Exhibit 4.3
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DAIMLERCHRYSLER MASTER OWNER TRUST
as Issuer
and
THE BANK OF NEW YORK
as Indenture Trustee
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INDENTURE
dated as of [ ], 2002
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.............................................2
Section 102. Compliance Certificates and Opinions...................17
Section 103. Form of Documents Delivered to Indenture Trustee.......18
Section 104. Acts of Noteholders....................................18
Section 105. Notices, etc., to Indenture Trustee and Issuer.........20
Section 106. Notices to Noteholders; Waiver.........................20
Section 107. Conflict with Trust Indenture Act......................21
Section 108. Effect of Headings and Table of Contents...............21
Section 109. Successors and Assigns.................................21
Section 110. Separability...........................................21
Section 111. Benefits of Indenture..................................21
Section 112. Governing Law..........................................21
Section 113. Counterparts...........................................22
Section 114. Indenture Referred to in the Trust Agreement...........22
ARTICLE II
NOTE FORMS
Section 201. Forms Generally.........................................22
Section 202. Forms of Notes..........................................22
Section 203. Form of Indenture Trustee's Certificate of
Authentication.....................................22
Section 204. Notes Issuable in the Form of a Global Note.............23
Section 205. Temporary Global Notes and Permanent Global Notes.......25
Section 206. Beneficial Ownership of Global Notes....................26
Section 207. Notices to Depository...................................27
ARTICLE III
THE NOTES
Section 301. General Title; General Limitations; Issuable
in Series; Terms of a Series or Class...............27
Section 302. Denominations...........................................30
Section 303. Execution, Authentication and Delivery and Dating.......30
Section 304. Temporary Notes.........................................31
Section 305. Registration, Transfer and Exchange.....................31
Section 306. Mutilated, Destroyed, Lost and Stolen Notes.............33
Section 307. Payment of Interest; Interest Rights Preserved..........34
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Section 308. Persons Deemed Owners...................................34
Section 309. Cancellation............................................34
Section 310. New Issuances of Notes..................................35
Section 311. Specification of Required Subordinated Amount,
Overcollateralization Amount and other Terms
with Respect to each Class..........................37
Section 312. Reallocation of Available Interest Amounts
and Available Principal Amounts.....................37
Section 313. Excess Available Interest Amounts Sharing...............37
Section 314. Excess Available Principal Amounts Sharing..............37
ARTICLE IV
ACCOUNTS AND INVESTMENTS
Section 401. Collections.............................................37
Section 402. Accounts................................................37
Section 403. Investment of Funds in the Accounts.....................38
ARTICLE V
ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 501. Allocations of Available Interest Amounts...............40
Section 502. Allocations of Available Principal Amounts..............40
Section 503. Final Payment...........................................40
Section 504. Payments within a Series or Class.......................40
ARTICLE VI
SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES HELD BY THE ISSUER OR DCWR
Section 601. Satisfaction and Discharge of Indenture.................40
Section 602. Application of Trust Money..............................41
Section 603. Cancellation of Notes Held by the Issuer or DCWR........41
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 701. Events of Default.......................................41
Section 702. Acceleration of Maturity; Rescission and Annulment......43
Section 703. Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee....................44
Section 704. Indenture Trustee May File Proofs of Claim..............45
Section 705. Indenture Trustee May Enforce Claims
Without Possession of Notes.........................45
Section 706. Application of Money Collected..........................45
Section 707. Indenture Trustee May Elect to Hold the
Collateral Certificate..............................46
Section 708. Sale of Receivables for Accelerated Notes...............46
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Section 709. Noteholders Have the Right to Direct the Time,
Method and Place of Conducting Any Proceeding
for Any Remedy Available to the Indenture Trustee...46
Section 710. Limitation on Suits.....................................46
Section 711. Unconditional Right of Noteholders to Receive
Principal and Interest; Limited Recourse............47
Section 712. Restoration of Rights and Remedies......................47
Section 713. Rights and Remedies Cumulative..........................47
Section 714. Delay or Omission Not Waiver............................48
Section 715. Control by Noteholders..................................48
Section 716. Waiver of Past Defaults.................................48
Section 717. Undertaking for Costs...................................48
Section 718. Waiver of Stay or Extension Laws........................49
ARTICLE VIII
THE INDENTURE TRUSTEE
Section 801. Certain Duties and Responsibilities.....................49
Section 802. Notice of Defaults......................................50
Section 803. Certain Rights of Indenture Trustee.....................51
Section 804. Not Responsible for Recitals or Issuance of Notes.......52
Section 805. May Hold Notes..........................................52
Section 806. Money Held in Trust.....................................52
Section 807. Compensation and Reimbursement, Limit on
Compensation, Reimbursement and Indemnity...........52
Section 808. Disqualification; Conflicting Interests.................53
Section 809. Corporate Indenture Trustee Required; Eligibility.......53
Section 810. Resignation and Removal; Appointment of Successor.......53
Section 811. Acceptance of Appointment by Successor..................54
Section 812. Merger, Conversion, Consolidation or
Succession to Business..............................55
Section 813. Preferential Collection of Claims Against Issuer........56
Section 814. Appointment of Authenticating Agent.....................56
Section 815. Tax Returns.............................................57
Section 816. Representations and Covenants of the Indenture Trustee..57
Section 817. Custody of the Collateral...............................58
Section 818. Indenture Trustee's Application for Instructions
from the Issuer.....................................58
ARTICLE IX
NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY INDENTURE TRUSTEE,
ISSUER AND BENEFICIARY
Section 901. Issuer To Furnish Indenture Trustee Names
and Addresses of Noteholders........................59
Section 902. Preservation of Information;
Communications to Noteholders.......................59
Section 903. Reports by Indenture Trustee............................60
Section 904. Meetings of Noteholders; Amendments and Waivers.........61
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Section 905. Reports by Issuer to the Commission.....................62
Section 906. Reports by Indenture Trustee............................62
Section 907. Monthly Noteholders' Statement..........................63
Section 908. Payment Instruction to CARCO Trust......................63
ARTICLE X
INDENTURE SUPPLEMENTS; AMENDMENTS TO THE POOLING AND
SERVICING AGREEMENT AND AMENDMENTS TO THE TRUST AGREEMENT
Section 1001. Supplemental Indentures Without Consent of Noteholders..63
Section 1002. Supplemental Indentures with Consent of Noteholders.....65
Section 1003. Execution of Indenture Supplements......................66
Section 1004. Effect of Indenture Supplements.........................66
Section 1005. Conformity with Trust Indenture Act.....................67
Section 1006. Reference in Notes to Indenture Supplements.............67
Section 1007. Amendments to the Pooling and Servicing Agreement.......67
Section 1008. Amendments to the Trust Agreement.......................68
Section 1009. Notice..................................................68
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
Section 1101. Payment of Principal and Interest.......................68
Section 1102. Maintenance of Office or Agency.........................69
Section 1103. Money for Note Payments to be Held in Trust.............69
Section 1104. Statement as to Compliance..............................71
Section 1105. Legal Existence.........................................71
Section 1106. Further Instruments and Acts............................71
Section 1107. Compliance with Laws....................................71
Section 1108. Notice of Events of Default.............................71
Section 1109. Certain Negative Covenants..............................71
Section 1110. No Other Business.......................................72
Section 1111. No Borrowing............................................72
Section 1112. Rule 144A Information...................................72
Section 1113. Performance of Obligations..............................72
Section 1114. Issuer May Consolidate, Etc., Only on Certain Terms.....73
Section 1115. Successor Substituted...................................75
Section 1116. Guarantees, Loans, Advances and Other Liabilities.......75
Section 1117. Capital Expenditures....................................75
Section 1118. Restricted Payments.....................................75
Section 1119. Representations and Warranties as to the
Security Interest of the Indenture Trustee in the
Collateral Certificate..............................76
Section 1120. Derivative Instruments..................................76
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ARTICLE XII
EARLY REDEMPTION OF NOTES
Section 1201. Applicability of Article................................77
Section 1202. Optional Repurchase.....................................77
Section 1203. Notice..................................................78
ARTICLE XIII
COLLATERAL
Section 1301. Recording, Etc..........................................78
Section 1302. Trust Indenture Act Requirements........................80
Section 1303. Suits To Protect the Collateral.........................80
Section 1304. Purchaser Protected.....................................80
Section 1305. Powers Exercisable by Receiver or Trustee...............81
Section 1306. Determinations Relating to Collateral...................81
Section 1307. Release of Collateral...................................81
Section 1308. Certain Actions by Indenture Trustee....................82
Section 1309. Opinions as to Collateral...............................82
Section 1310. Delegation of Duties....................................82
ARTICLE XIV
MISCELLANEOUS
Section 1401. No Petition.............................................83
Section 1402. Trust Obligations.......................................83
Section 1403. Limitations on Liability................................83
Section 1404. Tax Treatment...........................................84
Section 1405. Actions Taken by the Issuer.............................84
Section 1406. Alternate Payment Provisions............................84
Section 1407. Termination of Issuer...................................84
Section 1408. Final Distribution......................................84
Section 1409. Termination Distributions...............................85
Section 1410. Derivative Counterparty as Third-Party Beneficiary......85
EXHIBITS
EXHIBIT A [FORM OF] PAYMENT INSTRUCTIONS
EXHIBIT B [FORM OF] MONTHLY NOTEHOLDERS' STATEMENT
EXHIBIT C [FORM OF] INVESTMENT LETTER
EXHIBIT D-1 [FORM OF] CLEARANCE SYSTEM CERTIFICATE TO BE GIVEN TO THE
TRUSTEE BY EUROCLEAR OR CLEARSTREAM,
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LUXEMBOURG FOR DELIVERY OF DEFINITIVE NOTES IN EXCHANGE
FOR A PORTION OF A TEMPORARY GLOBAL NOTE
EXHIBIT D-2 [FORM OF] CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR
CLEARSTREAM, LUXEMBOURG WITH RESPECT TO REGISTERED NOTES
SOLD TO QUALIFIED INSTITUTIONAL BUYERS
EXHIBIT D-3 [FORM OF] CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR
CLEARSTREAM, LUXEMBOURG BY A BENEFICIAL OWNER OF NOTES,
OTHER THAN A QUALIFIED INSTITUTIONAL BUYER
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THIS INDENTURE between DAIMLER CHRYSLER MASTER OWNER TRUST,
a statutory business trust organized under the laws of the State of Delaware
(the "Issuer"), having its principal office at [ ], [ ], Delaware [ ], and The
Bank of New York, a New York banking corporation, in its capacity as Indenture
Trustee (the "Indenture Trustee"), is made and entered into as of [ ], 2002.
RECITALS OF THE ISSUER
The Issuer has duly authorized the execution and delivery of
this Indenture to provide for the issuance of its notes to be issued in one or
more fully registered or bearer series or classes. All things necessary to
make this Indenture a valid agreement of the Issuer, in accordance with its
terms, have been done.
GRANTING CLAUSE
The Issuer hereby grants to the Indenture Trustee for the
benefit and security of (a) the Noteholders, (b) each Derivative Counterparty
to a Derivative Agreement entered into in connection with issuance of a class
of Notes that expressly states that such Derivative Counterparty is entitled
to the benefit of the Collateral, and (c) the Indenture Trustee, in its
individual capacity (each, a "Secured Party"), a security interest in all of
its right, title and interest, whether now owned or hereafter acquired, in and
to:
(i) the Collateral Certificate;
(ii) the Collection Account;
(iii) any Supplemental Account;
(iv) all sub-Accounts in the Collection Account or any
Supplemental Account;
(v) all investment property, money and other property
held in or through the Collection Account, any
Supplemental Account or any sub-Account thereof;
(vi) all rights, benefits and powers under any Derivative
Agreement relating to any class of Notes;
(vii) all rights of enforcement against any of the
representations and warranties made by the
Beneficiary pursuant to the Trust Agreement;
(viii) all present and future claims, demands, causes of
and choses in action in respect of any of the
foregoing and all interest, principal, payments and
distributions of any nature or type on any of the
foregoing;
(ix) all accounts, general intangibles, chattel paper,
instruments, documents, goods, money, investment
property, deposit accounts, certificates of deposit,
letters of credit, letter-of-credit rights and
advices of credit
consisting of, arising from, or relating to any of
the foregoing; and (x) all proceeds of the
foregoing.
The collateral described above is referred to as the
"Collateral." The Security Interest in the Collateral is granted to secure the
Notes (and, to the extent specified in the applicable Indenture Supplement or
Derivative Agreement, the obligations under any applicable Derivative
Agreements) equally and ratably without prejudice, priority or distinction
between any Note and any other Note by reason of difference in time of
issuance or otherwise, except as otherwise expressly provided in this
Indenture or in the Indenture Supplement which establishes any class of Notes,
and to secure (i) the payment of all amounts due on such Notes (and, to the
extent so specified, the obligations under any applicable Derivative
Agreements) in accordance with their terms, (ii) the payment of all other sums
payable by the Issuer under this Indenture or any Indenture Supplement and
(iii) compliance by the Issuer with the provisions of this Indenture or any
Indenture Supplement. This Indenture is a security agreement within the
meaning of the UCC.
The Indenture Trustee acknowledges the grant of such
Security Interest, and accepts the Collateral in trust hereunder in accordance
with the provisions hereof and agrees to perform the duties herein to the end
that the interests of the Secured Parties may be adequately and effectively
protected.
Particular Notes and Derivative Agreements will benefit from
the Security Interest to the extent (and only to the extent) proceeds of and
distributions on the Collateral are allocated for their benefit pursuant to
this Indenture and the applicable Indenture Supplement.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the
terms and conditions upon which the Notes are and are to be authenticated,
issued and delivered, and in consideration of the premises and the purchase of
Notes by the Holders thereof, it is mutually agreed as follows, for the equal
and proportionate benefit of all Holders of the Notes or of a series or class
thereof, as the case may be:
LIMITED RECOURSE
The obligation of the Issuer to make payments of principal,
interest and other amounts on the Notes and to make payments on Derivative
Agreements is limited in recourse as set forth in Section 711.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. For all purposes of this Indenture
and of any Indenture Supplement, except as otherwise expressly provided or
unless the context otherwise requires:
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(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act or by Commission rule under the Trust Indenture Act or in
the Series 2002-CC Supplement, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder means such accounting principles as are
generally accepted in the United States of America at the date of such
computation;
(4) all references in this Indenture to designated
"Articles," "Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this Indenture as originally executed. The
words "herein," "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section
or other subdivision;
(5) if any term or provision contained in an Indenture
Supplement for a series of Notes shall conflict with or be inconsistent with
any term or provision in this Indenture, the terms and provisions of such
Indenture Supplement shall control in respect of such series of Notes.
(6) "including" and words of similar import will be deemed
to be followed by "without limitation."
"Accounts" means, collectively, the Collection Account and
any Supplemental Account, in each case including any sub-Accounts therein.
"Act," when used with respect to any Noteholder, is defined
in Section 104(a).
"action," when used with respect to any Noteholder, is
defined in Section 104(a).
"Adjusted Outstanding Dollar Principal Amount" means at any
time with respect to any series or class of Notes, the Outstanding Dollar
Principal Amount of all Outstanding Notes of such series or class at such
time, less any funds on deposit in the Principal Funding Account or the
related sub-Account, as applicable, for such series or class at such time.
"Administration Agreement" means the Administration
Agreement dated as of [ ], 2002, among the Administrator, the Issuer and the
Indenture Trustee.
"Administrator" means DaimlerChrysler Services North America
LLC, a Michigan limited liability company, or any successor Administrator
under the Administration Agreement.
"Adverse Effect" means, whenever used in this Indenture with
respect to any series or class of Notes with respect to any action, that such
action will (a) at the time of its
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occurrence or at any future date result in the occurrence of an Early
Redemption Event or Event of Default relating to such series or class, as
applicable, (b) adversely affect the amount of funds available to be
distributed to the Noteholders of any such series or class pursuant to this
Indenture or the timing of such distributions, or (c) adversely affect the
security interest of the Indenture Trustee in the Collateral.
"Affiliate" means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For the purposes
of this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"applicable investment category"; with respect to any series
or class of Notes, has the meaning assigned in the related Indenture
Supplement.
"Authenticating Agent" means any Person authorized by the
Indenture Trustee to authenticate Notes under Section 814.
"Authorized Newspaper" means, with respect to any class of
Notes, publication in the newspaper of record specified in the applicable
Indenture Supplement for that class, or if and so long as Notes of that class
are listed on any securities exchange and that exchange so requires, in the
newspaper of record required by the applicable securities exchange, printed in
any language specified in the applicable Indenture Supplement or satisfying
the requirements of such exchange.
"Available Interest Amount" (i) with respect to all series
of Notes, means the Available Interest Amount (as defined in the Series
2002-CC Supplement) which is payable to the Series 2002-CC Certificateholder
pursuant to Article V of the Pooling and Servicing Agreement as supplemented
by the Series 2002-CC Supplement plus any amounts to be treated as Available
Interest Amounts pursuant to Section 403(d) and (ii) with respect to any
series of Notes, has the meaning specified in the related Indenture
Supplement.
"Available Principal Amount" (i) with respect to all series
of Notes, means the Available Principal Amount (as defined in the Series
2002-CC Supplement) which is payable to the Series 2002-CC Certificateholder
pursuant to Article V of the Pooling and Servicing Agreement as supplemented
by the Series 2002-CC Supplement and (ii) with respect to any series of Notes,
has the meaning specified in the related Indenture Supplement.
"Bearer Note" means a Note in bearer form.
"Beneficiary" is defined in the Trust Agreement.
"Business Day," unless otherwise specified in the Indenture
Supplement for any class of Notes, means any day other than (a) a Saturday or
Sunday or (b) any other day on which national banking associations or state
banking institutions in New York, New York or Wilmington, Delaware, are
authorized or obligated by law, executive order or governmental decree to be
closed.
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"CARCO Trust" means CARCO Auto Loan Master Trust,
established pursuant to the Pooling and Servicing Agreement.
"CARCO Trust Tax Opinion" means, with respect to any action,
an Opinion of Counsel to the effect that, for Federal income tax purposes, (a)
such action will not adversely affect the tax characterization as debt of the
Investor Certificates of any outstanding series or class under the CARCO Trust
that were characterized as debt at the time of their issuance, (b) following
such action the CARCO Trust will not be treated as an association (or a
publicly traded partnership) taxable as a corporation and (c) such action will
not cause or constitute an event in which gain or loss would be recognized by
any Investor Certificateholder.
"CARCO Trust Trustee" means the trustee as defined in the
Pooling and Servicing Agreement.
"class" means, with respect to any Note, the class
designated for such Note in the applicable Indenture Supplement.
"Collateral" is defined in the Granting Clause.
"Collateral Certificate" means the Series 2002-CC
Certificate issued pursuant to the Pooling and Servicing Agreement and the
Series 2002-CC Supplement, as amended, supplemented, restated or otherwise
modified from time to time.
"Collection Account" is defined in Section 402(a).
"Collections" is defined in Section 401.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities Exchange Act,
or, if at any time after the execution of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Corporate Trust Office" means the principal office of the
Indenture Trustee in New York, New York at which at any particular time its
corporate trust business will be principally administered, which office at the
date hereof is located at 101 Barclay Street, New York, New York 10286.
"DCWR" means DaimlerChrysler Wholesale Receivables LLC, a
Delaware limited liability company, and its successors in interest.
"Depository" means a U.S. Depository or a Foreign
Depository, as the case may be.
"Derivative Agreement" means any currency, interest rate or
other swap, cap, collar, guaranteed investment contract or other derivative
agreement.
"Derivative Counterparty" means any party to any Derivative
Agreement other than the Issuer or the Indenture Trustee.
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"Discount Note" means a Note that provides for an amount
less than the Stated Principal Amount (but not less than the Initial Dollar
Principal Amount) thereof to be due and payable upon the occurrence of an
Early Redemption Event or other optional or mandatory redemption or the
occurrence of an Event of Default and the acceleration of such Note, in each
case before the Expected Principal Payment Date of the applicable Note.
"Dollar" means (a) United States dollars or (b) denominated
in United States dollars.
"Early Redemption Event" is defined in Section 1201.
"Effective Date" means the date on which this Indenture is
executed and delivered by the parties hereto.
"Entity" means any Person other than an individual or
government (including any agency or political subdivision thereof).
"ERISA" means the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"Event of Default" is defined in Section 701.
"Exchange Date" means, with respect to any class of Notes,
the latest of:
(a) in the case of exchanges of beneficial interests in
Temporary Global Notes for beneficial interests in Permanent Global Notes in
registered form, any date that is after the related issuance date;
(b) in the case of exchanges of beneficial interests in
Temporary Global Notes for beneficial interests in Permanent Global Notes in
bearer form, the date of presentation of certification of non-United States
beneficial ownership (as described in Section 205); and
(c) the earliest date on which such an exchange of a
beneficial interest in a Temporary Global Note for a beneficial interest in a
Permanent Global Note is permitted by applicable law.
"Expected Principal Payment Date" means, with respect to any
series or class of Notes, the scheduled due date of any payment of principal
on such Notes, as specified in the related Indenture Supplement, or if such
day is not a Business Day, the next following Business Day, unless such day is
in the next calendar month, in which case such Expected Principal Payment
Date, unless otherwise specified in the related Indenture Supplement, will be
the last Business Day of the current calendar month.
"FDIC" means the Federal Deposit Insurance Corporation or
any successor thereto.
"Federal Bankruptcy Code" means Title 11 of the United
States Code, as amended from time to time.
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"Fitch" means Fitch, Inc., or any successor thereto.
"foreign currency" means (a) a currency other than Dollars
or (b) denominated in a currency other than Dollars.
"Foreign Depository" means the Person specified in the
applicable Indenture Supplement, in its capacity as depository for the
accounts of any clearing agencies located outside the United States.
"Global Note" means any Note issued pursuant to Section 204.
"Holder," when used with respect to any Note, means a
Noteholder.
"Indenture" or "this Indenture" means this Indenture as
originally executed and as amended, supplemented, restated or otherwise
modified from time to time by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof, and will include
the terms of particular series or classes of Notes created as contemplated by
Section 301.
"Indenture Supplement" means, with respect to any series of
Notes, a supplement to this Indenture, executed and delivered in conjunction
with the issuance of such Notes pursuant to Section 1001, together with any
applicable terms document related to such Indenture Supplement and any
amendment to the Indenture Supplement executed pursuant to Section 1001 or
1002, and, in either case, including all amendments thereof and supplements
thereto.
"Indenture Trustee" means the Person named as the Indenture
Trustee in the first paragraph of this Indenture until a successor Indenture
Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Indenture Trustee" means and includes each Person
who is then an Indenture Trustee hereunder. If at any time there is more than
one such Person, "Indenture Trustee" as used with respect to the Notes of any
series or class means the Indenture Trustee with respect to Notes of that
series or class.
"Indenture Trustee Authorized Officer", when used with
respect to the Indenture Trustee, means any vice president, any assistant vice
president, the treasurer, any assistant treasurer, any senior trust officer or
trust officer, or any other officer of the Indenture Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Initial Dollar Principal Amount" means (a) unless otherwise
specified in the applicable Indenture Supplement, with respect to classes of
Dollar Interest-bearing Notes, the aggregate initial principal amount of the
Outstanding Notes of such class, and (b) with respect to classes of Discount
Notes and foreign currency Notes, the amount specified in the applicable
Indenture Supplement as the Initial Dollar Principal Amount thereof.
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"Interest-bearing Note" means a Note that bears interest at
a stated or computed rate on the principal amount thereof. A Note may be both
an Interest-bearing Note and a Discount Note.
"Interest Payment Date" means, with respect to any series or
class of Notes, the scheduled due date of any payment of interest on such
Notes, as specified in the applicable Indenture Supplement, or if such day is
not a Business Day, the next following Business Day, unless such day is in the
next calendar month, in which case the Interest Payment Date, unless otherwise
specified in the related Indenture Supplement, will be the last Business Day
of the current calendar month; provided, however, that upon the acceleration
of a series or class of Notes following an Event of Default or upon the
occurrence of an Early Redemption Event, or other optional or mandatory
redemption of that series or class of Notes, each Monthly Principal Accrual
Date will be an Interest Payment Date.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time.
"Investor Certificates" is defined in the Pooling and
Servicing Agreement.
"Investor Certificateholder" is defined in the Pooling and
Servicing Agreement.
"Investor Interest" means, with respect to an Investor
Certificate, the interest in the CARCO Trust evidenced by such Investor
Certificate.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Issuer" is defined in the first paragraph of this
Indenture.
"Issuer Authorized Officer" means (a) an authorized
signatory of the Owner Trustee, (b) the chairman or vice-chairman of the board
of directors, chairman or vice-chairman of the executive committee of the
board of directors, the president, any vice-president, the secretary, any
assistant secretary, the treasurer, or any assistant treasurer, in each case
of the Beneficiary, or any other officer or employee of the Beneficiary who is
authorized to act on behalf of the Issuer or (c) so long as the Administration
Agreement is in effect, any Vice President or more senior officer of the
Administrator who is authorized to act for the Administrator in matters
relating to the Issuer and to be acted upon by the Administrator pursuant to
the Administration Agreement and who is identified on the list of Issuer
Authorized Officers delivered by the Administrator to the Indenture Trustee as
such list may be modified or supplemented from time to time.
"Issuer Certificate" means a certificate (including an
Officer's Certificate) signed in the name of an Issuer Authorized Officer, or
the Issuer by an Issuer Authorized Officer, and in each case delivered to the
Indenture Trustee relating to, among other things, the issuance of a new class
of Notes. Wherever this Indenture requires that an Issuer Certificate be
signed also by an accountant or other expert, such accountant or other expert
(except as otherwise expressly provided in this Indenture) may be in the
employ of the Beneficiary.
8
"Issuer Tax Opinion" means, with respect to any action, an
Opinion of Counsel to the effect that, for Federal income tax purposes, (a)
such action will not adversely affect the tax characterization as debt of any
Outstanding series or class of Notes that were characterized as debt at the
time of their issuance, (b) following such action the Issuer will not be
treated as an association (or publicly traded partnership) taxable as a
corporation, (c) such action will not cause or constitute an event in which
gain or loss would be recognized by any Holder of any such Notes, and (d)
except as otherwise provided in the related Indenture Supplement, where such
action is the issuance of a series or class of Notes, following such action
such series or class of Notes will be properly characterized as debt.
"Legal Maturity Date" means, with respect to a series or
class of Notes, the date specified in the Indenture Supplement, for such Note
as the fixed date on which the principal of such series or class of Notes is
due and payable.
"Majority Holders" means, with respect to any series or
class of Notes or all Outstanding Notes, the Holders of a majority in
Outstanding Dollar Principal Amount of the Outstanding Notes of that series or
class or of all Outstanding Notes, as the case may be.
"Monthly Interest Accrual Date" means, with respect to any
Outstanding series or class of Notes:
(a) each Interest Payment Date for such series or class, and
(b) for any Monthly Period in which no Interest Payment Date
for such series or class occurs, the date in such Monthly Period corresponding
numerically to the next Interest Payment Date for such series or class of
Notes, or in the case of a series or class of Discount Notes, the Expected
Principal Payment Date for that series or class, or as otherwise specified in
the applicable Indenture Supplement for such series or class of Notes;
provided, however, that
(i) for the Monthly Period in which a series or class of
Notes is issued, the date of issuance of such series or class will be
the first Monthly Interest Accrual Date for such Monthly Period for
such series or class of Notes,
(ii) for the Monthly Period next following the Monthly
Period in which a series or class of Notes is issued, unless
otherwise indicated in the related Indenture Supplement, the first
day of such Monthly Period will be the first Monthly Interest Accrual
Date in such next following Monthly Period for such series or class
of Notes,
(iii) any date on which proceeds from a sale of Receivables
following an Event of Default and acceleration of any class of Notes
are deposited into the interest funding account for such Notes will
be a Monthly Interest Accrual Date for such class of Notes,
(iv) if there is no such numerically corresponding date in
such Monthly Period, then the Monthly Interest Accrual Date will be
the last Business Day of such Monthly Period, and
(v) if such numerically corresponding date in such Monthly
Period is not a Business Day, then the Monthly Interest Accrual Date
will be the next following
9
Business Day (unless such Business Day would fall in the following
Monthly Period in which case the Monthly Interest Accrual Date will
be the last Business Day of such earlier month).
"Monthly Noteholders' Statement" means a report
substantially in the form of Exhibit B, as the same may be supplemented as set
forth in the related Indenture Supplement.
"Monthly Period" means a calendar month, except as otherwise
specified for a Series of Notes in its Indenture Supplement. The Monthly
Period with respect to a Transfer Date or Payment Date is the Monthly Period
that ends immediately prior to such date.
"Monthly Principal Accrual Date" means, with respect to any
Outstanding series or class of Notes:
(a) for any Monthly Period in which an Expected Principal
Payment Date for such series or class occurs, such Expected Principal Payment
Date, or as otherwise specified in the applicable Indenture Supplement for
such series or class of Notes, and
(b) for any Monthly Period in which no Expected Principal
Payment Date for such series or class occurs, the date in such Monthly Period
corresponding numerically to the next Expected Principal Payment Date for such
series or class of Notes (or for any month following the last Expected
Principal Payment Date, the date in such month corresponding numerically to
the preceding Expected Principal Payment Date for such series or class of
Notes), or as otherwise specified in the applicable Indenture Supplement, for
such class of Notes; provided, however, that:
(i) following a Early Amortization Event as described in
subsection 9.01(a) of the Pooling and Servicing Agreement, the second
Business Day following such Early Amortization Event shall be a
Monthly Principal Accrual Date,
(ii) any date on which prefunded excess amounts are released
from any principal funding subaccount and deposited into the
principal funding subaccount of any class of Notes on or after the
Expected Principal Payment Date for such class of Notes will be a
Monthly Principal Accrual Date for such class of Notes,
(iii) any date on which proceeds from a sale of Receivables
following an Event of Default and acceleration of any series or class
of Notes are deposited into the principal funding account for such
Notes will be a Monthly Principal Accrual Date for such class of
Notes,
(iv) if there is no numerically corresponding date in such
Monthly Period, then the Monthly Principal Accrual Date will be the
last Business Day of such Monthly Period, and
(v) if such numerically corresponding date in such Monthly
Period is not a Business Day, the Monthly Principal Accrual Date will
be the next following Business Day (unless such Business Day would
fall in the following month in which case the
10
Monthly Principal Accrual Date will be the last Business Day of such
earlier Monthly Period).
"Moody's" means Moody's Investors Service, Inc., or any
successor thereto.
"Nominal Liquidation Amount" means, with respect to any
Outstanding class of Notes, an amount determined in accordance with the
applicable Indenture Supplement.
"non-Performing," with respect to a Derivative Agreement,
means not Performing.
"Note" or "Notes" means any note or notes of any series or
class authenticated and delivered from time to time under this Indenture.
"Note Accumulation Period" means, with respect to any series
or class of Notes, the period commencing on the first day of the Monthly
Period for which there is a Targeted Principal Deposit Amount with respect to
such series or class of Notes and ending on the last day of the Monthly Period
preceding the next following Monthly Period for which there is no Targeted
Principal Deposit Amount with respect to such series or class of Notes;
provided, however, that, with respect to any class of Notes which has been
accelerated following an event of default, has had an early redemption event
or will be partially redeemed during a partial or limited amortization, the
related Note Accumulation Period will commence on the effective date of such
acceleration, early redemption event or partial or limited amortization
period.
"Note Owner" means the beneficial owner of an interest in a
Global Note.
"Note Rating Agency" means, with respect to any Outstanding
series or class of Notes, each statistical rating agency selected by the
Issuer to rate such Notes.
"Note Register" is defined in Section 305.
"Note Registrar" means the Person who keeps the Note
Register specified in Section 305.
"Noteholder" means a Person in whose name a Note is
registered in the Note Register or the bearer of any Bearer Note (including a
Global Note in bearer form), as the case may be.
"Officer's Certificate" means a certificate signed by the
Beneficiary or the Owner Trustee and delivered to the Indenture Trustee.
Wherever this Indenture requires that an Officer's Certificate be signed also
by an accountant or other expert, such accountant or other expert (except as
otherwise expressly provided in this Indenture) may be in the employ of the
Beneficiary.
"Opinion of Counsel" means a written opinion of counsel
acceptable to the Indenture Trustee, who may, without limitation, and except
as otherwise expressly provided in this Indenture, be an employee of or of
counsel to the Issuer, the Beneficiary or any of their Affiliates.
11
"Outstanding," when used with respect to a Note or with
respect to Notes of any series or class means, as of the date of
determination, all such Notes theretofore authenticated and delivered under
this Indenture, except:
(a) any Notes theretofore canceled by the Indenture Trustee
or delivered to the Indenture Trustee for cancellation, or canceled by the
Issuer, DCWR or any Affiliate thereof pursuant to Section 309;
(b) any Notes for whose full payment (including principal
and interest) or redemption money in the necessary amount has been theretofore
deposited with the Indenture Trustee or any Paying Agent in trust for the
Holders of such Notes; provided that, if such Notes are to be redeemed, notice
of such redemption has been duly given if required pursuant to this Indenture,
the related Indenture Supplement, or provision therefor satisfactory to the
Indenture Trustee has been made;
(c) any Notes which are deemed to have been paid in full
pursuant to Section 503; and
(d) any such Notes in exchange for or in lieu of which other
Notes have been authenticated and delivered pursuant to this Indenture, or
which will have been paid pursuant to the terms of Section 306 (except with
respect to any such Note as to which proof satisfactory to the Indenture
Trustee is presented that such Note is held by a person in whose hands such
Note is a legal, valid and binding obligation of the Issuer).
For purposes of determining the amounts of deposits, allocations,
reallocations or payments to be made, unless the context clearly requires
otherwise, references to "Notes" will be deemed to be references to
"Outstanding Notes." In determining whether the Holders of the requisite
principal amount of such Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, and for
purposes of Section 904, Notes beneficially owned by the Issuer or DCWR or any
Affiliate of the Issuer or DCWR will be disregarded and deemed not to be
Outstanding. In determining whether the Indenture Trustee will be protected in
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Notes which an Indenture Trustee Authorized Officer
knows to be owned by the Issuer or DCWR or any Affiliate of the Issuer or DCWR
will be so disregarded. Notes so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee creates to the satisfaction of
the Indenture Trustee the pledgee's right to act as owner with respect to such
Notes and that the pledgee is not the Issuer, DCWR or any other obligor upon
the Notes or any Affiliate of the Issuer, DCWR or such other obligor.
"Outstanding Dollar Principal Amount" means at any time,
(a) with respect to any series or class of non-Discount
Notes, the aggregate Initial Dollar Principal Amount of the Outstanding Notes
of such series or class at such time, less the amount of any withdrawals from
the Principal Funding Account or Principal Funding sub-Account for such class
of Notes for payment of principal to the Holders of such series or class or to
the applicable Derivative Counterparty pursuant to the related Indenture
Supplement, and
12
(b) with respect to any series or class of Discount Notes,
an amount of the Outstanding Notes of such series or class calculated by
reference to the applicable formula set forth in the applicable Indenture
Supplement, taking into account the amount and timing of payments of principal
made to the Holders of such series or class or to the applicable Derivative
Counterparty and accretions of principal, each pursuant to the related
Indenture Supplement.
"Overcollateralization Amount" has, with respect to any
series of Notes, the meaning specified in the related Indenture Supplement.
"Owner Trustee" means [ ], not in its individual capacity
but solely as owner trustee of the Issuer, and each of its successors and
assigns.
"Paying Agent" means any Person authorized by the Issuer to
pay the principal of or interest on any Notes on behalf of the Issuer, which
shall initially be the Indenture Trustee.
"Payment Date" means, with respect to any series or class of
Notes, the applicable Principal Payment Date or Interest Payment Date.
"Payment Instruction" means an instruction substantially in
the form of Exhibit A, or such other form as the Issuer may determine, as the
same may be supplemented as set forth in the related Indenture Supplement.
"Performing" means, with respect to any Derivative
Agreement, no payment default or repudiation of performance by a Derivative
Counterparty has occurred, and such Derivative Agreement has not been
terminated.
"Permanent Global Note" is defined in Section 205.
"Permitted Investments" means, unless otherwise provided in
the Indenture Supplement with respect to any series of Notes:
(a) instruments, investment property or other property
consisting of:
(i) obligations of or fully guaranteed by the United
States of America;
(ii) time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws
of the United States of America or any state thereof (or domestic
branches of foreign depository institutions or trust companies) and
subject to supervision and examination by federal or state banking or
depository institution authorities; provided, however, that at the
time of the Indenture Trustee's investment or contractual commitment
to invest therein, the certificates of deposit or short-term deposits
of such depository institution or trust company shall have a credit
rating from Moody's and Standard & Poor's of P-1 and A-1+,
respectively, and, if rated by Fitch, F1+ from Fitch;
(iii) commercial paper (including but not limited to asset
backed commercial paper) having, at the time of the Indenture
Trustee's investment or contractual
13
commitment to invest therein, a rating from Moody's and Standard &
Poor's of P-1 and A-1+, respectively, and, if rated by Fitch, F1+
from Fitch;
(iv) bankers' acceptances issued by any depository
institution or trust company described in clause (a)(ii) above; and
(v) investments in money market funds rated AAA-m or AAA-mg
by Standard & Poor's and Aaa by Moody's or otherwise approved in
writing by each Note Rating Agency;
(b) demand deposits in the name of the Indenture Trustee in
any depository institution or trust company referred to in clause (a)(ii)
above;
(c) uncertificated securities that are registered in the
name of the Indenture Trustee upon books maintained for that purpose by the
issuer thereof and identified on books maintained for that purpose by the
Indenture Trustee as held for the benefit of the Noteholders, and consisting
of shares of an open end diversified investment company which is registered
under the Investment Company Act, and which (i) invests its assets exclusively
in obligations of or guaranteed by the United States of America or any
instrumentality or agency thereof having in each instance a final maturity
date of less than one year from their date of purchase or other Permitted
Investments, (ii) seeks to maintain a constant net asset value per share,
(iii) has aggregate net assets of not less than $100,000,000 on the date of
purchase of such shares and (iv) with respect to which each Note Rating Agency
confirms in writing that such investment will not cause a Ratings Effect; and
(d) any other investment if each Note Rating Agency confirms
in writing that such investment will not cause a Ratings Effect.
"Person" means any individual, corporation, estate,
partnership, limited liability company, limited liability partnership, joint
venture, association, joint-stock company, business trust, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, with respect to any class of Notes
issued hereunder, the city or political subdivision so designated with respect
to such class of Notes in accordance with the provisions of Section 301.
"Pooling and Servicing Agreement" means the Amended and
Restated Pooling and Servicing Agreement, dated as of December 5, 2001,
between DCWR, as Seller, DaimlerChrysler Services North America LLC, as
Servicer, and The Bank of New York, as trustee, as amended, restated and
supplemented from time to time.
"Predecessor Notes" of any particular Note means every
previous Note evidencing all or a portion of the same debt as that evidenced
by such particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in lieu of a mutilated, lost,
destroyed or stolen Note will be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
14
"Principal Payment Date" means, with respect to any series
or class of Notes, each Expected Principal Payment Date, or upon the
acceleration of such series or class of Notes following an Event of Default or
upon the occurrence of an Early Redemption Event, or other optional or
mandatory redemption of such series or class of Notes, each Monthly Principal
Accrual Date.
"Put Feature" means, with respect to a series of Notes, the
provisions in the Indenture Supplement for such series of Notes that allow the
Noteholders, under specified circumstances, to put the Notes of such series to
the Issuer in exchange for the proceeds (up to the amount specified in the
Indenture Supplement) from the sale of Receivables specified in such Indenture
Supplement.
"Qualified Account" means either (a) a segregated account
(including a securities account) with a Qualified Institution or (b) a
segregated trust account with the corporate trust department of a depository
institution organized under the laws of the United States of America or any
one of the States thereof or the District of Columbia (or any domestic branch
of a foreign bank), having corporate trust powers and acting as trustee for
funds deposited in such account, so long as any of the securities of such
depository institution shall have a credit rating from each Note Rating Agency
in one of its generic rating categories which signifies investment grade.
"Qualified Institution" means (a) a depository institution,
which may include the Indenture Trustee (so long as it is a paying agent under
the Indenture) or the Owner Trustee, organized under the laws of the United
States of America or any one of the States thereof or the District of
Columbia, the deposits in which are insured by the FDIC and which at all times
has a short-term unsecured debt rating in the applicable investment category
of each Note Rating Agency or (b) a depository institution acceptable to each
Note Rating Agency.
"Ratings Effect" means a reduction, qualification or
withdrawal of any then current rating of the Notes.
"Receivables" is defined in the Pooling and Servicing
Agreement.
"Record Date" for the interest or principal payable on any
Note on any applicable Payment Date means the last day of the month before the
related Interest Payment Date or Principal Payment Date, as applicable, unless
otherwise specified in the applicable Indenture Supplement.
"Registered Note" means a Note issued in registered form.
"Registered Noteholder" means a holder of a Registered Note.
"Required Subordinated Amount" means, with respect to any
class of a senior class of Notes, the amount specified in the related
Indenture Supplement.
"Secured Party" is defined in the Granting Clause.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
15
"Securities Exchange Act" means the Securities Exchange Act
of 1934, as amended from time to time.
"Security Interest" means the security interest granted
pursuant to the Granting Clause.
"Seller" means DCWR in its capacity as Seller under the
Pooling and Servicing Agreement.
"senior class," with respect to a class of Notes of any
series, has the meaning specified in the related Indenture Supplement.
"series" means, with respect to any Note, the series
specified in the applicable Indenture Supplement.
"Series Available Interest Amount Shortfalls," has the
meaning specified in the related Indenture Supplement.
"Series Floating Allocation Percentage," for any series of
Notes, has the meaning specified in the related Indenture Supplement.
"Series Nominal Liquidation Amount," with respect to any
series of Notes, is defined in the related Indenture Supplement.
"Series Principal Allocation Percentage," for a series of
Notes, has the meaning specified in the related Indenture Supplement.
"Series 2002-CC Supplement" means the Series 2002-CC
Supplement to the Pooling and Servicing Agreement, dated as of [ ], 2002, as
amended, supplemented, restated or otherwise modified from time to time.
"Servicer" is defined in the Pooling and Servicing
Agreement.
"Standard & Poor's" means Standard & Poor's Ratings Services
or any successor thereto.
"Stated Principal Amount," with respect to any Note, has the
meaning specified in the related Indenture Supplement.
"sub-Account" means each portion of an Account designated as
such pursuant to this Indenture or the related Indenture Supplement.
"subordinated class," with respect to a class of Notes of
any series, has the meaning specified in the related Indenture Supplement.
"subordinated Notes" means Notes of a subordinated class of
a series.
"Supplemental Account" means the trust account or accounts
designated as such and established pursuant to Section 402(a).
16
"Targeted Interest Deposit Amount," for each series or class
of Notes, is defined in the related Indenture Supplement.
"Targeted Principal Deposit Amount," for each series or
class of Notes, is defined in the related Indenture Supplement.
"Temporary Global Note" is defined in Section 205.
"Transfer Date" means the Business Day preceding each
Payment Date.
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated as of [ ], 2002, between DCWR, as Beneficiary, and [ ], as
Owner Trustee, as amended, supplemented or restated from time to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, as in force at the date
as of which this Indenture was executed except as provided in Section 1005.
"UCC" means, unless the context otherwise requires, the
Uniform Commercial Code, as in effect in the relevant jurisdiction.
"U.S. Depository" means, unless otherwise specified by the
Issuer pursuant to either Section 204, 206, or 301, with respect to Notes of
any class issuable or issued as Global Note within the United States, The
Depository Trust Company, New York, New York, or any successor thereto
registered as a clearing agency under the Securities Exchange Act, or other
applicable statute regulation.
Section 102. Compliance Certificates and Opinions. Upon any
application or request by the Issuer to the Indenture Trustee to take any
action under any provision of this Indenture, the Issuer will furnish to the
Indenture Trustee (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and (ii) an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
The Indenture Trustee may rely, as to authorization by the
Issuer of any class of Notes, the form and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of
Counsel and the other documents delivered pursuant to Section 310 and this
Section, as applicable, in connection with the first authentication of Notes
of such class.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (except for the written
statement required by Section 1104) will include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
17
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that such individual has made such
examination or investigation as is necessary to express an informed opinion as
to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Indenture
Trustee. In any case where several matters are required to be certified by, or
covered by an opinion of, one or more specified Persons, one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to the other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of the Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless the Issuer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations are erroneous. Any such certificate or opinion of, or
representation by, counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, the Issuer
stating that the information with respect to such factual matters is in the
possession of the Issuer, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action (collectively, "action") provided by this
Indenture to be given or taken by Noteholders of any series or class may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Noteholders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action will
become effective when such instrument or instruments are delivered to the
Indenture Trustee, and, where it is hereby expressly required, to the Issuer.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Noteholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent will be sufficient for
any purpose of this Indenture and (subject to Section 801) conclusive in favor
of the Indenture Trustee and the Issuer, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying
18
that the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by an officer of a corporation or a
member of a partnership, on behalf of such corporation or partnership, such
certificate or affidavit will also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the person executing the same, may also be proved
in any other manner which the Indenture Trustee deems sufficient.
(c) (i) The ownership of Registered Notes will be proved by
the Note Register.
(ii) The ownership of Bearer Notes or coupons will be
proved by the production of such Bearer Notes or coupons or by a
certificate, satisfactory to the Issuer, executed by any bank, trust
company or recognized securities dealer, wherever situated,
satisfactory to the Issuer. Each such certificate will be dated and
will state that on the date thereof a Bearer Note or coupon bearing a
specified serial number was deposited with or exhibited to such bank,
trust company or recognized securities dealer by the Person named in
such certificate. Any such certificate may be issued in respect of
one or more Bearer Notes or coupons specified therein. The holding by
the Person named in any such certificate of any Bearer Note specified
therein will be presumed to continue for a period of one year from
the date of such certificate unless at the time of any determination
of such holding (A) another certificate bearing a later date issued
in respect of the same Bearer Note or coupon produced, (B) the Bearer
Note or coupon specified in such certificate is produced by some
other Person or (C) the Bearer Note or coupon specified in such
certificate has ceased to be Outstanding.
(d) If the Issuer will solicit from the Holders any action,
the Issuer may, at its option, by an Officer's Certificate, fix in advance a
record date for the determination of Holders entitled to give such action, but
the Issuer will have no obligation to do so. If the Issuer does not so fix a
record date, such record date will be the later of thirty (30) days before the
first solicitation of such action or the date of the most recent list of
Noteholders furnished to the Indenture Trustee pursuant to Section 901 before
such solicitation. Such action may be given before or after the record date,
but only the Holders of record at the close of business on the record date
will be deemed to be Holders for the purposes of determining whether Holders
of the requisite proportion of Notes Outstanding have authorized or agreed or
consented to such action, and for that purpose the Notes Outstanding will be
computed as of the record date; provided that no such authorization, agreement
or consent by the Holders on the record date will be deemed effective unless
it will become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Note will bind the Holder
of every Note issued upon the transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon whether or not notation of
such action is made upon such Note.
19
Section 105. Notices, etc., to Indenture Trustee and Issuer.
Any action of Noteholders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Indenture Trustee by any Noteholder or by the Issuer
will be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Indenture Trustee at its Corporate Trust
Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder
will be sufficient for every purpose hereunder (except as provided in Section
701(c)) if in writing and mailed, first-class postage prepaid, to the Issuer
addressed to it at the address of its principal office specified in the first
paragraph of this Indenture or at any other address previously furnished in
writing to the Indenture Trustee by the Issuer.
Section 106. Notices to Noteholders; Waiver.
(a) Where this Indenture, any Indenture Supplement or any
Registered Note provides for notice to Registered Noteholders of any event,
such notice will be sufficiently given (unless otherwise herein, in such
Indenture Supplement or in such Registered Note expressly provided) if in
writing and mailed, first-class postage prepaid, sent by facsimile, sent by
electronic transmission or personally delivered to each Holder of Registered
Note affected by such event, at such Noteholder's address as it appears in the
Note Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Registered Noteholders is given by mail, facsimile, electronic
transmission or delivery neither the failure to mail, send by facsimile,
electronic transmission or deliver such notice, nor any defect in any notice
so mailed, to any particular Noteholders will affect the sufficiency of such
notice with respect to other Noteholders and any notice that is mailed, sent
by facsimile, electronic transmission or delivered in the manner herein
provided shall conclusively have been presumed to have been duly given.
Where this Indenture, any Indenture Supplement or any
Registered Note provides for notice in any manner, such notice may be waived
in writing by the Person entitled to receive such notice, either before or
after the event, and such waiver will be the equivalent of such notice.
Waivers of notice by Registered Noteholders will be filed with the Indenture
Trustee, but such filing will not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
(b) In case, by reason of the suspension of regular mail
service as a result of a strike, work stoppage or otherwise, it will be
impractical to mail notice of any event to any Holder of a Registered Note
when such notice is required to be given pursuant to any provision of this
Indenture, then any method of notification as will be satisfactory to the
Indenture Trustee and the Issuer will be deemed to be a sufficient giving of
such notice.
(c) No notice will be given by mail, facsimile, electronic
transmission or otherwise delivered to a Holder of Bearer Notes or coupons in
bearer form. In the case of any class with respect to which any Bearer Notes
are Outstanding, any notice required or permitted to
20
be given to Holders of such Bearer Notes will be published in an Authorized
Newspaper within the time period prescribed in this Indenture or the
applicable Indenture Supplement.
(d) With respect to any class of Notes, the applicable
Indenture Supplement may specify different or additional means of giving
notice to the Holders of the Notes of such class.
(e) Where this Indenture provides for notice to any Note
Rating Agency, failure to give such notice will not affect any other rights or
obligations created hereunder and will not under any circumstance constitute
an Adverse Effect.
Section 107. Conflict with Trust Indenture Act. If and to
the extent that any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by, or with another provision (an "incorporated
provision") included in this Indenture by operation of, Sections 310 to 318,
inclusive, of the Trust Indenture Act, such imposed duties or incorporated
provision will control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision will be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and will not affect the construction hereof.
Section 109. Successors and Assigns. All covenants and
agreements in this Indenture by the Issuer will bind its successors and
assigns, whether so expressed or not. All covenants and agreements of the
Indenture Trustee in this Indenture shall bind its successors, co-trustees and
agents of the Indenture Trustee.
Section 110. Separability. In case any provision in this
Indenture or in the Notes will be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions will not in
any way be affected or impaired thereby.
Section 111. Benefits of Indenture. Nothing in this
Indenture or in any Notes, express or implied, will give to any Person, other
than the parties hereto and their successors hereunder, any Authenticating
Agent or Paying Agent, the Note Registrar, Derivative Counterparties (to the
extent specified in the applicable Derivative Agreement) and the Holders of
Notes (or such of them as may be affected thereby), any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law. THIS INDENTURE WILL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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Section 113. Counterparts. This Indenture may be executed in
any number of counterparts, each of which so executed will be deemed to be an
original, but all such counterparts will together constitute but one and the
same instrument.
Section 114. Indenture Referred to in the Trust Agreement.
This is the Indenture referred to in the Trust Agreement.
ARTICLE II
NOTE FORMS
Section 201. Forms Generally. The Notes will have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or the applicable Indenture Supplement
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon, as may be required to comply with
applicable laws or regulations or with the rules of any securities exchange,
or as may, consistently herewith, be determined by the Issuer, as evidenced by
the Issuer's execution of such Notes. Any portion of the text of any Note may
be set forth on the reverse thereof, with an appropriate reference thereto on
the face of the Note.
The definitive Notes will be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders) or may be produced in any other manner, all
as determined by the Issuer, as evidenced by the Issuer's execution of such
Notes, subject, with respect to the Notes of any series or class, to the rules
of any securities exchange on which such Notes are listed.
Section 202. Forms of Notes. Each Note will be in one of the
forms approved from time to time by or pursuant to an Indenture Supplement.
Before the delivery of a Note to the Indenture Trustee for authentication in
any form approved by or pursuant to an Issuer Certificate, the Issuer will
deliver to the Indenture Trustee the Issuer Certificate by or pursuant to
which such form of Note has been approved, which Issuer Certificate will have
attached thereto a true and correct copy of the form of Note which has been
approved thereby or, if an Issuer Certificate authorizes a specific officer or
officers of the Beneficiary to approve a form of Note, a certificate of such
officer or officers approving the form of Note attached thereto. Any form of
Note approved by or pursuant to an Issuer Certificate must be acceptable as to
form to the Indenture Trustee, such acceptance to be evidenced by the
Indenture Trustee's authentication of Notes in that form or a certificate
signed by an Indenture Trustee Authorized Officer and delivered to the Issuer.
Section 203. Form of Indenture Trustee's Certificate of
Authentication. The form of Indenture Trustee's Certificate of Authentication
for any Note issued pursuant to this Indenture will be substantially as
follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series or class designated
therein referred to in the within-mentioned Indenture.
22
[ ],
as Indenture Trustee,
By: _____________________________________________
Authorized Signatory
Dated:
Section 204. Notes Issuable in the Form of a Global Note.
(a) If the Issuer establishes pursuant to Sections 202 and
301 that the Notes of a particular series or class are to be issued in whole
or in part in the form of one or more Global Notes, then the Issuer will
execute and the Indenture Trustee or its agent will, in accordance with
Section 303 and the Issuer Certificate delivered to the Indenture Trustee or
its agent thereunder, authenticate and deliver, such Global Note or Notes,
which, unless otherwise provided in the applicable Indenture Supplement (i)
will represent, and will be denominated in an amount equal to the aggregate
Stated Principal Amount (or in the case of Discount Notes, the aggregate
Stated Principal Amount at the Expected Principal Payment Date of such Notes)
of the Outstanding Notes of such series or class to be represented by such
Global Note or Notes, or such portion thereof as the Issuer will specify in an
Issuer Certificate, (ii) in the case of Registered Notes, will be registered
in the name of the Depository for such Global Note or Notes or its nominee,
(iii) will be delivered by the Indenture Trustee or its agent to the
Depository or pursuant to the Depository's instruction, (iv) if applicable,
will bear a legend substantially to the following effect: "Unless this Note is
presented by an authorized representative of The Depository Trust Company, a
New York corporation ("DTC"), to the Issuer or its agent for registration of
transfer, exchange or payment, and any note issued is registered in the name
of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), any transfer,
pledge or other use hereof for value or otherwise by or to any person is
wrongful inasmuch as the registered owner hereof, Cede & Co., has an interest
herein" and (v) may bear such other legend as the Issuer, upon advice of
counsel, deems to be applicable.
(b) Notwithstanding any other provisions of this Section 204
or of Section 305, and subject to the provisions of paragraph (c) below,
unless the terms of a Global Note or the applicable Indenture Supplement
expressly permit such Global Note to be exchanged in whole or in part for
individual Notes, a Global Note may be transferred, in whole but not in part
and in the manner provided in Section 305, only to a nominee of the Depository
for such Global Note, or to the Depository, or a successor Depository for such
Global Note selected or approved by the Issuer, or to a nominee of such
successor Depository.
(c) With respect to Notes issued within the United States,
unless otherwise specified in the applicable Indenture Supplement, or with
respect to Notes issued outside the United States, if specified in the
applicable Indenture Supplement:
(i) If at any time the Depository for a Global
Note notifies the Issuer that it is unwilling or unable to continue
as Depository for such Global Note or if at any
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time the Depository for the Notes for such series or class ceases to
be a clearing agency registered under the Securities Exchange Act, or
other applicable statute or regulation, the Issuer will appoint a
successor Depository with respect to such Global Note. If a successor
Depository for such Global Note is not appointed by the Issuer within
ninety (90) days after the Issuer receives such notice or becomes
aware of such ineligibility, the Issuer will execute, and the
Indenture Trustee or its agent, upon receipt of an Issuer Certificate
requesting the authentication and delivery of individual Notes of
such series or class in exchange for such Global Note, will
authenticate and deliver, individual Notes of such series or class of
like tenor and terms in an aggregate Stated Principal Amount equal to
the Stated Principal Amount of the Global Note in exchange for such
Global Note.
(ii) The Issuer may at any time and in its
sole discretion determine that the Notes of any series or class or
portion thereof issued or issuable in the form of one or more Global
Notes will no longer be represented by such Global Note or Notes. In
such event the Issuer will execute, and the Indenture Trustee, upon
receipt of an Issuer Request for the authentication and delivery of
individual Notes of such series or class in exchange in whole or in
part for such Global Note, will authenticate and deliver individual
Notes of such series or class of like tenor and terms in definitive
form in an aggregate Stated Principal Amount equal to the Stated
Principal Amount of such Global Note or Notes representing such
series or class or portion thereof in exchange for such Global Note
or Notes.
(iii) If specified by the Issuer pursuant to
Sections 202 and 301 with respect to Notes issued or issuable in the
form of a Global Note, the Depository for such Global Note may
surrender such Global Note in exchange in whole or in part for
individual Notes of such series or class of like tenor and terms in
definitive form on such terms as are acceptable to the Issuer and
such Depository. Thereupon the Issuer will execute, and the Indenture
Trustee or its agent will authenticate and deliver, without service
charge, (A) to each Person specified by such Depository a new Note or
Notes of the same series or class of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate
Stated Principal Amount equal to and in exchange for such Person's
beneficial interest in the Global Note; and (B) to such Depository a
new Global Note of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the Stated
Principal Amount of the surrendered Global Note and the aggregate
Stated Principal Amount of Notes delivered to the Holders thereof.
(iv) If any Event of Default has occurred with
respect to such Global Notes, and Holders of Notes evidencing not
less than 50% of the unpaid Outstanding Dollar Principal Amount of
the Global Notes of that class advise the Indenture Trustee and the
Depository that a Global Note is no longer in the best interest of
the Noteholders, the Holders of Global Notes of that class may
exchange such Notes for individual Notes.
(v) In any exchange provided for in any of the
preceding three paragraphs, the Issuer will execute and the Indenture
Trustee or its agent will authenticate and deliver individual Notes
in definitive registered form in authorized denominations. Upon the
exchange of the entire Stated Principal Amount of a Global Note for
individual Notes, such Global Note will be canceled by the Indenture
Trustee or its agent. Except as
24
provided in the preceding paragraphs, Notes issued in exchange for a
Global Note pursuant to this Section will be registered in such names
and in such authorized denominations as the Depository for such
Global Note, pursuant to instructions from its direct or indirect
participants or otherwise, will instruct the Indenture Trustee or the
Note Registrar. The Indenture Trustee or the Note Registrar will
deliver such Notes to the Persons in whose names such Notes are so
registered.
Section 205. Temporary Global Notes and Permanent Global
Notes.
(a) If specified in the applicable Indenture Supplement for
any series or class, all or any portion of a Global Note may initially be
issued in the form of a single temporary Global Bearer Note or Registered Note
(the "Temporary Global Note"), without interest coupons, in the denomination
of the entire aggregate principal amount of such series or class and
substantially in the form set forth in the exhibit with respect thereto
attached to the applicable Indenture Supplement. The Temporary Global Note
will be authenticated by the Indenture Trustee upon the same conditions, in
substantially the same manner and with the same effect as the Notes in
definitive form. The Temporary Global Note may be exchanged as described below
or in the applicable Indenture Supplement for permanent global Bearer Notes or
Registered Notes (the "Permanent Global Notes").
(b) Unless otherwise provided in the applicable Indenture
Supplement, exchanges of beneficial interests in Temporary Global Notes for
beneficial interests in Permanent Global Notes will be made as provided in
this clause. The Beneficiary will, upon its determination of the date of
completion of the distribution of the Notes of such series or class, so advise
the Indenture Trustee, the Issuer, the Foreign Depository, and each foreign
clearing agency forthwith. Without unnecessary delay, but in any event not
prior to the Exchange Date, the Issuer will execute and deliver to the
Indenture Trustee at its London office or its designated agent outside the
United States Permanent Global Notes in bearer or registered form (as
specified in the applicable Indenture Supplement) in an aggregate principal
amount equal to the entire aggregate principal amount of such series or class.
Bearer Notes so issued and delivered may have coupons attached. The Temporary
Global Note may be exchanged for an equal aggregate principal amount of
Permanent Global Notes only on or after the Exchange Date. A United States
Person may exchange the portion of the Temporary Global Note beneficially
owned by it only for an equal aggregate principal amount of Permanent Global
Notes in registered form bearing the applicable legend set forth in the form
of Registered Note attached to the applicable Indenture Supplement and having
a minimum denomination of $500,000, which may be in temporary form if the
Issuer so elects. The Issuer may waive the $500,000 minimum denomination
requirement if it so elects. Upon any demand for exchange for Permanent Global
Notes in accordance with this clause, the Issuer will cause the Indenture
Trustee to authenticate and deliver the Permanent Global Notes to the Holder
(x) outside the United States, in the case of Bearer Notes and (y) according
to the instructions of the Holder, in the case of Registered Notes, but in
either case only upon presentation to the Indenture Trustee of a written
statement substantially in the form of Exhibit D-1 (or such other form as the
Issuer may determine) with respect to the Temporary Global Note, or portion
thereof being exchanged, signed by a foreign clearing agency and dated on the
Exchange Date or a subsequent date, to the effect that it has received in
writing or by tested telex a certification substantially in the form of (i) in
the case of beneficial ownership of the Temporary Global Note, or a portion
thereof being exchanged, by a
25
United States institutional investor pursuant to this clause, the certificate
in the form of Exhibit D-2 (or such other form as the Issuer may determine)
signed by the Beneficiary which sold the relevant Notes or (ii) in all other
cases, the certificate in the form of Exhibit D-3 (or such other form as the
Issuer may determine), the certificate referred to in this clause (ii) being
dated on the earlier of the first payment of interest in respect of such Note
and the date of the delivery of such Note in definitive form. Upon receipt of
such certification, the Indenture Trustee will cause the Temporary Global Note
to be endorsed in accordance with clause (d). Any exchange as provided in this
Section will be made free of charge to the Holders and the beneficial owners
of the Temporary Global Note and to the beneficial owners of the Permanent
Global Note issued in exchange, except that a person receiving the Permanent
Global Note must bear the cost of insurance, postage, transportation and the
like in the event that such Person does not receive such Permanent Global Note
in person at the offices of a foreign clearing agency.
(c) The delivery to the Indenture Trustee by a foreign
clearing agency of any written statement referred to above may be relied upon
by the Issuer and the Indenture Trustee as conclusive evidence that a
corresponding certification or certifications has or have been delivered to
such foreign clearing agency pursuant to the terms of this Indenture.
(d) Upon any such exchange of all or a portion of the
Temporary Global Note for a Permanent Global Note or Notes, such Temporary
Global Note will be endorsed by or on behalf of the Indenture Trustee to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of such Permanent Global Note or Notes. Until so
exchanged in full, such Temporary Global Note will in all respects be entitled
to the same benefits under this Indenture as Permanent Global Notes
authenticated and delivered hereunder except that the beneficial owners of
such Temporary Global Note will not be entitled to receive payments of
interests on the Notes until they have exchanged their beneficial interests in
such Temporary Global Note for Permanent Global Notes.
Section 206. Beneficial Ownership of Global Notes. Until
definitive Notes have been issued to the applicable Noteholders pursuant to
Section 204 or as otherwise specified in any applicable Indenture Supplement,
(a) the Issuer and the Indenture Trustee may deal with the
applicable clearing agency and the clearing agency's participants for all
purposes (including the making of distributions) as the authorized
representatives of the respective Note Owners; and
(b) the rights of the respective Note Owners will be
exercised only through the applicable clearing agency and the clearing
agency's participants and will be limited to those established by law and
agreements between such Note Owners and the clearing agency and/or the
clearing agency's participants. Pursuant to the operating rules of the
applicable clearing agency, unless and until Notes in definitive form are
issued pursuant to Section 204, the clearing agency will make book-entry
transfers among the clearing agency's participants and receive and transmit
distributions of principal and interest on the related Notes to such clearing
agency's participants.
For purposes of any provision of this Indenture requiring or
permitting actions with the consent of, or at the direction of, Noteholders
evidencing a specified percentage of the
26
aggregate unpaid principal amount of Outstanding Notes, such direction or
consent may be given by Note Owners (acting through the clearing agency and
the clearing agency's participants) owning interests in Notes evidencing the
requisite percentage of principal amount of Notes.
Section 207. Notices to Depository. Whenever any notice or
other communication is required to be given to Noteholders with respect to
which book-entry Notes have been issued, unless and until Notes in definitive
form will have been issued to the related Note Owners, the Indenture Trustee
will give all such notices and communications to the applicable Depository.
ARTICLE III
THE NOTES
Section 301. General Title; General Limitations; Issuable in
Series; Terms of a Series or Class.
(a) The aggregate Stated Principal Amount of Notes which may
be authenticated and delivered and Outstanding under this Indenture is not
limited.
(b) The Notes may be issued in one or more series or classes
up to an aggregate Stated Principal Amount of Notes as from time to time may
be authorized by the Issuer. All Notes of each series or class under this
Indenture will in all respects be equally and ratably entitled to the benefits
hereof with respect to such series or class without preference, priority or
distinction on account of the actual time of the authentication and delivery
or the Expected Principal Payment Date or Legal Maturity Date of the Notes of
such series or class, except as specified in the applicable Indenture
Supplement for such series or class.
(c) Each Note issued must be part of a series or class of
Notes for purposes of allocations pursuant to Article V. A series of Notes is
created pursuant to an Indenture Supplement. A class of Notes of that series
is created pursuant to such Indenture Supplement.
(d) Each series of Notes may, but need not be, subdivided
into multiple classes. Unless the context otherwise requires, references
herein to a class of Notes include a series of Notes that has not been
subdivided into multiple classes. Notes belonging to a class in any series may
be entitled to specified payment priorities over other classes of Notes in
that series.
(e) There shall also be established in or pursuant to an
Indenture Supplement or pursuant to an Issuer Certificate or terms document
related to the applicable Indenture Supplement before the initial issuance of
Notes of each such series or class, provision for:
(i) the series designation;
(ii) the Stated Principal Amount of the Notes;
(iii) whether such Notes are of a particular class
of Notes;
27
(iv) the Required Subordinated Amount (if any) for
such class of Notes;
(v) the currency or currencies in which such
Notes will be denominated and in which payments of principal of, and
interest on, such Notes will or may be payable;
(vi) if the principal of or interest, if any, on
such Notes are to be payable, at the election of the Issuer or a
Holder thereof, in a currency or currencies other than that in which
the Notes are stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may be
made;
(vii) if the amount of payments of principal of or
interest, if any, on such Notes may be determined with reference to
an index based on (A) a currency or currencies other than that in
which the Notes are stated to be payable, (B) changes in the prices
of one or more other securities or groups or indexes of securities or
(C) changes in the prices of one or more commodities or groups or
indexes of commodities, or any combination of the foregoing, the
manner in which such amounts will be determined;
(viii) the price or prices at which the Notes will be
issued;
(ix) the times at which such Notes may, pursuant to
any optional or mandatory redemption provisions, be redeemed, and the
other terms and provisions of any such redemption provisions;
(x) the rate per annum at which such Notes will
bear interest, if any, or the formula or index on which such rate
will be determined, including all relevant definitions, and the date
from which interest will accrue;
(xi) each Interest Payment Date, Expected Principal
Payment Date and Legal Maturity Date for such Notes;
(xii) the Initial Dollar Principal Amount of such
Notes, and the means for calculating the Outstanding Dollar Principal
Amount of such Notes;
(xiii) whether or not application will be made to
list such Notes on any securities exchange;
(xiv) any Events of Default or Early Redemption
Events with respect to such Notes, if not set forth herein and any
additions, deletions or other changes to the Events of Default or
Early Redemption Events set forth herein that will be applicable to
such Notes (including a provision making any Event of Default or
Early Redemption Event set forth herein inapplicable to the Notes of
that series or class);
(xv) the appointment by the Indenture Trustee of an
Authenticating Agent in one or more places other than the location of
the office of the Indenture Trustee with power to act on behalf of
the Indenture Trustee and subject to its direction in the
authentication and delivery of such Notes in connection with such
transactions as will be
28
specified in the provisions of this Indenture or in or pursuant to
the applicable Indenture Supplement creating such series or class;
(xvi) if such Notes will be issued in whole or in
part in the form of a Global Note or Global Notes, the terms and
conditions, if any, upon which such Global Note or Global Notes may
be exchanged in whole or in part for other individual Notes; and the
Depository for such Global Note or Global Notes (if other than the
Depository specified in Section 101);
(xvii) the subordination of such Notes to any other
indebtedness of the Issuer, including without limitation, the Notes
of any other series or class;
(xviii) if such Notes are to have the benefit of any
Derivative Agreement, the terms and provisions of such agreement;
(xix) the Record Date for any Payment Date of such
Notes, if different from the last day of the month before the related
Payment Date;
(xx) the controlled accumulation amount, if any, the
controlled amortization amount, if any, or other principal
amortization amount, if any, scheduled for such Notes;
(xxi) the Overcollateralization Amount, if any, for
such series or class of Notes; and
(xxii) any other terms of such Notes;
all upon such terms as may be determined in or pursuant to an Indenture
Supplement with respect to such series or class.
(f) The form of the Notes of each series or class will be
established pursuant to the provisions of this Indenture and the related
Indenture Supplement creating such series or class. The Notes of each series
or class will be distinguished from the Notes of each other series or class in
such manner, reasonably satisfactory to the Indenture Trustee, as the Issuer
may determine.
(g) Unless otherwise provided with respect to Notes of a
particular series or class, the Notes of any particular series or class will
be issued in registered form, without coupons.
(h) Any terms or provisions in respect of the Notes of any
series or class issued under this Indenture may be determined pursuant to this
Section by providing in the applicable Indenture Supplement for the method by
which such terms or provisions will be determined.
(i) The Notes of each series or class may have such Expected
Principal Payment Date or Dates or Legal Maturity Date or Dates, be issuable
at such premium over or discount from their face value, bear interest at such
rate or rates (which may be fixed or floating),
29
from such date or dates, payable in such installments and on such dates and at
such place or places to the Holders of Notes registered as such on such Record
Dates, or may bear no interest, and have such terms, all as will be provided
for in or pursuant to the applicable Indenture Supplement.
Section 302. Denominations. The Notes of each class will be
issuable in such denominations and currency as will be provided in the
provisions of this Indenture or in or pursuant to the applicable Indenture
Supplement. In the absence of any such provisions with respect to the
Registered Notes of any class, the Registered Notes of that class will be
issued in denominations of $1,000 and multiples thereof. In the absence of any
such provisions with respect to the Bearer Notes of any class, the Bearer
Notes of that class will be issued in denominations of 1,000, 5,000, 50,000
and 100,000 units of the applicable currency.
Section 303. Execution, Authentication and Delivery and
Dating.
(a) The Notes will be executed on behalf of the Issuer by an
Issuer Authorized Officer. The signature of any officer of the Beneficiary or
the Owner Trustee on the Notes may be manual or facsimile.
(b) Notes bearing the manual or facsimile signatures of
individuals who were at any time an Issuer Authorized Officer will bind the
Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices before the authentication and delivery of such Notes or did
not hold such offices at the date of issuance of such Notes.
(c) At any time and from time to time after the execution
and delivery of this Indenture, the Issuer may deliver Notes executed by the
Issuer to the Indenture Trustee for authentication; and the Indenture Trustee
will, upon request by an Officer's Certificate, authenticate and deliver such
Notes as in this Indenture provided and not otherwise.
(d) Before any such authentication and delivery, the
Indenture Trustee will be entitled to receive, in addition to any Officer's
Certificate and Opinion of Counsel required to be furnished to the Indenture
Trustee pursuant to Section 102, the Issuer Certificate and any other opinion
or certificate relating to the issuance of the series or class of Notes
required to be furnished pursuant to Section 202 or Section 310.
(e) The Indenture Trustee will not be required to
authenticate such Notes if the issue thereof will adversely affect the
Indenture Trustee's own rights, duties or immunities under the Notes and this
Indenture.
(f) Unless otherwise provided in the form of Note for any
series or class, all Notes will be dated the date of their authentication.
(g) No Note will be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Note a certificate of authentication substantially in the form provided
for herein executed by the Indenture Trustee by manual signature of an
authorized signatory, and such certificate upon any Note will be conclusive
evidence, and the only evidence, that such Note has been duly authenticated
and delivered hereunder.
30
Section 304. Temporary Notes.
(a) Pending the preparation of definitive Notes of any
class, the Issuer may execute, and, upon receipt of the documents required by
Section 303, together with an Officer's Certificate, the Indenture Trustee
will authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Notes in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the Issuer may determine, as evidenced
by the Issuer's execution of such Notes.
(b) If temporary Notes of any class are issued, the Issuer
will cause definitive Notes of such class to be prepared without unreasonable
delay. After the preparation of definitive Notes, the temporary Notes of such
class will be exchangeable for definitive Notes of such class upon surrender
of the temporary Notes of such class at the office or agency of the Issuer in
a Place of Payment, without charge to the Holder; and upon surrender for
cancellation of any one or more temporary Notes the Issuer will execute and
the Indenture Trustee will authenticate and deliver in exchange therefor a
like Stated Principal Amount of definitive Notes of such class of authorized
denominations and of like tenor and terms. Until so exchanged the temporary
Notes of such class will in all respects be entitled to the same benefits
under this Indenture as definitive Notes of such class.
Section 305. Registration, Transfer and Exchange.
(a) The Issuer will keep or cause to be kept a register
(herein sometimes referred to as the "Note Register") in which, subject to
such reasonable regulations as it may prescribe, the Issuer will provide for
the registration of Registered Notes, or of Registered Notes of a particular
class, and for transfers of Registered Notes or of Registered Notes of such
class. Any such register will be in written form or in any other form capable
of being converted into written form within a reasonable time. At all
reasonable times the information contained in such register or registers will
be available for inspection by the Indenture Trustee at the office or agency
to be maintained by the Issuer as provided in Section 1102.
(b) Subject to Section 204, upon surrender for transfer of
any Registered Note of any class at the office or agency of the Issuer in a
Place of Payment, if the requirements of Section 8-401(a) of the UCC are met,
the Issuer will execute, and, upon receipt of such surrendered note, the
Indenture Trustee will authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Notes of such class of
any authorized denominations, of a like aggregate Stated Principal Amount,
Expected Principal Payment Date and Legal Maturity Date and of like terms.
(c) Subject to Section 204, at the option of the Holder,
Notes of any class may be exchanged for other Notes of such class of any
authorized denominations, of a like aggregate Stated Principal Amount,
Expected Principal Payment Date and Legal Maturity Date and of like terms,
upon surrender of the Notes to be exchanged at such office or agency.
Registered Notes, including Registered Notes received in exchange for Bearer
Notes, may not be exchanged for Bearer Notes. At the option of the Holder of a
Bearer Note, subject to applicable laws and regulations, Bearer Notes may be
exchanged for other Bearer Notes or Registered Notes (of the
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same class) of authorized denominations of like aggregate fractional undivided
interests in the Noteholders' interest, upon surrender of the Bearer Notes to
be exchanged at an office or agency of the Note Registrar located outside the
United States. Each Bearer Note surrendered pursuant to this Section will have
attached thereto all unmatured coupons; provided, however, that any Bearer
Note, so surrendered after the close of business on the last day of the month
preceding the relevant Payment Date need not have attached the coupon relating
to such Payment Date. Whenever any Notes are so surrendered for exchange, the
Issuer will execute, and the Trustee will authenticate and deliver (in the
case of Bearer Notes, outside the United Sates), the Notes which the
Noteholders making the exchange are entitled to receive.
(d) All Notes issued upon any transfer or exchange of Notes
will be the valid and legally binding obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such transfer or exchange.
(e) Every Note presented or surrendered for transfer or
exchange will (if so required by the Issuer or the Indenture Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Note Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
(f) Unless otherwise provided in the Note to be transferred
or exchanged, no service charge will be made on any Noteholder for any
transfer or exchange of Notes, but the Issuer may (unless otherwise provided
in such Note) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Notes, other than exchanges pursuant to Section 304 or 1006 not
involving any transfer.
(g) None of the Issuer, the Indenture Trustee, any agent of
the Indenture Trustee, any Paying Agent or the Note Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Note or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
(h) The Issuer initially appoints [ ] to act as Note
Registrar for the Registered Notes on its behalf. The Issuer may at any time
and from time to time authorize any Person to act as Note Registrar in place
of the Indenture Trustee with respect to any class of Notes issued under this
Indenture.
(i) Registration of transfer of Notes containing the
following legend or to which the following legend is applicable:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS
NOTE NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE
SECURITIES ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE
BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE
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TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET
FORTH IN THE INDENTURE REFERRED TO HEREIN.
will be effected only if such transfer is made pursuant to an effective
registration statement under the Securities Act, or is exempt from the
registration requirements under the Securities Act. In the event that
registration of a transfer is to be made in reliance upon an exemption from
the registration requirements under the Securities Act other than Rule 144A
under the Securities Act or Rule 903 or Rule 904 of Regulation S under the
Securities Act, the transferor or the transferee will deliver, at its expense,
to the Issuer and the Indenture Trustee, an investment letter from the
transferee, substantially in the form of the investment letter attached hereto
as Exhibit C or such other form as the Issuer may determine, and no
registration of transfer will be made until such letter is so delivered.
Notes issued upon registration or transfer of, or Notes
issued in exchange for, Notes bearing the legend referred to above will also
bear such legend unless the Issuer, the Trustee and the Note Registrar receive
an Opinion of Counsel, satisfactory to each of them, to the effect that such
legend may be removed.
Whenever a Note containing the legend referred to above is
presented to the Note Registrar for registration of transfer, the Note
Registrar will promptly seek instructions from the Issuer regarding such
transfer and will be entitled to receive an Issuer Certificate prior to
registering any such transfer. The Issuer hereby agrees to indemnify the Note
Registrar and the Indenture Trustee and to hold each of them harmless against
any loss, liability or expense incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by
them in relation to any such instructions furnished pursuant to this clause.
Section 306. Mutilated, Destroyed, Lost and Stolen Notes.
(a) If (i) any mutilated Note (together, in the case of
Bearer Notes, with all unmatured coupons, if any, appertaining thereto) is
surrendered to the Indenture Trustee, or the Issuer and the Indenture Trustee
receive evidence to their satisfaction of the destruction, loss or theft of
any Note, and (ii) there is delivered to the Issuer and the Indenture Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Issuer or the Indenture
Trustee that such Note has been acquired by a protected purchaser, the Issuer
will execute and upon its request the Indenture Trustee will authenticate and
deliver (in the case of Bearer Notes, outside the United States), in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Note, a new
Note of like tenor, series or class, Expected Principal Payment Date, Legal
Maturity Date and Stated Principal Amount, bearing a number not
contemporaneously Outstanding.
(b) In case any such mutilated, destroyed, lost or stolen
Note has become or is about to become due and payable, the Issuer in its
discretion may, instead of issuing a new Note, pay such Note.
(c) Upon the issuance of any new Note under this Section,
the Issuer may require the payment of a sum sufficient to cover any tax or
other governmental charge that may
33
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Indenture Trustee) connected therewith.
(d) Every new Note issued pursuant to this Section in lieu
of any destroyed, lost or stolen Note will constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Note will be at any time enforceable by anyone, and will be entitled to
all the benefits of this Indenture equally and proportionately with any and
all other Notes of the same series or class duly issued hereunder.
(e) The provisions of this Section are exclusive and will
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 307. Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise provided with respect to such Note
pursuant to Section 301, interest payable on any Registered Note will be paid
to the Person in whose name that Note (or one or more Predecessor Notes) is
registered at the close of business on the most recent Record Date and
interest payable on any Bearer Note will be paid to the bearer of that Note
(or the applicable coupon).
(b) Subject to clause (a), each Note delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Note
will carry the rights to interest accrued or principal accreted and unpaid,
and to accrue or accrete, which were carried by such other Note.
Section 308. Persons Deemed Owners. The Issuer, the
Indenture Trustee, the Owner Trustee, the Beneficiary and any agent of the
Issuer, the Indenture Trustee, the Owner Trustee, or the Beneficiary may treat
the Person who is proved to be the owner of such Note pursuant to Section
104(c) as the owner of such Note for the purpose of receiving payment of
principal of and (subject to Section 307) interest on such Note and for all
other purposes whatsoever, whether or not such Note be overdue, and neither
the Issuer, the Indenture Trustee, the Owner Trustee, nor any agent of the
Issuer, the Indenture Trustee, the Owner Trustee, or the Beneficiary will be
affected by notice to the contrary.
Section 309. Cancellation. All Notes surrendered for
payment, redemption, transfer, conversion or exchange will, if surrendered to
any Person other than the Indenture Trustee, be delivered to the Indenture
Trustee and, if not already canceled, will be promptly canceled by it. The
Issuer may at any time deliver to the Indenture Trustee for cancellation any
Notes previously authenticated and delivered hereunder which the Issuer may
have acquired in any manner whatsoever, and all Notes so delivered will be
promptly canceled by the Indenture Trustee. No Note will be authenticated in
lieu of or in exchange for any Notes canceled as provided in this Section,
except as expressly permitted by this Indenture. The Indenture Trustee will
dispose of all canceled Notes in accordance with its customary procedures and
will deliver a certificate of such disposition to the Issuer.
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Section 310. New Issuances of Notes.
(a) The Issuer may issue new Notes of any series or class,
so long as the following conditions precedent are satisfied:
(i) on or before the third Business Day before the
date that the new issuance is to occur, the Issuer gives the
Indenture Trustee and the Note Rating Agencies written notice of the
issuance;
(ii) on or prior to the date that the new issuance
is to occur, the Issuer delivers to the Indenture Trustee and each
Note Rating Agency an Issuer Certificate to the effect that:
(A) the Issuer reasonably believes that
the new issuance will not at the time of its
occurrence or at a future date cause an Adverse
Effect on any Outstanding Notes;
(B) all instruments furnished to the
Indenture Trustee conform to the requirements of
this Indenture and constitute sufficient authority
hereunder for the Indenture Trustee to authenticate
and deliver such Notes;
(C) the form and terms of such Notes
have been established in conformity with the
provisions of this Indenture;
(D) all laws and requirements with respect
to the execution and delivery by the Issuer of such
Notes have been complied with, the Issuer has the
trust power and authority to issue such Notes and
such Notes have been duly authorized and delivered
by the Issuer and, assuming due authentication and
delivery by the Indenture Trustee, constitute
legal, valid and binding obligations of the Issuer
enforceable in accordance with their terms
(subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency,
moratorium or other laws and legal principles
affecting creditors' rights generally from time to
time in effect and to general equitable principles,
whether applied in an action at law or in equity)
and entitled to the benefits of this Indenture,
equally and ratably with all other Notes, if any,
of such series or class Outstanding, subject to the
terms of this Indenture and each Indenture
Supplement; and
(E) such other matters as the Indenture
Trustee may reasonably request;
(iii) on or before the date that the new issuance
is to occur, the Issuer will have delivered to the Indenture Trustee
and the Note Rating Agencies a CARCO Trust Tax Opinion and an Issuer
Tax Opinion with respect to such issuance;
(iv) on or before the date that the new issuance is
to occur, the Issuer will have delivered to the Trustee an Indenture
Supplement and, if applicable, the Issuer Certificate or terms
document relating to the applicable series, class or classes of
Notes;
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(v) no Early Amortization Event as defined in the
Pooling and Servicing Agreement or the Series 2002-CC Supplement will
have occurred and be continuing as of the date of the new issuance;
(vi) in the case of foreign currency Notes, the
Issuer will have appointed one or more Paying Agents in the
appropriate countries;
(vii) the Note Rating Agencies have provided
written confirmation that such issuance will not have a Ratings
Effect and each rating agency that has been selected by DCWR or any
of its affiliates or predecessors to rate any series or class of
Investor Certificates has provided written confirmation that such
issuance will not result in the reduction, qualification or
withdrawal of any then current rating by it of any series or class of
Investor Certificates;
(viii) the conditions specified herein or in
Section 311 are satisfied; and
(ix) any other conditions specified herein in the
applicable Indenture Supplement;
provided, however, that any one of the aforementioned conditions (other than
clauses (iii) and (iv)) may be eliminated or modified as a condition precedent
to any new issuance of a series or class of Notes if the Issuer has obtained
written confirmation from each Note Rating Agency that there will be no
Ratings Effect with respect to any Outstanding Notes as a result of a new
issuance of Notes.
(b) The Issuer and the Indenture Trustee will not be
required to obtain the consent of any Noteholder of any Outstanding series or
class to issue any additional Notes of any series or class.
(c) There are no restrictions on the timing or amount of any
additional issuance of Notes of an Outstanding class of a multiple issuance
series, so long as the conditions described in paragraph (a) are met. As of
the date of any additional issuance of Notes of an Outstanding class of Notes,
the Stated Principal Amount, Outstanding Dollar Principal Amount and Nominal
Liquidation Amount of that class will be increased to reflect the principal
amount of the additional Notes. If the additional Notes are a class of Notes
that has the benefit of a Derivative Agreement, the Issuer will enter into a
Derivative Agreement for the benefit of the additional Notes. The targeted
deposits, if any, to the principal funding sub-account will be increased
proportionately to reflect the principal amount of the additional Notes.
When issued, the additional Notes of a class will be
identical in all respects to the other Outstanding Notes of that class and
will be equally and ratably entitled to the benefits of the Indenture and the
related Indenture Supplement as the other Outstanding Notes of that class
without preference, priority or distinction.
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Section 311. Specification of Required Subordinated Amount,
Overcollateralization Amount and other Terms with Respect to each Class.
(a) The applicable Indenture Supplement for each class of
Notes will specify a Required Subordinated Amount, if any, of each
subordinated class of Notes, if any, and the Overcollateralization Amount, if
any, for each series or class of Notes.
(b) The Issuer may change the Required Subordinated Amount
for any class of Notes or the Overcollateralization Amount, if any, for any
class or series of Notes at any time without the consent of any Noteholders so
long as the Issuer has (i) received confirmation from the Note Rating Agencies
that have rated any Outstanding Notes of that series or class, as applicable,
that the change in the Required Subordinated Amount or Overcollateralization
Amount will not result in a Ratings Effect with respect to any Outstanding
Notes in that series or class, as applicable, and (ii) delivered to the
Trustee and the Note Rating Agencies a CARCO Trust Tax Opinion and an Issuer
Tax Opinion.
Section 312. Reallocation of Available Interest Amounts and
Available Principal Amounts. Available Interest Amounts, Available Principal
Amounts and other specified amounts allocated to each series shall be
reallocated to cover interest and expenses related to each series to the
extent, if any, specified in each related Indenture Supplement.
Section 313. Excess Available Interest Amounts Sharing. The
Issuer shall reallocate and redistribute certain excess Available Interest
Amounts to cover Series Available Interest Amount Shortfalls incurred by other
series as specified in the related Indenture Supplements.
Section 314. Excess Available Principal Amounts Sharing. The
Issuer shall reallocate and redistribute certain excess Available Principal
Amounts to cover Series Available Principal Amount Shortfalls incurred by
other series as specified in the related Indenture Supplements.
ARTICLE IV
ACCOUNTS AND INVESTMENTS
Section 401. Collections. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
will receive and collect, directly and without intervention or assistance from
any fiscal agent or other intermediary, all money and other property payable
to or receivable by the Indenture Trustee pursuant to this Indenture
including, without limitation, all funds and other property payable to the
Indenture Trustee in connection with the Collateral (collectively, the
"Collections"). The Indenture Trustee will hold all such money and property
received by it as part of the Collateral and will apply it as provided in this
Indenture.
Section 402. Accounts.
(a) Accounts; Deposits to and Distributions from Accounts.
On or before the Effective Date, the Issuer will cause to be established and
maintained one or more Qualified
37
Accounts (collectively, the "Collection Account") in the name of the Indenture
Trustee, bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Indenture Trustee, the Noteholders and
any applicable Derivative Counterparty. All Collections received from the
CARCO Trust pursuant to Article V of the Pooling and Servicing Agreement as
supplemented by the Series 2002-CC Supplement shall be deposited into the
Collection Account. From time to time in connection with the issuance of a
series or class of Notes, the Indenture Trustee may establish one or more
Qualified Accounts denominated as "Supplemental Accounts" in the name of the
Indenture Trustee. The Collection Account shall be under the sole dominion and
control of the Indenture Trustee for the benefit of the Secured Parties. If,
at any time, the institution holding the Collection Account ceases to be a
Qualified Institution, the Issuer will within ten (10) Business Days (or such
longer period, not to exceed thirty (30) calendar days, as to which each Note
Rating Agency may consent in writing) establish a new Collection Account that
is a Qualified Account and shall transfer any cash and/or investments to such
new Collection Account. From the date such new Collection Account is
established, it will be the "Collection Account." Supplemental Accounts will
be created as specified in the applicable Indenture Supplement. Any
Supplemental Account will receive deposits as set forth in the applicable
Indenture Supplement.
(b) All payments to be made from time to time by or on
behalf of the Indenture Trustee to Noteholders out of funds in the Accounts
pursuant to this Indenture will be made by or on behalf of the Indenture
Trustee to the Paying Agent not later than 12:00 noon on the applicable
Payment Date or earlier, if necessary, or as otherwise provided in Article V
or the applicable Indenture Supplement but only to the extent of available
funds in the applicable Supplemental Account or sub-Account.
Section 403. Investment of Funds in the Accounts.
(a) Funds on deposit in the Accounts will be invested and
reinvested by the Indenture Trustee at the written direction of the Issuer in
one or more Permitted Investments. The Issuer may authorize the Indenture
Trustee to make specific investments pursuant to written instructions, in such
amounts as the Issuer will specify. Notwithstanding the foregoing, funds held
by the Indenture Trustee in any of the Accounts will be invested in Permitted
Investments that will mature in each case no later than the date on which such
funds in the Accounts are scheduled to be transferred or distributed by the
Indenture Trustee pursuant to this Indenture (or as necessary to provide for
timely payment of principal or interest on the applicable Principal Payment
Date or Interest Payment Date).
(b) All funds deposited from time to time in the Accounts
pursuant to this Indenture and all investments made with such funds will be
held by the Indenture Trustee in the Accounts as part of the Collateral as
herein provided, subject to withdrawal by the Indenture Trustee for the
purposes set forth herein.
(c) Funds and other property in any of the Accounts will not
be commingled with any other funds or property of the Issuer or the Indenture
Trustee. The Indenture Trustee shall: (i) hold each Permitted Investment
(other than those described in clause (c) of the definition thereof) that
constitutes investment property through a securities intermediary, which
securities intermediary shall agree with the Indenture Trustee that (A) such
investment property
38
at all times shall be credited to a securities account of the Indenture
Trustee, (B) all property credited to such securities account shall be treated
as a financial asset, (C) such securities intermediary shall treat the
Indenture Trustee as entitled to exercise the rights that comprise each
financial asset credited to such securities account, (D) such securities
intermediary shall comply with entitlement orders originated by the Indenture
Trustee without the further consent of any other person or entity, (E) such
securities intermediary shall not agree with any person or entity other than
the Indenture Trustee to comply with entitlement orders originated by any
person or entity other than the Indenture Trustee, (F) such securities account
and all property credited thereto shall not be subject to any lien, security
interest, right of set-off, or encumbrance in favor of such securities
intermediary or anyone claiming through such securities intermediary (other
than the Indenture Trustee), and (G) such agreement between such securities
intermediary and the Indenture Trustee shall be governed by the laws of the
State of New York; (ii) maintain possession of each other Permitted Investment
not described in clause (i) above (other than those described in clause (c) of
the definition thereof) in the State of New York separate and apart from all
other property held by the Indenture Trustee; and (iii) cause each Permitted
Investment described in clause (c) of the definition thereof to be registered
in the name of the Indenture Trustee by the issuer thereof; provided, that,
other than following an Event of Default and acceleration pursuant to Section
702, no Permitted Investment shall be disposed of prior to its maturity.
Notwithstanding any other provision of this Indenture, the Indenture Trustee
shall not hold any Permitted Investment through an agent except as expressly
permitted by this Section 403(c). Each term used in this Section 403(c) and
defined in the New York UCC shall have the meaning set forth in the New York
UCC.
(d) On each Transfer Date, all interest and earnings (net of
losses and investment expenses) accrued since the preceding Transfer Date on
funds on deposit in the Collection Account will be treated as Available
Interest Amounts and applied pursuant to Section 501 for such Transfer Date.
Unless otherwise stated in the related Indenture Supplement, for purposes of
determining the availability of funds or the balance in the Accounts for any
reason under this Indenture or any Indenture Supplement, investment earnings
on such funds shall be deemed not to be available or on deposit.
Subject to Section 801(c), the Indenture Trustee will not in
any way be held liable by reason of any insufficiency in such Accounts
resulting from any loss on any Permitted Investment included therein except
for losses attributable to the Indenture Trustee's failure to make payments on
such Permitted Investments issued by the Indenture Trustee, in its commercial
capacity, in accordance with their terms.
(e) Funds on deposit in the Accounts will be invested and
reinvested by the Indenture Trustee to the fullest extent practicable, in such
manner as the Indenture Trustee will from time to time determine, but only in
one or more Permitted Investments, upon the occurrence of any of the following
events:
(i) the Issuer will have failed to give investment
directions to the Indenture Trustee; or
(ii) an Event of Default will have occurred and is
continuing but no Notes have been declared due and payable pursuant
to Section 702.
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ARTICLE V
ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 501. Allocations of Available Interest Amounts. With
respect to each Monthly Period, the Indenture Trustee will allocate to each
series of Notes its portion of the Available Interest Amount for such Monthly
Period in an amount equal to the product of (i) the Series Floating Allocation
Percentage for such series times (ii) the Available Interest Amount for such
Monthly Period.
Section 502. Allocations of Available Principal Amounts.
With respect to each Monthly Period, the Indenture Trustee will allocate to
each series of Notes its portion of the Available Principal Amount for such
Monthly Period in an amount equal to the product of (i) the Series Principal
Allocation Percentage for such series times (ii) the Available Principal
Amount for such Monthly Period.
Section 503. Final Payment. Each class of Notes will be
considered to be paid in full, the Holders of such class of Notes will have no
further right or claim, and the Issuer will have no further obligation or
liability with respect to such class of Notes, on the earliest to occur of:
(a) the date of the payment in full of the Stated Principal
Amount of and all accrued interest on that class of Notes;
(b) the date on which the Outstanding Dollar Principal
Amount of such Notes, after giving effect to all deposits, allocations,
reallocations, sales of Receivables and payments to be made on such date, is
reduced to zero, and all accrued interest on such Notes is paid in full; or
(c) on the Legal Maturity Date of such Notes, after giving
effect to all deposits, allocations, reallocations, sales of Receivables and
payments to be made on such date.
Section 504. Payments within a Series or Class. All payments
of principal, interest or other amounts to Holders of the Notes of a series or
class will be made in accordance with the related Indenture Supplement.
ARTICLE VI
SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES HELD BY THE ISSUER OR DCWR
Section 601. Satisfaction and Discharge of Indenture. This
Indenture will cease to be of further effect with respect to any series or
class of Notes (except as to any surviving rights of transfer or exchange of
Notes of that series or class expressly provided for herein or in the form of
Note for that series or class), and the Indenture Trustee, on demand of and at
the expense of the Issuer, will execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to that series or class, when:
40
(a) all Notes of that series or class theretofore
authenticated and delivered (other than (A) Notes of that series or class
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, and (B) Notes of that series or class for whose
payment money has theretofore been deposited in trust or segregated and held
in trust by the Issuer and thereafter repaid to the Issuer or discharged from
that trust, as provided in Section 1103) have been delivered to the Indenture
Trustee canceled or for cancellation;
(b) the Issuer has paid or caused to be paid all other sums
payable hereunder (including payments to the Indenture Trustee pursuant to
Section 807) by the Issuer with respect to the Notes of that series or class;
and
(c) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to the Notes of that series or class
have been complied with. Notwithstanding the satisfaction and discharge of
this Indenture with respect to any series or class of Notes, the obligations
of the Issuer to the Indenture Trustee with respect to that series or class
under Section 807 and the obligations of the Indenture Trustee under Sections
602 and 1103 will survive such satisfaction and discharge.
Section 602. Application of Trust Money. All money and
obligations deposited with the Indenture Trustee pursuant to Section 601 or
Section 603 and all money received by the Indenture Trustee in respect of such
obligations will be held in trust and applied by it, in accordance with the
provisions of the series or class of Notes in respect of which it was
deposited and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuer acting as its own Paying Agent) as the
Indenture Trustee may determine, to the Persons entitled thereto, of the
principal and interest for whose payment that money and obligations have been
deposited with or received by the Indenture Trustee; but that money and
obligations need not be segregated from other funds held by the Indenture
Trustee except to the extent required by law.
Section 603. Cancellation of Notes Held by the Issuer or
DCWR. If the Issuer, DCWR or any of their Affiliates holds any Notes, that
Holder may, subject to any provisions of a related Indenture Supplement
limiting the repayment of subordinated classes of Notes, if any, by notice
from that Holder to the Indenture Trustee cause that Note to be canceled,
whereupon (a) the Note will no longer be Outstanding, and (b) the Issuer will
cause the Investor Interest of the Collateral Certificate to be reduced by an
amount equal to the Nominal Liquidation Amount of that cancelled Note.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 701. Events of Default. "Event of Default," wherever
used herein, means with respect to any series or class of Notes any one of the
following events (whatever the reason for such Event of Default and whether it
will be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless such event is
either expressly
41
stated to be inapplicable to a particular series or class or specifically
deleted or modified in the applicable Indenture Supplement creating such
series or class of Notes or in the form of Note for such series or class:
(a) with respect to any class of Notes, a default by the
Issuer in the payment of any interest on such Notes when such interest becomes
due and payable, and continuance of such default for a period of five (5)
Business Days following the date on which such interest became due and
payable;
(b) with respect to any class of Notes, a default by the
Issuer in the payment of the principal amount of such Notes at the applicable
Legal Maturity Date;
(c) a default in the performance, or breach, of any covenant
or warranty of the Issuer in this Indenture in respect of the Notes of such
series or class (other than a covenant or warranty in respect of the Notes of
such series or class a default in the performance of which or the breach of
which is elsewhere in this Section specifically dealt with), all of such
covenants and warranties in this Indenture which are not expressly stated to
be for the benefit of a particular series or class of Notes being deemed to be
in respect of the Notes of all series or classes for this purpose, and
continuance of such default or breach for a period of sixty (60) days after
there has been given, by registered or certified mail, to the Issuer by the
Indenture Trustee or to the Issuer and the Indenture Trustee by the Holders of
at least 25% in Outstanding Dollar Principal Amount of the Outstanding Notes
of such series or class, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder and, as a result of such default, the interests of the
Holders of the Notes of such series or class are materially and adversely
affected and continue to be materially and adversely affected during the sixty
(60) day period;
(d) the entry of an order for relief against the Issuer
under the Federal Bankruptcy Code by a court having jurisdiction in the
premises or a decree or order by a court having jurisdiction in the premises
adjudging the Issuer a bankrupt or insolvent under any other applicable
Federal or State law, or the entry of a decree or order approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Issuer under the Federal Bankruptcy Code
or any other applicable Federal or State law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Issuer or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of ninety (90) consecutive days;
(e) the consent by the Issuer to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under the
Federal Bankruptcy Code or any other applicable Federal or State law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Issuer or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Issuer in furtherance of any
such action; or
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(f) with respect to any series or class, any additional
Event of Default specified in the Indenture Supplement for such series or
class as applying to such series or class, or specified in the form of Note
for such series or class.
Section 702. Acceleration of Maturity; Rescission and
Annulment.
(a) If an Event of Default described in clause (a), (b), (c)
or (f) (if the Event of Default under clause (c) or (f) is with respect to
less than all series and classes of Notes then Outstanding) of Section 701
occurs and is continuing with respect to any series or class, then and in each
and every such case, unless the principal of all the Notes of such series or
class shall have already become due and payable, either the Indenture Trustee
or the Majority Holders of the Notes of such series or class then Outstanding
hereunder (each such series or class acting as a separate class), by notice in
writing to the Issuer (and to the Indenture Trustee if given by Holders), may
declare the Outstanding principal amount of all the Notes of such series or
class then Outstanding and all interest accrued or principal accreted and
unpaid (if any) thereon to be due and payable immediately, and upon any such
declaration the same will become and will be immediately due and payable,
anything in this Indenture, the related Indenture Supplement or in the Notes
of such series or class to the contrary notwithstanding. Such payments are
subject to Article V and the allocation, deposits and payment sections of the
related Indenture Supplement.
(b) If an Event of Default described in clause (c) or (f)
(if the Event of Default under clause (c) or (f) is with respect to all series
and classes of Notes then Outstanding) of Section 701 occurs and is
continuing, then and in each and every such case, unless the principal of all
the Notes shall have already become due and payable, either the Indenture
Trustee or the Majority Holders of all the Notes then Outstanding hereunder
(treated as one class), by notice in writing to the Issuer (and to the
Indenture Trustee if given by Holders), may declare the Outstanding principal
amount of all the Notes then Outstanding and all interest accrued or principal
accreted and unpaid (if any) thereon to be due and payable immediately, and
upon any such declaration the same will become and will be immediately due and
payable, notwithstanding anything in this Indenture, the related Indenture
Supplements or the Notes to the contrary.
(c) If an Event of Default described in clause (d) or (e) of
Section 701 occurs and is continuing, then the Notes of all series and classes
will automatically be and become immediately due and payable by the Issuer,
without notice or demand to any Person, and the Issuer will automatically and
immediately be obligated to pay off the Notes.
(d) At any time after such a declaration of acceleration has
been made with respect to the Notes of any series or class and before a
judgment or decree for payment of the money due has been obtained by the
Indenture Trustee as hereinafter in this Article VII provided, the Majority
Holders of such series or classes, by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration and its consequences
if:
(x) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay (i) all overdue installments of
interest on the Notes of such series or class, (ii) the principal of
any Notes of such series or class which have become due otherwise
than by such declaration of acceleration, and interest thereon at the
rate or rates
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prescribed therefor by the terms of the Notes of such series or
class, to the extent that payment of such interest is lawful, (iii)
interest upon overdue installments of interest at the rate or rates
prescribed therefor by the terms of the Notes of such series or class
to the extent that payment of such interest is lawful, and (iv) all
sums paid by the Indenture Trustee hereunder and the reasonable
compensation, expenses and disbursements of the Indenture Trustee,
its agents and counsel and all other amounts due the Indenture
Trustee under Section 807; and
(y) all Events of Default with respect to such series or
class of Notes, other than the nonpayment of the principal of the
Notes of such series or class which has become due solely by such
acceleration, have been cured or waived as provided in Section 716.
No such rescission will affect any subsequent default or
impair any right consequent thereon.
Section 703. Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee. The Issuer covenants that if:
(a) the Issuer defaults in the payment of interest on any
series or class of Notes when such interest becomes due and payable and such
default continues for a period of five (5) Business Days following the date on
which such interest became due and payable, or
(b) the Issuer defaults in the payment of the principal of
any series or class of Notes at the Legal Maturity Date thereof,
and any such default continues beyond any specified grace period provided with
respect to such series or class of Notes, the Issuer will, upon demand of the
Indenture Trustee, pay (subject to the allocation provided in Article V, this
Article VII and any related Indenture Supplement) to the Indenture Trustee,
for the benefit of the Holders of any such Notes of the affected series or
class, the whole amount then due and payable on any such Notes for principal
and interest, with interest, to the extent that payment of such interest will
be legally enforceable, upon the overdue principal and upon overdue
installments of interest, (i) in the case of Interest-bearing Notes, at the
rate of interest applicable to the stated principal amount thereof, unless
otherwise specified in the applicable Indenture Supplement; and (ii) in the
case of Discount Notes, as specified in the applicable Indenture Supplement,
and in addition thereto, will pay such further amount as will be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee,
its agents and counsel and all other amounts due the Indenture Trustee under
Section 807.
If the Issuer fails to pay such amounts forthwith upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so
due and unpaid, and may prosecute such proceeding to judgment or final decree,
and may enforce the same against the Issuer or any other obligor upon the
Notes of such series or class and collect the money adjudged or decreed to be
payable in the manner provided by law out of the Collateral or any other
obligor upon such Notes, wherever situated.
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Section 704. Indenture Trustee May File Proofs of Claim. In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Issuer or any other obligor upon the Notes or the
property of the Issuer or of such other obligor or their creditors, the
Indenture Trustee (irrespective of whether the principal of the Notes will
then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Indenture Trustee will have made any demand on
the Issuer for the payment of overdue principal or interest) will be entitled
and empowered, by intervention in such proceedings or otherwise,
(i) to file and prove a claim for the whole amount
of principal and interest owing and unpaid in respect of the Notes
and to file such other papers or documents as may be necessary and
advisable in order to have the claims of the Indenture Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee, its agents and
counsel and all other amounts due the Indenture Trustee under Section
807) and of the Noteholders allowed in such judicial proceeding, and
(ii) to collect and receive any funds or other
property payable or deliverable on any such claims and to distribute
the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized by each
Noteholder to make such payment to the Indenture Trustee and in the event that
the Indenture Trustee will consent to the making of such payments directly to
the Noteholders, to pay to the Indenture Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee, its agents and counsel, and any other amounts due the Indenture
Trustee under Section 807.
Nothing herein contained will be deemed to authorize the
Indenture Trustee to authorize or consent to or accept or adopt on behalf of
any Noteholder any plan or reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding.
Section 705. Indenture Trustee May Enforce Claims Without
Possession of Notes. All rights of action and claims under this Indenture or
the Notes of any series or class may be prosecuted and enforced by the
Indenture Trustee without the possession of any of the Notes of such series or
class or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Indenture Trustee will be brought in its own
name as trustee of an express trust, and any recovery of judgment will, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee, its agent and counsel, be
for the ratable benefit of the Holders of the Notes of the series or class in
respect of which such judgment has been recovered.
Section 706. Application of Money Collected. Any money or
other property collected by the Indenture Trustee with respect to a series or
class of Notes pursuant to this Article VII will be applied in the following
order, at the date or dates fixed by the Indenture Trustee and, in case of the
distribution of such money on account of principal or interest, upon
45
presentation of the Notes of such series or class and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
(a) first, to the payment of all amounts due the Indenture
Trustee under Section 807(a);
(b) second, to the payment of the amounts then due and
unpaid upon the Notes of that series or class for principal and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind (but subject to the
allocation provided in Article V of this Indenture and the related Indenture
Supplements), according to the amounts due and payable on such Notes for
principal and interest, respectively; and
(c) third, to the Issuer.
Section 707. Indenture Trustee May Elect to Hold the
Collateral Certificate. Following an acceleration of any series or class of
Notes and subject to Section 708, the Indenture Trustee may elect to continue
to hold the Collateral Certificate and apply distributions on the Collateral
Certificate in accordance with the regular distribution provisions pursuant to
Article V of this Indenture, except that principal will be paid on the
accelerated class of Notes to the extent funds are received from the CARCO
Trust and allocated to the accelerated class, and payment is permitted by the
subordination provisions, if any, of the accelerated class.
Section 708. Sale of Receivables for Accelerated Notes. In
the case of a series or class of Notes that has been accelerated following an
Event of Default, if the Put Feature of such series or class of Notes has been
deemed to be exercised as provided in the related Indenture Supplement, the
Indenture Trustee will cause the CARCO Trust to sell Principal Receivables and
the related Non-Principal Receivables (or interests therein) as provided in
such Indenture Supplement.
Section 709. Noteholders Have the Right to Direct the Time,
Method and Place of Conducting Any Proceeding for Any Remedy Available to the
Indenture Trustee. The Majority Holders of any accelerated series or class of
Notes have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Indenture Trustee, or exercising
any trust or power conferred on the Indenture Trustee, in respect of such
series or class. This right may be exercised only if the direction provided by
the Noteholders does not conflict with applicable law or this Indenture and
does not have a substantial likelihood of involving the Indenture Trustee in
personal liability.
Section 710. Limitation on Suits. No Holder of any Note of
any series or class will have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default with respect to Notes of
such series or class;
(b) the Holders of not less than 25% in Outstanding Dollar
Principal Amount of the Outstanding Notes of such series or class have made
written request to the Indenture
46
Trustee to institute proceedings in respect of such Event of Default in its
own name as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture
Trustee indemnity reasonably satisfactory to it against the costs, expenses
and liabilities to be incurred in compliance with such request;
(d) the Indenture Trustee for sixty (60) days after its
receipt of such notice, request and offer of indemnity has failed to institute
any such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Indenture Trustee during such sixty (60) day period by the
Majority Holders of such series or class;
it being understood and intended that no one or more Holders of Notes of such
series or class will have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders of Notes of such series or class, or to obtain
or to seek to obtain priority or preference over any other such Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and proportionate benefit of all the Holders of all Notes of
such series or class.
Section 711. Unconditional Right of Noteholders to Receive
Principal and Interest; Limited Recourse. Notwithstanding any other provisions
in this Indenture, the Holder of any Note will have the right, which is
absolute and unconditional, to receive payment of the principal of and
interest on such Note on the Legal Maturity Date expressed in the related
Indenture Supplement and to institute suit for the enforcement of any such
payment, and such right will not be impaired without the consent of such
Holder; provided, however, that notwithstanding any other provision of this
Indenture to the contrary, the obligation to pay principal of or interest on
the Notes or any other amount payable to any Noteholder will be without
recourse to DCWR, the Indenture Trustee, the Owner Trustee or any affiliate,
officer, employee or director of any of them, and the obligation of the Issuer
to pay principal of or interest on the Notes or any other amount payable to
any Noteholder will be subject to Article V and the allocation and payment
provisions of the Indenture Supplements.
Section 712. Restoration of Rights and Remedies. If the
Indenture Trustee or any Noteholder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, then and in every such case the
Issuer, the Indenture Trustee and the Noteholders will, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Indenture Trustee and the Noteholders will continue as though no such
proceeding had been instituted.
Section 713. Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy will, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or
47
remedy hereunder, or otherwise, will not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 714. Delay or Omission Not Waiver. No delay or
omission of the Indenture Trustee or of any Holder of any Note to exercise any
right or remedy accruing upon any Event of Default will impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
Section 715. Control by Noteholders. The Majority Holders of
any series or class will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Indenture Trustee
or exercising any trust or power conferred on the Indenture Trustee with
respect to the Notes of such series or class, provided that:
(a) the Indenture Trustee will have the right to decline to
follow any such direction if the Indenture Trustee, being advised by counsel,
determines that the action so directed may not lawfully be taken or would
conflict with this Indenture or if the Indenture Trustee in good faith will,
by an Indenture Trustee Authorized Officer, determine that the proceedings so
directed would involve it in personal liability or be unjustly prejudicial to
the Holders not taking part in such direction, and
(b) the Indenture Trustee may take any other action
permitted hereunder deemed proper by the Indenture Trustee which is not
inconsistent with such direction.
Section 716. Waiver of Past Defaults. The Majority Holders
of any series or class may on behalf of the Holders of all the Notes of such
series or class waive any past default hereunder or under the related
Indenture Supplement with respect to such series or class and its
consequences, except a default not theretofore cured:
(a) in the payment of the principal of or interest on any
Note of such series or class, or
(b) in respect of a covenant or provision hereof which under
Article X cannot be modified or amended without the consent of the Holder of
each Outstanding Note of such series or class.
Upon any such waiver, such default will cease to exist, and
any Event of Default arising therefrom will be deemed to have been cured, for
every purpose of this Indenture; but no such waiver will extend to any
subsequent or other default or impair any right consequent thereon.
Section 717. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Note by his acceptance thereof will be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Indenture Trustee for any action taken or omitted by it
as Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs
48
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section will not apply to any suit instituted by the Indenture Trustee, to any
suit instituted by any Noteholder, or group of Noteholders, holding in the
aggregate more than 25% in Outstanding Dollar Principal Amount of the
Outstanding Notes of any series or class to which the suit relates, or to any
suit instituted by any Noteholders for the enforcement of the payment of the
principal of or interest on any Note on or after the applicable Legal Maturity
Date expressed in such Note.
Section 718. Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VIII
THE INDENTURE TRUSTEE
Section 801. Certain Duties and Responsibilities.
(a) The Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture with
respect to the Notes of any series or classes, and no implied covenants or
obligations will be read into this Indenture against the Indenture Trustee.
(b) In the absence of bad faith on its part, the Indenture
Trustee may, with respect to Notes of any series or class, conclusively rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Indenture
Trustee and conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the Indenture
Trustee will be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture but need not confirm or
investigate the accuracy of any mathematical calculations or other facts
stated therein.
(c) In case an Event of Default with respect to any series
or class of Notes has occurred and is continuing, the Indenture Trustee will
exercise with respect to the Notes of such series or class such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a fiduciary would exercise or use under the
circumstances in the conduct of such person's own affairs.
49
(d) No provision of this Indenture will be construed to
relieve the Indenture Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) this clause (d) will not be construed to limit
the effect of subsection (a) of this Section;
(ii) the Indenture Trustee will not be liable for
any error of judgment made in good faith by an Indenture Trustee
Authorized Officer, unless it will be proved that the Indenture
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Indenture Trustee will not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Majority Holders of any
series or class relating to the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture Trustee,
under this Indenture with respect to the Notes of such series or
class; and
(iv) no provision of this Indenture will require the
Indenture Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it
will have reasonable grounds for believing that repayment of such
funds or indemnity satisfactory to the Indenture Trustee against such
risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Indenture Trustee will be subject to the
provisions of this Section.
Section 802. Notice of Defaults. Within ninety (90) days
after the occurrence of any default hereunder with respect to Notes of any
series or class,
(a) the Indenture Trustee will transmit by mail to all
Registered Noteholders of such series or class, as their names and addresses
appear in the Note Register, notice of such default hereunder known to the
Indenture Trustee,
(b) the Indenture Trustee will notify all Holders of Bearer
Notes of such series or class, by publication of notice of such default in an
Authorized Newspaper, or as otherwise provided in the applicable Indenture
Supplement, and
(c) the Indenture Trustee will give prompt written
notification thereof to the Note Rating Agencies, unless such default will
have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of or interest on any Note of such series or class, the Indenture
Trustee will be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Indenture Trustee Authorized Officers of the Indenture Trustee in good
faith determine that the withholding of such notice is in the interests of the
50
Noteholders of such series or class. For the purpose of this Section, the term
"default," with respect to Notes of any series or class, means any event which
is, or after notice or lapse of time or both would become, an Event of Default
with respect to Notes of such series or class.
Section 803. Certain Rights of Indenture Trustee. Except as
otherwise provided in Section 801:
(a) the Indenture Trustee may conclusively rely and will be
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document (whether
in its original or facsimile form) believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein
will be sufficiently evidenced by an Officer's Certificate;
(c) whenever in the administration of this Indenture the
Indenture Trustee will deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Indenture Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officer's
Certificate;
(d) the Indenture Trustee may consult with counsel of its
own selection and the advice of such counsel or any Opinion of Counsel will be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Indenture Trustee will be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Noteholders pursuant to this Indenture,
unless such Noteholders shall have offered to the Indenture Trustee security
or indemnity reasonably satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Indenture Trustee will not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document, but the Indenture Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Indenture Trustee will
determine to make such further inquiry or investigation, it will be entitled
to examine the books, records and premises of the Issuer, personally or by
agent or attorney;
(g) the Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Indenture Trustee will not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Indenture Trustee will not be responsible for filing
any financing statements or continuation statements in connection with the
Notes, but will cooperate with the Issuer in connection with the filing of
such financing statements or continuation statements.
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Section 804. Not Responsible for Recitals or Issuance of
Notes. The recitals contained herein and in the Notes, except the certificates
of authentication, will be taken as the statements of the Issuer, and the
Indenture Trustee assumes no responsibility for their correctness. The
Indenture Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Notes. The Indenture Trustee will not be
accountable for the use or application by the Issuer of Notes or the proceeds
thereof.
Section 805. May Hold Notes. The Indenture Trustee, any
Paying Agent, the Note Registrar or any other agent of the Issuer, in its
individual or any other capacity, may become the owner or pledgee of Notes
and, subject to Sections 808 and 813, may otherwise deal with the Issuer with
the same rights it would have if it were not Indenture Trustee, Paying Agent,
Note Registrar or such other agent.
Section 806. Money Held in Trust. Money held by the
Indenture Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Indenture Trustee will be under no
liability for interest on any money received by it hereunder except as
otherwise agreed with the Issuer.
Section 807. Compensation and Reimbursement, Limit on
Compensation, Reimbursement and Indemnity.
(a) The Issuer agrees
(i) to pay to the Indenture Trustee from time to
time reasonable compensation for all services rendered by it
hereunder (which compensation will not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein,
to reimburse the Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Indenture Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the reasonable
expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(iii) to indemnify the Indenture Trustee for, and to
hold it harmless against, any and all loss, liability or expense
incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any
claim or liability (whether asserted by the Issuer, the Servicer, any
Holder or any other Person) in connection with the exercise or
performance of any of its powers or duties hereunder.
The Indenture Trustee will have no recourse to any asset of the Issuer other
than funds available pursuant to Section 706 or to any Person other than the
Servicer or the Issuer.
(b) This Section will survive the termination of this
Indenture and the resignation or replacement of the Indenture Trustee under
Section 810.
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Section 808. Disqualification; Conflicting Interests. If the
Indenture Trustee has or will acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Indenture Trustee will, if so required
by the Trust Indenture Act, either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture. Nothing herein will prevent the
Indenture Trustee from filing with the Commission the application referred to
in the second to last paragraph of Section 310(b) of the Trust Indenture Act.
Section 809. Corporate Indenture Trustee Required;
Eligibility. There will at all times be an Indenture Trustee hereunder with
respect to each series or class of Notes, which will be a corporation
organized and doing business under the laws of the United States of America or
of any State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal or State authority, and having a rating
of at least BBB- by Standard & Poor's. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation will be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. The Issuer may not, nor may any Person directly or
indirectly controlling, controlled by, or under common control with the
Issuer, serve as Indenture Trustee. If at any time the Indenture Trustee with
respect to any series or class of Notes will cease to be eligible in
accordance with the provisions of this Section, it will resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 810. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Indenture Trustee and
no appointment of a successor Indenture Trustee pursuant to this Article will
become effective until the acceptance of appointment by the successor
Indenture Trustee under Section 811.
(b) The Indenture Trustee may resign with respect to any
series or class of Notes at any time by giving written notice thereof to the
Issuer. If an instrument of acceptance by a successor Indenture Trustee shall
not have been delivered to the Indenture Trustee within thirty (30) days after
the giving of such notice of resignation, the resigning Indenture Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Indenture Trustee.
(c) The Indenture Trustee may be removed with respect to any
series or class of Notes at any time by Act of the Majority Holders of that
series or class, delivered to the Indenture Trustee and to the Issuer.
(d) If at any time:
(i) the Indenture Trustee fails to comply with
Section 310(b) of the Trust Indenture Act with respect to any series
or class of Notes after written request therefor by the Issuer or by
any Noteholder who has been a bona fide Holder of a Note of that
series or class for at least six (6) months, or
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(ii) the Indenture Trustee ceases to be eligible
under Section 809 with respect to any series or class of Notes and
fails to resign after written request therefor by the Issuer or by
any such Noteholder, or
(iii) the Indenture Trustee becomes incapable of
acting with respect to any series or class of Notes, or
(iv) the Indenture Trustee is adjudged bankrupt or
insolvent or a receiver of the Indenture Trustee or of its property
is appointed or any public officer takes charge or control of the
Indenture Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Issuer may remove the Indenture Trustee, with
respect to the series or class, or in the case of clause (iv), with respect to
all series or classes, or (B) subject to Section 717, any Noteholder who has
been a bona fide Holder of a Note of such series, class and class for at least
six (6) months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Indenture
Trustee with respect to such series or class and the appointment of a
successor Indenture Trustee with respect to the series or class, or, in the
case of clause (iv), with respect to all series and classes.
(e) If the Indenture Trustee resigns, is removed or becomes
incapable of acting with respect to any series or class of Notes, or if a
vacancy shall occur in the office of the Indenture Trustee with respect to any
series or class of Notes for any cause, the Issuer will promptly appoint a
successor Indenture Trustee for that series or class of Notes. If, within one
year after such resignation, removal or incapacity, or the occurrence of such
vacancy, a successor Indenture Trustee with respect to such series or class of
Notes is appointed by Act of the Majority Holders of such series or class
delivered to the Issuer and the retiring Indenture Trustee, the successor
Indenture Trustee so appointed will, forthwith upon its acceptance of such
appointment, become the successor Indenture Trustee with respect to such
series or class and supersede the successor Indenture Trustee appointed by the
Issuer with respect to such series or class. If no successor Indenture Trustee
with respect to such series or class shall have been so appointed by the
Issuer or the Noteholders of such series or class and accepted appointment in
the manner hereinafter provided, any Noteholder who has been a bona fide
Holder of a Note of that series or class for at least six (6) months may, on
behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Indenture Trustee
with respect to such series or class.
(f) The Issuer will give written notice of each resignation
and each removal of the Indenture Trustee with respect to any series or class
and each appointment of a successor Indenture Trustee with respect to any
series or class to each Noteholder as provided in Section 106 and to each Note
Rating Agency. Each notice will include the name of the successor Indenture
Trustee and the address of its principal Corporate Trust Office.
Section 811. Acceptance of Appointment by Successor. Every
successor Indenture Trustee appointed hereunder will execute, acknowledge and
deliver to the Issuer and to the predecessor Indenture Trustee an instrument
accepting such appointment, with a copy to the Note Rating Agencies, and
thereupon the resignation or removal of the predecessor Indenture
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Trustee will become effective with respect to any series or class as to which
it is resigning or being removed as Indenture Trustee, and such successor
Indenture Trustee, without any further act, deed or conveyance, will become
vested with all the rights, powers, trusts and duties of the predecessor
Indenture Trustee with respect to any such series or class; but, on request of
the Issuer or the successor Indenture Trustee, such predecessor Indenture
Trustee will, upon payment of its reasonable charges, if any, execute and
deliver an instrument transferring to such successor Indenture Trustee all the
rights, powers and trusts of the predecessor Indenture Trustee, and will duly
assign, transfer and deliver to such successor Indenture Trustee all property
and money held by such predecessor Indenture Trustee hereunder with respect to
all or any such series or class, subject nevertheless to its lien, if any,
provided for in Section 807. Upon request of any such successor Indenture
Trustee, the Issuer will execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Indenture Trustee all
such rights, powers and trusts.
In case of the appointment hereunder of a successor
Indenture Trustee with respect to the Notes of one or more (but not all)
series or classes, the Issuer, the predecessor Indenture Trustee and each
successor Indenture Trustee with respect to the Notes of any applicable series
or class will execute and deliver an Indenture Supplement which will contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Indenture Trustee
with respect to the Notes of any series or class as to which the predecessor
Indenture Trustee is not being succeeded will continue to be vested in the
predecessor Indenture Trustee, and will add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Indenture Trustee, it
being understood that nothing herein or in such Indenture Supplement will
constitute such Indenture Trustees co- trustees of the same trust and that
each such Indenture Trustee will be Indenture Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered
by any other such Indenture Trustee.
No successor Indenture Trustee with respect to any series or
class of Notes will accept its appointment unless at the time of such
acceptance such successor Indenture Trustee will be qualified and eligible
with respect to that series or class under this Article.
Section 812. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Indenture Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Indenture Trustee, will be the successor
of the Indenture Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto. The Issuer will give prompt written notice of such merger, conversion,
consolidation or succession to the Note Rating Agencies. In case any Notes
shall have been authenticated, but not delivered, by the Indenture Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Indenture Trustee may adopt such authentication and deliver the
Notes so authenticated with the same effect as if such successor Indenture
Trustee had itself authenticated such Notes.
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Section 813. Preferential Collection of Claims Against
Issuer. If and when the Indenture Trustee shall be or become a creditor of the
Issuer (or any other obligor upon the Notes), the Indenture Trustee will be
subject to the provisions of Section 311 of the Trust Indenture Act. An
Indenture Trustee who has resigned or been removed will be subject to Section
311(a) of the Trust Indenture Act to the extent provided therein.
Section 814. Appointment of Authenticating Agent. At any
time when any of the Notes remain Outstanding, the Indenture Trustee, with the
approval of the Issuer, may appoint an Authenticating Agent or Agents with
respect to one or more series or classes of Notes which will be authorized to
act on behalf of the Indenture Trustee to authenticate Notes of such series or
classes issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Notes so authenticated will be
entitled to the benefits of this Indenture and will be valid and obligatory
for all purposes as if authenticated by the Indenture Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and
delivery of Notes by the Indenture Trustee or the Indenture Trustee's
certificate of authentication, such reference will be deemed to include
authentication and delivery on behalf of the Indenture Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Indenture Trustee by an Authenticating Agent. Each Authenticating Agent
will be acceptable to the Issuer and will at all times be a corporation
organized and doing business under the laws of the United States of America,
any State thereof or the District of Columbia, authorized under such laws to
act as an Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and, if other than the Issuer itself, subject to
supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent will be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time an Authenticating Agent will cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent will resign
immediately in the manner and with the effect specified in this Section. The
initial Authenticating Agent for the Notes of all series and classes will be
the Indenture Trustee.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent will be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, will
continue to be an Authenticating Agent, provided such corporation will be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Indenture Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Indenture Trustee and to the Issuer. The
Indenture Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Issuer. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent will cease to be
eligible in accordance with the provisions of this Section, the Indenture
Trustee, with the approval of the Issuer, may appoint a successor
Authenticating Agent which will be acceptable to the Issuer and will give
notice to each Noteholder as provided in Section 106. Any successor
Authenticating Agent upon
56
acceptance of its appointment hereunder will become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
will be appointed unless eligible under the provisions of this Section.
The Indenture Trustee agrees to pay to each Authenticating
Agent (other than an Authenticating Agent appointed at the request of the
Issuer from time to time) reasonable compensation for its services under this
Section, and the Indenture Trustee will be entitled to be reimbursed for such
payments, subject to the provisions of Section 807.
If an appointment with respect to one or more series or
classes is made pursuant to this Section, the Notes of such series or classes
may have endorsed thereon, in addition to the Indenture Trustee's certificate
of authentication, an alternate certificate of authentication in the following
form:
This is one of the Notes of the series or classes designated
therein referred to in the within-mentioned Indenture.
[ ],
as Indenture Trustee
By: ______________________________
As Authenticating Agent
By: ______________________________
Authorized Signatory
Section 815. Tax Returns. In the event the Issuer shall be
required to file tax returns, the Servicer shall prepare or shall cause to be
prepared such tax returns and shall provide such tax returns to the Owner
Trustee or the Beneficiary for signature at least five (5) days before such
tax returns are due to be filed. The Issuer, in accordance with the terms of
each Indenture Supplement, shall also prepare or shall cause to be prepared
all tax information required by law to be distributed to Noteholders and shall
deliver such information to the Indenture Trustee at least five (5) days prior
to the date it is required by law to be distributed to Noteholders. The
Indenture Trustee, upon written request, will furnish the Servicer with all
such information known to the Indenture Trustee as may be reasonably requested
and required in connection with the preparation of all tax returns of the
Issuer, and shall, upon request, execute such returns. In no event shall the
Indenture Trustee or the Owner Trustee be personally liable for any
liabilities, costs or expenses of the Issuer or any Noteholder arising under
any tax law, including without limitation, federal, state or local income or
excise taxes or any other tax imposed on or measured by income (or any
interest or penalty with respect thereto arising from a failure to comply
therewith).
Section 816. Representations and Covenants of the Indenture
Trustee. The Indenture Trustee represents, warrants and covenants that:
57
(i) The Indenture Trustee is a banking corporation
duly organized and validly existing under the laws of the State of
New York;
(ii) The Indenture Trustee has full power and
authority to deliver and perform this Indenture and has taken all
necessary action to authorize the execution, delivery and performance
by it of this Indenture and other documents to which it is a party;
and
(iii) Each of this Indenture and other documents to
which it is a party has been duly executed and delivered by the
Indenture Trustee and constitutes its legal, valid and binding
obligation in accordance with its terms.
Section 817. Custody of the Collateral. The Collateral
Certificate shall be registered in the name of the Indenture Trustee and shall
be delivered to and held by the Indenture Trustee in the State of New York
separate and apart from all other property held by the Indenture Trustee. The
Indenture Trustee shall hold such of the Collateral as constitutes a Permitted
Investment in accordance with Section 403(c). All other Collateral that is not
described in the preceding two sentences (i) that constitutes investment
property shall be held by the Indenture Trustee through a securities
intermediary, which securities intermediary shall agree with the Indenture
Trustee that (A) such investment property at all times shall be credited to a
securities account of the Indenture Trustee, (B) all property credited to such
securities account shall be treated as a financial asset, (C) such securities
intermediary shall treat the Indenture Trustee as entitled to exercise the
rights that comprise each financial asset credited to such securities account,
(D) such securities intermediary shall comply with entitlement orders
originated by the Indenture Trustee without the further consent of any other
person or entity, (E) such securities intermediary shall not agree with any
person or entity other than the Indenture Trustee to comply with entitlement
orders originated by any person or entity other than the Indenture Trustee,
(F) such securities account and all property credited thereto shall not be
subject to any lien, security interest, right of set-off, or encumbrance in
favor of such securities intermediary or anyone claiming through such
securities intermediary (other than the Indenture Trustee), and (G) such
agreement between such securities intermediary and the Indenture Trustee shall
be governed by the laws of the State of New York; and (ii) not described in
clause (i) above shall be held by the Indenture Trustee in the State of New
York separate and apart from all other property held by the Indenture Trustee.
Notwithstanding any other provision of this Indenture, the Indenture Trustee
shall not hold any Collateral through an agent except as expressly permitted
by this Section 817 and Section 403(c). Each term used in this Section 817 and
defined in the New York UCC shall have the meaning set forth in the New York
UCC.
Section 818. Indenture Trustee's Application for
Instructions from the Issuer. Any application by the Indenture Trustee for
written instructions from the Issuer may, at the option of the Indenture
Trustee, set forth in writing any action proposed to be taken or omitted by
the Indenture Trustee under and in accordance with this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective, provided that such application shall make specific reference to
this Section 818. The Indenture Trustee shall not be liable for any action
taken by, or omission of, the Indenture Trustee in accordance with a proposal
included in such application on or after the date specified in such
application (which date shall not be less than five (5) Business Days after
the date any officer of the Issuer actually
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receives such application, unless any such officer shall have consented in
writing to any earlier date) unless prior to taking any such action (or the
effective date in the case of an omission), the Indenture Trustee shall have
received written instructions in response to such application specifying the
action be taken or omitted.
ARTICLE IX
NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY
INDENTURE TRUSTEE, ISSUER AND BENEFICIARY
Section 901. Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuer will furnish or cause to be furnished to
the Indenture Trustee:
(a) not more than fifteen (15) days after each Record Date,
in each year in such form as the Indenture Trustee may reasonably require, a
list of the names and addresses of the Registered Noteholders of such series
or classes as of such date, and
(b) at such other times as the Indenture Trustee may request
in writing, within thirty (30) days after the receipt by the Issuer of any
such request, a list of similar form and content as of a date not more than
fifteen (15) days before the time such list is furnished; provided, however,
that so long as the Indenture Trustee is the Note Registrar, no such list
shall be required to be furnished.
Section 902. Preservation of Information; Communications to
Noteholders.
(a) The Indenture Trustee will preserve, in as current a
form as is reasonably practicable, the names and addresses of Registered
Noteholders contained in the most recent list furnished to the Indenture
Trustee as provided in Section 901 and the names and addresses of Registered
Noteholders received by the Indenture Trustee in its capacity as Note
Registrar. The Indenture Trustee may destroy any list furnished to it as
provided in Section 901 upon receipt of a new list so furnished.
(b) If three (3) or more Holders of Notes of any series or
class (hereinafter referred to as "applicants") apply in writing to the
Indenture Trustee, and furnish to the Indenture Trustee reasonable proof that
each such applicant has owned a Note of such series or class for a period of
at least six (6) months preceding the date of such application, and such
application states that the applicants desire to communicate with other
Holders of Notes of such series or class or with the Holders of all Notes with
respect to their rights under this Indenture or under such Notes and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Indenture Trustee will, within five
(5) Business Days after the receipt of such application, at its election,
either
(i) afford such applicants access to the information
preserved at the time by the Indenture Trustee in accordance with
Section 902(a), or
(ii) inform such applicants as to the approximate
number of Holders of Notes of such series or class or all Notes, as
the case may be, whose names and addresses appear in the information
preserved at the time by the Indenture Trustee in accordance
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with Section 902(a), and as to the approximate cost of mailing to
such Noteholders the form of proxy or other communication, if any,
specified in such application.
If the Indenture Trustee shall elect not to afford such
applicants access to such information, the Indenture Trustee shall, upon the
written request of such applicants, mail to each Holder of a Registered Note
of such series or class or to all Registered Noteholders, as the case may be,
whose names and addresses appear in the information preserved at the time by
the Indenture Trustee in accordance with Section 902(a), a copy of the form of
proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Indenture Trustee of the material
to be mailed and of payment, or provision for the payment, of the reasonable
expenses of mailing, unless, within five (5) days after such tender, the
Indenture Trustee shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Indenture Trustee, such mailing would be
contrary to the best interests of the Holders of Notes of such series or class
or all Noteholders, as the case may be, or would be in violation of applicable
law. Such written statement will specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more
of such objections, the Commission shall find, after notice and opportunity
for hearing, that all the objections so sustained have been met and shall
enter an order so declaring, the Indenture Trustee will mail copies of such
material to all Registered Noteholders of such series or class or all
Registered Noteholders, as the case may be, with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the
Indenture Trustee will be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Notes, by receiving and holding the
same, agrees with the Issuer and the Indenture Trustee that neither the Issuer
nor the Indenture Trustee will be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Holders of Notes
in accordance with Section 902(b), regardless of the source from which such
information was derived, and that the Indenture Trustee will not be held
accountable by reason of mailing any material pursuant to a request made under
Section 902(b).
Section 903. Reports by Indenture Trustee.
(a) The term "reporting date" as used in this Section means
[ ]. Within sixty (60) days after the reporting date in each year, beginning
in 2003, the Indenture Trustee will transmit to Noteholders, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such reporting date if required by Section 313(a) of the
Trust Indenture Act.
(b) To the extent required by the Trust Indenture Act, the
Indenture Trustee will mail each year to all Registered Noteholders, with a
copy to the Note Rating Agencies a report concerning:
(i) its eligibility and qualifications to continue
as trustee under this Indenture;
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(ii) any amounts advanced by the Indenture Trustee
under this Indenture;
(iii) the amount, interest rate and maturity date or
indebtedness owing by the Issuer to the Indenture Trustee in the
Indenture Trustee's individual capacity;
(iv) the property and funds physically held by the
Indenture Trustee as Indenture Trustee;
(v) any release or release and substitution of
Collateral subject to the lien of this Indenture which has not
previously been reported; and
(vi) any action taken by the Indenture Trustee that
materially affects the Notes and that has not previously been
reported.
(c) The Indenture Trustee will comply with Sections 313(b)
and 313(c) of the Trust Indenture Act.
(d) A copy of each such report will, at the time of such
transmission to Noteholders, be filed by the Indenture Trustee with each stock
exchange upon which the Notes are listed, and also with the Commission. The
Issuer will notify the Indenture Trustee when the Notes are admitted to
trading on any stock exchange.
Section 904. Meetings of Noteholders; Amendments and
Waivers.
(a) The Indenture Trustee may call a meeting of the
Noteholders of a series or class at any time. The Indenture Trustee will call
a meeting upon request of the Issuer or the Holders of at least 10% in
aggregate Outstanding Dollar Principal Amount of the Outstanding Notes of such
series or class. In any case, a meeting will be called after notice is given
to the Noteholders pursuant to Section 106.
(b) Except for any consent that must be given by the Holders
of each Outstanding Note affected or any action to be taken by the Issuer as
holder of the Collateral Certificate, any resolution presented at any meeting
at which a quorum is present may be adopted by the affirmative vote of the
Majority Holders of that series or class, as the case may be. For any vote,
request, demand, authorization, direction, notice, consent, waiver or other
action provided by the Series 2002-CC Supplement to be given or taken by the
holder of the Collateral Certificate, any resolution presented at any meeting
at which the Majority Holders of all Outstanding Notes is present may be
adopted by the affirmative vote of the Majority Holders of all Outstanding
Notes. However, any resolution with respect to any consent, waiver, request,
demand, notice, authorization, direction or other action which may be given by
the Holders of not less than a specified percentage in aggregate Outstanding
Dollar Principal Amount of Outstanding Notes of a series or class or all Notes
may be adopted at any meeting at which a quorum is present only by the
affirmative vote of the Holders of not less than the specified percentage in
aggregate Outstanding Dollar Principal Amount of the Outstanding Notes of that
series or class or all Outstanding Notes, as the case may be. Any resolution
passed or decision taken at any meeting of Noteholders duly held in accordance
with this Indenture will be binding on all Noteholders of the affected series
or class.
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(c) The quorum at any meeting will be persons holding or
representing the Majority Holders of a series or class or all Notes, as the
case may be; provided, however, that if any action is to be taken at that
meeting concerning a consent, waiver, request, demand, notice, authorization,
direction or other action that may be given by the Holders of not less than a
specified percentage in aggregate Outstanding Dollar Principal Amount of the
Outstanding Notes of a series or class or all Notes, as applicable, the
persons holding or representing such specified percentage in aggregate
Outstanding Dollar Principal Amount of the Outstanding Notes of such series or
class or all Notes will constitute a quorum.
(d) The ownership of Registered Notes will be proved by the
Note Register. The Ownership of Bearer Notes will be proved as provided in
Section 104(c)(ii).
(e) The Issuer may make reasonable rules for other matters
relating to action by or a meeting of Noteholders not otherwise covered by
this Section.
Section 905. Reports by Issuer to the Commission. The Issuer
will:
(a) file with the Indenture Trustee, within fifteen (15)
days after the Issuer is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Issuer may be
required to file with the Commission pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act; or, if the Issuer is not required to file
information, documents or reports pursuant to either of said Sections, then it
will file with the Indenture Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) file with the Indenture Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations; and
(c) transmit by mail to all Registered Noteholders, as their
names and addresses appear in the Note Register, and notify all Holders of
Bearer Notes of such series or class, by publication of such notice in an
Authorized Newspaper or as otherwise provided in the applicable Indenture
Supplement, within thirty (30) days after the filing thereof with the
Indenture Trustee, such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to paragraphs (a) and (b) of this
Section as may be required by rules and regulations prescribed from time to
time by the Commission.
Section 906. Reports by Indenture Trustee. The Indenture
Trustee will report to the Issuer with respect to the amount on deposit in the
Accounts, and the identity of the
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investments included therein, as the Issuer may from time to time reasonably
request which, absent the occurrence of an Event of Default hereunder, will
not occur more often than monthly.
Section 907. Monthly Noteholders' Statement. On each
Transfer Date the Issuer will, in cooperation with the Servicer of the CARCO
Trust, complete and deliver to the Indenture Trustee and the CARCO Trust
Trustee (with a copy to each Note Rating Agency) a Monthly Noteholders'
Statement.
Section 908. Payment Instruction to CARCO Trust.
(a) Promptly after the receipt by the Issuer of each Monthly
Servicer's Certificate under the Series 2002-CC Supplement, the Issuer will,
in cooperation with the Servicer of the CARCO Trust, complete the Payment
Instruction and deliver a copy thereof to the Indenture Trustee and the CARCO
Trust Trustee.
(b) From time to time, the Issuer will notify the Servicer
under the Series 2002-CC Supplement of the information necessary to be
provided by the Issuer under Section 5.01 of the Pooling and Servicing
Agreement as supplemented by the Series 2002-CC Supplement to calculate the
Investor Interest of the Collateral Certificate.
ARTICLE X
INDENTURE SUPPLEMENTS; AMENDMENTS TO THE POOLING AND SERVICING AGREEMENT
AND AMENDMENTS TO THE TRUST AGREEMENT
Section 1001. Supplemental Indentures Without Consent of
Noteholders. Without the consent of the Holders of any Notes but with prior
notice to each Note Rating Agency, the Issuer and the Indenture Trustee, at
any time and from time to time, upon delivery of a CARCO Trust Tax Opinion and
an Issuer Tax Opinion and upon delivery by the Issuer to the Indenture Trustee
of an Officer's Certificate to the effect that the Issuer reasonably believes
that such amendment will not have an Adverse Effect and is not reasonably
expected to have an Adverse Effect at any time in the future and, in the case
of an amendment pursuant to clause (a), (i), (j) or (k), upon delivery to the
Indenture Trustee of a written confirmation from each applicable Note Rating
Agency that such amendment will not have a Rating Effect, may amend this
Indenture or any Indenture Supplement or enter into one or more supplemental
indentures hereto or thereto, in form satisfactory to the Indenture Trustee,
for any of the following purposes:
(a) to evidence the succession of another Entity to the
Issuer, and the assumption by any such successor of the covenants of the
Issuer herein and in the Notes; or
(b) to add to the covenants of the Issuer, or to surrender
any right or power herein conferred upon the Issuer for the benefit of the
Holders of the Notes of any or all series or classes (and if such covenants or
the surrender of such right or power are to be for the benefit of less than
all series or classes of Notes, stating that such covenants are expressly
being included or such surrenders are expressly being made solely for the
benefit of one or more specified series or classes); or
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(c) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising
under this Indenture; or
(d) to add to this Indenture such provisions as may be
expressly permitted by the Trust Indenture Act, excluding, however, the
provisions referred to in Section 316(a)(2) of the Trust Indenture Act as in
effect at the date as of which this Indenture was executed or any
corresponding provision in any similar federal statute hereafter enacted; or
(e) to establish any form of Note, as provided in Article
II, and to provide for the issuance of any series or class of Notes as
provided in Article III and to set forth the terms thereof, and/or to add to
the rights of the Holders of the Notes of any series or class; or
(f) to evidence and provide for the acceptance of
appointment by another corporation as a successor Indenture Trustee hereunder
with respect to one or more series or classes of Notes and to add to or change
any of the provisions of this Indenture as will be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Indenture Trustee, pursuant to Section 811; or
(g) to add any additional Early Redemption Events or Events
of Default in respect of the Notes of any or all series or classes (and if
such additional Events of Default are to be in respect of less than all series
or classes of Notes, stating that such Events of Default are expressly being
included solely for the benefit of one or more specified series or classes);
or
(h) to provide for the consolidation of the CARCO Trust and
the Issuer into a single Entity or the transfer of assets in the CARCO Trust
to the Issuer after the termination of all series of Investor Certificates
(other than the Collateral Certificate); or
(i) if one or more additional Sellers under the Pooling and
Servicing Agreement are added to, or replaced under, the Pooling and Servicing
Agreement, or one or more additional Beneficiaries under the Trust Agreement
are added to, or replaced under, the Trust Agreement, to make any necessary
changes to the Indenture or any other related document; or
(j) to provide for the inclusion in the Owner Trust of
additional collateral (in addition to the Collateral Certificate) and the
issuance of Notes backed by any such additional collateral;
(k) to provide for additional or alternative credit
enhancement for any class of Notes; or
(l) if the Collateral Certificate is the only outstanding
Investor Certificate issued by the CARCO Trust, to dissolve the CARCO Trust
and terminate the Pooling and Servicing Agreement, permit the Issuer to
acquire the Receivables directly and enter into a sale and servicing agreement
that contains, to the extent applicable, the sale and servicing provisions of
the Pooling and Servicing Agreement and amend all documents to reflect the
direct ownership of the Receivables by the Issuer.
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Additionally, notwithstanding any provision of this Article
X to the contrary, this Indenture or any Indenture Supplement may be amended
without the consent of the Indenture Trustee or any of the Noteholders, upon
delivery of a CARCO Trust Tax Opinion and an Issuer Tax Opinion for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or any Indenture Supplement or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture or any Indenture Supplement; provided, however, that (i) the Issuer
shall deliver to the Indenture Trustee and the Owner Trustee an Officer's
Certificate to the effect that the Issuer reasonably believes that such
amendment will not have an Adverse Effect and is not reasonably expected to
have an Adverse Effect at any time in the future and (ii) the Note Rating
Agencies have provided written confirmation that such amendment will not have
a Ratings Effect.
Section 1002. Supplemental Indentures with Consent of
Noteholders. With prior notice to each applicable Note Rating Agency and the
consent of not less than 66 2/3% in Outstanding Dollar Principal Amount of
each class or classes affected by such amendment of this Indenture or any
Indenture Supplement or any supplemental indenture hereto or thereto by Act of
said Holders delivered to the Issuer and the Indenture Trustee, the Issuer and
the Indenture Trustee, upon delivery of a CARCO Trust Tax Opinion and an
Issuer Tax Opinion, may enter into an amendment of this Indenture or such
Indenture Supplement for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of, this Indenture or any
Indenture Supplement or of modifying in any manner the rights of the Holders
of the Notes of each such series or class under this Indenture or any
Indenture Supplement; provided, however, that no such amendment or
supplemental indenture will, without the consent of the Holder of each
Outstanding Note affected thereby:
(a) change the scheduled payment date of any payment of
interest on any Note, or change an Expected Principal Payment Date or Legal
Maturity Date of any Note;
(b) reduce the Stated Principal Amount of, or the interest
rate on any Note, or change the method of computing the Outstanding Dollar
Principal Amount, the Adjusted Outstanding Dollar Principal Amount or the
Nominal Liquidation Amount in a manner that is adverse to the Holder of any
Note;
(c) reduce the amount of a Discount Note payable upon the
occurrence of an Early Redemption Event or other optional or mandatory
redemption or upon the acceleration of its maturity;
(d) impair the right to institute suit for the enforcement
of any payment on any Note;
(e) reduce the percentage in Outstanding Dollar Principal
Amount of the Outstanding Notes of any series or class, the consent of whose
Holders is required for any such Indenture Supplement, or the consent of whose
Holders is required for any waiver of compliance with the provisions of this
Indenture or of defaults hereunder and their consequences, provided for in
this Indenture;
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(f) modify any of the provisions of this Section or Section
718, except to increase any percentage of Holders required to consent to any
such amendment or to provide that other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding Note
affected thereby;
(g) permit the creation of any lien or other encumbrance on
the Collateral that secures any class of Notes that is prior to the lien in
favor of the Holders of the Notes of such class;
(h) change any Place of Payment where any principal of, or
interest on, any Note is payable, unless otherwise provided in the applicable
Indenture Supplement;
(i) change the method of computing the amount of principal
of, or interest on, any Note on any date; or
(j) make any other amendment not permitted by Section 1001.
An amendment of this Indenture or an Indenture Supplement
which changes or eliminates any covenant or other provision of this Indenture
which has expressly been included solely for the benefit of one or more
particular series or class of Notes, or which modifies the rights of the
Holders of Notes of such series or class with respect to such covenant or
other provision, will be deemed not to affect the rights under this Indenture
of the Holders of Notes of any other series or class.
It will not be necessary for any Act of Noteholders under
this Section to approve the particular form of any proposed amendment or
supplemental indenture, but it will be sufficient if such Act will approve the
substance thereof.
Section 1003. Execution of Indenture Supplements. In
executing or accepting the additional trusts created by any amendment of this
Indenture or Indenture Supplement or any supplemental indenture hereto or
thereto permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Indenture Trustee will be entitled to receive,
and (subject to Section 801) will be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such amendment or
supplemental indenture is authorized or permitted by this Indenture and that
all conditions precedent thereto have been satisfied. The Indenture Trustee
may, but will not (except to the extent required in the case of an amendment
or supplemental indenture entered into under Section 1001(d) or 1001(f)) be
obligated to, enter into any such amendment or supplemental indenture which
affects the Indenture Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 1004. Effect of Indenture Supplements. Upon the
execution of any amendment of this Indenture or Indenture Supplement or any
supplemental indenture under this Article, this Indenture will be modified in
accordance therewith with respect to each series or class of Notes affected
thereby, or all Notes, as the case may be, and such amendment or supplemental
indenture will form a part of this Indenture for all purposes; and every
Holder of Notes theretofore or thereafter authenticated and delivered
hereunder will be bound thereby to the extent provided therein.
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Section 1005. Conformity with Trust Indenture Act. Every
amendment of this Indenture or Indenture Supplement or any supplemental
indenture executed pursuant to this Article will conform to the requirements
of the Trust Indenture Act as then in effect.
Section 1006. Reference in Notes to Indenture Supplements.
Notes authenticated and delivered after the execution of any amendment of this
Indenture or Indenture Supplement or any supplemental indenture pursuant to
this Article may, and will, if required by the Indenture Trustee, bear a
notation in form approved by the Indenture Trustee as to any matter provided
for in such amendment or supplemental indenture. If the Issuer will so
determine, new Notes so modified as to conform, in the opinion of the
Indenture Trustee and the Issuer, to any such amendment or supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
Section 1007. Amendments to the Pooling and Servicing
Agreement. By their acceptance of a Note, the Noteholders acknowledge that the
Seller and the CARCO Trust Trustee may amend the Pooling and Servicing
Agreement and any supplement thereto without the consent of the Holders of any
Investor Certificates (including the Issuer) or any Noteholder, so long as
such amendment or supplement would not materially adversely affect the
interest of the Holders of any Investor Certificates and the Indenture Trustee
shall have received written confirmation from each Note Rating Agency that
such amendment will not have a Ratings Effect.
For purposes of any vote or consent under the Pooling and
Servicing Agreement or any supplement thereto:
(i) that requires the consent or vote of each
Investor Certificateholder, each Noteholder will be treated as an
Investor Certificateholder under the Pooling and Servicing Agreement
and any related supplement thereto;
(ii) that requires the consent or vote of any series
of Investor Certificates, each series of Notes will be treated as a
series of Investor Certificates under the Pooling and Servicing
Agreement and any related supplement thereto; and
(iii) that requires the consent or vote of any class
of Investor Certificates, each class of Notes will be treated as a
class of Investor Certificates under the Pooling and Servicing
Agreement and any related supplement thereto.
By their acceptance of a Note, each Noteholder will be deemed to have
consented to any amendment to the Pooling and Servicing Agreement, the Series
2002-CC Supplement, the Trust Agreement and any other document or agreement
relating to any of the foregoing for the purpose of providing for the transfer
of Receivables from DCWR (or any additional seller under the Pooling and
Servicing Agreement) to a bankruptcy remote special purpose entity and from
such entity to the CARCO Trust and the substitution of a bankruptcy remote
special purpose entity as the beneficiary of the Issuer.
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Section 1008. Amendments to the Trust Agreement.
(a) Subject to the provisions of the Trust Agreement,
without the consent of the Holders of any Notes or the Indenture Trustee, the
Owner Trustee (at the written direction of the Beneficiary) and the
Beneficiary may amend the Trust Agreement so long as such amendment will not
have an Adverse Effect and is not reasonably expected to have an Adverse
Effect at any time in the future and the Indenture Trustee shall have received
written confirmation from each Note Rating Agency that such amendment will not
have a Ratings Effect.
(b) Subject to the provisions of the Trust Agreement, (A) in
the case of a significant change in the permitted activities of the Issuer
which is not materially adverse to Holders of the Notes, with the consent of
the Majority Holders of each class or classes of Notes affected by such
change, and (B) in all other cases, with the consent of the Holders of not
less than 662/3% in Outstanding Dollar Principal Amount of each class or
classes the Outstanding Notes affected by such amendment, by Act of said
Holders delivered to the CARCO Trust Trustee, DCWR and the Owner Trustee (at
the written direction of the Beneficiary) may amend the Trust Agreement for
the purpose of adding, changing or eliminating any provisions of the Trust
Agreement or of modifying the rights of those Noteholders.
Section 1009. Notice. If the Indenture Trustee, as holder of
the Collateral Certificate for the benefit of the Noteholders, receives a
request for a consent to any amendment, modification, waiver or supplement
under this Indenture, the Pooling and Servicing Agreement, the Trust Agreement
or other document contemplated herein, the Indenture Trustee will forthwith
provide notice of such proposed amendment, modification, waiver or supplement,
as provided in Section 106, to each Noteholder as of such date that is
entitled to vote on a consent to such matter and to each Note Rating Agency.
The Indenture Trustee will request from such Noteholders directions as to (i)
whether or not the Indenture Trustee should take or refrain from taking any
action which the holder of the Collateral Certificate has the option to
direct, (ii) whether or not to give or execute any waivers, consents,
amendments, modifications or supplements as a holder of such Collateral
Certificate and (iii) the casting of any vote with respect to the Collateral
Certificate or the Noteholders of a series or class if a vote has been called
for with respect thereto; provided, that, in directing any action or casting
any vote or giving any consent as the holder of the Collateral Certificate,
the Indenture Trustee will vote or consent with respect to such Collateral
Certificate the applicable series or class, as the case may be, in the same
proportion as the Notes were actually voted by Holders thereof as notified by
such Noteholders to the Indenture Trustee at least two (2) Business Days
before the Indenture Trustee takes such action or casts such vote or gives
such consent.
ARTICLE XI
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
Section 1101. Payment of Principal and Interest. With
respect to each series or class of Notes, the Issuer will duly and punctually
pay the principal of and interest on such Notes in accordance with their terms
and this Indenture, and will duly comply with all the other terms,
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agreements and conditions contained in, or made in this Indenture for the
benefit of, the Notes of such series or class.
Section 1102. Maintenance of Office or Agency. The Issuer
will maintain an office, agency or Paying Agent in each Place of Payment where
Notes may be presented or surrendered for payment, where Notes may be
surrendered for transfer or exchange and where notices and demands to or upon
the Issuer in respect of the Notes and this Indenture may be served. The
Issuer will give prompt written notice to the Indenture Trustee of the
location, and of any change in the location, of such office or agency. If at
any time the Issuer will fail to maintain such office or agency or will fail
to furnish the Indenture Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Indenture Trustee, and the Issuer hereby appoints the Indenture
Trustee its agent to receive all such presentations, surrenders, notices and
demands.
Section 1103. Money for Note Payments to be Held in Trust.
The Paying Agent, on behalf of the Indenture Trustee, will make distributions
to Noteholders from the Collection Account or other applicable Account
pursuant to the provisions of Article V of this Indenture or any Indenture
Supplement and will report the amounts of such distributions to the Indenture
Trustee. Any Paying Agent will have the revocable power to withdraw funds from
the Collection Account or other applicable Account for the purpose of making
the distributions referred to above. The Indenture Trustee may revoke such
power and remove the Paying Agent if the Indenture Trustee determines in its
sole discretion that the Paying Agent has failed to perform its obligations
under this Indenture or any Indenture Supplement in any material respect. The
Paying Agent upon removal will return all funds in its possession to the
Indenture Trustee.
The Issuer will cause each Paying Agent (other than the
Indenture Trustee) for any series or class of Notes to execute and deliver to
the Indenture Trustee an instrument in which such Paying Agent will agree with
the Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it
so agrees), subject to the provisions of this Section, that such Paying Agent
will:
(a) hold all sums held by it for the payment of principal of
or interest on Notes of such series or class in trust for the benefit of the
Persons entitled thereto until such sums will be paid to such Persons or
otherwise disposed of as herein provided;
(b) if such Paying Agent is not the Indenture Trustee, give
the Indenture Trustee notice of any default by the Issuer (or any other
obligor upon the Notes of such series or class) in the making of any such
payment of principal or interest on the Notes of such series or class;
(c) if such Paying Agent is not the Indenture Trustee, at
any time during the continuance of any such default, upon the written request
of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so
held in trust by such Paying Agent;
(d) immediately resign as a Paying Agent and, if such Paying
Agent is not the Indenture Trustee, forthwith pay to the Indenture Trustee all
sums held by it in trust for the
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payment of Notes if at any time it ceases to meet the standards described in
this Section required to be met by a Paying Agent at the time of its
appointment; and
(e) comply with all requirements of the Internal Revenue
Code with respect to the withholding from any payments made by it on any Notes
of any applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to any series or
class of Notes or for any other purpose, pay, or by an Officer's Certificate
direct any Paying Agent to pay, to the Indenture Trustee all sums held in
trust by the Issuer or such Paying Agent in respect of each and every series
or class of Notes as to which it seeks to discharge this Indenture or, if for
any other purpose, all sums so held in trust by the Issuer in respect of all
Notes, such sums to be held by the Indenture Trustee upon the same trusts as
those upon which such sums were held by the Issuer or such Paying Agent; and,
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent will be released from all further liability with respect to such money.
Any money deposited with the Indenture Trustee or any Paying
Agent, or then held by the Issuer, in trust for the payment of the principal
of or interest on any Note of any series or class and remaining unclaimed for
two years after such principal or interest has become due and payable will be
paid to the Issuer upon request in an Officer's Certificate, or (if then held
by the Issuer) will be discharged from such trust; and the Holder of such Note
will thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all liability of the Indenture Trustee or such Paying
Agent with respect to such trust money, and all liability of the Issuer as
trustee thereof, will thereupon cease. The Indenture Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of
the Issuer give notice to the Holders of the Notes as to which the money to be
repaid was held in trust, as provided in Section 106, a notice that such funds
remain unclaimed and that, after a date specified in the notice, which will
not be less than thirty (30) days from the date on which the notice was first
mailed or published to the Holders of the Notes as to which the money to be
repaid was held in trust, any unclaimed balance of such funds then remaining
will be paid to the Issuer free of the trust formerly impressed upon it.
The Issuer initially authorizes the Indenture Trustee to act
as Paying Agent for the Notes on its behalf. The Issuer may at any time and
from time to time authorize one or more Persons (including the Indenture
Trustee) to act as Paying Agent in addition to or in place of the Indenture
Trustee with respect to any series or class of Notes issued under this
Indenture.
Each Paying Agent will at all times have a combined capital
and surplus of at least $50,000,000 and be subject to supervision or
examination by a United States Federal or State authority or be regulated by
or subject to the supervision or examination of a governmental authority of a
nation that is member of the Organization for Economic Co-operation and
Development. If such Paying Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Paying Agent will be deemed
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to be its combined capital and surplus as set forth in its most recent report
of condition as so published.
Section 1104. Statement as to Compliance. The Issuer will
deliver to the Indenture Trustee and the Note Rating Agencies, on or before [
] of each year, beginning in 2003, a written statement signed by an Issuer
Authorized Officer stating that:
(a) a review of the activities of the Issuer during the
prior year and of the Issuer's performance under this Indenture and under the
terms of the Notes has been made under such Issuer Authorized Officer's
supervision; and
(b) to the best of such Issuer Authorized Officer's
knowledge, based on such review, the Issuer has complied in all material
respects with all conditions and covenants under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such
condition or covenant (without regard to any grace period or requirement of
notice), specifying each such default known to such Issuer Authorized Officer
and the nature and status thereof.
Section 1105. Legal Existence. The Issuer will do or cause
to be done all things necessary to preserve and keep in full force and effect
its legal existence.
Section 1106. Further Instruments and Acts. Upon request of
the Indenture Trustee, the Issuer will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Indenture.
Section 1107. Compliance with Laws. The Issuer will comply
with the requirements of all applicable laws, the noncompliance with which
would, individually or in the aggregate, materially and adversely affect the
ability of the Issuer to perform its obligations under the Notes or this
Indenture.
Section 1108. Notice of Events of Default. The Issuer agrees
to give the Indenture Trustee and the Note Rating Agencies prompt written
notice of each Event of Default hereunder and each default on the part of the
CARCO Trust or the Seller of its respective obligations under the Pooling and
Servicing Agreement and any default of a Derivative Counterparty.
Section 1109. Certain Negative Covenants. The Issuer will
not:
(a) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than amounts
withheld in good faith from such payments under the Internal Revenue Code or
other applicable tax law);
(b) permit the validity or effectiveness of this Indenture
to be impaired, or permit the lien in favor of the Indenture Trustee, the
Noteholders and any applicable Derivative Counterparty created by this
Indenture to be amended, hypothecated, subordinated, terminated or discharged,
or permit any Person to be released from any covenants or obligations with
respect to the Notes under this Indenture except as may be expressly permitted
hereby;
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(c) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien in favor of the
Indenture Trustee, the Noteholders and any applicable Derivative Counterparty
created by this Indenture) to be created on or extend to or otherwise arise
upon or burden the Collateral or any part thereof or any interest therein or
the proceeds thereof; or
(d) permit the lien in favor of the Indenture Trustee, the
Noteholders and any applicable Derivative Counterparty created by this
Indenture not to constitute a valid first priority security interest in the
Collateral; or
(e) voluntarily dissolve or liquidate.
Section 1110. No Other Business. The Issuer will not engage
in any business other than as permitted under the Trust Agreement.
Section 1111. No Borrowing. The Issuer will not issue,
incur, assume, guarantee or otherwise become liable, directly or indirectly,
for any indebtedness for borrowed money except for the Notes.
Section 1112. Rule 144A Information. For so long as any of
the Notes of any series or class are "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Exchange Act, the Issuer agrees
to provide to any Noteholder of such series or class and to any prospective
purchaser of Notes designated by such Noteholder, upon the request of such
Noteholder or prospective purchaser, any information required to be provided
to such Holder or prospective purchaser to satisfy the conditions set forth in
Rule 144A(d)(4) under the Securities Exchange Act.
Section 1113. Performance of Obligations.
(a) The Issuer will not take any action and will use its
best efforts not to permit any action to be taken by others that would release
any Person from any of such Person's material covenants or obligations under
any instrument or agreement included in the Collateral or that would result in
the amendment, hypothecation, subordination, termination or discharge of, or
impair the validity or effectiveness of, any such instrument or agreement,
except as expressly provided in this Indenture, the Trust Agreement or such
other instrument or agreement.
(b) The Issuer will punctually perform and observe all of
its obligations and agreements contained in this Indenture, any Indenture
Supplement, the Trust Agreement and in the instruments and agreements relating
to the Collateral, including but not limited to filing or causing to be filed
all UCC financing statements and continuation statements required to be filed
by the terms of this Indenture and the Trust Agreement in accordance with and
within the time periods provided for herein and therein. Except as otherwise
expressly provided herein or therein, the Issuer shall not waive, amend,
modify, supplement or terminate this Indenture, any Indenture Supplement or
the Trust Agreement or any provision thereof without the consent of the
Holders of a majority of the Outstanding Amount of the Notes of each adversely
affected series or class. The Issuer may contract with other Persons to assist
it in performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Indenture Trustee in an Officer's
Certificate of the Issuer shall be deemed to be action taken by the Issuer.
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Initially, the Issuer has contracted with the Administrator to assist the
Issuer in performing its duties under this Indenture.
(c) Without derogating from the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the rights
of the Indenture Trustee hereunder, the Issuer agrees (i) that it will not,
without the prior written consent of the Indenture Trustee and a majority in
Outstanding Amount of the Notes of each affected series or class, amend,
modify, waive, supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms of
any Collateral (except to the extent otherwise provided in this Indenture or
the Trust Agreement), or waive timely performance or observance by the
Servicer of its obligations under the Pooling and Servicing Agreement; and
(ii) that any such amendment, modification, waiver, supplement, termination or
surrender shall not (A) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on the Receivables
or distributions that are required to be made for the benefit of the
Noteholders or (B) reduce the aforesaid percentage of the Notes that is
required to consent to any such amendment, modification, waiver, supplement,
termination or surrender without the consent of the Holders of all the
Outstanding Notes. If any such amendment, modification, waiver, supplement,
termination or surrender shall be so consented to by the Indenture Trustee and
such Noteholders, the Issuer agrees to execute and deliver, in its own name
and at its own expense, such agreements, instruments, consents and other
documents as are necessary or appropriate in the circumstances.
Section 1114. Issuer May Consolidate, Etc., Only on Certain
Terms.
(a) The Issuer shall not consolidate or merge with or into
any other Person, unless:
(1) the Person (if other than the Issuer) formed by
or surviving such consolidation or merger (i) shall be a Person
organized and existing under the laws of the United States of America
or any state or the District of Columbia, (ii) shall not be subject
to regulation as an "investment company" under the Investment Company
Act and (iii) shall expressly assume, by an Indenture Supplement,
executed and delivered to the Indenture Trustee, in a form
satisfactory to the Indenture Trustee, the due and punctual payment
of the principal of and interest on all Notes and the performance of
every covenant of this Indenture on the part of the Issuer to be
performed or observed;
(2) immediately after giving effect to such
transaction, no Event of Default or Early Amortization Event shall
have occurred and be continuing;
(3) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel
each stating that (i) such consolidation or merger and such Indenture
Supplement comply with this Section 1114, (ii) all conditions
precedent in this Section 1114 relating to such transaction have been
complied with (including any filing required by the Securities
Exchange Act), and (iii) such Indenture Supplement is duly
authorized, executed and delivered and is valid, binding and
enforceable against such person;
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(4) the Issuer shall have received written
confirmation from each Note Rating Agency that there will be no
Ratings Effect with respect to any Outstanding Notes as a result of
such consolidation or merger;
(5) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the Indenture
Trustee) to the effect that such transaction will not have any
material adverse tax consequence to any Noteholder; and
(6) any action that is necessary to maintain
the lien and security interest created by this Indenture shall have
been taken; and
(7) such action shall not be contrary to the status
of the Issuer as a qualified special purpose entity under existing
accounting literature.
(b) The Issuer shall not convey or transfer any of its
properties or assets, including those included in the Collateral,
substantially as an entirety to any Person, unless:
(1) the Person that acquires by conveyance or
transfer the properties and assets of the Issuer the conveyance or
transfer of which is hereby restricted shall (A) be a United States
citizen or a Person organized and existing under the laws of the
United States of America or any state, or the District of Columbia,
(B) expressly assume, by an Indenture Supplement, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the due and punctual payment of the principal of
and interest on all Notes and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to
be performed or observed, all as provided herein, (C) expressly agree
by means of such Indenture Supplement that all right, title and
interest so conveyed or transferred shall be subject and subordinate
to the rights of Holders of the Notes, (D) unless otherwise provided
in such Indenture Supplement, expressly agree to indemnify, defend
and hold harmless the Issuer against and from any loss, liability or
expense arising under or related to this Indenture and the Notes, (E)
expressly agree by means of such Indenture Supplement that such
Person (or if a group of Persons, then one specified Person) shall
make all filings with the Commission (and any other appropriate
Person) required by the Securities Exchange Act in connection with
the Notes and (F) not be an "investment company" as defined in the
Investment Company Act;
(2) immediately after giving effect to such
transaction, no Event of Default or Early Amortization Event shall
have occurred and be continuing;
(3) the Issuer shall have received written
confirmation from each Note Rating Agency that there will be no
Ratings Effect with respect to any Outstanding Notes as a result of
such conveyance or transfer;
(4) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the Indenture
Trustee) to the effect that such transaction will not have any
material adverse tax consequence to any Noteholder;
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(5) any action that is necessary to maintain
the lien and security interest created by this Indenture shall have
been taken; and
(6) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such conveyance or transfer and such Indenture
Supplement comply with this Section 1114 and that all conditions
precedent herein provided for relating to such transaction have been
complied with (including any filing required by the Securities
Exchange Act).
Section 1115. Successor Substituted. Upon any consolidation
or merger, or any conveyance or transfer of the properties and assets of the
Issuer substantially as an entirety in accordance with Section 1114 hereof,
the Person formed by or surviving such consolidation or merger (if other than
the Issuer) or the Person to which such conveyance or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Issuer under this Indenture with the same effect as if such Person had
been named as the Issuer herein. In the event of any such conveyance or
transfer, the Person named as the Issuer in the first paragraph of this
Indenture or any successor which shall theretofore have become such in the
manner prescribed in this Section 1115 shall be released from its obligations
under this Indenture as issued immediately upon the effectiveness of such
conveyance or transfer, provided that the Issuer shall not be released from
any obligations or liabilities to the Indenture Trustee or the Noteholders
arising prior to such effectiveness.
Section 1116. Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by this Indenture or the Trust Agreement,
the Issuer shall not make any loan or advance or credit to, or guarantee
(directly or indirectly or by an instrument having the effect of assuring
another's payment or performance on any obligation or capability of so doing
or otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any
stock, obligations, assets or securities of, or any other interest in, or make
any capital contribution to, any other Person.
Section 1117. Capital Expenditures. The Issuer shall not
make any expenditure (by long-term or operating lease or otherwise) for
capital assets (either realty or personalty).
Section 1118. Restricted Payments. The Issuer shall not,
directly or indirectly, (i) pay any dividend or make any distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, to the Owner Trustee or any owner of a beneficial
interest in the Issuer or otherwise with respect to any ownership or equity
interest or security in or of the Issuer or to the Servicer, (ii) redeem,
purchase, retire or otherwise acquire for value any such ownership or equity
interest or security or (iii) set aside or otherwise segregate any amounts for
any such purpose; provided, however, that the Issuer may make, or cause to be
made, (x) distributions as contemplated by, and to the extent funds are
available for such purpose under, the Trust Agreement and (y) payments to the
Indenture Trustee pursuant to Section 807 hereof. The Issuer will not,
directly or indirectly, make payments to or distributions from the Collection
Account except in accordance with this Indenture or any Indenture Supplement.
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Section 1119. Representations and Warranties as to the
Security Interest of the Indenture Trustee in the Collateral Certificate. The
Issuer makes the following representations and warranties to the Indenture
Trustee. The representations and warranties speak as of the execution and
delivery of this Indenture and as of the issuance date of each series of Notes
and shall survive the pledge of the Collateral Certificate to the Indenture
Trustee pursuant to this Indenture.
(a) This Indenture creates a valid and continuing security
interest (as defined in the UCC) in the Collateral Certificate in favor of the
Indenture Trustee, which security interest is prior to all other liens and
security interests, and is enforceable as such as against creditors of and
purchasers from the Issuer.
(b) The Collateral Certificate constitutes a "certificated
security" within the meaning of Article 8 of the UCC.
(c) The Issuer owns and has good and marketable title to the
Collateral Certificate free and clear of any lien, claim or encumbrance of any
Person (other than the Indenture Trustee).
(d) The Issuer has caused or will have caused, within ten
days after the date of execution of this Indenture, the filing of all
appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the
security interest in the Collateral Certificate granted to the Issuer
hereunder.
(e) Other than the security interest granted to the
Indenture Trustee pursuant to this Indenture, the Issuer has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any of
the Collateral Certificate. The Issuer has not authorized the filing of and is
not aware of any financing statements against the Issuer that include a
description of collateral covering the Collateral Certificate other than any
financing statement relating to the security interest granted to the Indenture
Trustee hereunder or that has been terminated. The Issuer is not aware of any
judgment or tax lien filings against it.
(f) The Issuer has caused the Collateral Certificate to be
registered in the name of the Indenture Trustee and has delivered the
Collateral Certificate to the Indenture Trustee.
Section 1120. Derivative Instruments. If the Issuer enters
into any interest rate swap or derivative instrument (each, a "derivative
instrument") in connection with its issuance of a series of Notes, such
derivative instrument shall be entered into at the time of issuance of such
series of Notes, at the time of issuance shall not have a notional amount in
excess of the Stated Principal Amount of such Notes and is not thereafter
expected to exceed such Stated Principal Amount outstanding from time to time,
shall not require the Issuer to make discretionary decisions (other than
decisions relating to the servicing of the Receivables) and shall have
characteristics that relate to and are intended to hedge (partly or fully)
against some risk or risks related to such series of Notes or the Receivables
or Eligible Investments.
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ARTICLE XII
EARLY REDEMPTION OF NOTES
Section 1201. Applicability of Article. Unless otherwise
specified in the applicable Indenture Supplement related to a series or class
of Notes, pursuant to the terms of this Article, the Issuer will redeem and
pay, provided that funds are available, each affected series or class of Notes
upon the occurrence of any Early Redemption Event. Unless otherwise specified
in the applicable Indenture Supplement relating to a series or class of Notes,
or in the form of Notes for such series or class, the following are "Early
Redemption Events":
(a) with respect to any class of Notes, the occurrence of
the Expected Principal Payment Date of such Note;
(b) the occurrence of any Early Amortization Event as
defined in the Pooling and Servicing Agreement or as described in the Series
2002-CC Supplement;
(c) the Issuer becomes an investment company within the
meaning of the Investment Company Act; or
(d) with respect to any series or class of Notes, any
additional Early Redemption Event specified in the Indenture Supplement for
such series or class as applying to such series or class.
The redemption price of a class of Notes so redeemed will
equal the Outstanding Dollar Principal Amount of such class, plus interest
accrued and unpaid to but excluding the date of redemption, the payment of
which will be subject to Article V, Article VII and the allocations, deposits
and payments sections of the related Indenture Supplement.
If the Issuer is unable to pay the redemption price in full
on the Monthly Principal Accrual Date following the end of the Monthly Period
in which the Early Redemption Event occurs, monthly payments on such class of
Notes will thereafter be made on each following Monthly Principal Accrual Date
until the Outstanding Dollar Principal Amount of such class, plus all accrued
and unpaid interest, is paid in full or the Legal Maturity Date occurs,
whichever is earlier, subject to Article V, Article VII and the allocations,
deposits and payments provisions of the related Indenture Supplement. Any
funds in any Supplemental Account for a redeemed class will be applied to make
the principal and interest payments on that class on the redemption date,
subject to Article V, Article VII and the allocations, deposits and payments
sections of the related Indenture Supplement. Principal payments on redeemed
classes will be made first to the senior-most Notes until paid in full, then
to the subordinated Notes, if any, until paid in full.
Section 1202. Optional Repurchase. Unless otherwise provided
in the applicable Indenture Supplement for a series or class of Notes, the
Servicer has the right, but not the obligation, to redeem a series or class of
Notes in whole but not in part on any day on or after the day on which the
aggregate Nominal Liquidation Amount of such series or class is reduced to
less than 10% of its Initial Dollar Principal Amount; provided, however, that
if such series or class of Notes is of a subordinated class, the Servicer will
not redeem such Notes if the provisions of the related Indenture Supplement
would prevent the payment of such subordinated
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Note until a level of prefunding of the principal funding sub-accounts for the
senior classes of Notes for that series has been reached such that the amount
of such deficiency in the required subordination of a senior class of Notes is
no longer required to provide subordination protection for the senior classes
of that series. If the Servicer elects to redeem a series or class of Notes,
it will cause the Issuer to notify the Holders of such redemption at least
thirty (30) days prior to the redemption date. The redemption price of a
series or class so redeemed will equal the Outstanding Dollar Principal Amount
of such class, plus interest accrued and unpaid or principal accreted and
unpaid on such class to but excluding the date of redemption, the payment of
which will be subject to Article V, Article VII and the allocations, deposits
and payments provisions of the related Indenture Supplement.
If the Servicer is unable to pay the redemption price in
full on the redemption date, monthly payments on such class of Notes will
thereafter be made until the Outstanding Dollar Principal Amount of such
class, plus all accrued and unpaid interest, is paid in full or the Legal
Maturity Date occurs, whichever is earlier, subject to Article V, Article VII
and the allocations, deposits and payments provisions of the related Indenture
Supplement. Any funds in any Supplemental Account for a redeemed class will be
applied to make the principal and interest payments on that class on the
redemption date in accordance with the related Indenture Supplement. Principal
payments on redeemed classes will be made in accordance with the related
Indenture Supplement.
Section 1203. Notice. Promptly after the occurrence of any
Early Redemption Event or a redemption pursuant to Section 1202, the Issuer
will notify the Indenture Trustee and the Note Rating Agencies in writing of
the identity, Stated Principal Amount and Outstanding Dollar Principal Amount
of the affected series or class of Notes to be redeemed. Notice of redemption
will promptly be given as provided in Section 106. All notices of redemption
will state (a) the date on which the redemption of the applicable series or
class of Notes pursuant to this Article will begin, which will be the
Principal Payment Date next following the end of the Monthly Period in which
the applicable Early Redemption Event or redemption pursuant to Section 1202
occurs, (b) the redemption price for such series or class of Notes, which will
be equal to the Outstanding principal amount of such series or class plus
interest accrued or principal accreted and unpaid (if any), the payment of
which will be subject to Article V, Article VII and the allocations, deposits
and payments provisions of the related Indenture Supplement and (c) the series
or class of Notes to be redeemed pursuant to this Article.
ARTICLE XIII
COLLATERAL
Section 1301. Recording, Etc.
(a) The Issuer intends the Security Interest granted
pursuant to this Indenture in favor of the Indenture Trustee to be prior to
all other liens in respect of the Collateral. Subject to Section 1303, the
Issuer will take all actions necessary to obtain and maintain a perfected lien
on and security interest in the Collateral in favor of the Indenture Trustee.
The Issuer will from time to time execute and deliver all such supplements and
amendments hereto and all such financing statements, continuation statements,
instruments of further assurance and other
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instruments, all as prepared by the Issuer, and will take such other action
necessary or advisable to:
(i) grant a Security Interest more effectively in
all or any portion of the Collateral;
(ii) maintain or preserve the Security Interest
(and the priority thereof) created by this Indenture or carry out
more effectively the purposes hereof;
(iii) perfect, publish notice of or protect the
validity of any grant made or to be made by this Indenture;
(iv) enforce the Collateral Certificate, the
Derivative Agreements and each other instrument or agreement included
in the Collateral;
(v) preserve and defend title to the Collateral and
the rights of the Indenture Trustee in such Collateral against the
claims of all persons and parties; or
(vi) pay all taxes or assessments levied or assessed
upon the Collateral when due.
(b) The Issuer will from time to time promptly pay and
discharge all financing and continuation statement recording and/or filing
fees, charges and taxes relating to this Indenture, any amendments thereto and
any other instruments of further assurance. The Issuer hereby designates the
Indenture Trustee its agent and attorney-in-fact to execute upon the Issuer's
failure to do so, any financing statement, continuation statement or other
instrument required by the Indenture Trustee pursuant to this Section.
(c) Without limiting the generality of clauses (a)(ii) or
(a)(iii):
(i) The Issuer will cause this Indenture, all
amendments and supplements hereto and/or all financing statements and
continuation statements and any other necessary documents covering
the Indenture Trustee's right, title and interest to the Collateral
to be promptly recorded, registered and filed, and at all times to be
kept, recorded, registered and filed, all in such manner and in such
places as may be required by law fully to preserve and protect the
right, title and interest of the Indenture Trustee to all property
comprising the Collateral. The Issuer will deliver to the Indenture
Trustee file-stamped copies of, or filing receipts for, any document
recorded, registered or filed as provided above, as soon as available
following such recording, registration or filing.
(ii) Within 30 days after the Issuer makes any
change in its name, identity or corporate structure which would make
any financing statement or continuation statement filed in accordance
with paragraph (d)(i) seriously misleading within the meaning of
Section 9-507 or 9-508 (or any comparable provision) of the UCC, the
Issuer will give the Indenture Trustee notice of any such change and
will file such financing statements or amendments as may be necessary
to continue the perfection of the Indenture Trustee's security
interest in the Collateral.
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(d) The Issuer will give the Indenture Trustee prompt notice
of any relocation of its chief executive office, place of business or State of
location, and any change in the jurisdiction of its organization, and whether,
as a result of such relocation or change, the applicable provision of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and will file such
financing statements or amendments as may be necessary to perfect or to
continue the perfection of the Indenture Trustee's security interest in the
Collateral. The Issuer will at all times maintain its chief executive office
within the United States.
(e) The duty of the Indenture Trustee to execute any
instrument required pursuant to this Section will arise only if the Indenture
Trustee has knowledge of the type described in Section 701(c) of any default
of the Issuer in complying with the provisions of this Section.
Section 1302. Trust Indenture Act Requirements. The release
of any Collateral from the lien created by this Indenture or the release of,
in whole or in part, such liens, will not be deemed to impair the Security
Interests in contravention of the provisions hereof if and to the extent the
Collateral or liens are released pursuant to the terms hereof. The Indenture
Trustee and each of the Noteholders and any applicable Derivative Counterparty
acknowledge that a release of Collateral or liens in accordance with the terms
hereof will not be deemed for any purpose to be an impairment of the Security
Interests in contravention of the terms of this Indenture. To the extent
applicable, without limitation, the Issuer and each other obligor on the Notes
will cause Trust Indenture Act Section 314(d) relating to the release of
property or securities from the liens hereof to be complied with. Any
certificate or opinion required by Trust Indenture Act Section 314(d) may be
made by an officer of the appropriate obligor, except in cases in which Trust
Indenture Act Section 314(d) requires that such certificate or opinion be made
by an independent person.
Section 1303. Suits To Protect the Collateral. Subject to
the provisions of this Indenture, the Indenture Trustee will have power to
institute and to maintain such suits and proceedings as it may deem expedient
to prevent any impairment of the Collateral by any acts which may be unlawful
or in violation of this Indenture, and such suits and proceedings as the
Indenture Trustee may deem expedient to preserve or protect the interests of
the Noteholders and any applicable Derivative Counterparty and the interests
of the Indenture Trustee and the Holders of the Notes in the Collateral
(including power to institute and maintain suits or proceedings to restrain
the enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or order would
impair the Security Interests or be prejudicial to the interests of the
Holders of the Notes or the Indenture Trustee). No counterparties to a
Derivative Agreement may direct the Indenture Trustee to enforce the Security
Interest. Each Derivative Counterparty's rights consist solely of the right to
receive collections allocated for its benefit pursuant to the related
Indenture Supplement.
Section 1304. Purchaser Protected. In no event will any
purchaser in good faith of any property purported to be released hereunder be
bound to ascertain the authority of the Indenture Trustee to execute the
release or to inquire as to the satisfaction of any conditions required by the
provisions hereof for the exercise of such authority or to see to the
application of
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any consideration given by such purchaser or other transferee; nor will any
purchaser or other transferee of any property or rights permitted by this
Article to be sold be under any obligation to ascertain or inquire into the
authority of the Issuer or any other obligor, as applicable, to make any such
sale or other transfer.
Section 1305. Powers Exercisable by Receiver or Trustee. In
case the Collateral shall be in the possession of a receiver or trustee,
lawfully appointed, the powers conferred in this Article upon the Issuer or
any other obligor, as applicable, with respect to the release, sale or other
disposition of such property may be exercised by such receiver or trustee, and
an instrument signed by such receiver or trustee shall be deemed the
equivalent of any similar instrument of the Issuer or any other obligor, as
applicable, or of any officer or officers thereof required by the provisions
of this Article.
Section 1306. Determinations Relating to Collateral. In the
event (i) the Indenture Trustee shall receive any written request from the
Issuer or any other obligor for consent or approval with respect to any matter
or thing relating to any Collateral or the Issuer's or any other obligor's
obligations with respect thereto or (ii) there shall be due to or from the
Indenture Trustee under the provisions hereof any performance or the delivery
of any instrument or (iii) the Indenture Trustee shall become aware of any
nonperformance by the Issuer or any other obligor of any covenant or any
breach of any representation or warranty of the Issuer or any other obligor
set forth in this Indenture, then, in each such event, the Indenture Trustee
shall be entitled to hire experts, consultants, agents and attorneys to advise
the Indenture Trustee on the manner in which the Indenture Trustee should
respond to such request or render any requested performance or response to
such nonperformance or breach (the expenses of which will be reimbursed to the
Agent and the Indenture Trustee pursuant to Section 807). The Indenture
Trustee will be fully protected in the taking of any action recommended or
approved by any such expert, consultant, agent or attorney or agreed to by the
Majority Holders of the Outstanding Notes.
Section 1307. Release of Collateral.
(a) Subject to the payment of its fees and expenses pursuant
to Section 807, the Indenture Trustee will, at the request of the Issuer or
when otherwise required by the provisions of this Indenture, execute
instruments to release property from the lien of this Indenture, or convey the
Indenture Trustee's interest in the same, in a manner and under circumstances
which are not inconsistent with the provisions of this Indenture. No party
relying upon an instrument executed by the Indenture Trustee as provided in
this Article will be bound to ascertain the Indenture Trustee's authority,
inquire into the satisfaction of any conditions precedent or see to the
application of any funds.
(b) Upon delivery of an Officer's Certificate certifying
that the Issuer's obligations under this Indenture have been satisfied and
discharged by complying with the provisions of this Article, the Indenture
Trustee will (i) execute and deliver such releases, termination statements and
other instruments (in recordable form, where appropriate) as the Issuer or any
other obligor, as applicable, may reasonably request evidencing the
termination of the Security Interests created by this Indenture and (ii) not
to be deemed to hold the Security
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Interests for the benefit of the Indenture Trustee, the Noteholders and any
applicable Derivative Counterparty.
(c) DCWR and the Noteholders will be entitled to receive at
least ten (10) days written notice when the Indenture Trustee proposes to take
any action pursuant to clause (a), accompanied by copies of any instruments
involved, and the Indenture Trustee will also be entitled to require, as a
condition to such action, an Opinion of Counsel, stating the legal effect of
any such action, outlining the steps required to complete the same, and
concluding that all conditions precedent to the taking of such action have
been complied with. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Indenture Trustee in connection with any
such action.
Section 1308. Certain Actions by Indenture Trustee. Any
action taken by the Indenture Trustee pursuant to this Article in respect of
the release of Collateral will be taken by the Indenture Trustee as its
interest in such Collateral may appear, and no provision of this Article is
intended to, or will, excuse compliance with any provision hereof.
Section 1309. Opinions as to Collateral.
(a) On the Effective Date, the Issuer will furnish to the
Indenture Trustee an Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the recording and
filing of this Indenture, any indentures supplemental hereto, and any other
requisite documents, and with respect to the execution and filing of any
financing statements and continuation statements, as are necessary to perfect
and maintain the perfection of the Security Interest granted by this Indenture
in favor of the Indenture Trustee and reciting the details of such action, or
stating that, in the opinion of such counsel, no such action is necessary to
make such lien and security interest perfected.
(b) On or before March 31 in each calendar year, beginning
in 2003, the Issuer will furnish to the Indenture Trustee an Opinion of
Counsel with respect to each Uniform Commercial Code financing statement which
has been filed by the Issuer either stating that, (i) in the opinion of such
counsel, such action has been taken with respect to the recording, filing,
re-recording and refiling of this Indenture, any indentures supplemental
hereto and any other requisite documents and with respect to the execution and
filing of any financing statements and continuation statements as is necessary
to maintain the first priority lien and Security Interest created by this
Indenture and reciting the details of such action or (ii) in the opinion of
such counsel no such action is necessary to maintain such lien and Security
Interest. Such Opinion of Counsel will also describe the recording, filing,
re-recording and refiling of this Indenture, any indentures supplemental
hereto and any other requisite documents and the execution and filing of any
financing statements and continuation statements that will, in the opinion of
such counsel, be required to maintain the lien and Security Interest of this
Indenture until March 31 in the following calendar year.
Section 1310. Delegation of Duties. The Issuer may contract
with or appoint other Persons (including DCWR and its Affiliates) to assist it
in performing its duties under this
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Indenture, and any performance of such duties by a Person identified to the
Indenture Trustee in an Officer's Certificate will be deemed to be action
taken by the Issuer.
ARTICLE XIV
MISCELLANEOUS
Section 1401. No Petition. The Indenture Trustee, by
entering into this Indenture, each Derivative Counterparty, by designating
that the obligations of the Issuer pursuant to the applicable Derivative
Agreement are secured by the Collateral, and each Noteholder, by accepting a
Note, agrees that it will not at any time institute against DCWR, the CARCO
Trust or the Issuer, or join in any institution against DCWR, the CARCO Trust
or the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Notes, this Indenture or any Derivative Agreement.
Section 1402. Trust Obligations. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer on the
Notes or under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against (i) the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer or the Owner Trustee or of any successor or
assign of the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed (it being understood that the Owner Trustee
has no such obligations in its individual capacity).
Section 1403. Limitations on Liability.
(a) It is expressly understood and agreed by the parties
hereto that (i) this Indenture is executed and delivered by the Beneficiary
not individually or personally but solely as Beneficiary, in the exercise of
the powers and authority conferred and vested in it, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as a personal representation, undertaking or
agreement by the Beneficiary but is made and intended for the purpose of
binding only the Issuer, (iii) nothing herein contained will be construed as
creating any liability on the Beneficiary individually or personally, to
perform any covenant of the Issuer either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties to
this Indenture and by any Person claiming by, through or under them and (iv)
under no circumstances will the Beneficiary be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Indenture or any related documents.
(b) None of the Indenture Trustee, the Owner Trustee, DCWR
or any other beneficiary of the Issuer or any of their respective officers,
directors, employers or agents will have any liability with respect to this
Indenture, and recourse may be had solely to the Collateral pledged to secure
the Notes issued by Daimler Chrysler Master Owner Trust.
83
Section 1404. Tax Treatment. The Issuer and the Noteholders
agree that the Notes are intended to be debt of DCWR for federal, state and
local income, franchise and single business tax purposes and agree to treat
the Notes accordingly for all such purposes, unless otherwise required by a
taxing authority.
Section 1405. Actions Taken by the Issuer. Any and all
actions that are to be taken by the Issuer may be taken by either the
Beneficiary or the Owner Trustee on behalf of the Issuer.
Section 1406. Alternate Payment Provisions. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the
Issuer, with the written consent of the Indenture Trustee, may enter into any
agreement with any Holder of a Note providing for a method of payment or
notice that is different from the methods provided for in this Indenture for
such payments or notices. The Issuer will furnish to the Indenture Trustee a
copy of each such agreement and the Indenture Trustee will cause payments or
notices, as applicable, to be made in accordance with such agreements.
Section 1407. Termination of Issuer. The Issuer and the
respective obligations and responsibilities of the Indenture Trustee created
hereby (other than the obligation of the Indenture Trustee to make payments to
Noteholders as hereinafter set forth) shall terminate, except with respect to
the duties described in Section 1408(b), as provided in the Trust Agreement.
Section 1408. Final Distribution.
(a) The Servicer shall give the Indenture Trustee at least
thirty (30) days prior written notice of the Payment Date on which the
Noteholders of any series or class may surrender their Notes for payment of
the final distribution on and cancellation of such Notes. Not later than the
fifth day of the month in which the final distribution in respect of such
Series or Class is payable to Noteholders, the Indenture Trustee shall provide
notice to Noteholders of such series or class specifying (i) the date upon
which final payment of such series or class will be made upon presentation and
surrender of Notes of such series or class at the office or offices therein
designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such payment date is not applicable,
payments being made only upon presentation and surrender of such Notes at the
office or offices therein specified (which, in the case of Bearer Notes, shall
be outside the United States). The Indenture Trustee shall give such notice to
the Note Registrar and the Paying Agent at the time such notice is given to
Noteholders.
(b) Notwithstanding a final distribution to the Noteholders
of any series or class (or the termination of the Issuer), except as otherwise
provided in this paragraph, all funds then on deposit in any Account allocated
to such Noteholders shall continue to be held in trust for the benefit of such
Noteholders, and the Paying Agent or the Indenture Trustee shall pay such
funds to such Noteholders upon surrender of their Notes, if certificated. In
the event that all such Noteholders shall not surrender their Notes for
cancellation within six (6) months after the date specified in the notice from
the Indenture Trustee described in paragraph (a), the Indenture Trustee shall
give a second notice to the remaining such Noteholders to surrender their
Notes for cancellation and receive the final distribution with respect thereto
(which surrender and payment,
84
in the case of Bearer Notes, shall be outside the United States). If within
one year after the second notice all such Notes shall not have been
surrendered for cancellation, the Indenture Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact the
remaining such Noteholders concerning surrender of their Notes, and the cost
thereof shall be paid out of the funds in the Collection Account or any
Supplemental Account held for the benefit of such Noteholders. The Indenture
Trustee and the Paying Agent shall pay to the Issuer any monies held by them
for the payment of principal or interest that remains unclaimed for two (2)
years. After payment to the Issuer, Noteholders entitled to the money must
look to the Issuer for payment as general creditors unless an applicable
abandoned property law designates another Person.
Section 1409. Termination Distributions. Upon the
termination of the Issuer pursuant to the terms of the Trust Agreement, the
Indenture Trustee shall release, assign and convey to the Beneficiary or any
of its designees, without recourse, representation or warranty, all of its
right, title and interest in the Collateral, whether then existing or
thereafter created, all monies due or to become due and all amounts received
or receivable with respect thereto (including all moneys then held in any
Account) and all proceeds thereof, except for amounts held by the Indenture
Trustee pursuant to Section 1408(b). The Indenture Trustee shall execute and
deliver such instruments of transfer and assignment as shall be provided to
it, in each case without recourse, as shall be reasonably requested by the
Beneficiary to vest in the Beneficiary or any of its designees all right,
title and interest which the Indenture Trustee had in the Collateral and such
other property.
Section 1410. Derivative Counterparty as Third-Party
Beneficiary. Each Derivative Counterparty is a third-party beneficiary of this
Indenture to the extent specified in the applicable Derivative Agreement or
Indenture Supplement.
[END OF ARTICLE XIV]
85
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
DAIMLER CHRYSLER MASTER OWNER TRUST, by DaimlerChrysler
Wholesale Receivables LLC, as Beneficiary
By:
----------------------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Indenture Trustee and not in its
individual capacity
By:
----------------------------------------------------
Name:
Title:
Acknowledged and Accepted:
DAIMLERCHRYSLER SERVICES
NORTH AMERICA LLC,
as Servicer
By: _______________________________
Name:
Title:
86
EXHIBIT A
[FORM OF] PAYMENT INSTRUCTION
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC
DAIMLERCHRYSLER MASTER OWNER TRUST
Unless otherwise indicated, capitalized terms used in this Payment
Instruction have their respective meanings set forth in the
Indenture; provided, that the "preceding Monthly Period" shall mean
the Monthly Period immediately preceding the calendar month in which
this Payment Instruction is delivered. This Payment Instruction is
delivered pursuant to Section 908 of the Indenture.
The date of this Payment Instruction is a Transfer Date.
I. Allocations of Available Interest Amounts:
A. Available Interest Amounts paid to Series [______].... $______
[B. Available Interest Amounts paid to Series [______].... $______
C. Available Interest Amounts paid to Series [______].... $______
Total $______]
II. Allocations of Available Principal Amounts:
A. Available Principal Amounts paid to Series [____]..... $______
[B. Available Principal Amounts paid to Series [____]..... $______
C. Available Principal Amounts paid to Series [____]..... $______
Total $______]
A-1
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this Payment Instruction this ____ day of __________, ____.
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC,
as Beneficiary of the Daimler Chrysler Master Owner
Trust
By DaimlerChrysler Services (North America) LLC, as
Servicer on behalf of the Beneficiary
By:
--------------------------------------------
Name:
Title:
A-2
Schedule to Payment Instruction*
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC
DAIMLERCHRYSLER MASTER OWNER TRUST
* A separate schedule is to be attached for each series, with
appropriate changes and additions to reflect the specifics of the
related Indenture Supplement.
A-3
EXHIBIT B
[FORM OF] MONTHLY NOTEHOLDERS' STATEMENT
Date: ______ __, ____
DAIMLER CHRYSLER MASTER OWNER TRUST
MONTHLY PERIOD ENDING _______ __, ____
Reference is made to the Series 2002-CC Supplement (the
"Series 2002-CC Supplement"), dated as of December __, 2001, between
DaimlerChrysler Wholesale Receivables LLC, as Seller, DaimlerChrysler Services
(North America) LLC, as Servicer, and The Bank of New York, as Trustee, and
the Indenture (the "Indenture"), dated as of December __, 2001, between
Daimler Chrysler Master Owner Trust, as Issuer, and [ ], as Indenture Trustee.
Terms used herein and not defined herein have the meanings ascribed to them in
the Series 2002-CC Supplement, the Indenture and the related Indenture
Supplements, as applicable.
The following computations are prepared with respect to the
Transfer Date of _______ __, ____ and with respect to the performance of the
DaimlerChrysler Master Owner Trust during the related Monthly Period.
A. Reductions of and Increases to Series Nominal Liquidation Amount:
[Increases
from
amounts
withdrawn
from the Reductions
Series Principal due to
Nominal Increases Funding Reductions amounts on
Liquidation from sub-Account Reimburse- due to deposits
Amount for accretions in respect of ments from reallocations Reductions in the Current
prior on Principal Prefunding Available of Available due to Principal Nominal
Monthly for Discount Excess Interest Principal Investor Funding Liquidation
Series Period Notes Account] Amounts Amounts Charge-Offs Sub-Account Amount
[Series [___]
[Series [___]
[Total:]
B-1
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this Monthly Noteholders' Statement this __th day of __________,
_____.
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC,
as Beneficiary of the Daimler Chrysler
Master Owner Trust
By DaimlerChrysler Services North America LLC, as
Administrator on behalf of the Beneficiary
By:
--------------------------------------------
Name:
Title:
B-2
Schedule to Monthly Noteholders' Statement*
DAIMLERCHRYSLER WHOLESALE RECEIVABLES LLC
DAIMLERCHRYSLER MASTER OWNER TRUST
* A separate schedule is to be attached for each series, with
appropriate changes and additions to reflect the specifics of the
related Indenture Supplement.
B-3
EXHIBIT C
[FORM OF] INVESTMENT LETTER
[Date]
[ ]
as Indenture Trustee,
[ ]
[ ]
New York, New York [ ]
Attention: Corporate Trust Department
DaimlerChrysler Master Owner Trust
c/o DaimlerChrysler Wholesale Receivables LLC, as Beneficiary
27777 Franklin Road
Southfield, Michigan 48034
Attention: [ ]
Re: Purchase of $___________ principal amount of
DaimlerChrysler Master Owner Trust, Series , Class
Notes
Ladies and Gentlemen:
In connection with our purchase of the above Notes (the "Notes") we confirm
that:
(1) We understand that the Notes are not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), and are being sold
to us in a transaction that is exempt from the registration requirements of
the Securities Act.
(2) Any information we desire concerning the Notes or any other
matter relevant to our decision to purchase the Notes is or has been made
available to us.
(3) We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment
in the Notes, and we (and any account for which we are purchasing under
paragraph (iv) below) are able to bear the economic risk of an investment in
the Notes. We (and any account for which we are purchasing under paragraph
(iv) below) are an "accredited investor" (as such term is defined in Rule
501(a)(1), (2) or (3) of Regulation D under the Securities Act).
(4) We are acquiring the Notes for our own account or for accounts as
to which we exercise sole investment discretion and not with a view to any
distribution of the Notes, subject, nevertheless, to the understanding that
the disposition of our property shall at all times be and remain within our
control;
C-1
(5) We agree that the Notes must be held indefinitely by us unless
subsequently registered under the Securities Act or an exemption from any
registration requirements of the Securities Act and any applicable state
securities law is available;
(6) We agree that in the event that at some future time we wish to
dispose of or exchange any of the Notes (such disposition or exchange not
being currently foreseen or contemplated), we will not transfer or exchange
any of the Notes unless:
(a)(i) the sale is of at least U.S. $250,000 principal
amount of Notes to an Eligible Purchaser (as defined below), (ii) a
letter to substantially the same effect as paragraphs (1), (2), (3),
(4), (5) and (6) of this letter is executed promptly by the purchaser
and (3) all offers or solicitations in connection with the sale,
whether directly or through any agent acting on our behalf, are
limited only to Eligible Purchasers and are not made by means of any
form of general solicitation or general advertising whatsoever; or
(b) the Notes are transferred pursuant to Rule 144 under
the Securities Act by us after we have held them for more than three
years; or
(c) the Notes are sold in any other transaction that does
not require registration under the Securities Act and, if the Issuer,
the Servicer, the Trustee or the Note Registrar so requests, we
theretofore have furnished to such party an opinion of counsel
satisfactory to such party, in form and substance satisfactory to
such party, to such effect; or
(d) the Notes are transferred pursuant to an exception
from the registration requirements of the Securities Act under Rule
144A under the Securities Act; and
(7) We understand that the Notes will bear a legend to
substantially the following effect:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS
NOTE NOR ANY PORTION HEREOF MAY BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE
REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY
APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES
LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH
PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN
CONDITIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN."
This legend may be removed if the Issuer, the Trustee and the Note
Registrar have received an opinion of counsel satisfactory to them, in form
and substance satisfactory to them, to the effect that the legend may be
removed.
C-2
"Eligible Purchaser" means either an Eligible Dealer or a
corporation, partnership or other entity which we have reasonable grounds to
believe and do believe can make representations with respect to itself to
substantially the same effect as the representations set forth herein.
"Eligible Dealer" means any corporation or other entity the principal
business of which is acting as a broker and/or dealer in securities.
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Indenture dated as of _______ __, 2002, between
DaimlerChrysler Master Owner Trust and [ ], as indenture trustee.
Very truly yours,
_________________________
(Name of Purchaser)
By________________________
(Authorized officer)
C-3
EXHIBIT D-1
[FORM OF] CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE TRUSTEE BY
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG FOR
DELIVERY OF DEFINITIVE NOTES IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL NOTE
DAIMLERCHRYSLER MASTER OWNER TRUST,
Series , Class Notes
[Insert title or sufficient description of Notes to be delivered]
We refer to that portion of the Temporary Global Note in respect of
the series, Class Notes to be exchanged for definitive Notes (the "Submitted
Portion") pursuant to this certificate (the "Notes") as provided in the
Indenture dated as of [ ], 2002, (as amended and supplemented, the
"Indenture") in respect of such issue. This is to certify that (i) we have
received a certificate or certificates, in writing or by tested telex, with
respect to each of the persons appearing in our records as being entitled to a
beneficial interest in the Submitted Portion and with respect to such person's
beneficial interest either (a) from such person, substantially in the form of
Exhibit D-2 to the Indenture Supplement, or (b) from _____________ ___,
______, substantially in the form of Exhibit D-3 to the Indenture Supplement,
and (ii) the Submitted Portion includes no part of the Temporary Global Note
excepted in such certificates.
We further certify that as of the date hereof we have not received
any notification from any of the persons giving such certificates to the
effect that the statements made by them with respect to any part of the
Submitted Portion are no longer true and cannot be relied on as of the date
hereof.
We understand that this certificate is required in connection with
certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in
such proceedings.
Dated: _____________ ___, ______,
[as operator of the Euroclear System]
[Clearstream, Luxembourg]
By_________________________________
D-1-1
EXHIBIT D-2
[FORM OF] CERTIFICATE TO
BE DELIVERED TO EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
WITH RESPECT TO REGISTERED NOTES SOLD TO QUALIFIED
INSTITUTIONAL BUYERS
DAIMLERCHRYSLER MASTER OWNER TRUST,
Series , Class Notes
In connection with the initial issuance and placement of the Series ,
Class Notes (the "Notes"), an institutional investor in the United States (an
"institutional investor") is purchasing [U.S.$/(pound)/(U)/SF] aggregate
principal amount of the Notes hold in our account at
[________________________________________________, as operator of the
Euroclear System] [Clearstream, Luxembourg] on behalf of such investor.
We reasonably believe that such institutional investor is a qualified
institutional buyer as such term is defined under Rule 144A of the Securities
Act of 1933, as amended.
[We understand that this certificate is required in connection with
United States laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered by this
certificate.]
The Definitive Notes in respect of this certificate are to be issued
in registered form in the minimum denomination of [U.S.$/(pound)/(U)/SF] and
such Definitive Notes (and, unless the Indenture or terms document relating to
the Notes otherwise provides, any Notes issued in exchange or substitution for
or on registration of transfer of Notes) shall bear the following legend:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933. NEITHER THIS NOTE NOR ANY PORTION
HEREOF MAY BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN
THE UNITED STATES OR TO U.S. PERSONS (EACH AS DEFINED
HEREIN), EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM SUCH REGISTRATION PROVISIONS. THE TRANSFER OF THIS NOTE
IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE INDENTURE
REFERRED TO HEREIN. THIS NOTE CANNOT BE EXCHANGED FOR A
BEARER NOTE."
Dated: __________ ___, ______, [ ]
By_________________________________
Authorized officer
D-2-1
EXHIBIT D-3
[FORM OF] CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
BY A BENEFICIAL OWNER OF NOTES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER
DAIMLERCHRYSLER MASTER OWNER TRUST,
Series , Class Notes
This is to certify that as of the date hereof and except as provided
in the third paragraph hereof, the Series , Class Notes held by you for our
account (the "Notes") (i) are owned by a person that is a United States
person, or (ii) are owned by a United States person that is (A) the foreign
branch of a United States financial institution (as defined in U.S. Treasury
Regulations Section 1.165- 12(c)(1)(v)) (a "financial institution") purchasing
for its own account or for resale, or (B) a United States person who acquired
the Notes through the foreign branch of a financial institution and who holds
the Notes through the financial institution on the date hereof (and in either
case (A) or (B), the financial institution hereby agrees to comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986, as amended, and the regulations thereunder), or (iii) are owned by a
financial institution for purposes of resale during the Restricted Period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)). In
addition, financial institutions described in clause (iii) of the preceding
sentence (whether or not also described in clause (i) or (ii)) certify that
they have not acquired the Notes for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
We undertake to advise you by tested telex if the above statement as
to beneficial ownership is not correct on the date of delivery of the Notes in
bearer form with respect to such of the Notes as then appear in your books as
being held for our account.
This certificate excepts and does not relate to
[U.S.$/(pound)/(U)/SF] principal amount of Notes held by you for our account,
as to which we are not yet able to certify beneficial ownership. We understand
that delivery of Definitive Notes in such principal amount cannot be made
until we are able to so certify.
We understand that this certificate is required in connection with
certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in
such proceedings. As used herein, "United States" means the United States of
America, including the States and the District of Columbia, its territories,
its possessions and other areas subject to its jurisdiction; and "United
States Person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States, or any political subdivision thereof, or an estate
or trust the income of which is subject to United States federal income
taxation regardless of its source.
Dated: __________ ___, ______ By______________________________
Name:
As , or as agent for ,
the beneficial owner(s) of the interest in
the Notes to which this certificate relates.
D-3-1