENSION LAWS. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may 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
33
and permit the execution of every such power as though no such law had been
enacted.
SECTION 5.15. ACTION ON NOTES. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the Lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon any
of the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.4(b).
SECTION 5.16. PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS. (a)
Promptly following a request from the Indenture Trustee to do so and at the
Administrator's expense, the Issuer shall take all such lawful action as the
Indenture Trustee may request to compel or secure the performance and observance
by the Seller and the Servicer, as applicable, of each of their obligations to
the Issuer under or in connection with the Sale and Servicing Agreement or to
the Seller under or in connection with the Purchase Agreement in accordance with
the terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the Sale
and Servicing Agreement (or the Seller under or in connection with the Purchase
Agreement) to the extent and in the manner directed by the Indenture Trustee,
including the transmission of notices of default on the part of the Seller or
the Servicer thereunder and the institution of legal or administrative actions
or proceedings to compel or secure performance by the Seller or the Servicer of
each of their obligations under the Sale and Servicing Agreement or the Purchase
Agreement.
(b) If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and at the direction (which direction shall be in writing) of the
Holders of not less than 66-2/3% of the Outstanding Amount of the Notes shall,
exercise all rights, remedies, powers, privileges and claims of the Issuer
against the Seller or the Servicer under or in connection with the Sale and
Servicing Agreement, including the right or power to take any action to compel
or secure performance or observance by the Seller or the Servicer of each of
their obligations to the Issuer thereunder and to give any consent, request,
notice, direction, approval, extension or waiver under the Sale and Servicing
Agreement, and any right of the Issuer to take such action shall be suspended.
(c) If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and at the direction (which direction shall be in writing) of the
Holders of not less than 66-2/3% of the Outstanding Amount of the Notes shall,
34
exercise all rights, remedies, powers, privileges and claims of the Seller
against Case Credit under or in connection with the Purchase Agreement,
including the right or power to take any action to compel or secure performance
or observance by Case Credit of each of its obligations to the Seller thereunder
and to give any consent, request, notice, direction, approval, extension or
waiver under the Purchase Agreement, and any right of the Seller to take such
action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1. DUTIES OF THE INDENTURE TRUSTEE. (a) If an Event of Default
has occurred and is continuing, the Indenture Trustee shall exercise the rights
and powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default actually known to
a Responsible Officer:
(i) the Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; PROVIDED, HOWEVER, in the case of any such
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Indenture Trustee, the Indenture Trustee
shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) this clause (c) does not limit the effect of clause (b) of this
Section;
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(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Indenture Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to the Indenture;
(iv) the Indenture Trustee shall not be charged with knowledge of an
Event of Default or Servicer Default unless a Responsible Officer obtains
actual knowledge of such event or the Indenture Trustee receives written
notice of such event from the Seller, Servicer or Note Owners owning Notes
aggregating not less than 10% of the Outstanding Amount of the Notes; and
(v) the Indenture Trustee shall have no duty to monitor the
performance of the Issuer, the Trustee, the Seller or the Servicer, nor
shall it have any liability in connection with malfeasance or nonfeasance
by the Issuer, the Trustee, the Seller or the Servicer. The Indenture
Trustee shall have no liability in connection with compliance of the
Issuer, the Trustee, the Seller or the Servicer with statutory or
regulatory requirements related to the Receivables. The Indenture Trustee
shall not make or be deemed to have made any representations or warranties
with respect to the Receivables or the validity or sufficiency of any
assignment of the Receivables to the Trust Estate or the Indenture Trustee.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to clauses (a), (b), (c) and (g).
(e) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(f) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law, this Indenture or the
Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds to believe that repayments
of such funds or adequate indemnity satisfactory to it against any loss,
liability or expense is not reasonably assured to it.
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(h) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Indenture Trustee shall be
subject to this Section and the TIA.
SECTION 6.2. RIGHTS OF INDENTURE TRUSTEE. (a) The Indenture Trustee may
conclusively rely and shall be fully protected in acting on any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Indenture Trustee need not investigate any fact or matter stated in
any such document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Indenture Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on the Officers' Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
attorneys, a custodian or a nominee, and the Indenture Trustee shall not be
responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it.
(d) The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
rights or powers; PROVIDED, HOWEVER, that the Indenture Trustee's conduct does
not constitute wilful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
(f) The Indenture Trustee shall not be required to make any initial or
periodic examination of any files or records related to the Receivables for the
purpose of establishing the presence or absence of defects, the compliance by
the Issuer with its representations and warranties or for any other purpose.
(g) In the event that the Indenture Trustee is also acting as Paying Agent
or Note Registrar hereunder, the rights and protections afforded to the
Indenture Trustee pursuant to this Article VI shall also be afforded to the
Indenture Trustee in its capacity as such Paying Agent or Note Registrar.
SECTION 6.3. INDIVIDUAL RIGHTS OF THE INDENTURE TRUSTEE. The Indenture
Trustee shall not, in its individual capacity, but may in a fiduciary capacity,
37
become the owner of Notes or otherwise extend credit to the Issuer. The
Indenture Trustee may otherwise deal with the Issuer or its Affiliates with the
same rights it would have if it were not the Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Indenture Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4. INDENTURE TRUSTEE'S DISCLAIMER. The Indenture Trustee shall
not be responsible for, and makes no representation as to the validity or
adequacy of, this Indenture or the Notes; shall not be accountable for the
Issuer's use of the proceeds from the Notes; and shall not be responsible for
any statement of the Issuer in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
SECTION 6.5. NOTICE OF DEFAULTS. If a Default occurs and is continuing and
is known to a Responsible Officer, the Indenture Trustee shall mail to each
Noteholder notice of the Default within 90 days after it occurs. Except in the
case of a Default in payment of principal of or interest on any Note (including
payments pursuant to the mandatory redemption provisions of such Note), the
Indenture Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Noteholders.
SECTION 6.6. REPORTS BY INDENTURE TRUSTEE TO THE HOLDERS. The Indenture
Trustee shall deliver to each Noteholder such information as may be required to
enable such Holder to prepare its Federal, State and other income tax returns.
Within 60 days after each December 31, the Indenture Trustee shall mail to each
Noteholder a brief report as of such December 31 that complies with TIA Section
313(a) (if required by said section).
SECTION 6.7. COMPENSATION AND INDEMNITY. The Issuer shall, or shall cause
the Servicer to, pay to the Indenture Trustee from time to time reasonable
compensation for its services. The Indenture Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer
shall, or shall cause the Servicer to, reimburse the Indenture Trustee for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Indenture Trustee's agents, counsel, accountants and experts.
The Issuer shall or shall cause the Servicer to indemnify the Indenture Trustee
and its officers, directors, employees and agents against any and all loss,
liability or expense (including attorneys' fees) incurred by them in connection
with the administration of this trust and the performance of its duties
hereunder. The Indenture Trustee shall notify the Issuer and the Servicer
promptly of any claim
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for which it may seek indemnity. Failure by the Indenture Trustee to so notify
the Issuer and the Servicer shall not relieve the Issuer or the Servicer of its
obligations hereunder. The Issuer shall, or shall cause the Servicer to, defend
the claim and the Indenture Trustee may have separate counsel and the Issuer
shall, or shall cause the Servicer to, pay the fees and expenses of such
counsel. Neither the Issuer nor the Servicer need reimburse any expense or
indemnify against any loss, liability or expense incurred by the Indenture
Trustee through the Indenture Trustee's own willful misconduct, negligence or
bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant to this
Section shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(iv) or (v), the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
Federal or State bankruptcy, insolvency or similar law.
SECTION 6.8. REPLACEMENT OF THE INDENTURE TRUSTEE. No resignation or
removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.8. The Indenture Trustee
may resign at any time by so notifying the Issuer in writing. The Holders of not
less than a majority of the Outstanding Amount of the Notes may remove the
Indenture Trustee by so notifying the Indenture Trustee in writing and may
appoint a successor Indenture Trustee. The Issuer shall remove the Indenture
Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in
the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of
39
the Indenture Trustee under this Indenture. The successor Indenture Trustee
shall mail a notice of its succession to Noteholders. The retiring Indenture
Trustee shall promptly transfer all property held by it as Indenture Trustee to
the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days after
the retiring Indenture Trustee resigns or is removed, the retiring Indenture
Trustee, the Issuer or the Holders of not less than a majority of the
Outstanding Amount of the Notes may petition any court of competent jurisdiction
for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any Noteholder
may petition any court of competent jurisdiction for the removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to this
Section, the Issuer's and the Administrator's obligations under Section 6.7
shall continue for the benefit of the retiring Indenture Trustee. The retiring
Indenture Trustee shall have no liability for any act or omission by any
successor Trustee.
SECTION 6.9. SUCCESSOR INDENTURE TRUSTEE BY MERGER. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee. The Indenture
Trustee shall provide the Rating Agencies and the Issuer prior written notice of
any such transaction; PROVIDED, that such corporation or banking association
shall be otherwise qualified and eligible under Section 6.11.
In case at the time such successor(s) by merger, conversion or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor trustee hereunder or in the name of
the successor to the Indenture Trustee; and in all such cases such certificates
of authentication shall have the full force and effect to the same extent given
to the certificate of authentication of the Indenture Trustee anywhere in the
Notes or in this Indenture.
SECTION 6.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE. (a)
Notwithstanding any other provisions of this Indenture, at any time, for the
purpose of meeting any legal requirement of any jurisdiction in which any part
40
of the Trust Estate may at the time be located, the Indenture Trustee shall have
the power and may execute and deliver all instruments to appoint one or more
Person(s) to act as co-trustee(s), or separate trustee(s), of all or any part of
the Trust Estate, and to vest in such Person(s), in such capacity and for the
benefit of the Noteholders, such title to the Trust Estate, or any part thereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 6.11 and no
notice to Noteholders of the appointment of any co-trustee or separate trustee
shall be required under Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and exercised
or performed by the Indenture Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or co-
trustee is not authorized to act separately without the Indenture Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act(s) are to be performed, the
Indenture Trustee shall be incompetent or unqualified to perform such
act(s), in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Estate or any portion thereof
in any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation of
or remove, in its sole discretion, any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and co-
trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of,
41
affecting the liability of, or affording protection to, the Indenture Trustee.
Every such instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The Indenture Trustee shall have no obligation to determine whether a
co-trustee or separate trustee is legally required in any jurisdiction in which
any part of the Trust Estate may be located.
SECTION 6.11. ELIGIBILITY; DISQUALIFICATION. The Indenture Trustee shall at
all times satisfy the requirements of TIA Section 310(a) and Section 26(a)(1) of
the Investment Company Act of 1940, as amended. The Indenture Trustee shall have
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition and it shall have a long term
senior, unsecured debt rating of "Baa3" or better by Moody's (or, if not rated
by Moody's, a comparable rating by another statistical rating agency). The
Indenture Trustee shall comply with TIA Section 310(b), including the optional
provision permitted by the second sentence of TIA Section 310(b)(9); PROVIDED,
HOWEVER, that there shall be excluded from the operation of TIA Section
310(b)(1) any indenture(s) under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
If a default occurs under this Indenture, and the Indenture Trustee is
deemed to have a conflicting interest as a result of acting as trustee for both
the Class A Notes and the Class B Notes, a successor Indenture Trustee shall be
appointed for one or both of such Classes, so that there will be separate
Indenture Trustees for the Class A Notes and the Class B Notes. No such event
shall alter the voting rights of the Class A Noteholders or Class B Noteholders
under this Indenture or any other Basic Document. However, so long as any
amounts remain unpaid with respect to the Class A Notes, only the Indenture
Trustee for the Class A Noteholders will have the right to exercise remedies
under this Indenture (but subject to the express provisions of Section 5.4 and
to the right of the Class B Noteholders to receive their share of any proceeds
of enforcement, subject to the subordination of the Class B Notes to the Class A
Notes as described herein). Upon repayment of the Class A Notes in full, all
rights to exercise remedies under the Indenture will transfer to the Indenture
Trustee for the Class B Notes.
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In the case of the appointment hereunder of a successor Indenture Trustee
with respect to any Class of Notes, the Issuer, the retiring Indenture Trustee
and the successor Indenture Trustee with respect to such Class of Notes shall
execute and deliver an indenture supplemental hereto wherein the each successor
Indenture Trustee shall accept such appointment and which (i) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, the successor Indenture Trustee all the rights, powers, trusts and
duties of the retiring Indenture Trustee with respect to the Notes of the Class
to which the appointment of such successor Indenture Trustee relates, (ii) if
the retiring Indenture Trustee is not retiring with respect to all Classes of
Notes, shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the retiring
Indenture Trustee with respect to the Notes of each Class as to which the
retiring Indenture Trustee is not retiring shall continue to be vested in the
retiring Indenture Trustee, and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Indenture Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that each
such Indenture Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other such
Indenture Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Indenture Trustee shall
become effective to the extent provided therein.
SECTION 6.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.13. REPRESENTATIONS AND WARRANTIES. The Indenture Trustee hereby
represents that:
(a) the Indenture Trustee is duly organized and validly existing as an
Illinois banking corporation in good standing under the laws of Illinois with
power and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted;
(b) the Indenture Trustee has the power and authority to execute and
deliver this Indenture and to carry out its terms; and the execution, delivery
and performance of this Indenture have been duly authorized by the Indenture
Trustee by all necessary corporate action;
43
(c) the consummation of the transactions contemplated by this Indenture and
the fulfillment of the terms hereof do not conflict with, result in any breach
of any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under the articles of organization or bylaws of the
Indenture Trustee or any material agreement or other instrument to which the
Indenture Trustee is a party or by which it is bound; and
(d) to best of the Indenture Trustee's knowledge, there are no proceedings
or investigations pending or threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Indenture Trustee or its properties: (i) asserting the invalidity of
this Indenture, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Indenture or (iii) seeking any determination
or ruling that might materially and adversely affect the performance by the
Indenture Trustee of its obligations under, or the validity or enforceability
of, this Indenture.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1. 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 five days after the earlier of: (i) each Record Date
and (ii) three months after the last Record Date, a list, in such form as the
Indenture Trustee may reasonably require, of the names and addresses of the
Holders of Notes as of such Record Date, and (b) at such other times as the
Indenture Trustee may request in writing, within 30 days after receipt by the
Issuer of any such request, a list of similar form and content as of a date not
more than 10 days prior to the time such list is furnished; PROVIDED, HOWEVER,
that so long as the Indenture Trustee is the Note Registrar, no such list shall
be required to be furnished.
SECTION 7.2. PRESERVATION OF INFORMATION; COMMUNICATIONS TO NOTEHOLDERS.
(a) The Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Notes contained in the
most recent list furnished to the Indenture Trustee as provided in Section 7.1
and the names and addresses of Holders of Notes received by the Indenture
Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy any
list furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished.
(b) Three or more Noteholders, or one or more Holder(s) of Notes evidencing
at least 25% of the Outstanding Amount of the Notes, may
44
communicate pursuant to TIA Section 312(b) with other Noteholders with respect
to their rights under this Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have the
protection of TIA Section 312(c).
SECTION 7.3. REPORTS BY ISSUER. (a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the annual
reports and 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) that the Issuer may be required to
file with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act;
(ii) file with the Commission, in accordance with the 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 (with a copy of any
such filings being delivered promptly to the Indenture Trustee); and
(iii) supply to the Indenture Trustee (and the Indenture Trustee shall
transmit by mail to all Noteholders described in TIA Section 313(c)) such
summaries of any information, documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) as may be required by the rules
and regulations prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of each year.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1. COLLECTION OF MONEY. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in
45
the making of any payment or performance under any agreement or instrument that
is part of the Collateral and the Trust Estate, the Indenture Trustee may take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate Proceedings. Any such
action shall be without prejudice to any right to claim a Default or Event of
Default under this Indenture and any right to proceed thereafter as provided in
Article V.
SECTION 8.2. TRUST ACCOUNTS. (a) On or prior to the Closing Date, the
Issuer shall cause the Servicer to establish and maintain, in the name of the
Indenture Trustee, for the benefit of the Noteholders and the
Certificateholders, the Trust Accounts as provided in Section 5.1 of the Sale
and Servicing Agreement.
(b) On or before each Payment Date, the Total Distribution Amount with
respect to the preceding Collection Period will be deposited in the Collection
Account as provided in Section 5.2 of the Sale and Servicing Agreement. On or
before each Payment Date, the Noteholders' Distributable Amount with respect to
the preceding Collection Period will be transferred to the Note Distribution
Account as provided in Sections 5.5 and 5.6 of the Sale and Servicing Agreement.
(c) On each Payment Date and Redemption Date, the Indenture Trustee shall
distribute all amounts on deposit in the Note Distribution Account to
Noteholders to the extent of amounts due and unpaid on the Notes for principal
and interest in the following amounts and in the following order of priority
(except as otherwise provided in Section 5.4(b)):
(i) the Class Interest Amount for each Class of Class A Notes;
PROVIDED, that if there are not sufficient funds in the Note Distribution
Account to pay the entire amount of accrued and unpaid interest then due on
such Notes, the amount in the Note Distribution Account shall be applied to
the payment of such interest on such Notes pro rata on the basis of the
total such interest due on such Notes;
(ii) the Class B Noteholders' Class Interest Amount;
(iii) the Class Principal Distributable Amount for each Class of Class
A Notes in the following priority: A-1 Notes, A-2 Notes, A-3 Notes and A-4
Notes (provided that after an Event of Default and acceleration of the
Notes (and, if any Notes remain outstanding, on and after the Final
Scheduled Maturity Date), amounts available for distribution pursuant to
this clause (iv) shall be paid to all Holders of Class A Notes ratably
according to the amounts due and payable on the Class A Notes for principal
until paid in full);
46
(iv) the Class B Noteholders' Monthly Principal Distributable Amount;
and
(v) thereafter, any excess shall be deposited to the Certificate
Distribution Account.
(d) On the A-1 Note Final Scheduled Maturity Date, the Indenture Trustee
shall distribute to the Class A-1 Noteholders, from the amount available in the
Note Distribution Account, an amount equal to the sum of (i) the aggregate
accrued and unpaid interest on the Class A-1 Notes as of the A-1 Note Final
Scheduled Maturity Date, and (ii) the amount necessary to reduce the outstanding
principal amount of the Class A-1 Notes to zero.
SECTION 8.3. GENERAL PROVISIONS REGARDING ACCOUNTS. (a) So long as no
Default or Event of Default shall have occurred and be continuing, all or a
portion of the funds in the Trust Accounts shall be invested in Eligible
Investments and reinvested by the Indenture Trustee upon Issuer Order, subject
to the provisions of Section 5.1(b) of the Sale and Servicing Agreement. All
income or other gain from investments of moneys deposited in the Trust Accounts
shall be deposited by the Indenture Trustee in the Collection Account, and any
loss or expenses resulting from such investments shall be charged to such
account. The Issuer will not direct the Indenture Trustee to make any investment
of any funds or to sell any investment held in any of the Trust Accounts unless
the security interest granted and perfected in such account will continue to be
perfected in such investment or the proceeds of such sale, in either case
without any further action by any Person, and, in connection with any direction
to the Indenture Trustee to make any such investment or sale, if requested by
the Indenture Trustee, the Issuer shall deliver to the Indenture Trustee an
Opinion of Counsel to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in any way
be held liable for the selection of Eligible Investments or by reason of any
insufficiency in any of the Trust Accounts resulting from any loss on any
Eligible Investment included therein, except for losses attributable to the
Indenture Trustee's failure to make payments on such Eligible Investments issued
by the Indenture Trustee, in its commercial capacity as principal obligor and
not as trustee, in accordance with their terms.
(c) If: (i) the Issuer shall have failed to give investment directions for
any funds on deposit in the Trust Accounts to the Indenture Trustee by 11:00
a.m. (New York City time) (or such other time as may be agreed by the Issuer and
the Indenture Trustee) on any Business Day; or (ii) a Default or Event of
Default shall have occurred and be continuing with respect to the Notes but the
Notes shall not have been declared due and payable pursuant to Section 5.2, or,
if such Notes shall have been declared due and payable following an Event of
Default,
47
amounts collected or receivable from the Trust Estate are being applied in
accordance with Section 5.4(b) as if there had not been such a declaration; then
the Indenture Trustee shall, to the fullest extent practicable, invest and
reinvest funds in the Trust Accounts in the Eligible Investments identified in
clause (d) of the definition of Eligible Investments.
SECTION 8.4. RELEASE OF TRUST ESTATE. (a) Subject to the payment of its
fees and expenses pursuant to Section 6.7, the Indenture Trustee may, and when
required by this Indenture shall, execute instruments to release property from
the Lien of this Indenture, or convey the Indenture Trustee's interest in the
same, in a manner and under circumstances that are not inconsistent with this
Indenture. No party relying upon an instrument executed by the Indenture Trustee
as provided in this Article shall be bound to ascertain the Indenture Trustee's
authority, inquire into the satisfaction of any conditions precedent or see to
the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due to the Indenture Trustee pursuant to Section 6.7
have been paid, release any remaining portion of the Trust Estate that secured
the Notes from the Lien of this Indenture and release to the Issuer or any other
Person entitled thereto any funds then on deposit in the Trust Accounts. The
Indenture Trustee shall release property from the Lien of this Indenture
pursuant to this paragraph only upon receipt of an Issuer Request accompanied by
an Officers' Certificate, an Opinion of Counsel and (if required by the TIA)
Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1)
meeting the applicable requirements of Section 11.1.
SECTION 8.5. OPINION OF COUNSEL. The Indenture Trustee shall receive at
least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require, as a condition to such action, an
Opinion of Counsel stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
will not materially and adversely impair the security for the Notes or the
rights of the Noteholders in contravention of this Indenture; PROVIDED, HOWEVER,
that such Opinion of Counsel shall not be required to express an opinion as to
the fair value of the Trust Estate. Counsel rendering any such opinion may rely,
without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in connection
with any such action.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS. (a)
Without the consent of the Holders of Notes but with prior written notice to the
Rating Agencies, the Issuer and the Indenture Trustee, when authorized by an
Issuer Order, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the Trust Indenture Act
as in force at the date of the execution thereof), in form satisfactory to the
Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any time
subject to the Lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subjected to the Lien of this Indenture, or to subject to the Lien of this
Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another Person to the Issuer, and the assumption by
any such successor of the covenants of the Issuer herein and in the Notes;
(iii) to add to the covenants of the Issuer, for the benefit of the
Holders of Notes, or to surrender any right or power herein conferred upon
the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(v) to replace the Spread Account with another form of credit
enhancement; PROVIDED, the Rating Agency Condition is satisfied;
(vi) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with any
other provision herein or in any supplemental indenture or to make any
other provisions with respect to matters or questions arising under this
Indenture or in any supplemental indenture; PROVIDED, that such action
shall not materially adversely affect the interests of the Holders of
Notes;
(vii) to evidence and provide for the acceptance of the appointment
hereunder by a successor or additional trustee with respect to the Notes or
any class thereof and to add to or change any of the provisions of this
Indenture as shall be necessary to facilitate the administration of the
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trusts hereunder by more than one trustee, pursuant to the requirements of
Article VI; or
(viii) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the TIA or under any similar Federal statute hereafter
enacted and to add to this Indenture such other provisions as may be
expressly required by the TIA.
The Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, without the consent of any of the Holders of Notes but with prior
written notice to the Rating Agencies, enter into an indenture or indentures
supplemental hereto to cure any ambiguity, to correct or supplement any
provisions in this Indenture or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Notes under this
Indenture; PROVIDED, HOWEVER, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Noteholder.
SECTION 9.2. Supplemental Indentures With Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, may, with
prior written notice to the Rating Agencies and with the consent of the Holders
of Notes evidencing not less than a majority of the Outstanding Amount of the
Notes, by Act of such Holders delivered to the Issuer and the Indenture Trustee,
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Notes under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(i) change the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof, the interest
rate thereon or the Redemption Price with respect thereto, change the
provisions of this Indenture relating to the application of collections on,
or the proceeds of the sale of, the Trust Estate to the payment of
principal of or interest on the Notes, or change any place of payment
where, or the coin or currency in which, any Note or the interest thereon
is payable, or impair the right to institute suit for the enforcement of
50
the provisions of this Indenture requiring the application of funds
available therefor, as provided in Article V, to the payment of any such
amount due on or after the respective due dates thereof (or, in the case of
redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount, the consent of
the Holders of which is required for any such supplemental indenture, or
the consent of the Holders of which is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the definition
of "Outstanding";
(iv) reduce the percentage of the Outstanding Amount required to
direct the Indenture Trustee to direct the Issuer to sell or liquidate the
Trust Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture or the Basic Documents cannot be modified or
waived without the consent of the Holder of each Outstanding Note affected
thereby;
(vi) modify any of the provisions of this Indenture in such manner as
to affect the calculation of the amount of any payment of interest or
principal due on any Note on any Payment Date (including the calculation of
any of the individual components of such calculation) or to affect the
rights of the Holders of Notes to the benefit of any provisions for the
mandatory redemption of the Notes contained herein; or
(vii) permit the creation of any Lien ranking prior to or on a parity
with the Lien of this Indenture with respect to any part of the Trust
Estate or, except as otherwise permitted or contemplated herein, terminate
the Lien of this Indenture on any property at any time subject hereto or
deprive any Holder of Notes of the security provided by the Lien of this
Indenture.
It shall not be necessary for any Act of the Noteholders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof. The manner
of obtaining such consents (and any other consents of Noteholders provided for
in this Indenture or in any other Basic Document) and of evidencing the
51
authorization of the execution thereof by Noteholders shall be subject to such
reasonable requirements as the Indenture Trustee may provide.
Promptly after the execution by the Issuer and the Indenture Trustee of any
supplemental indenture pursuant to this Section, the Indenture Trustee shall
mail to the Holders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.3. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and,
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
SECTION 9.4. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith with respect
to the Notes affected thereby, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under this Indenture of the
Indenture Trustee, the Issuer and the Holders of the Notes shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5. CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of this
Indenture and every supplemental indenture executed pursuant to this Article IX
shall conform to the requirements of the Trust Indenture Act as then in effect
so long as this Indenture shall then be qualified under the Trust Indenture Act.
SECTION 9.6. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
52
be prepared andexecuted by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1. REDEMPTION. (a) The Notes are subject to redemption in whole,
but not in part, at the direction of the Servicer pursuant to Section 9.1(a) of
the Sale and Servicing Agreement, on any Payment Date on which the Servicer
exercises its option to purchase the Trust Estate pursuant to said
Section 9.1(a), for a purchase price equal to the Redemption Price; PROVIDED,
HOWEVER, that the Issuer has available funds sufficient to pay the Redemption
Price. The Servicer or the Issuer shall furnish the Rating Agencies notice of
such redemption. If such Notes are to be redeemed pursuant to this Section 10.1,
the Servicer or the Issuer shall furnish notice of such election to the
Indenture Trustee not later than 25 days prior to the Redemption Date and the
Issuer shall deposit with the Indenture Trustee in the Note Distribution Account
the Redemption Price of the Notes to be redeemed.
(b) Reserved.
SECTION 10.2. FORM OF REDEMPTION NOTICE. Notice of redemption under Section
10.1 shall be given by the Indenture Trustee by first-class mail, postage
prepaid, mailed not less than five days prior to the applicable Redemption Date
to each Holder of Notes, as of the close of business on the Record Date
preceding the applicable Redemption Date, at such Holder's address appearing in
the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such Notes are to be surrendered for payment of
the Redemption Price (which shall be the office or agency of the Issuer to
be maintained as provided in Section 3.2); and
(iv) CUSIP numbers.
Notice of redemption of the Notes shall be given by the Indenture Trustee
in the name and at the expense of the Issuer. Failure to give notice of
redemption,
53
or any defect therein, to any Holder of any Note shall not impair or affect the
validity of the redemption of any other Note.
SECTION 10.3. NOTES PAYABLE ON REDEMPTION DATE. The Notes or portions
thereof to be redeemed shall, following notice of redemption pursuant to this
Article, become due and payable on the Redemption Date at the Redemption Price
and (unless the Issuer shall default in the payment of the Redemption Price) no
interest shall accrue on the Redemption Price for any period after the date to
which accrued interest is calculated for purposes of calculating the Redemption
Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. COMPLIANCE CERTIFICATES AND OPINIONS, ETC. (a) Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under this Indenture, the Issuer shall furnish to the Indenture Trustee: (i) an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with,
(ii) an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with and (iii) (if required by
the TIA) an Independent Certificate from a firm of certified public accountants
meeting the applicable requirements of this Section, except that, in the case of
any such application or request as to which the furnishing of such documents is
specifically required by this Indenture, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(w) a statement that each signatory of such certificate or opinion has
read or has caused to be read such covenant or condition and the definitions
herein relating thereto;
(x) 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;
(y) a statement that, in the opinion of each such signatory, such
signatory has made (or has caused to be made) such examination or investigation
as is necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
54
(z) a statement as to whether, in the opinion of each such signatory,
such condition or covenant has been complied with.
(b)(i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the Lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officers'
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such deposit) to the Issuer
of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officers' Certificate described in clause (i), the Issuer shall
also deliver to the Indenture Trustee an Independent Certificate as to the
same matters, if the fair value to the Issuer of the Collateral or other
property or securities to be so deposited and of all other such Collateral
or other property or securities made the basis of any such withdrawal or
release since the commencement of the then-current fiscal year of the
Issuer, as set forth in the certificates delivered pursuant to clause (i)
and this clause (ii), is 10% or more of the Outstanding Amount of the
Notes, but such a certificate need not be furnished with respect to any
Collateral or other property or securities so deposited if the fair value
thereof to the Issuer as set forth in the related Officers' Certificate is
less than $25,000 or less than one percent of the then Outstanding Amount
of the Notes.
(iii) Other than with respect to property as contemplated by clause
(v), whenever any Collateral or other property or securities are to be
released from the Lien of this Indenture, the Issuer shall also furnish to
the Indenture Trustee an Officers' Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value
(within 90 days of such release) of the Collateral or other property or
securities proposed to be released and stating that in the opinion of such
person the proposed release will not impair the security under this
Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officers' Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (iii), the Issuer
shall also furnish to the Indenture Trustee an Independent Certificate as
to the same matters if the fair value to the Issuer of the Collateral or
other property or securities and of all other property, other than property
as contemplated by clause (v), or securities released from the Lien of this
Indenture since the commencement of the then-current fiscal year, as set
55
forth in the certificates required by clause (iii) and this clause (iv),
equals 10% or more of the Outstanding Amount of the Notes, but such
certificate need not be furnished in the case of any release of Collateral
or other property or securities if the fair value thereof to the Issuer as
set forth in the related Officers' Certificate is less than $25,000 or less
than one percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section, the Issuer may, without compliance with the requirements of the
other provisions of this Section: (A) collect, liquidate, sell or otherwise
dispose of Receivables and Financed Equipment as and to the extent
permitted or required by the Basic Documents and (B) make cash payments out
of the Trust Accounts as and to the extent permitted or required by the
Basic Documents so long as the Issuer shall deliver to the Indenture
Trustee every six months, commencing October, 2000, an Officers'
Certificate of the Issuer stating that all such dispositions of Collateral
that occurred since the execution of the previous such Officers'
Certificate (or for the first such Officers' Certificate, since the Closing
Date) were in the ordinary course of the Issuer's business and that the
proceeds thereof were applied in accordance with the Basic Documents.
SECTION 11.2. FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate, opinion or representations
with respect to the matters upon which his certificate or opinion is based
is/are erroneous. Any such certificate of an Authorized Officer or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Servicer, the Seller, the Issuer or the Administrator, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Seller, the Issuer or the Administrator, as applicable, unless
such Authorized Officer or counsel knows, or in the exercise of reasonable
care should know, that the certificate, opinion or representations with respect
to such matters is/are erroneous.
56
Where any Person is required or permitted to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever in this Indenture, in connection with any application, certificate
or report to the Indenture Trustee, it is provided that the Issuer shall deliver
any document as a condition of the granting of such application, or as evidence
of the Issuer's compliance with any term hereof, it is intended that the truth
and accuracy, at the time of the granting of such application or at the
effective date of such certificate or report (as the case may be), of the facts
and opinions stated in such document shall in such case be conditions precedent
to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 11.3. ACTS OF NOTEHOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Noteholders may be embodied in and evidenced by one or more
instrument(s) of substantially similar tenor signed by such Noteholders in
person or by agents duly appointed in writing; and except as herein otherwise
expressly provided, such action shall become effective when such instrument(s)
are delivered to the Indenture Trustee, and, where it is hereby expressly
required, to the Issuer. Such instrument(s) (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument(s). Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Indenture Trustee and the Issuer, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any manner that the Indenture Trustee deems
sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or Act by the Holder of any Notes shall bind the Holder of every Note issued
upon the registration thereof, in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Indenture
57
Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
SECTION 11.4. NOTICES, ETC., TO THE INDENTURE TRUSTEE, ISSUER AND RATING
AGENCIES. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders, or other documents provided or permitted by this
Indenture, shall be in writing and, if such request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders is to be made upon,
given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer, shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder, shall be
sufficient for every purpose hereunder if in writing and mailed, first class,
postage prepaid, to the Issuer addressed to: CNH Equipment Trust 2000-A, in care
of The Bank of New York, 101 Barclay Street, Floor 12E, New York, New York
10286, Attention: Corporate Trust Administration - Asset Backed Finance Unit,
and to Case Credit Corporation, as Administrator, 233 Lake Avenue, Racine,
Wisconsin 53403, Attention: Treasurer, or at any other address previously
furnished in writing to the Indenture Trustee by the Issuer or the
Administrator. The Issuer shall promptly transmit any notice received by it from
the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Trustee shall be in writing, personally delivered or
mailed by certified mail, return receipt requested, to their respective
addresses set forth in Section 10.3 of the Sale and Servicing Agreement.
SECTION 11.5. NOTICES TO NOTEHOLDERS; WAIVER. Where this Indenture provides
for notice to Noteholders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed, first-
class, postage prepaid to each Noteholder affected by such event, at his address
as it appears on the Note Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Noteholders is given by mail, neither the failure to mail
such notice nor any defect in any notice so mailed to any particular Noteholder
shall affect the sufficiency of such notice with respect to other Noteholders,
and any notice that is mailed in the manner herein provided shall conclusively
be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by any Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Noteholders shall be filed with the Indenture Trustee but
such filing
58
shall not be a condition precedent to the validity of any action taken in
reliance upon such a waiver.
In case, by reason of the suspension of regular mail service, it shall be
impractical to mail notice of any event to Noteholders when such notice is
required to be given pursuant to this Indenture, then any manner of giving such
notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies, failure to
give such notice shall not affect any other rights or obligations created
hereunder, and shall not under any circumstance constitute a Default or Event of
Default.
SECTION 11.6. ALTERNATE PAYMENT AND NOTICE PROVISIONS. Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, the Issuer may
enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such Holder,
that is different from the methods provided for in this Indenture or the Notes
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 to be
made and notices to be given in accordance with such agreements.
SECTION 11.7. CONFLICT WITH TRUST INDENTURE ACT. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by the Trust Indenture Act, such required
provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
59
SECTION 11.8. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.9. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Indenture and the Notes by the Issuer shall bind its successors and assigns,
whether so expressed or not. All agreements of the Indenture Trustee in this
Indenture shall bind its successors, co-trustees and agents of the Indenture
Trustee.
SECTION 11.10. SEVERABILITY. Any provision of this Indenture or the Notes
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or of the
Notes, as applicable, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 11.11. BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Noteholders, any other party secured
hereunder and any other Person with an ownership interest in any part of the
Trust Estate, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 11.12. LEGAL HOLIDAYS. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next Business Day with the same force and effect as if
made on the date on which nominally due, and no interest shall accrue for the
period from and after any such nominal date.
SECTION 11.13. GOVERNING LAW. This Indenture shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 11.14. COUNTERPARTS. This Indenture may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.15. RECORDING OF INDENTURE. If this Indenture is subject to
recording in any public recording offices, such recording is to be effected by
the Issuer and, at its expense, accompanied by an Opinion of Counsel (which may
be counsel to the Indenture Trustee or any other counsel reasonably acceptable
to the Indenture Trustee) to the effect that such recording is necessary either
for the protection of the Noteholders or any other Person secured hereunder or
for the enforcement of any right or remedy granted to the Indenture Trustee
under this Indenture.
SECTION 11.16. TRUST OBLIGATION. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Trustee or the
Indenture
60
Trustee on the Notes or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against: (i) the Indenture
Trustee or the Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
officer, director, employee or agent of: (a) the Indenture Trustee or the
Trustee in their individual capacities, (b) any owner of a beneficial interest
in the Issuer, the Trustee or the Indenture Trustee or (c) of any successor or
assign of the Indenture Trustee or the Trustee in their individual capacities,
except as any such Person may have expressly agreed (it being understood that
the Indenture Trustee and the Trustee have no such obligations in their
individual capacities) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity. For all purposes of this Indenture, in
the performance of any duties or obligations of the Issuer hereunder, the
Trustee shall be subject to, and entitled to the benefits of, Articles VI, VII
and VIII of the Trust Agreement.
SECTION 11.17. NO PETITION. The Indenture Trustee, by entering into this
Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree
that they will not at any time institute against the Seller or the Issuer, or
join in any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or State bankruptcy or similar law
in connection with any obligations relating to the Notes, this Indenture or any
of the Basic Documents. The foregoing shall not limit the rights of the
Indenture Trustee to file any claim in or otherwise take any action with respect
to any insolvency proceeding that was instituted against the Issuer by any
Person other than the Indenture Trustee.
SECTION 11.18. INSPECTION. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information; PROVIDED, HOWEVER, that the foregoing shall not be construed to
prohibit: (i) disclosure of any and all information that is or becomes publicly
know, or information obtained by the Indenture Trustee from sources other than
the Issuer or Servicer, (ii) disclosure of any and all information: (A) if
required to do so by any applicable statute, law, rule or regulation, (B) to any
government agency or regulatory or self-regulatory body having or claiming
authority to regulate or oversee any aspects of the Indenture Trustee's business
or that of its Affiliates, (C) pursuant to any subpoena, civil investigative
demand or similar demand or
61
request of any court, regulatory authority, arbitrator or arbitration to which
the Indenture Trustee or an Affiliate or any officer, director, employee or
shareholder thereof is subject, (D) in any preliminary or final offering
circular, registration statement or contract or other document pertaining to the
transactions contemplated by the Indenture and approved in advance by the Issuer
or (E) to any Affiliate, independent or internal auditor, agent, employee or
attorney of the Indenture Trustee having a need to know the same; PROVIDED, that
the Indenture Trustee advises such recipient of the confidential nature of the
information being disclosed and such recipient agrees to keep such information
confidential, (iii) any other disclosure authorized by the Issuer or the
Servicer or (iv) disclosure to the other parties to the transactions
contemplated by the Basic Documents.
SECTION 11.19 SUBORDINATION. Issuer and each Noteholder by accepting a Note
acknowledge and agree that such Note represents indebtedness of Issuer and does
not represent an interest in any assets (other than the Trust Estate) of CNHR
(including by virtue of any deficiency claim in respect of obligations not paid
or otherwise satisfied from the Trust Estate and proceeds thereof). In
furtherance of and not in derogation of the foregoing, to the extent CNHR enters
into other securitization transactions, Issuer as well as each Noteholder by
accepting a Note acknowledge and agree that it shall have no right, title or
interest in or to any assets (or interests therein) (other than Trust Estate)
conveyed or purported to be conveyed by CNHR to another securitization trust or
other Person or Persons in connection therewith (whether by way of a sale,
capital contribution or by virtue of the granting of a lien) ("OTHER ASSETS").
To the extent that, notwithstanding the agreements and provisions contained in
the preceding sentences of this subsection, Issuer or any Noteholder either (i)
asserts an interest or claim to, or benefit from, Other Assets, whether asserted
against or through CNHR or any other Person owned by CNHR, or (ii) is deemed to
have any such interest, claim or benefit in or from Other Assets, whether by
operation of law, legal process, pursuant to applicable provisions of insolvency
laws or otherwise (including by virtue of Section 1111(b) of the Federal
Bankruptcy Code or any successor provision having similar effect under the
Bankruptcy Code), and whether deemed asserted against or through CNHR or any
other Person owned by CNHR, then Issuer and each Noteholder by accepting a Note
further acknowledges and agrees that any such interest, claim or benefit in or
from Other Assets is and shall be expressly subordinated to the indefeasible
payment in full of all obligations and liabilities of CNHR which, under the
terms of the relevant documents relating to the securitization of such Other
Assets, are entitled to be paid from, entitled to the benefits of, or otherwise
secured by such Other Assets (whether or not any such entitlement or security
interest is legally perfected or otherwise entitled to a priority of
distribution or application under applicable law, including insolvency laws, and
whether asserted against CNHR or any other Person owned by CNHR), including, the
payment of post-petition interest on such other obligations and liabilities.
This subordination agreement shall be deemed a
62
subordination agreement within the meaning of Section 510(a) of the Bankruptcy
Code. Each Noteholder further acknowledges and agrees that no adequate remedy at
law exists for a breach of this Section 11.19 and the terms of this Section
11.19 may be enforced by an action for specific performance.
63
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers duly authorized as of the day and
year first above written.
CNH EQUIPMENT TRUST 2000-A;
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as Trustee
/s/ Erwin Soriano
By:_______________________
Name: Erwin Soriano
Title: Assistant Treasurer
HARRIS TRUST AND SAVINGS BANK,
not in its individual capacity but solely
as Indenture Trustee
/s/ Rory Nowakowski
By:_______________________
Name: Rory Nowakowski
Title: Assistant Vice President
64
EXHIBIT A-1
to Indenture
FORM OF A-1 NOTES
REGISTERED $______________1/
No. R-___ CUSIP NO. __________________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CNH EQUIPMENT TRUST 2000-A
6.178% CLASS A-1 ASSET BACKED NOTES
CNH Equipment Trust 2000-A, a trust organized and existing under the laws
of the State of Delaware (including any successor, the "ISSUER"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of _________________________ DOLLARS ($___________), partially
payable on each Payment Date in an amount equal to the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the A-1
Notes pursuant to Section 3.1 of the Indenture; PROVIDED, HOWEVER, that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the April 9, 2001 Payment Date and the Redemption Date, if any,
pursuant to Section 10.1(a) of the Indenture. The Issuer will pay interest on
this Note at the rate per annum shown above, on each Payment Date
- -------
1/ Denominations of $1,000 and in greater whole-dollar denominations in
excess thereof.
until the principal of this Note is paid or made available for payment, on the
principal amount of this Note outstanding on the preceding Payment Date (after
giving effect to all payments of principal made on the preceding Payment Date),
subject to certain limitations contained in Section 3.1 of the Indenture.
Interest on this Note will accrue for each Payment Date from the most recent
Payment Date on which interest has been paid to but excluding the then current
Payment Date or, if no interest has yet been paid, from the date hereof.
Interest will be computed on the basis of a 360-day year and actual days
elapsed. Such principal of and interest on this Note shall be paid in the manner
specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: March ___, 2000
CNH EQUIPMENT TRUST 2000-A
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as Trustee
under the Trust Agreement
By:_______________________________
Name:_________________________
Title:________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-
mentioned Indenture.
Dated: March ___, 2000
HARRIS TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By:_________________________________
Authorized Signatory
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 6.178% Class A-1 Asset Backed Notes (herein called the "A-1
NOTES" or the "NOTES"), all issued under an Indenture dated as of March 1, 2000
(such Indenture, as supplemented or amended, is herein called the "INDENTURE"),
between the Issuer and Harris Trust and Savings Bank, not in its individual
capacity but solely as trustee (the "INDENTURE TRUSTEE", which term includes any
successor Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Notes are subject to all terms of the
Indenture. All terms used in this Note that are not otherwise defined herein and
that are defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Notes, the A-2 Notes, the A-3 Notes and the A-4 Notes are and will be
equally and ratably secured by the collateral pledged as security therefor as
provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
A-1 Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against: (i)
the Indenture Trustee or the Trustee in their individual capacities, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of: (a) the Indenture Trustee
or the Trustee in their individual capacities, (b) any holder of a beneficial
interest in the Issuer, the Trustee or the Indenture Trustee or of (c) any
successor or assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
It is the intent of the Seller, the Servicer, the Noteholders and the Note
Owners that, for purposes of Federal and State income tax and any other tax
measured in whole or in part by income, the Notes will qualify as indebtedness
of the Trust. Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, agrees to treat, and
totake no action inconsistent with the treatment of, the Notes for such tax
purposes as indebtedness of the Trust.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that such Noteholder will not at any
time institute against the Seller or the Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization or
arrangement, insolvency or liquidation proceedings under any United States
Federal or State bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Harris Trust and Savings Bank, in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purposes of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof, and each Note Owner by the acceptance of a beneficial
interest herein, each agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
and Note Owner shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; PROVIDED, HOWEVER, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_______________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto_____________________________________________________
_______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
________________________________________
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Note Registrar,
which requirements include membership or
participation in STAMP or such other
"signature guarantee program" as may be
determined by the Note Registrar in
addition to, or in substitution for,
STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.
_________________________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
EXHIBIT A-2
to Indenture
FORM OF A-2 NOTES
REGISTERED $_______________2/
No. R-___ CUSIP NO. ___________________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CNH EQUIPMENT TRUST 2000-A
6.80% CLASS A-2 ASSET BACKED NOTES
CNH Equipment Trust 2000-A, a trust organized and existing under the laws
of the State of Delaware (including any successor, the "ISSUER"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of _________________________ DOLLARS ($___________), partially
payable on each Payment Date in an amount equal to the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the A-2
Notes pursuant to Section 3.1 of the Indenture; PROVIDED, HOWEVER, that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the August 2003 Payment Date and the Redemption Date, if any,
pursuant to Section 10.1(a) of the Indenture. No payments of principal of the
Notes will be made until the principal of the A-1 Notes has been
- ------
2/ Denominations of $1,000 and in greater whole-dollar denominations in excess
thereof.
1
paid in full. The Issuer will pay interest on this Note at the rate per annum
shown above, on each Payment Date until the principal of this Note is paid or
madeavailable for payment, on the principal amount of this Note outstanding on
the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note will accrue for each Payment
Date from the most recent Payment Date on which interest has been paid to but
excluding the then current Payment Date or, if no interest has yet been paid,
from the date hereof. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: March ___, 2000
CNH EQUIPMENT TRUST 2000-A
By: THE BANK OF NEW YORK,
not in its individual capacity but solely
as Trustee under the Trust Agreement
By:___________________________________
Name:__________________________
Title:_________________________
2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-
mentioned Indenture.
Dated: March ____, 2000
HARRIS TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By:____________________________________
Authorized Signatory
3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 6.80% Class A-2 Asset Backed Notes (herein called the "A-2
NOTES" or the "NOTES"), all issued under an Indenture dated as of March 1, 2000
(such Indenture, as supplemented or amended, is herein called the "INDENTURE"),
between the Issuer and Harris Trust and Savings Bank, not in its individual
capacity but solely as trustee (the "INDENTURE TRUSTEE", which term includes any
successor Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Notes are subject to all terms of the
Indenture. All terms used in this Note that are not otherwise defined herein and
that are defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Notes, the A-1 Notes, the A-3 Notes and the A-4 Notes are and will be
equally and ratably secured by the collateral pledged as security therefor as
provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
A-2 Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against: (i)
the Indenture Trustee or the Trustee in their individual capacities, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of: (a) the Indenture Trustee
or the Trustee in their individual capacities, (b) any holder of a beneficial
interest in the Issuer, the Trustee or the Indenture Trustee or of (c) any
successor or assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
It is the intent of the Seller, the Servicer, the Noteholders and the Note
Owners that, for purposes of Federal and State income tax and any other tax
measured in whole or in part by income, the Notes will qualify as indebtedness
of the Trust. Each Noteholder or Note Owner, by acceptance of a Note, or, in the
1
case of a Note Owner, a beneficial interest in a Note, agrees to treat, and
totake no action inconsistent with the treatment of, the Notes for such tax
purposes as indebtedness of the Trust.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that such Noteholder will not at any
time institute against the Seller or the Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization or
arrangement, insolvency or liquidation proceedings under any United States
Federal or State bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Harris Trust and Savings Bank, in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purposes of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof, and each Note Owner by the acceptance of a beneficial
interest herein, each agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
and Note Owner shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; PROVIDED, HOWEVER, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
2
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_______________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto_____________________________________________________
_______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
_____________________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Note Registrar, which requirements
include membership or participation
in STAMP or such other "signature
guarantee program" as may be
determined by the Note Registrar in
addition to, or in substitution
for, STAMP, all in accordance with
the Securities Exchange Act of
1934, as amended.
________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
EXHIBIT A-3
to Indenture
FORM OF A-3 NOTES
REGISTERED $________________3/
No. R-___ CUSIP NO. ___________________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CNH EQUIPMENT TRUST 2000-A
7.14% CLASS A-3 ASSET BACKED NOTES
CNH Equipment Trust 2000-A, a trust organized and existing under the laws
of the State of Delaware (including any successor, the "ISSUER"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of _________________________ DOLLARS ($___________), partially
payable on each Payment Date in an amount equal to the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the A-3
Notes pursuant to Section 3.1 of the Indenture; PROVIDED, HOWEVER, that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the August 2004 Payment Date and the Redemption Date, if any,
pursuant to Section 10.1(a) of the Indenture. No payments of principal of the
Notes will be made until the principal of the A-1 Notes and the
- -------
3/ Denominations of $1,000 and in greater whole-dollar denominations in excess
thereof.
A-2 Notes has been paid in full. The Issuer will pay interest on this Note at
the rate per annum shown above, on each Payment Date until the principal of this
Note is paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all payments
of principal made on the preceding Payment Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue for
each Payment Date from the most recent Payment Date on which interest has been
paid to but excluding the then current Payment Date or, if no interest has yet
been paid, from the date hereof. Interest will be computed on the basis of a
360 day year of twelve 30-day months. Such principal of and interest on this
Note shall be paid in the manner specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: March ___, 2000
CNH EQUIPMENT TRUST 2000-A
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as
Trustee under the Trust Agreement
By:______________________________
Name:________________________
Title:_______________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-
mentioned Indenture.
Dated: March ___, 2000
HARRIS TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By:___________________________________
Authorized Signatory
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 7.14% Class A-3 Asset Backed Notes (herein called the "A-3
NOTES" or the "NOTES"), all issued under an Indenture dated as of March 1, 2000
(such Indenture, as supplemented or amended, is herein called the "INDENTURE"),
between the Issuer and Harris Trust and Savings Bank, not in its individual
capacity but solely as trustee (the "INDENTURE TRUSTEE", which term includes any
successor Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Notes are subject to all terms of the
Indenture. All terms used in this Note that are not otherwise defined herein and
that are defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Notes, the A-1 Notes, the A-2 Notes and the A-4 Notes are and will be
equally and ratably secured by the collateral pledged as security therefor as
provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
A-3 Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against: (i)
the Indenture Trustee or the Trustee in their individual capacities, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of: (a) the Indenture Trustee
or the Trustee in their individual capacities, (b) any holder of a beneficial
interest in the Issuer, the Trustee or the Indenture Trustee or of (c) any
successor or assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
It is the intent of the Seller, the Servicer, the Noteholders and the Note
Owners that, for purposes of Federal and State income tax and any other tax
measured in whole or in part by income, the Notes will qualify as indebtedness
of the Trust. Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, agrees to treat, and
totake no action inconsistent with the treatment of, the Notes for such tax
purposes as indebtedness of the Trust.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that such Noteholder will not at any
time institute against the Seller or the Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization or
arrangement, insolvency or liquidation proceedings under any United States
Federal or State bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Harris Trust and Savings Bank, in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purposes of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof, and each Note Owner by the acceptance of a beneficial
interest herein, each agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
and Note Owner shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; PROVIDED, HOWEVER, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_______________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto_____________________________________________________
_______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
_____________________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Note Registrar, which requirements
include membership or participation
in STAMP or such other "signature
guarantee program" as may be
determined by the Note Registrar in
addition to, or in substitution
for, STAMP, all in accordance with
the Securities Exchange Act of
1934, as amended.
____________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
EXHIBIT A-4
to Indenture
FORM OF A-4 NOTES
REGISTERED $_________________4/
No. R-___ CUSIP NO. ____________________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CNH EQUIPMENT TRUST 2000-A
7.34% CLASS A-4 ASSET BACKED NOTES
CNH Equipment Trust 2000-A, a trust organized and existing under the laws
of the State of Delaware (including any successor, the "ISSUER"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of _________________________ DOLLARS ($___________), partially
payable on each Payment Date in an amount equal to the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the A-4
Notes pursuant to Section 3.1 of the Indenture; PROVIDED, HOWEVER, that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the February 2007 Payment Date and the Redemption Date, if any,
pursuant to Section 10.1(a) of the Indenture. No payments of principal of the
Notes will be made until the principal of the A-1 Notes, the A-2
- --------
4/ Denominations of $1,000 and in greater whole-dollar denominations in excess
thereof.
Notes and the A-3 Notes has been paid in full. The Issuer will pay interest on
this Note at the rate per annum shown above, on each Payment Date until the
principal of thisNote is paid or made available for payment, on the principal
amount of this Note outstanding on the preceding Payment Date (after giving
effect to all payments of principal made on the preceding Payment Date), subject
to certain limitations contained in Section 3.1 of the Indenture. Interest on
this Note will accrue for each Payment Date from the most recent Payment Date on
which interest has been paid to but excluding the then current Payment Date or,
if no interest has yet been paid, from the date hereof. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. Such principal
of and interest on this Note shall be paid in the manner specified in the
Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: March ___, 2000
CNH EQUIPMENT TRUST 2000-A
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as
Trustee under the Trust Agreement
By:________________________________
Name:__________________________
Title:_________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-
mentioned Indenture.
Dated: March ___, 2000
HARRIS TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By:_______________________________
Authorized Signatory
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 7.34% Class A-4 Asset Backed Notes (herein called the "A-4
NOTES" or the "NOTES"), all issued under an Indenture dated as of March 1, 2000
(such Indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and Harris Trust and Savings Bank, not in its individual
capacity but solely as trustee (the "INDENTURE TRUSTEE", which term includes any
successor Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Notes are subject to all terms of the
Indenture. All terms used in this Note that are not otherwise defined herein and
that are defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Notes, the A-1 Notes, the A-2 Notes and the A-3 Notes are and will
be equally and ratably secured by the collateral pledged as security therefor as
provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
A-4 Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against: (i)
the Indenture Trustee or the Trustee in their individual capacities, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of: (a) the Indenture Trustee
or the Trustee in their individual capacities, (b) any holder of a beneficial
interest in the Issuer, the Trustee or the Indenture Trustee or of (c) any
successor or assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
It is the intent of the Seller, the Servicer, the Noteholders and the Note
Owners that, for purposes of Federal and State income tax and any other tax
measured in whole or in part by income, the Notes will qualify as indebtedness
of the Trust. Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, agrees to treat, and to
take no action inconsistent with the treatment of, the Notes for such tax
purposes as indebtedness of the Trust.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that such Noteholder will not at any
time institute against the Seller or the Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization or
arrangement, insolvency or liquidation proceedings under any United States
Federal or State bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Harris Trust and Savings Bank, in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purposes of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof, and each Note Owner by the acceptance of a beneficial
interest herein, each agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
and Note Owner shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; PROVIDED, HOWEVER, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
________________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto______________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
_____________________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Note Registrar, which requirements
include membership or participation
in STAMP or such other "signature
guarantee program" as may be
determined by the Note Registrar in
addition to, or in substitution
for, STAMP, all in accordance with
the Securities Exchange Act of
1934, as amended.
_____________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
EXHIBIT A-5
to Indenture
FORM OF CLASS B NOTES
REGISTERED $____________5/
No. R-___ CUSIP NO. ___________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CNH EQUIPMENT TRUST 2000-A
7.32% CLASS B ASSET BACKED NOTES
CNH Equipment Trust 2000-A, a trust organized and existing under the laws
of the State of Delaware (including any successor, the "ISSUER"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of __________________ DOLLARS ($___________), partially payable on
each Payment Date in an amount equal to the aggregate amount, if any, payable
from the Note Distribution Account in respect of principal on the Class B Notes
pursuant to Section 3.1 of the Indenture; PROVIDED, HOWEVER, that the entire
unpaid principal amount of this Note shall be due and payable on the earlier of
the February 2007 Payment Date and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. No payments of principal of the Notes will be
made until the principal of the A-1 Notes, A-2 Notes, A-3 Notes
- --------
5/ Denominations of $1,000 and in greater whole-dollar denominations in excess
thereof.
and A-4 Notes has been paid in full. The Issuer will pay interest on this Note
at the rate per annum shown above, on each Payment Date until the principal of
this Note is paid or made available for payment, on the principal amount of this
Note outstanding on the preceding Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to certain
limitations contained in Section 3.1 of the Indenture. Interest on this Note
will accrue for each Payment Date from the most recent Payment Date on which
interest has been paid to but excluding the then current Payment Date or, if no
interest has yet been paid, from the date hereof. Interest will be computed on
the basis of a 360 day year of twelve 30-day months. Such principal of and
interest on this Note shall be paid in the manner specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: March ___, 2000
CNH EQUIPMENT TRUST 2000-A
By: THE BANK OF NEW YORK,
not in its individual capacity but solely as
Trustee under the Trust Agreement
By:___________________________________________
Name:____________________________________
Title:___________________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the within-
mentioned Indenture.
Dated: March ___, 2000
HARRIS TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By:_________________________________
Authorized Signatory
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 7.32% Class B Asset Backed Notes (herein called the "CLASS B
NOTES" or the "NOTES"), all issued under an Indenture dated as of March 1, 2000
(such Indenture, as supplemented or amended, is herein called the "INDENTURE"),
between the Issuer and Harris Trust and Savings Bank, not in its individual
capacity but solely as trustee (the "INDENTURE TRUSTEE", which term includes any
successor Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Notes are subject to all terms of the
Indenture. All terms used in this Note that are not otherwise defined herein and
that are defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Class B Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture, but the
interest of the Class B Noteholders in such collateral is subordinated and
second to the rights of the Class A Noteholders.
The Issuer shall pay interest on overdue installments of interest at the
Class B Note Rate to the extent lawful.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against: (i)
the Indenture Trustee or the Trustee in their individual capacities, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of: (a) the Indenture Trustee
or the Trustee in their individual capacities, (b) any holder of a beneficial
interest in the Issuer, the Trustee or the Indenture Trustee or of (c) any
successor or assign of the Indenture Trustee or the Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
It is the intent of the Seller, the Servicer, the Noteholders and the Note
Owners that, for purposes of Federal and State income tax and any other tax
measured in whole or in part by income, the Notes will qualify as indebtedness
of
the Trust. Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, agrees to treat, and
totake no action inconsistent with the treatment of, the Notes for such tax
purposes as indebtedness of the Trust.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture that such Noteholder will not at any
time institute against the Seller or the Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization or
arrangement, insolvency or liquidation proceedings under any United States
Federal or State bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Harris Trust and Savings Bank, in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purposes of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof, and each Note Owner by the acceptance of a beneficial
interest herein, each agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
and Note Owner shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; PROVIDED, HOWEVER, that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and undertakings
contained in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
________________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto______________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
_____________________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Note Registrar, which requirements
include membership or participation
in STAMP or such other "signature
guarantee program" as may be
determined by the Note Registrar in
addition to, or in substitution
for, STAMP, all in accordance with
the Securities Exchange Act of
1934, as amended.
_________
*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
EXHIBIT B
to Indenture
FORM OF SECTION 3.9 OFFICERS' CERTIFICATE
____________, _____
Harris Trust and Savings Bank
311 West Monroe, 12th Floor
Chicago, Illinois 60603
Attention: Indenture Trust Administration
Pursuant to Section 3.9 of the Indenture, dated as of March 1, 2000 (the
"INDENTURE"), between CNH Equipment Trust 2000-A (the "Issuer") and Harris Trust
and Savings Bank, as Indenture Trustee, the undersigned hereby certify that:
(a) a review of the activities of the Issuer during the previous fiscal
year and of performance under the Indenture has been made under the supervision
of the undersigned; and
(b) to the best knowledge of the undersigned, based on such review, the
Issuer has complied with all conditions and covenants under the Indenture
throughout such year. [or, if there has been a default in the compliance of any
such condition or covenant, this certificate is to specify each such default
known to the undersigned and the nature and status thereof]
CNH EQUIPMENT TRUST 2000-A
By:___________________________________
Name:______________________________
Title:_____________________________
By:___________________________________
Name:______________________________
Title:_____________________________