Exhibit 4.1
NISSAN AUTO LEASE TRUST 2004-A
$___________
_________% Asset Backed Notes, Class A-1
$___________
_________% Asset Backed Notes, Class A-2
$___________
Floating Rate Asset Backed Notes, Class A-3a
$___________
_________% Asset Backed Notes, Class A-3b
NISSAN AUTO LEASE TRUST 2004-A
and
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee,
---------------------------
INDENTURE
Dated as of _________, 2004
---------------------------
2
TABLE OF CONTENTS
PAGE
ARTICLE ONE DEFINITIONS.......................................................................... 1
SECTION 1.01 Capitalized Terms........................................................... 1
SECTION 1.02 Interpretation.............................................................. 2
SECTION 1.03 Incorporation by Reference Trust Indenture Act.............................. 2
ARTICLE TWO THE NOTES............................................................................ 3
SECTION 2.01 Form........................................................................ 3
SECTION 2.02 Execution, Authentication and Delivery...................................... 3
SECTION 2.03 Temporary Notes............................................................. 4
SECTION 2.04 Registration; Registration of Transfer and Exchange......................... 4
SECTION 2.05 Mutilated, Destroyed, Lost or Stolen Notes.................................. 5
SECTION 2.06 Persons Deemed Owners....................................................... 6
SECTION 2.07 Cancellation................................................................ 6
SECTION 2.08 Release of Collateral....................................................... 7
SECTION 2.09 Book-Entry Notes............................................................ 7
SECTION 2.10 Notices to Clearing Agency.................................................. 7
SECTION 2.11 Definitive Notes............................................................ 8
SECTION 2.12 Authenticating Agents....................................................... 8
SECTION 2.13 The Interest Rate Cap Agreement............................................. 9
SECTION 2.14 Tax Treatment............................................................... 10
ARTICLE THREE COVENANTS............................................................................ 10
SECTION 3.01 Payments to Noteholders, Trust Certificateholders and Transferor............ 10
SECTION 3.02 Maintenance of Office or Agency............................................. 10
SECTION 3.03 Money for Payments to be Held in Trust...................................... 10
SECTION 3.04 Existence................................................................... 12
SECTION 3.05 Protection of Trust Estate.................................................. 12
SECTION 3.06 Opinions as to Trust Estate................................................. 13
SECTION 3.07 Performance of Obligations; Servicing of the 2004-A SUBI Assets............. 13
SECTION 3.08 Negative Covenants.......................................................... 14
-i-
TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 3.09 Trust Certificates and Reports.............................................. 15
SECTION 3.10 Restrictions on Certain Other Activities.................................... 16
SECTION 3.11 Notice of Defaults.......................................................... 16
SECTION 3.12 Further Instruments and Acts................................................ 16
SECTION 3.13 Delivery of the 2004-A SUBI Certificate..................................... 16
SECTION 3.14 Compliance with Laws........................................................ 17
SECTION 3.15 Issuer May Consolidate, etc., Only on Certain Terms......................... 17
SECTION 3.16 Successor or Transferee..................................................... 19
SECTION 3.17 Removal of the Administrative Agent......................................... 19
ARTICLE FOUR SATISFACTION AND DISCHARGE........................................................... 19
SECTION 4.01 Satisfaction and Discharge of Indenture..................................... 19
SECTION 4.02 Application of Trust Money.................................................. 20
SECTION 4.03 Repayment of Monies Held by Paying Agent.................................... 20
ARTICLE FIVE Indenture DEFAULT.................................................................... 21
SECTION 5.01 Indenture Defaults.......................................................... 21
SECTION 5.02 Acceleration of Maturity; Waiver of Indenture Default....................... 22
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee... 23
SECTION 5.04 Remedies; Priorities........................................................ 25
SECTION 5.05 Optional Preservation of the Trust Estate................................... 26
SECTION 5.06 Limitation of Suits......................................................... 27
SECTION 5.07 Unconditional Rights of Noteholders to Receive Principal and Interest....... 27
SECTION 5.08 Restoration of Rights and Remedies.......................................... 28
SECTION 5.09 Rights and Remedies Cumulative.............................................. 28
SECTION 5.10 Delay or Omission Not a Waiver.............................................. 28
SECTION 5.11 Control by Noteholders...................................................... 28
SECTION 5.12 [Reserved].................................................................. 29
SECTION 5.13 Undertaking for Costs....................................................... 29
SECTION 5.14 Waiver of Stay or Extension Laws............................................ 29
-ii-
TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 5.15 Action on Notes............................................................. 29
SECTION 5.16 Performance and Enforcement of Certain Obligations.......................... 29
SECTION 5.17 Sale of Trust Estate........................................................ 30
ARTICLE SIX THE Indenture TRUSTEE................................................................ 31
SECTION 6.01 Duties of Indenture Trustee................................................. 31
SECTION 6.02 Rights of Indenture Trustee................................................. 32
SECTION 6.03 Individual Rights of Indenture Trustee...................................... 33
SECTION 6.04 Indenture Trustee's Disclaimer.............................................. 33
SECTION 6.05 Notice of Defaults.......................................................... 34
SECTION 6.06 Reports by Indenture Trustee to Noteholders................................. 34
SECTION 6.07 Compensation and Indemnity.................................................. 34
SECTION 6.08 Replacement of Indenture Trustee............................................ 35
SECTION 6.09 Successor Indenture Trustee by Merger....................................... 36
SECTION 6.10 Appointment of Co-Trustee or Separate Trustee............................... 37
SECTION 6.11 Eligibility; Disqualification............................................... 38
SECTION 6.12 Trustee as Holder of the 2004-A SUBI Certificate............................ 38
SECTION 6.13 Representations and Warranties of Indenture Trustee......................... 39
SECTION 6.14 Furnishing of Documents..................................................... 39
SECTION 6.15 Interest Rate Cap Agreement Provisions...................................... 39
SECTION 6.16 Preferred Collection of Claims Against Issuer............................... 40
ARTICLE SEVEN NOTEHOLDERS' LISTS AND REPORTS....................................................... 40
SECTION 7.01 Note Registrar to Furnish Noteholder Names
and Addresses............................................................... 40
SECTION 7.02 Preservation of Information; Communications to Noteholders.................. 41
SECTION 7.03 Reports by Issuer........................................................... 41
SECTION 7.04 Reports by Indenture Trustee................................................ 42
ARTICLE EIGHT ACCOUNTS, DISBURSEMENTS AND RELEASES................................................. 42
SECTION 8.01 Collection of Money......................................................... 42
SECTION 8.02 Accounts.................................................................... 42
-iii-
TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 8.03 Payment Date Certificate.................................................... 43
SECTION 8.04 Disbursement of Funds....................................................... 44
SECTION 8.05 General Provisions Regarding Accounts....................................... 48
SECTION 8.06 Release of Trust Estate..................................................... 48
SECTION 8.07 Release of Interest In 2004-A Leases and 2004-A Vehicles Upon
Purchase or Reallocation by the Servicer.................................... 49
SECTION 8.08 Opinion of Counsel.......................................................... 49
ARTICLE NINE SUPPLEMENTAL INDENTURES.............................................................. 50
SECTION 9.01 Supplemental Indentures Without Consent of Noteholders..................... 50
SECTION 9.02 Supplemental Indentures With Consent of Noteholders......................... 51
SECTION 9.03 Execution of Supplemental Indentures........................................ 52
SECTION 9.04 Effect of Supplemental Indenture............................................ 53
SECTION 9.05 Reference in Notes to Supplemental Indentures............................... 53
ARTICLE TEN REDEMPTION OF NOTES.................................................................. 53
SECTION 10.01 Redemption.................................................................. 53
SECTION 10.02 Form of Redemption Notice................................................... 54
SECTION 10.03 Notes Payable on Redemption Date............................................ 54
ARTICLE ELEVEN MISCELLANEOUS........................................................................ 54
SECTION 11.01 Compliance Certificates and Opinions........................................ 54
SECTION 11.02 Form of Documents Delivered to Indenture Trustee............................ 56
SECTION 11.03 Acts of Noteholders......................................................... 57
SECTION 11.04 Notices..................................................................... 58
SECTION 11.05 Notices to Noteholders; Waiver.............................................. 58
SECTION 11.06 Effect of Headings and Table of Contents.................................... 59
SECTION 11.07 Successors and Assigns...................................................... 59
SECTION 11.08 Severability................................................................ 59
SECTION 11.09 Benefits of Indenture....................................................... 59
SECTION 11.10 Legal Holidays.............................................................. 59
SECTION 11.11 Governing Law............................................................... 59
SECTION 11.12 Counterparts................................................................ 59
-iv-
TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 11.13 Recording of Indenture...................................................... 59
SECTION 11.14 Trust Obligation............................................................ 60
SECTION 11.15 No Petition................................................................. 60
SECTION 11.16 No Recourse................................................................. 60
SECTION 11.17 Inspection.................................................................. 61
SECTION 11.18 Limitation of Liability of Owner Trustee.................................... 61
SECTION 11.19 Assignment of the Interest Rate Cap Agreement............................... 61
SECTION 11.20 Conflict with Trust Indenture Act........................................... 63
EXHIBITS
Exhibit A - Form of Notes ............................................................................. A-1
Exhibit B - Form of Depository Agreement .............................................................. B-1
-v-
Reconciliation and tie between the Trust Indenture Act
of 1939 and Indenture
TIA Indenture
Section Section
- ------------- ---------
310 (a) (1)............................................................................................ 6.11
(a) (2)............................................................................................ 6.11
(a) (3)............................................................................................ 6.10(b)(i)
(a) (4)............................................................................................ 6.12
(a) (5)............................................................................................ 6.11
(b)................................................................................................ 6.08
6.11
11.04
(c)................................................................................................ N.A.
311 (a) ............................................................................................... 6.16
(b) ............................................................................................... 6.16
(c) ............................................................................................... N.A.
312 (a) ............................................................................................... 7.01
(b) ............................................................................................... 7.02(b)
(c) ............................................................................................... 7.02(c)
313 (a) ............................................................................................... 7.04
(b) (1)............................................................................................ 7.04
(b) (2)............................................................................................ 7.04
(c) ............................................................................................... 7.04
11.04
(d) ............................................................................................... 7.04
314 (a) ............................................................................................... 7.03
3.09
11.04
(b) ............................................................................................... 11.13
(c) (1) ........................................................................................... 11.01
6.02
8.06(a)
(c) (2) ........................................................................................... 11.01
3.06
3.15
6.02
8.06(a)
8.08
(c) (3)............................................................................................ 11.01
(d) ............................................................................................... 11.01(b)
(e) ............................................................................................... 11.01
(f) ............................................................................................... N.A.
-i-
315 (a) ............................................................................................... 6.01
(b) ............................................................................................... 6.05
(c) ............................................................................................... N.A.
(d) ............................................................................................... 6.01(c)
(e) ............................................................................................... 5.13
316 (a)(1) (A)......................................................................................... 5.11
6.01(c)
(a) (1) (B)........................................................................................ 5.12
(a) (2)............................................................................................ N.A.
(b) ............................................................................................... 5.07
(c) ............................................................................................... N.A.
317 (a) (1) ........................................................................................... 5.04
(a) (2) ........................................................................................... 5.03(c)
5.03(d)
(b) ............................................................................................... 3.03
318 (a) ............................................................................................... 11.20
- -----------
(1) This reconciliation table and tie shall not, for any purpose be deemed to be
part of the Indenture.
(2) N.A. means not applicable.
-ii-
INDENTURE
This Indenture, dated as of _________, 2004 (the "Indenture"), is
between the Nissan Auto Lease Trust 2004-A, a Delaware statutory trust (the
"Issuer"), and U.S. Bank National Association a national banking association
("U.S. Bank"),, as trustee (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the holders of the Issuer's _________%
Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), _________% Asset Backed
Notes, Class A-2 (the "Class A-2 Notes"), Floating Rate Asset Backed Notes,
Class A-3a (the "Class A-3a Notes") _________% Asset Backed Notes, Class A-3b
(the "Class A-3b Notes") (the "Class A-3b Notes" and, together with the Class
A-1 Notes, the Class A-2 Notes and the Class A-3a Notes, the "Notes"):
GRANTING CLAUSE
The Issuer, hereby Grants in trust to the Indenture Trustee on the
Closing Date, as trustee for the benefit of the Noteholders and the Trust
Certificateholders all of the Issuer's right, title and interest, whether now
owned or hereafter acquired, in and to (i) the Trust Estate and (ii) all present
and future claims, demands, causes and choses in action in respect of any or all
of the foregoing and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments, securities, financial assets and other
property that at any time constitute all or part of or are included in the
proceeds of any of the foregoing (collectively, the "Collateral"), in each case
as such terms are defined herein.
The Indenture Trustee, as trustee on behalf of the Noteholders,
acknowledges the foregoing Grant, accepts the trusts under this Indenture in
accordance with the provisions of this Indenture and agrees to perform its
duties required in this Indenture to the best of its ability to the end that the
interests of the Noteholders may be adequately and effectively protected.
ARTICLE ONE
DEFINITIONS
SECTION 1.01 Capitalized Terms. Capitalized terms used herein that are
not otherwise defined shall have the meanings ascribed thereto in the Agreement
of Definitions, dated as of _________, 2004, by and among the Issuer, NILT
Trust, a Delaware statutory trust, as grantor and initial beneficiary (in such
capacity, the "Grantor" and the "UTI Beneficiary," respectively),
Nissan-Infiniti LT, a Delaware statutory trust (the "Titling Trust"), Nissan
Motor Acceptance Corporation, a California corporation ("NMAC"), in its
individual capacity, as servicer and as administrative agent (in such capacity,
the "Servicer" and the "Administrative Agent," respectively), Nissan Auto
Leasing LLC II, a Delaware limited liability company ("NALL II"), NILT, Inc., a
Delaware corporation, as trustee to the Titling Trust (the "Titling
Indenture
Trustee"), Wilmington Trust Company, a Delaware banking corporation, as owner
trustee and Delaware trustee (in such capacity, the "Owner Trustee" and the
"Delaware Trustee," respectively) and U.S. Bank, as Indenture Trustee and trust
agent (in such capacity, the "Trust Agent").
SECTION 1.02 Interpretation. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires, (i)
terms used herein include, as appropriate, all genders and the plural as well as
the singular, (ii) references to this Indenture include all Exhibits hereto,
(iii) references to words such as "herein," "hereof" and the like shall refer to
this Indenture as a whole and not to any particular part, Article or Section
within this Agreement, (iv) references to an Article or Section such as "Article
Twelve" or "Section 12.01" shall refer to the applicable Article or Section of
this Indenture, (v) the term "include" and all variations thereof shall mean
"include without limitation," (vi) the term "or" shall include "and/or," (vii)
the term "proceeds" shall have the meaning ascribed to such term in the UCC.
Any reference in this Indenture to any agreement means such agreement
as it may be amended, restated, supplemented (only to the extent such agreement
as supplemented relates to the Notes), or otherwise modified from time to time.
Any reference in this Indenture to any law, statute, regulation, rule, or other
legislative action shall mean such law, statute, regulation, rule or other
legislative action as amended, supplemented, or otherwise modified from time to
time, and shall include any rule or regulation promulgated thereunder. Any
reference in this Indenture to a Person shall include the successors or assignee
of such Person.
SECTION 1.03 Incorporation by Reference Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the Indenture securities.
All other TIA terms used in this Indenture that are defined in the TIA,
defined in the TIA by reference to another statute or defined by Commission rule
have the meanings so assigned to them.
Indenture
2
ARTICLE TWO
THE NOTES
SECTION 2.01 Form. The Notes, together with the Indenture Trustee's
certificate of authentication, shall be in substantially the form set forth as
Exhibit A hereto, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution of 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 such Note.
The terms of the Notes set forth in Exhibit A hereto are part of the
terms of this Indenture.
SECTION 2.02 Execution, Authentication and Delivery. The Notes shall be
executed by the Owner Trustee on behalf of the Issuer. The signature of any
authorized officer of the Owner Trustee on the Notes may be manual or by
facsimile. Notes bearing the manual or facsimile signature of individuals who
were at any time authorized officers of the Owner Trustee shall bind the Issuer,
notwithstanding that any such individuals have ceased to hold such offices prior
to the authentication and delivery of such Notes or did not hold such offices at
the date of such Notes.
The Indenture Trustee shall, upon receipt of a Issuer Order,
authenticate and deliver for original issue the following aggregate principal
amounts of the Notes: (i) $_________ of Class A-1 Notes, (ii) $_________ of
Class A-2 Notes, (iii) $_________ of Class A-3a Notes and (iv) $_________ of
Class A-3b Notes. The aggregate principal amount of Class A-1 Notes, Class A-2
Notes, Class A-3a Notes and Class A-3b Notes outstanding at any time may not
exceed such respective amounts, except as provided in Section 2.05.
Each Note shall be dated the date of its authentication. The Notes
shall be issuable as registered notes in book-entry form in minimum
denominations of $100,000 and in integral multiples of $1,000 in excess thereof.
No Note may be sold, pledged or otherwise transferred to any Person
except in accordance with Section 2.03 and any attempted sale, pledge or
transfer in violation of such Section shall be null and void.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
Indenture
3
SECTION 2.03 Temporary Notes. Pending the preparation of Definitive
Notes, the Owner Trustee may execute, on behalf of the Issuer, and upon receipt
of a Issuer Order, the Indenture Trustee shall authenticate and deliver,
temporary Notes that are printed, lithographed, typewritten, mimeographed or
otherwise produced, substantially of the tenor of the Definitive Notes in lieu
of which they are issued and with such variations not inconsistent with the
terms of this Indenture as the officers executing such Notes may determine, as
evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer shall cause Definitive Notes
to be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of such temporary Notes at the office or agency of the Issuer to be
maintained as provided in Section 3.02, without charge to the related
Noteholder. Upon surrender for cancellation of any one or more temporary Notes,
the Owner Trustee shall execute, on behalf of the Issuer, and the Indenture
Trustee shall authenticate and deliver in exchange therefor, a like principal
amount of Definitive Notes of authorized denominations. Until so exchanged, such
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as Definitive Notes.
SECTION 2.04 Registration; Registration of Transfer and Exchange.
(a) The Issuer shall cause to be kept a register (the "Note Register")
in which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Notes and the registration of transfers of
Notes by the Note Registrar. The Indenture Trustee is hereby initially appointed
the "Note Registrar" for the purpose of registering Notes and transfers of Notes
as herein provided. In the event, subsequent to the Closing Date, the Indenture
Trustee notifies the Issuer that it is unable to act as Note Registrar, the
Issuer shall appoint another bank or trust company, having an office located in
the Borough of Manhattan, The City of New York, agreeing to act in accordance
with the provisions of this Indenture applicable to it, and otherwise acceptable
to the Indenture Trustee, to act as successor Note Registrar under this
Indenture. Upon any resignation of any Note Registrar, the Issuer shall promptly
appoint a successor or, if it elects not to make such an appointment, assume the
duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer
as Note Registrar, the Issuer shall give the Indenture Trustee prompt written
notice of such appointment and the location, and any change in such location, of
the Note Register, and the Indenture Trustee shall have the right to inspect the
Note Register at all reasonable times and to obtain copies thereof, and the
Indenture Trustee shall have the right to rely upon a certificate executed on
behalf of the Note Registrar by an Executive Officer as to the names and
addresses of the Noteholders and the principal amounts and number of such Notes.
(b) Upon the proper surrender for registration of transfer of any Note
at the office or agency of the Issuer to be maintained as provided in Section
3.02, if the requirements of Section 8-401 of the UCC are met, the Owner Trustee
shall execute, on behalf of the Issuer, and the Indenture Trustee shall
authenticate and the related Noteholder shall obtain from the Indenture Trustee,
in the name of the designated transferee, one or more new Notes in any
authorized denominations, of a like aggregate principal amount.
Indenture
4
(c) At the option of the related Noteholder, Notes may be exchanged for
other Notes in any authorized denominations, of a like aggregate principal
amount, upon surrender of such Notes at such office or agency. Whenever any
Notes are so surrendered for exchange, if the requirements of Section 8-401 of
the UCC are met, the Owner Trustee shall execute, on behalf of the Issuer, the
Indenture Trustee shall authenticate and the Noteholder shall obtain from the
Indenture Trustee the Notes that the Noteholder making such exchange is entitled
to receive. Every Note presented or surrendered for registration of transfer or
exchange shall (if so required by the Issuer or the Indenture Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form and
substance satisfactory to the Issuer and the Indenture Trustee, including
appropriate tax documentation, duly executed by the Noteholder thereof or its
attorney-in-fact duly authorized in writing.
(d) All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt and
entitled to the same benefits under this Indenture as the Notes surrendered upon
such registration of transfer or exchange.
(e) No service charge shall be made to a Noteholder for any
registration of transfer or exchange of Notes, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith, other than exchanges pursuant to
Sections 2.03 or 9.05 not involving any transfer.
The preceding provisions of this Section notwithstanding, the Issuer
shall not be required to make, and the Note Registrar need not register,
transfers or exchanges of any Note (i) selected for redemption or (ii) for a
period of 15 days preceding the due date for any payment with respect to such
Note.
SECTION 2.05 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer, the Owner Trustee and the
Indenture Trustee harmless, then, in the absence of notice to the Owner Trustee,
the Note Registrar or the Indenture Trustee that such Note has been acquired by
a "protected purchaser" (as contemplated by Article Eight of the UCC), and
provided that the requirements of Section 8-405 of the UCC are met, the Owner
Trustee shall execute, on behalf of the Issuer, and upon receipt of a Issuer
Request the Indenture Trustee shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement
Note; provided, however, that if any such destroyed, lost or stolen Note (but
not a mutilated Note) shall have become or within seven days shall become due
and payable, or shall have been called for redemption, instead of issuing a
replacement Note, the Issuer may pay such destroyed, lost or stolen Note when so
due or payable or upon the Redemption Date without the surrender thereof. If,
after the delivery of such replacement Note or payment of a destroyed, lost or
stolen Note pursuant to the proviso to the preceding sentence, a "protected
purchaser" (as contemplated by Article Eight of the UCC) of the original Note in
lieu of which such replacement Note was issued presents for payment such
original Note, the Issuer and the Indenture Trustee shall be entitled to recover
such replacement Note (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Note from such Person to whom such
replacement Note was
Indenture
5
delivered or any assignee of such Person, except a "protected purchaser" (as
contemplated by Article Eight of the UCC), and shall be entitled to recover upon
the security or indemnity provided therefor to the extent of any loss, damage,
cost or expense incurred by the Issuer or the Indenture Trustee in connection
therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer or the Indenture Trustee may require the payment by the related
Noteholder of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Indenture Trustee or the Note Registrar)
connected therewith.
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.06 Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and
their respective agents may treat the Person in whose name any Note is
registered (as of the date of determination) as the owner of such Note for the
purpose of receiving payments of principal of and interest, if any, on such Note
and for all other purposes whatsoever, and none of the Issuer, the Indenture
Trustee or any of their respective agents shall be affected by notice to the
contrary.
SECTION 2.07 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder that the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly cancelled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Notes may be held or disposed of by the
Indenture Trustee in accordance with its standard retention or disposal policy
as in effect at the time unless the Issuer shall direct by a Issuer Order that
they be destroyed or returned to it; provided, that such Issuer Order is timely
and that such Notes have not been previously disposed of by the Indenture
Trustee.
SECTION 2.08 Release of Collateral. Subject to Section 11.01 and the
terms of the Basic Documents, the Indenture Trustee shall release property from
the Lien of this Indenture only upon receipt of a Issuer Request, accompanied by
an Officer's Certificate, an Opinion of Counsel and Independent Certificates in
accordance with TIA Sections 314(c) and 314(d)(1) or
Indenture
6
an Opinion of Counsel in lieu of such Independent Certificates to the effect
that the TIA does not require any such Independent Certificates.
SECTION 2.09 Book-Entry Notes. Unless otherwise specified, the Notes,
upon original issuance, will be issued in the form of one or more typewritten
Notes representing the Book-Entry Notes, to be delivered to the Indenture
Trustee, as agent for DTC, the initial Clearing Agency, or a custodian therefor,
by, or on behalf of, the Issuer. One fully registered Note shall be issued with
respect to each $500 million in principal amount of each Class of Notes or such
lesser amount as necessary. Such Notes shall initially be registered on the Note
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Note Owner shall receive a Definitive Note representing such Note Owner's
interest in such Note except as provided in Section 2.11. Unless and until
Definitive Notes have been issued to Note Owners pursuant to Section 2.11:
(a) the provisions of this Section shall be in full force and effect;
(b) the Note Registrar and the Indenture Trustee shall be entitled to
deal with the Clearing Agency for all purposes of this Indenture (including the
payment of principal of and interest on the Notes and the giving of instructions
or directions hereunder) as the sole Noteholder, and shall have no obligation to
Note Owners;
(c) to the extent that the provisions of this Section conflict with any
other provisions of this Indenture, the provisions of this Section shall
control;
(d) the rights of Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and agreements
between or among such Note Owners and the Clearing Agency or Clearing Agency
Participants; pursuant to the Depository Agreement, unless and until Definitive
Notes are issued pursuant to Section 2.11, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Notes to such Clearing
Agency Participants; and
(e) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Noteholders evidencing a specified
percentage of the Outstanding Amount, the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has received instructions
to such effect from Note Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the beneficial interest
in the Notes and has delivered such instructions to the Indenture Trustee.
SECTION 2.10 Notices to Clearing Agency. Whenever a notice or other
communication to Noteholders is required under this Indenture, unless and until
Definitive Notes shall have been issued to Note Owners pursuant to Section 2.11,
the Indenture Trustee shall give all such notices and communications specified
herein to be given to Noteholders to the Clearing Agency, and shall have no
obligation to the Note Owners.
SECTION 2.11 Definitive Notes. If (i) (A) the Transferor, the Owner
Trustee or the Administrative Agent advises the Indenture Trustee in writing
that the Clearing Agency is no
Indenture
7
longer willing or able to properly discharge its responsibilities as described
in the Depository Agreement and (B) the Transferor, the Indenture Trustee or the
Administrative Agent is unable to locate a qualified successor (and if the
Administrative Agent has made such determination, the Administrative Agent has
given written notice thereof to the Indenture Trustee), (ii) the Transferor, the
Indenture Trustee or the Administrative Agent at its option advises the
Indenture Trustee in writing that it elects to terminate the book-entry system
through the Clearing Agency or (iii) after an Indenture Default, Note Owners
representing in the aggregate not less than 51% of the Outstanding Amount,
voting as a single class, advise the Indenture Trustee through the Clearing
Agency and Clearing Agency Participants in writing that the continuation of a
book-entry system through the Clearing Agency or its successor is no longer in
the best interest of Note Owners, the Indenture Trustee shall be required to
notify all Note Owners, through the Clearing Agency, of the occurrence of such
event and the availability through the Clearing Agency of Definitive Notes to
Note Owners requesting the same. Upon surrender to the Indenture Trustee by the
Clearing Agency of the Note or Notes representing the Book-Entry Notes and the
receipt of instructions for re-registration, the Indenture Trustee shall issue
Definitive Notes to Note Owners, who thereupon shall become Noteholders for all
purposes of this Indenture. None of the Issuer, Owner Trustee, the Note
Registrar or the Indenture Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions.
The Indenture Trustee, the Issuer and the Administrative Agent shall
not be liable if the Indenture Trustee or the Administrative Agent is unable to
locate a qualified successor Clearing Agency. The Definitive Notes shall be
typewritten, printed, lithographed or engraved or produced by any combination of
such methods (with or without steel engraved borders), all as determined by the
officers executing such Notes, as evidenced by their execution of such Notes.
From and after the date of issuance of Definitive Notes, all notices to be given
to Noteholders shall be mailed to their addresses of record in the Note Register
as of the relevant Deposit Date. Such notices shall be deemed to have been given
as of the date of mailing.
If Definitive Notes are issued and the Indenture Trustee is not the
Note Registrar, the Owner Trustee shall furnish or cause to be furnished to the
Indenture Trustee a list of the names and addresses of the Noteholders (i) as of
each Deposit Date, within five days thereafter and (ii) as of not more than ten
days prior to the time such list is furnished, within 30 days after receipt by
the Owner Trustee of a written request therefor.
SECTION 2.12 Authenticating Agents. Upon the request of the Issuer, the
Indenture Trustee shall, and if the Indenture Trustee so chooses the Indenture
Trustee may, appoint one or more Authenticating Agents with power to act on its
behalf and subject to its direction in the authentication of Notes in connection
with issuance, transfers and exchanges under Sections 2.02, 2.04, 2.05 and 9.05,
as fully to all intents and purposes as though each such Authenticating Agent
had been expressly authorized by such Sections to authenticate such Notes. For
all purposes of this Indenture, the authentication of Notes by an Authenticating
Agent pursuant to this Section shall be deemed to be the authentication of Notes
by the Indenture Trustee.
Indenture
8
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, without the execution or filing of any further act on the part of the
parties hereto or such Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Indenture Trustee and the Issuer. The Indenture
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and the
Issuer. Upon receiving such notice of resignation or upon such termination, the
Indenture Trustee shall promptly appoint a successor Authenticating Agent and
shall give written notice of such appointment to the Issuer.
The Indenture Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services and reimbursement for its
reasonable expenses relating thereto, and the Indenture Trustee shall be
entitled to be reimbursed for all such payments, subject to Section 6.07. The
provisions of Sections 2.07 and 6.04 shall be applicable to any Authenticating
Agent.
SECTION 2.13 The Interest Rate Cap Agreement.
(a) On the Closing Date, the Issuer shall execute and deliver the
Interest Rate Cap Agreement.
(b) Subject to Section 11.19 hereof, the Indenture Trustee shall take
all steps necessary to enforce the Issuer's rights under the Interest Rate Cap
Agreement, including receiving payments from the Cap Provider when due and
exercising the Issuer's rights under the Interest Rate Cap Agreement including,
without limitation, if either the long-term senior unsecured debt rating of
JPMorgan Chase Bank is downgraded below "A1" by Moody's, "A+" by Standard &
Poor's, "A+" by Fitch (if rated by Fitch) or the short-term debt rating of
JPMorgan Chase Bank is reduced below "P-1 by Moody's, below "A-1" by Standard &
Poor's or "F-1" by Fitch (if rated by Fitch), the right to require the Cap
Provider to obtain a guarantee of its obligations or to substitute a replacement
cap provider (subject to the assumption by the replacement cap provider of the
Cap Provider's obligations under the Interest Rate Cap Agreement) within 30 days
of the occurrence of such reduction, or in certain circumstances, post
collateral, in each case in accordance with the terms of the Interest Rate Cap
Agreement.
(c) Pursuant to the Interest Rate Cap Agreement, U.S. Bank will be
designated calculation agent ("Calculation Agent"), and in such capacity, on
each Interest Determination Date, will calculate the interest rate with respect
to the Class A-3a Notes. All determinations of interest by the Calculation Agent
shall, in the absence of manifest error, be conclusive for all purposes and
binding on Class A-3a Noteholders.
SECTION 2.14 Tax Treatment. The Issuer has entered into this Indenture,
and the Notes will be issued, with the intention that, for federal, state and
local income, single business
Indenture
9
and franchise tax purposes, the Notes will qualify as indebtedness. The Issuer,
by entering into this Indenture, and each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of an interest in the applicable
Book-Entry Note), agrees to treat the Notes for federal, state and local income,
single business and franchise tax purposes as indebtedness.
ARTICLE THREE
COVENANTS
SECTION 3.01 Payments to Noteholders, Trust Certificateholders and
Transferor. The Issuer shall duly and punctually (i) pay the principal of and
interest on the Notes in accordance with the terms of the Notes and this
Indenture and (ii) cause the Servicer to direct the Indenture Trustee to release
from the Note Distribution Account all other amounts distributable or payable
from the Owner Trust Estate (including distributions to be made to the Trust
Certificateholders on any Payment Date) under the Trust Agreement and Servicing
Agreement. Without limiting the foregoing, subject to Section 8.04, the Issuer
shall cause the Servicer to direct the Indenture Trustee to apply all amounts on
deposit in the Note Distribution Account on each Payment Date that have been
deposited therein for the benefit of the Notes. Amounts properly withheld under
the Code by any Person from a payment to any Noteholder or Trust
Certificateholder of interest or principal (or other amounts) shall be
considered to have been paid by the Issuer to such Noteholder or Trust
Certificateholder for all purposes of this Indenture.
SECTION 3.02 Maintenance of Office or Agency. The Note Registrar, on
behalf of the Issuer, shall maintain at the Corporate Trust Office or at such
other location in the Borough of Manhattan, The City of New York, chosen by the
Note Registrar, acting for the Issuer, an office or agency where Notes may be
surrendered for registration of transfer or exchange, and where notices to and
demands upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer hereby initially appoints the Indenture Trustee as its agent
to receive all such surrenders, notices and demands. The Issuer shall give
prompt written notice to the Indenture Trustee of the location, and of any
change in the location, of any such office or agency. If at any time the Issuer
shall fail to maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders, notices and demands
may be made or served at the Corporate Trust Office, and the Issuer hereby
appoints the Indenture Trustee as its agent to receive all such surrenders,
notices and demands.
SECTION 3.03 Money for Payments to be Held in Trust. As provided in
Sections 5.04(b) and 8.04, all payments of amounts due and payable with respect
to any Notes that are to be made from amounts withdrawn from the Note
Distribution Account and Reserve Account shall be made on behalf of the Issuer
by the Indenture Trustee or by another Paying Agent, and no amounts so withdrawn
therefrom for payments on Notes shall be paid over to the Issuer except as
provided in this Section. All payments of amounts due and payable with respect
to any Notes or Trust Certificates that are to be made from amounts withdrawn
from the Note Distribution Account or Reserve Account pursuant to Sections 3.01,
4.02 and 4.03 shall be made on behalf of the Issuer by the Indenture Trustee or
by a Paying Agent, and no amounts so withdrawn from such accounts for payments
of Notes or Trust Certificates shall be paid over to the Issuer or the Owner
Trustee, except as provided by this Section.
Indenture
10
On each Payment Date and Redemption Date, the Issuer shall deposit or
cause to be deposited (including the provision of instructions to the Indenture
Trustee to make any required withdrawals from the Reserve Account) into the Note
Distribution Account an aggregate sum sufficient to pay the amounts then
becoming due under the Notes, and the Paying Agent shall hold such sum in trust
for the benefit of the Persons entitled thereto and (unless the Paying Agent is
the Indenture Trustee) shall promptly notify the Indenture Trustee of any
failure by the Issuer to effect such deposit.
The Indenture Trustee, as Paying Agent, hereby agrees with the Issuer
that it will, and the Issuer will cause each Paying Agent other than the
Indenture Trustee, as a condition to its acceptance of its appointment as Paying
Agent, to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee, subject to the
provisions of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and pay such sums to such Persons as herein provided;
(b) give the Indenture Trustee notice of any default by the Issuer of
which it has actual knowledge (or any other obligor upon the Notes, if any) in
the making of any payment required to be made with respect to the Notes;
(c) 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 forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes if at
any time it ceases to meet the standards required to be met by a Paying Agent at
the time of its appointment; and
(e) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which such sums were held by such Paying Agent;
and upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed after such
amount has become due and payable and after the Indenture Trustee has taken the
steps described in this paragraph shall be discharged from such
Indenture
11
trust and be paid to Children's Hospital Los Angeles upon presentation thereto
of an Issuer, and the related Noteholder shall 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
shall thereupon cease. If any Noteholder shall not surrender its Notes for
retirement within six months after the date specified in the written notice of
final payment described in Section 8.04(d), the Indenture Trustee will give a
second written notice to the registered Noteholders that have not surrendered
their Notes for final payment and retirement. If within one year after such
second notice any Notes have not been surrendered, the Indenture Trustee shall,
at the expense and direction of the Issuer, cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be paid to Children's Hospital Los
Angeles. The Indenture Trustee shall also adopt and employ, at the expense and
direction of the Issuer, any other reasonable means of notification of such
repayment specified by the Issuer or the Administrative Agent.
SECTION 3.04 Existence. The Issuer shall keep in full effect its
existence, rights and franchises as a trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other state or of the United States, in which
case the Issuer shall keep in full effect its existence, rights and franchises
under the laws of such other jurisdiction) and shall obtain and preserve its
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Indenture, the Notes, the Collateral and each other instrument or agreement
included in the Trust Estate.
SECTION 3.05 Protection of Trust Estate. The Issuer intends the
security interest Granted pursuant to this Indenture in favor of the Indenture
Trustee on behalf of the Noteholders to be prior to all other liens in respect
of the Trust Estate, and the Issuer shall take all actions necessary to obtain
and maintain, for the benefit of the Indenture Trustee on behalf of the
Noteholders, a first lien on and a first priority, perfected security interest
in the Trust Estate. The Issuer shall from time to time execute and deliver all
such supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
all as prepared by the Administrative Agent and delivered to the Issuer, and
shall take such other action necessary or advisable to:
(a) Grant more effectively all or any portion of the Trust Estate;
(b) maintain or preserve the lien and security interest (and the
priority thereof) created by this Indenture or carry out more effectively the
purposes hereof;
(c) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(d) enforce any of the Collateral (including all rights under the
Interest Rate Cap Agreement);
Indenture
12
(e) preserve and defend title to the Trust Estate and the rights of the
Indenture Trustee and the Noteholders in the Trust Estate against the claims of
all Persons; or
(f) pay all taxes or assessments levied or assessed upon the Trust
Estate when due.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute all financing statements, continuation statements or
other instruments required to be executed pursuant to this Section.
SECTION 3.06 Opinions as to Trust Estate.
(a) On the Closing Date, the Issuer shall furnish or cause to be
furnished to the Indenture Trustee, an Opinion of Counsel to the effect that, in
the opinion of such counsel, the execution and delivery of the Indenture and the
delivery for value to and taking of physical possession in the State of New York
by the Indenture Trustee of the 2004-A SUBI Certificate, endorsed or registered
in the name of the Indenture Trustee, will create a valid first priority
perfected security interest, for the benefit of the Indenture Trustee on behalf
of the holders of the Notes, in the Issuer's right, title and interest in the
2004-A SUBI Certificate.
(b) Upon written request by the Indenture Trustee, on or before June 30
of each calendar year, beginning with June 30, 2005, the Issuer shall furnish to
the Indenture Trustee an Opinion of Counsel to the effect that in the opinion of
such counsel, either (i) all financing statements and continuation statements
have been executed and filed that are necessary to continue the lien and
security interest of the Indenture Trustee in the Collateral and reciting the
details of such filings or referring to prior Opinions of Counsel in which such
details are given, or (ii) no such action is necessary to continue such lien and
security interest.
SECTION 3.07 Performance of Obligations; Servicing of the 2004-A SUBI
Assets.
(a) The Issuer shall not take any action and shall use its best efforts
not to permit any action to be taken by others, including the Administrative
Agent, that would release any Person from any of such Person's material
covenants or obligations under any instrument or agreement included in the Trust
Estate or that would result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of, any
such instrument or agreement, except as expressly provided in the Basic
Documents or such other instrument or agreement.
(b) The Issuer may contract with other Persons, to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer. Initially, the
Issuer has contracted with the Administrative Agent, and the Administrative
Agent has agreed, to assist the Issuer in performing its duties under this
Indenture.
(c) The Issuer shall, and, shall cause the Administrative Agent and the
Servicer to, punctually perform and observe all of its obligations and
agreements contained in this Indenture, the other Basic Documents and the
instruments and agreements included in the Trust Estate, including filing or
causing to be filed all UCC financing statements and continuation statements
Indenture
13
required to be filed by the terms of this Indenture and the other Basic
Documents in accordance with and within the time periods provided for herein and
therein. Except as otherwise expressly provided therein, the Issuer, as a party
to the Basic Documents and as Holder of the 2004-A SUBI Certificate, shall not,
and shall cause the Servicer and the Administrative Agent not to, modify, amend,
supplement, waive or terminate any Basic Document or any provision thereof
without the consent of the Indenture Trustee or the Noteholders of at least a
Majority Interest of the Notes or such greater percentage as may be specified in
the particular provision or Basic Document.
(d) If the Indenture Trustee or an Authorized Officer of the Issuer
shall have knowledge of the occurrence of a Servicer Default, such entity shall
promptly notify the other entity and each Rating Agency thereof, and shall
specify in such notice the action, if any, the other entity is taking in respect
of such default. If a Servicer Default shall arise from the failure of the
Servicer to perform any of its duties or obligations under the Servicing
Agreement with respect to the 2004-A SUBI Assets, the Issuer shall take all
reasonable steps available to it to remedy such failure. Upon the occurrence of
a Servicer Default with respect to the 2004-A SUBI or the Trust Assets allocated
thereto, the Indenture Trustee may terminate all of the rights and obligations
of the Servicer with respect to the 2004-A SUBI and the Trust Assets allocated
thereto only, and a successor Servicer shall be appointed pursuant to the
Servicing Agreement.
(e) Upon any termination of the Servicer's rights and powers or
resignation of the Servicer pursuant to the Servicing Agreement, the Issuer or
the Indenture Trustee shall promptly notify the other entity thereof. As soon as
a successor Servicer is appointed pursuant to the Servicing Agreement, the
Issuer or the Indenture Trustee shall notify the other entity of such
appointment, specifying in such notice the name and address of such successor
Servicer.
SECTION 3.08 Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
(a) engage in any activities other than financing, acquiring, owning,
pledging and managing the 2004-A SUBI Certificate as contemplated by this
Indenture and the other Basic Documents;
(b) except as expressly permitted herein and in the other Basic
Documents, sell, transfer, exchange or otherwise dispose of any of the assets of
the Issuer, including those assets included in the Trust Estate, unless directed
to do so by the Indenture Trustee;
(c) claim any credit on or make any deduction from the principal or
interest payable in respect of the Notes (other than amounts properly withheld
from such payments under the Code or applicable state law) or assert any claim
against any present or former Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Trust Estate;
(d) except as may be permitted expressly hereby (i) permit the validity
or effectiveness of this Indenture to be impaired, permit the lien of this
Indenture to be amended, hypothecated, subordinated, terminated or discharged or
permit any Person to be released from any covenants or obligations under this
Indenture, except as may be expressly permitted hereby, (ii) permit any
Indenture
14
lien, charge, excise, claim, security interest, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or extend to or
otherwise arise upon or burden the Trust Estate, any part thereof or any
interest therein or the proceeds thereof (other than tax liens, mechanics' liens
and other liens that arise by operation of law, in each case on any 2004-A SUBI
Asset and arising solely as a result of an action or omission of the related
Lessee) or (iii) except as otherwise provided in the Basic Documents, permit the
lien of this Indenture not to constitute a valid first priority (other than with
respect to any such tax, mechanics' or other lien) security interest in the
Trust Estate;
(e) incur, assume or guarantee any indebtedness other than indebtedness
incurred in accordance with the Basic Documents; or
(f) except as otherwise permitted by the Basic Documents, dissolve or
liquidate in whole or in part.
SECTION 3.09 Trust Certificates and Reports.
(a) The Issuer shall deliver to the Indenture Trustee and each Rating
Agency, on or before the last day of the third month after the end of each
fiscal year of the Issuer, beginning with June 30, 2005, an Officer's
Certificate stating, as to the Authorized Officer signing such Officer's
Certificate, that:
(i) a review of the activities of the Issuer during the 12
months of the prior fiscal year of the Issuer ended such calendar year
(or such shorter period in the case of the first such Officer's
Certificate) and of the Issuer's performance under this Indenture has
been made under such Authorized Officer's supervision;
(ii) to the best of such Authorized Officer's knowledge, based
on such review:
(A) all the dispositions of Collateral and cash
payments out of the Accounts described in clauses (A) and (B)
of Section 11.01(b)(v) that occurred during the preceding 12
month period (or shorter period in the case of the first such
Officer's Certificate) were made in the ordinary course of the
Issuer's business and the proceeds thereof were applied in
accordance with the Basic Documents; and
(B) the Issuer has complied with all conditions and
covenants under this Indenture throughout 12 month period of
the prior fiscal year of the Issuer ended such calendar year
(or such shorter period in the case of the first such
Officer's Certificate), or, if there has been a Default in the
compliance of any such condition or covenant, specifying each
such Default known to such Authorized Officer and the nature
and status thereof.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on March 31 of each year unless the fiscal year of the Servicer
ends on some other date, in which case, the fiscal year of the Issuer shall be
the same as the fiscal year of the Servicer
Indenture
15
SECTION 3.10 Restrictions on Certain Other Activities. Except as
otherwise provided in the Basic Documents, unless and until the Issuer shall
have been released from its duties and obligations hereunder, the Issuer shall
not: (i) engage in any activities other than financing, acquiring, owning,
leasing (subject to the lien of this Indenture), pledging and managing the
2004-A SUBI Certificate in the manner contemplated by the Basic Documents and
activities incidental thereto; (ii) issue, incur, assume, guarantee or otherwise
become liable, directly or indirectly, for any indebtedness; (iii) make any
loan, advance or credit to, 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; or
(iv) make any expenditure (by long-term or operating lease or otherwise) for
capital assets (either realty or personalty).
SECTION 3.11 Notice of Defaults. The Issuer agrees to give the
Indenture Trustee and each Rating Agency prompt written notice of each Indenture
Default hereunder on the part of the Administrative Agent and each Cap Event of
Default on the part of the Cap Provider under the Interest Rate Cap Agreement.
In addition, on (i) any Payment Date on which the Issuer has not received from
the Cap Provider any amount due from the Cap Provider on such Payment Date, (ii)
the Business Day following any such Payment Date if the Issuer has not yet
received such amount due from the Cap Provider or (iii) the Business Day on
which such failure to pay by the Cap Provider becomes a Cap Event of Default
under the Interest Rate Cap Agreement, the Issuer shall give immediate notice
thereof to the Cap Provider, the Indenture Trustee and each Rating Agency.
SECTION 3.12 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer shall execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purposes of this Indenture.
SECTION 3.13 Delivery of the 2004-A SUBI Certificate. On the Closing
Date, the Issuer shall deliver or cause to be delivered to the Indenture Trustee
as security for its obligations hereunder, the 2004-A SUBI Certificate. The
Indenture Trustee shall take possession of the 2004-A SUBI Certificate in the
Borough of Manhattan in the City of New York and shall at all times during the
period of this Indenture maintain custody of the 2004-A SUBI Certificate in the
Borough of Manhattan in the City of New York.
SECTION 3.14 Compliance with Laws. The Issuer shall comply with the
requirements of all applicable laws, the non-compliance with which would,
individually or in the aggregate, materially and adversely affect the ability of
the Issuer to perform its obligations under the Notes, this Indenture or any
other Basic Document.
SECTION 3.15 Issuer May Consolidate, etc., Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
Indenture
16
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America or any State or
the District of Columbia and shall expressly assume, by an Indenture
supplemental hereto, executed and delivered to the Indenture Trustee,
in form satisfactory to the Indenture Trustee, the duty to make 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;
(ii) immediately after giving effect to such transaction, no
Default or Indenture Default shall have occurred and be continuing;
(iii) the Issuer shall have provided each Rating Agency 10
days' prior written notice thereof, and no Rating Agency shall have
notified the Indenture Trustee, the Administrative Agent or the Owner
Trustee that such transaction might or would result in the removal or
reduction of the rating then assigned thereby to any Class of Notes;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction will not (A) affect the treatment of the
Notes as debt for federal income tax purposes, (B) be deemed to cause a
taxable exchange of the Notes for federal income tax purposes or (C)
cause the Issuer, the Transferor or the Titling Trust to be taxable as
an association (or publicly traded partnership) taxable as a
corporation for federal income tax purposes;
(v) any action that is necessary to maintain each lien and
security interest created by the Trust Agreement or this Indenture
shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that
such consolidation or merger and any related supplemental Indenture
complies with this Article III and that all conditions precedent
provided in this Indenture relating to such transaction have been
complied with (including any filing required by the Exchange Act).
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer such
properties and assets of the Issuer 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 supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the duty to make due and punctual payment of the
principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture on the
part of the Issuer to be performed or observed, all as provided herein,
(C) expressly agrees by means of such supplemental Indenture that all
right, title and interest so conveyed or transferred shall be subject
and subordinate to the rights of Holders of the Notes, (D) unless
otherwise
Indenture
17
provided in such supplemental Indenture, expressly agrees to indemnify,
defend and hold harmless the Issuer, the Owner Trustee and the
Indenture Trustee against and from any loss, liability or expense
arising under or related to this Indenture and the Notes, and (E)
expressly agrees by means of such supplemental Indenture that such
Person (or if a group of Persons, then one specified Person) shall make
all filings that counsel satisfactory to such purchaser or transferee
and the Indenture Trustee determines must be made with (1) the
Commission (and any other appropriate Person) required by the Exchange
Act or the appropriate authorities in any state in which the Notes have
been sold pursuant to any qualification or exemption under the
securities or "blue sky" laws of such state, in connection with the
Notes or (2) the Internal Revenue Service or the relevant state or
local taxing authorities of any jurisdiction;
(ii) immediately after giving effect to such transaction, no
Default or Indenture Default shall have occurred and be continuing;
(iii) the Issuer shall have provided each Rating Agency 10
days' prior written notice thereof, no Rating Agency shall have
notified the Indenture Trustee, the Administrative Agent or the Owner
Trustee that such transaction might or would result in the removal or
reduction of the rating then assigned thereby to any Class of Notes;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction will not (A) affect the treatment of the
Notes as debt for federal income tax purposes, (B) be deemed to cause a
taxable exchange of the Notes for federal income tax purposes or (C)
cause the Issuer, the Transferor or the Titling Trust to be taxable as
an association (or publicly traded partnership) taxable as a
corporation for federal income tax purposes;
(v) any action that is necessary to maintain each lien and
security interest created by the Trust Agreement or this Indenture
shall have been taken; and
(vi) 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 supplemental Indenture comply with
this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act).
SECTION 3.16 Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.15(a), the Person formed by or surviving such consolidation or merger
(if other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer pursuant to Section 3.15(b), Nissan Auto Lease Trust 2004-A will be
released from every covenant and agreement of this Indenture to be observed or
performed on the part of the Issuer with respect to
Indenture
18
the Notes and the Trust Certificates immediately upon the delivery of written
notice to the Indenture Trustee stating that Nissan Auto Lease Trust 2004-A is
to be so released.
SECTION 3.17 Removal of the Administrative Agent. So long as any Notes
are Outstanding, the Issuer shall not remove the Administrative Agent without
cause unless so instructed by the Owner Trustee or the Indenture Trustee and
unless each Rating Agency shall have received 10 days' written notice thereof
and shall not have notified the Indenture Trustee, the Administrative Agent or
the Owner Trustee that such removal might or would result in the removal or
reduction of the rating, if any, then assigned thereby to any Class of Notes or
the Trust Certificates.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01 Satisfaction and Discharge of Indenture. This Indenture
shall discharge with respect to the Collateral securing the Notes and cease to
be of further effect with respect to the Notes except as to (a) rights of
registration of transfer and exchange, (b) substitution of mutilated, destroyed,
lost or stolen Notes, (c) rights of Noteholders to receive payments of principal
thereof and interest thereon, (d) Sections 3.03, 3.04, 3.05, 3.08, 3.10(i),
3.10(ii) and 3.15, (e) the rights, obligations and immunities of the Indenture
Trustee hereunder (including the rights of the Indenture Trustee under Section
6.07 and the obligations of the Indenture Trustee under Sections 3.03 and 4.02)
and (f) the rights of Noteholders as beneficiaries hereof with respect to the
property so deposited with the Indenture Trustee payable to all or any of them,
and the Indenture Trustee, on demand and at the expense and on behalf of the
Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(i) either (A) all Notes theretofore authenticated and
delivered (other than (1) Notes that have been mutilated, destroyed,
lost or stolen and that have been replaced or paid as provided in
Section 2.05 and (2) Notes for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Issuer and
thereafter paid to the Persons entitled thereto or discharged from such
trust, as provided in Section 3.03) have been delivered to the
Indenture Trustee for cancellation; or (B) all Notes not theretofore
delivered to the Indenture Trustee for cancellation (1) have become due
and payable, (2) will become due and payable on the applicable Note
Final Scheduled Payment Date within one year or (3) are to be called
for redemption within one year under arrangements satisfactory to the
Indenture Trustee for the giving of notice of redemption by the
Indenture Trustee in the name, and at the expense, of the Issuer, and
the Issuer, in the case of clauses (1), (2) or (3) above, has
irrevocably deposited or caused to be irrevocably deposited with the
Indenture Trustee cash or direct obligations of or obligations
guaranteed by the United States (that will mature prior to the date
such amounts are payable), in trust for such purpose, in an amount
sufficient to pay and discharge the entire indebtedness on such Notes
(including interest and any fees due and payable to the Owner Trustee
or the Indenture Trustee) not theretofore delivered to the Indenture
Trustee for cancellation, when due, to the applicable Note Final
Scheduled
Indenture
19
Payment Date for each Class, or to the Redemption Date (if Notes shall
have been called for redemption pursuant to Section 10.01), as the case
may be;
(ii) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(iii) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate, (if required by the TIA or the Indenture
Trustee) an Opinion of Counsel and (if required by the TIA or the
Indenture Trustee) an Independent Certificate from a firm of certified
public accountants, each meeting the applicable requirements of Section
11.01 and, subject to Section 11.02, stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with and stating that
the Rating Agency Condition has been satisfied.
SECTION 4.02 Application of Trust Money. All monies deposited with the
Indenture Trustee pursuant to Section 4.01 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Noteholders of the particular Notes for the payment or
redemption of which such monies have been deposited with the Indenture Trustee
of all sums due and to become due thereon for principal and interest. Such
monies need not be segregated from other funds except to the extent required
herein or in the Servicing Agreement or as required by law.
SECTION 4.03 Repayment of Monies Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all monies then held by any Paying Agent other than the Indenture Trustee under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer, be paid to the Indenture Trustee to be held and applied according
to Section 3.03 and such Paying Agent shall thereupon be released from all
further liability with respect to such monies.
ARTICLE FIVE
INDENTURE DEFAULT
SECTION 5.01 Indenture Defaults. Any one of the following events
(whatever the reason for such Indenture Default and whether it shall be
voluntary or involuntary or 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) shall constitute a default under this
Indenture (each, an "Indenture Default"):
(a) default in the payment of any interest on any Note when the same
becomes due and payable, and such default shall continue for a period of five
days or more;
(b) default in the payment of principal of any Note on the related Note
Final Scheduled Payment Date or the Redemption Date;
Indenture
20
(c) a termination of the Interest Rate Cap Agreement without the
execution by the Issuer and a replacement Cap Provider of a replacement Interest
Rate Cap Agreement and acceptable to the Issuer and Indenture Trustee and the
assignment of such replacement Interest Rate Cap Agreement to the Indenture
Trustee;
(d) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture (other than a covenant or
agreement, a default in the observance or performance of which is elsewhere in
this Section specifically dealt with), or any representation or warranty of the
Issuer made in this Indenture or in any certificate or other writing delivered
pursuant hereto or in connection herewith proving to have been inaccurate in any
material respect as of the time when the same shall have been made, which
default or inaccuracy materially and adversely affects the interests of the
Noteholders and such default or inaccuracy shall continue or not be cured, or
the circumstance or condition in respect of which such misrepresentation or
warranty was inaccurate shall not have been eliminated or otherwise cured, for a
period of 60 days or in the case of a materially inaccurate representation or
warranty, 30 days, after there shall have been given, by registered or certified
mail, to the Issuer by the Indenture Trustee or to the Issuer and the Indenture
Trustee by Noteholders representing at least 25% of the Outstanding Amount,
voting as single class, a written notice specifying such default or inaccurate
representation or warranty and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder;
(e) the filing of a petition seeking entry of a decree or order for
relief by a court having jurisdiction in the premises in respect of the Issuer
or any substantial part of the Trust Estate in an involuntary case under any
applicable federal or state bankruptcy, liquidation, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the Trust Estate, or ordering the winding up or liquidation
of the Issuer's affairs, and such proceeding shall remain unstayed, undismissed
and in effect for a period of 90 consecutive days or immediately upon entry of
any such decree or order; or
(f) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect or the consent by the Issuer to the entry of an order for
relief in an involuntary case under any such law, the consent by the Issuer to
the appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the Trust Estate, the making by the Issuer of any general
assignment for the benefit of creditors, the failure by the Issuer generally to
pay its debts as such debts become due or the taking of action by the Issuer in
furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, each Rating Agency,
each Noteholder and the Cap Provider (except as to clause (c)) within five
Business Days after the occurrence thereof written notice in the form of an
Officer's Certificate of any event that with the giving of notice and the lapse
of time would become an Indenture Default under clauses (c), (d) or (e), its
status and what action the Issuer is taking or proposes to take with respect
thereto.
Indenture
21
Subject to the provisions herein relating to the duties of the
Indenture Trustee, if an Indenture Default occurs and is continuing, the
Indenture Trustee shall be under no obligation to exercise any of the rights or
powers under this Indenture at the request or direction of any Noteholder, if
the Indenture Trustee reasonably believes that it will not be adequately
indemnified against the costs, expenses and liabilities that might be incurred
by it in complying with such request. Subject to such provisions for
indemnification and certain limitations contained herein, Noteholders holding
not less than a Majority Interest of the Notes voting as a single class shall
have the right to direct the time, method and place of conducting any proceeding
or any remedy available to the Indenture Trustee or exercising any trust power
conferred on the Indenture Trustee.
SECTION 5.02 Acceleration of Maturity; Waiver of Indenture Default. If
an Indenture Default should occur and be continuing, the Indenture Trustee or
Noteholders representing a Majority Interest voting as a single class may
declare the principal of the Notes to be immediately due and payable. Upon such
declaration, the Indenture Trustee shall promptly provide written notice to each
Rating Agency. Such declaration may be rescinded by Noteholders holding a
Majority Interest voting as a single class before a judgment or decree for
payment of the amount due has been obtained by the Indenture Trustee if (a) the
Issuer has deposited with the Indenture Trustee an amount sufficient to pay (i)
all interest on and principal of the Notes and all other amounts that would then
be due hereunder as if the Indenture Default giving rise to such declaration had
not occurred and (ii) all amounts advanced by the Indenture Trustee and its
costs and expenses and (b) all Indenture Defaults (other than the nonpayment of
principal of the Notes that has become due solely by such acceleration) have
been cured or waived.
Prior to the acceleration of the maturity of the Notes as provided in
this Section 5.02, Noteholders holding not less than a Majority Interest of the
Notes voting as a single class may waive any past Indenture Default and its
consequences except an Indenture Default (i) in payment of principal of or
interest on the Notes or (ii) in respect of a covenant or provision hereof that
cannot be modified or amended without the consent of each Noteholder. In the
case of any such waiver, the Issuer, the Indenture Trustee and the Noteholders
shall be restored to their former positions and rights hereunder, respectively,
but no such waiver shall extend to any subsequent or other Indenture Default or
impair any right consequent thereto.
Upon any such waiver, such Indenture Default shall cease to exist and
be deemed to have been cured and not to have occurred, and any Indenture Default
arising therefrom shall be deemed to have been cured and not to have occurred
for every purpose of this Indenture, but no such waiver shall extend to any
subsequent or other Indenture Default or impair any right consequent thereto.
If the Notes have been declared due and payable following an Indenture
Default, the Indenture Trustee may institute proceedings to collect amounts due,
exercise remedies as a secured party (including foreclosure or sale of the Trust
Estate) or elect to maintain the Trust Estate and continue to apply the proceeds
from the Trust Estate as if there had been no declaration of acceleration. Any
sale of the Trust Estate by the Indenture Trustee will be subject to the terms
and conditions of Section 5.04.
Indenture
22
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.
(a) The Issuer covenants that if there is a default in the payment of
(i) any interest on the Notes when the same becomes due and payable, and such
default continues for a period of five days or (ii) the principal of any Notes
at the related Note Final Scheduled Payment Date or the Redemption Date, the
Issuer shall, upon demand of the Indenture Trustee, pay to the Indenture
Trustee, for the benefit of such Noteholders, the entire amount then due and
payable on such Notes for principal and interest, with interest on the overdue
principal, and, to the extent payment at such rate of interest shall be legally
enforceable, upon overdue installments of interest, at the Overdue Interest Rate
and in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee and its agents,
attorneys and counsel.
(b) In case the Issuer shall fail forthwith to pay amounts described in
Section 5.03(a) upon demand, the Indenture Trustee, in its own name and as
trustee of an express trust, may institute a Proceeding for the collection of
the sums so due and unpaid, and may prosecute such Proceeding to judgment or
final decree, and may enforce the same against the Issuer or other obligor upon
such Notes and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Notes, wherever situated, the monies adjudged
or decreed to be payable.
(c) If an Indenture Default occurs and is continuing, the Indenture
Trustee may, in its discretion, proceed to protect and enforce its rights and
the rights of the Noteholders, by such appropriate Proceedings as the Indenture
Trustee shall deem most effective to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy or legal or equitable right vested in the Indenture
Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Trust Estate, Proceedings under the Bankruptcy Code or any other applicable
federal or state bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or its property or such other obligor or Person, or in
case of any other comparable judicial Proceedings relative to the Issuer or
other obligor upon the Notes, or to the creditors or property of the Issuer or
such other obligor, the Indenture Trustee, irrespective of whether the principal
of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Indenture Trustee (including any
claim for reasonable compensation to the Indenture Trustee and
Indenture
23
each predecessor Indenture Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances and disbursements made, by the
Indenture Trustee and each predecessor Indenture Trustee, except as a
result of negligence or bad faith) and of the Noteholders allowed in
such Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Noteholders in any election of a trustee, a
standby trustee or Person performing similar functions in any such
Proceedings; to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders or the Cap
Provider and the Indenture Trustee on their behalf; and
(iii) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee or the Noteholders allowed in any judicial
proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each Noteholder to make payments to
the Indenture Trustee and, if the Indenture Trustee shall consent to the making
of payments directly to such Noteholders to pay to the Indenture Trustee such
amounts as shall be sufficient to cover reasonable compensation to the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred and all
advances and disbursements made by the Indenture Trustee and each predecessor
Indenture Trustee except as a result of negligence or bad faith, and any other
amounts due the Indenture Trustee under Section 6.07.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Noteholder or to vote in
respect of the claim of any Noteholder in any such proceeding except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
Person.
(f) All rights of action and of asserting claims under this Indenture,
or under the Notes or the Interest Rate Cap Agreement, may be enforced by the
Indenture Trustee without the possession of the Notes or the production thereof
in any trial or other Proceedings relative thereto, and any such action or
Proceedings instituted by the Indenture Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, advances, disbursements and compensation of the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel shall be for the ratable benefit of the
Noteholders in respect of which such judgment has been recovered.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
Indenture
24
SECTION 5.04 Remedies; Priorities.
(a) If an Indenture Default shall have occurred and be continuing, the
Indenture Trustee may do one or more of the following (subject to Sections 5.02
and 5.05):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer, the Cap Provider and any other obligor upon such Notes
monies adjudged due;
(ii) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the Trust
Estate;
(iii) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the rights
and remedies of the Indenture Trustee and the Noteholders; and
(iv) subject to Section 5.17, after an acceleration of the
maturity of the Notes pursuant to Section 5.02, sell the Trust Estate
or any portion thereof or rights or interest therein, at one or more
public or private sales called and conducted in any manner permitted by
law;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Trust Estate following an Indenture Default, other than an
Indenture Default described in Section 5.01 (a) or (b), unless (A) Noteholders
holding 100% of the Outstanding Amount consent thereto, (B) the proceeds of such
sale are sufficient to discharge in full all amounts then due and unpaid upon
all outstanding Notes or (C) the Indenture Trustee determines that the Trust
Estate will not continue to provide sufficient funds for the payment of
principal of and interest on the Notes as they would have become due if the
Notes had not been declared due and payable and the Indenture Trustee obtains
the consent of Noteholders holding not less than 66 2/3% of the Outstanding
Amount, voting together as a single class; and provided further, that the
Indenture Trustee may not sell the Trust Estate, unless it shall first have
obtained an Opinion of Counsel that such sale will not cause the Titling Trust
or an interest therein or portion thereof to be classified as an association (or
a publicly traded partnership) taxable as a corporation for federal income tax
purposes. In determining such sufficiency or insufficiency with respect to
clauses (B) and (C) of the preceding sentence, the Indenture Trustee may but
need not obtain (at the expense of the Issuer) and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article Five upon sale of the Trust Estate, it shall pay out such money or
property held as Collateral (together with available monies on deposit in the
Reserve Account) and deposited in the Note Distribution Account pursuant to
Section 12.05(b) of the SUBI Trust Agreement, after giving effect to the
Indenture
25
distributions set forth in such Section, for the benefit of the Securityholders
in the following order:
(i) to the Noteholders for the payments of interest which is
due and unpaid on the Notes (including any overdue interest, and to the
extent permitted under applicable law, interest on any overdue interest
at the applicable Overdue Interest Rate);
(ii) first, to the Class A-1 Noteholders, on a pro rata basis,
in payment of the principal amount due and unpaid on the Class A-1
Notes (until the Class A-1 Notes have been paid in full), and second,
to the Holders of the other Notes in payment of the principal amount
due and unpaid on the Class A-2 Notes, the Class A-3a Notes and the
Class A-3b Notes pro rata (based on the amount due and unpaid of each
such Class), until all Notes have been paid in full;
(iii) to the Certificate Distribution Account for distribution
to the Trust Certificateholders for amounts due and unpaid in respect
of the principal amount of the Trust Certificates, until the Trust
Certificates have been paid in full; and
(iv) any remaining amounts to the Transferor.
(c) The Indenture Trustee may fix a record date and payment date for
any payment to Noteholders pursuant to this Section. At least 15 days before
such record date, the Issuer shall mail to each Noteholder and the Indenture
Trustee a notice that states the record date, the payment date and the amount to
be paid.
SECTION 5.05 Optional Preservation of the Trust Estate. If the Notes
have been declared to be due and payable under Section 5.02 following an
Indenture Default and such declaration and its consequences have not been
rescinded and annulled, the Indenture Trustee may, but need not, elect to
maintain possession of the Trust Estate and continue to apply the proceeds
thereof in accordance with Sections 3.01 and 8.04. It is the intent of the
parties hereto and the Noteholders that there be at all times sufficient funds
for the payment of and interest on the Notes, and the Indenture Trustee shall
take such intent into account when determining whether or not to maintain
possession of the Trust Estate. In determining whether to maintain possession of
the Trust Estate, the Indenture Trustee may but need not obtain (at the expense
of the Issuer) and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Trust Estate for such purpose.
SECTION 5.06 Limitation of Suits.
(a) No Holder of any Note shall have any right to institute any
Proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(i) such Noteholder previously has given to the Indenture Trustee written notice
of a continuing Indenture Default, (ii) Noteholders holding not less than 25% of
the Outstanding Amount, voting together as a single class, have made written
request to the Indenture Trustee to institute such Proceeding in respect of such
Indenture Default in its own
Indenture
26
name as Indenture Trustee, (iii) such Noteholder has offered the Indenture
Trustee reasonable indemnity against the costs, expenses and liabilities to be
incurred in complying with such request, (iv) the Indenture Trustee has for 60
days after receipt of such notice failed to institute such Proceedings and (v)
no direction inconsistent with such written request has been given to the
Indenture Trustee during such 60-day period by Noteholders holding at least a
Majority Interest, voting together as a single class.
No Noteholder or group of Noteholders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other Noteholders or to obtain
or to seek to obtain priority or preference over any other Noteholder or to
enforce any right under this Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Noteholders, each
representing less than a Majority Interest of the Notes, the Indenture Trustee
in its sole discretion may determine what action, if any, shall be taken,
notwithstanding any other provisions of this Indenture.
(b) No Noteholder shall have any right to vote except as provided
pursuant to this Indenture and the Notes, nor any right in any manner to
otherwise control the operation and management of the Issuer.
SECTION 5.07 Unconditional Rights of Noteholders to Receive Principal
and Interest. Notwithstanding any other provision in this Indenture, any
Noteholder shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest on, if any, such Note on or after the
respective due dates thereof expressed in such Note or this Indenture (or, in
the case of redemption, on or after the Redemption Date) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Noteholder.
SECTION 5.08 Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had been
instituted.
SECTION 5.09 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law, in equity or otherwise. The assertion or employment of any right or remedy
hereunder or otherwise shall not prevent the concurrent assertion or employment
of any other appropriate right or remedy.
Indenture
27
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee or any Noteholder to exercise any right or remedy accruing
upon any Default or Indenture Default shall impair any such right or remedy or
constitute a waiver of any such Default or Indenture Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Indenture
Trustee or the Noteholders may be exercised from time to time, and as often as
may be deemed expedient, by the Indenture Trustee or by the Noteholders, as the
case may be.
SECTION 5.11 Control by Noteholders. Subject to the provisions of
Sections 5.04, 5.06, 6.02(d) and 6.02(e), Noteholders holding at least a
Majority Interest voting as a single class shall have the right to direct the
time, method and place of conducting any Proceeding or any remedy available to
the Indenture Trustee with respect to the Notes or with respect to the exercise
of any trust or power conferred on the Indenture Trustee, provided that:
(a) such direction shall not be in conflict with any rule of law or
this Indenture;
(b) subject to Section 5.04, any direction to the Indenture Trustee to,
sell or liquidate the Trust Estate shall be made by Noteholders holding not less
than 100% of the Outstanding Amount;
(c) if the conditions set forth in Section 5.05 have been satisfied and
the Indenture Trustee elects to retain the Trust Estate pursuant to such
Section, and then any direction to the Indenture Trustee by Noteholders holding
less than 100% of the Outstanding Amount to sell or liquidate the Trust Estate
shall be of no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this Section,
subject to Section 6.01, the Indenture Trustee need not take any action it
determines might expose it to personal liability or might materially adversely
affect or unduly prejudice the rights of any Noteholders not consenting to such
action.
SECTION 5.12 [Reserved].
SECTION 5.13 Undertaking for Costs. All parties to this Indenture
agree, and each Noteholder by such Noteholder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, but the
provisions of this Section shall not apply to (i) any suit instituted by the
Indenture Trustee, (ii) any suit instituted by any Noteholder or group of
Noteholders, in each case holding Notes evidencing more than 10% of the
Outstanding Amount, voting together as a single class, or (iii) any suit
Indenture
28
instituted by any Noteholder for the enforcement of the payment of principal of
or interest on any Note on or after the related due dates expressed in such Note
and in this Indenture (or, in the case of redemption, on or after the Redemption
Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture, and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Indenture
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or the Interest Rate Cap Agreement or under this
Indenture shall not be affected by the seeking, obtaining or application of any
other relief under or with respect to this Indenture. Neither the Lien of this
Indenture nor any rights or remedies of the Indenture Trustee or the Noteholders
shall be impaired by the recovery of any judgment by the Indenture Trustee
against the Issuer or by the levy of any execution under such judgment upon any
portion of the Trust Estate or upon any of the assets of the Issuer. Any money
or property collected by the Indenture Trustee shall be applied in accordance
with Section 5.04(b).
SECTION 5.16 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so,
the Issuer shall take all such lawful action as the Indenture Trustee may
request to compel or secure the performance and observance by the Transferor,
the Servicer and the Cap Provider, as applicable, of each of their obligations
to the Issuer under or in connection with the Servicing Agreement and the
Interest Rate Cap Agreement, respectively, in accordance with the terms thereof,
and to exercise any and all rights, remedies, powers and privileges lawfully
available to the Issuer under or in connection with each such agreement to the
extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Servicer thereunder and
the institution of legal or administrative actions or proceedings to compel or
secure performance by the Servicer of its obligations under the Servicing
Agreement.
(b) If an Indenture Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in writing
or by telephone (confirmed in writing promptly thereafter)) of Noteholders
holding not less than a Majority Interest of the Notes voting as a single class,
shall, exercise all rights, remedies, powers, privileges and claims of the
Issuer against the Transferor, the Titling Trustee, the Servicer and the Cap
Provider under or in connection with the Servicing Agreement and the Interest
Rate Cap Agreement, including the right or power to take any action to compel or
secure performance or observance by the Servicer of its obligations to the
Issuer thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Servicing Agreement, and any right of the Issuer
to take such action shall be suspended.
Indenture
29
SECTION 5.17 Sale of Trust Estate. If the Indenture Trustee acts to
sell the Trust Estate or any part thereof, pursuant to Section 5.04(a), the
Indenture Trustee shall effect such a sale at one or more public or private
sales called and conducted in any manner permitted by law in a commercially
reasonable manner and on commercially reasonable terms, which shall include the
solicitation of competitive bids. Unless otherwise prohibited by applicable law
from any such action, the Indenture Trustee shall sell the Trust Estate or any
part thereof, in such manner to the highest bidder, provided, however, that the
Indenture Trustee may from time to time postpone any sale. The Indenture Trustee
shall give notice to the Transferor and Servicer of any proposed sale, and the
Transferor and Servicer shall be permitted to bid for the Trust Estate at any
such sale. The Indenture Trustee may obtain a prior determination from a
conservator, receiver or trustee in bankruptcy of the Issuer that the terms and
manner of any proposed sale are commercially reasonable. The power to effect any
sale of any portion of the Trust Estate pursuant to Section 5.04 and this
Section shall not be exhausted by any one or more sales as to any portion of the
Trust Estate remaining unsold, but shall continue unimpaired until the entire
Trust Estate shall has been sold or all amounts payable on the Notes shall have
been paid.
ARTICLE SIX
THE INDENTURE TRUSTEE
SECTION 6.01 Duties of Indenture Trustee.
(a) If an Indenture Default has occurred and is continuing, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and in the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
(b) Except during the continuance of an Indenture Default:
(i) the Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture
and no implied covenants or obligations shall be read into this
Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; however, the Indenture Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture and the other Basic
Documents to which the Indenture Trustee is a party.
(c) The Indenture Trustee shall not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful,
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b);
Indenture
30
(ii) the Indenture Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 5.11.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to paragraphs (a), (b) and (c).
(e) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(f) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayments
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section.
(i) The Indenture Trustee shall not be deemed to have knowledge of any
Indenture Default or other event unless a Responsible Officer has actual
knowledge thereof or has received written notice thereof in accordance with the
provisions of this Indenture.
SECTION 6.02 Rights of Indenture Trustee.
(a) Except as provided by the second succeeding sentence, the Indenture
Trustee may conclusively rely and shall be protected in acting upon or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, note, direction, demand,
election or other paper or document believed by it to be genuine and to have
been signed or presented by the proper person. The Indenture Trustee need not
investigate any fact or matter stated in the document. Notwithstanding the
foregoing, the Indenture Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Indenture Trustee that shall be specifically required to be furnished
pursuant to any provision of this Indenture, shall examine them to determine
whether they comply as to form to the requirements of this Indenture.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate (with respect to factual matters) or an Opinion
of Counsel, as applicable. The Indenture Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officer's
Certificate or Opinion of Counsel.
Indenture
31
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, the Administrative Agent, any co-trustee or separate trustee
appointed in accordance with the provisions of Section 6.10 or any other such
agent, attorney, custodian or nominee appointed with due care by it hereunder.
(d) The Indenture Trustee will be liable for any loss, liability or
expense incurred by it through its own willful misconduct, negligence or bad
faith, except that the Indenture Trustee shall not be liable for (i) any error
of judgment made by it in good faith, unless it is proved that the Indenture
Trustee was negligent in ascertaining the pertinent facts, (ii) any action it
takes or omits to take in good faith in accordance with a direction received by
it from the Noteholders in accordance with the terms of the Indenture or (iii)
interest on any money received by it except as the Indenture Trustee and the
Issuer may agree in writing.
(e) The Indenture Trustee may consult with counsel, and the advice of
such counsel or any Opinion of Counsel with respect to legal matters relating to
this Indenture and the Notes shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Indenture Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture or to institute, conduct
or defend any litigation under this Indenture or in relation to this Indenture
or to honor the request or direction of any of the Noteholders pursuant to this
Indenture unless such Noteholders shall have offered to the Indenture Trustee
reasonable security or indemnity against the reasonable costs, expenses,
disbursements, advances and liabilities that might be incurred by it, its agents
and its counsel in compliance with such request or direction; provided, however,
that the Indenture Trustee shall, upon the occurrence of an Indenture Default
(that has not been cured), exercise the rights and powers vested in it by this
Indenture with reasonable care and skill.
(g) The Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by the holders of
Notes evidencing not less than 25% of the Outstanding Amount voting together as
a single class; provided, however, that if the payment within a reasonable time
to the Indenture Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of the
Indenture Trustee, not reasonably assured to the Indenture Trustee by the
security afforded to it by the terms of this Indenture, the Indenture Trustee
may require reasonable indemnity against such cost, expense or liability as a
condition to so proceeding. The reasonable expense of each such investigation
shall be paid by the Person making such request, or, if paid by the Indenture
Trustee, shall be reimbursed by the Person making such request upon demand.
(h) Any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request.
Indenture
32
(i) The Indenture Trustee shall, for so long as any Notes are
outstanding, be entitled to exercise all of the rights and powers of a
Beneficiary under the Basic Documents.
SECTION 6.03 Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or its Affiliates with the same
rights it would have if it were not Indenture Trustee. Any Paying Agent, Note
Registrar, co-registrar, co-paying agent, co-trustee or separate trustee may do
the same with like rights. The Indenture Trustee must, however, comply with
Section 6.11.
SECTION 6.04 Indenture Trustee's Disclaimer. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture, the Trust Estate, the Interest Rate Cap Agreement or
the Notes (other than the certificate of authentication on the Notes), shall not
be accountable for the Issuer's use of the proceeds from the Notes and shall not
be responsible for any statement in the Indenture, the Interest Rate Cap
Agreement or in any document issued in connection with the sale of the Notes or
in the Notes, all of which shall be taken as the statements of the Issuer, other
than the Indenture Trustee's certificate of authentication.
SECTION 6.05 Notice of Defaults. If a Default occurs and is continuing,
and if it is known to a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall mail to each Noteholder, the Cap Provider and each
Rating Agency notice of such Indenture Default within 60 days after it occurs.
Except in the case of a Default with respect to payment of principal of or
interest on any Note (including payments pursuant to the redemption of Notes),
the Indenture Trustee may withhold such notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding such notice
is in the interests of the Noteholders; provided, however, that in the case of
any Indenture Default of the character specified in Section 5.01(e), no such
notice shall be given until at least 30 days after the occurrence thereof.
SECTION 6.06 Reports by Indenture Trustee to Noteholders. The Indenture
Trustee, at the expense of the Issuer, shall deliver to each Noteholder, not
later than the latest date permitted by law, such information as may be
reasonably requested (and reasonably available to the Indenture Trustee) to
enable such holder to prepare its federal and state income tax returns. The
Indenture Trustee shall also deliver or cause to be delivered annually to each
Noteholder of record a report relating to its eligibility and qualification to
continue as Indenture Trustee under this Indenture, any amounts advanced by it
under this Indenture, the amount, interest rate and maturity date of certain
indebtedness owed by the Trust to the Indenture Trustee, in its individual
capacity, the property and funds physically held by the Indenture Trustee in its
capacity as such, and any action taken by it that materially affects the Notes
and that has not been previously reported.
SECTION 6.07 Compensation and Indemnity. The Servicer shall (i) pay to
the Indenture Trustee from time to time reasonable compensation for its
services, (ii) reimburse the Indenture Trustee for all reasonable expenses,
advances and disbursements reasonably incurred by it and (iii) indemnify the
Indenture Trustee for, and hold it harmless against, any and all loss,
Indenture
33
liability or expense (including reasonable attorneys' fees) incurred by it in
connection with the administration of the Issuer or the performance of its
duties. The Indenture Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Indenture Trustee shall
notify the Issuer and the Servicer promptly of any claim for which it may seek
indemnity. Failure by the Indenture Trustee to so notify the Issuer and the
Servicer shall not relieve the Issuer or the Servicer of its obligations
hereunder. The Servicer shall defend any such claim, and the Indenture Trustee
may have separate counsel and the Servicer shall pay the fees and expenses of
such counsel. The Indenture Trustee shall not be indemnified by the Servicer
against any loss, liability or expense incurred by it through its own willful
misconduct, negligence or bad faith, except that the Indenture Trustee shall not
be liable (i) for any error of judgment made by it in good faith unless it is
proved that the Indenture Trustee was negligent in ascertaining the pertinent
facts, (ii) with respect to any action it takes or omits to take in good faith
in accordance with a direction received by it from the Noteholders in accordance
with the terms of this Indenture and (iii) for interest on any money received by
it except as the Indenture Trustee and the Issuer may agree in writing. The
Indenture Trustee shall not be deemed to have knowledge of any event unless an
officer of the Indenture Trustee has actual knowledge thereof or has received
written notice thereof.
The Servicer's payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of an Indenture Default set forth
in Section 5.01(e) or (f) with respect to the Issuer, the expenses are intended
to constitute expenses of administration under the Bankruptcy Code or any other
applicable federal or state bankruptcy, insolvency or similar law.
SECTION 6.08 Replacement of Indenture Trustee. Noteholders holding not
less than a Majority Interest of the Notes, voting together as a single class,
may remove the Indenture Trustee without cause by so notifying the Indenture
Trustee and the Issuer, and following such removal may appoint a successor
Indenture Trustee. The Issuer shall give prompt written notice to each Rating
Agency of such removal. The Indenture Trustee may resign at any time by so
notifying the Issuer, the Servicer and each Rating Agency. The Issuer shall
remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) a court having jurisdiction in the premises in respect of
the Indenture Trustee in an involuntary case or proceeding under
federal or state banking or bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, shall have entered a decree or order
granting relief or appointing a receiver, liquidator, assignee,
custodian, trustee, conservator, sequestrator (or similar official) for
the Indenture Trustee or for any substantial part of the Indenture
Trustee's property, or ordering the winding-up or liquidation of the
Indenture Trustee's affairs, provided any such decree or order shall
have continued unstayed and in effect for a period of 30 consecutive
days;
(iii) the Indenture Trustee commences a voluntary case under
any federal or state banking or bankruptcy laws, as now or hereafter
constituted, or any other applicable
Indenture
34
federal or state bankruptcy, insolvency or other similar law, or
consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, conservator, sequestrator or
other similar official for the Indenture Trustee or for any substantial
part of the Indenture Trustee's property, or makes any assignment for
the benefit of creditors or fails generally to pay its debts as such
debts become due or takes any corporate action in furtherance of any of
the foregoing; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
Upon the resignation or required removal of the Indenture Trustee, or
the failure of the Noteholders to appoint a successor Indenture Trustee
following the removal without cause of the Indenture Trustee (the Indenture
Trustee in any such event being referred to herein as the retiring Indenture
Trustee), the Issuer shall be required promptly to appoint a successor Indenture
Trustee. Any successor Indenture Trustee must at all times have a combined
capital and surplus of at least $50,000,000, a long-term debt rating of "A" or
better by Standard & Poor's, Moody's and Fitch (if rated by Fitch) or be
otherwise acceptable to each Rating Agency and satisfy the requirements of
Section 310(a) of the TIA. Additionally, prior to the appointment of any
successor Indenture Trustee, the Rating Agency Condition must be satisfied with
respect to such successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall become effective
and the successor Indenture Trustee, without any further act, deed or
conveyance, shall have all the rights, powers and duties of the Indenture
Trustee under this Indenture, subject to satisfaction of the Rating Agency
Condition. The successor Indenture Trustee shall mail a notice of its succession
to the Noteholders and the Cap Provider. The retiring Indenture Trustee shall
promptly transfer all property held by it as Indenture Trustee to the successor
Indenture Trustee.
If a successor Indenture Trustee does not take office within 30 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or Noteholders holding not less than a Majority
Interest of the Notes, voting together as a single class, may petition any court
of competent jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Any resignation or removal of the Indenture Trustee and appointment of
a successor Indenture Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Indenture Trustee pursuant to this Section and payment of all fees and expenses
owed to the outgoing Indenture Trustee. Notwithstanding the replacement of the
Indenture Trustee pursuant to this Section, the retiring Indenture Trustee shall
be entitled to payment or reimbursement of such amounts as such Person is
entitled pursuant to Section 6.07.
Indenture
35
SECTION 6.09 Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to another corporation
or depository institution the resulting, surviving or transferee corporation,
without any further act, shall be the successor Indenture Trustee; provided,
that such corporation or depository institution shall be otherwise qualified and
eligible under Section 6.11. The Indenture Trustee shall provide each Rating
Agency prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture, the Notes shall have been authenticated but not delivered, any
such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee and deliver such Notes so
authenticated, and in case at that time the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee, and in all such cases such certificates
shall have the full force that it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
SECTION 6.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust Estate may at the time be located, the Indenture
Trustee and the Administrative Agent acting jointly shall have the power and may
execute and deliver all instruments to appoint one or more Persons to act as a
co-trustee or co-trustees, or separate trustee or separate trustees, of all or
any part of the Collateral, and to vest in such Person or Persons, in such
capacity and for the benefit of the Noteholders, such title to the Trust Estate
or any part hereof and, subject to the other provisions of this Section, such
powers, duties, obligations, rights and trusts as the Indenture Trustee and the
Administrative Agent may consider necessary or desirable. If the Administrative
Agent shall not have joined in such appointment within 15 days after it received
a request that it so join, the Indenture Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.11 and no notice to Noteholders or the Cap Provider of the appointment of any
co-trustee or separate trustee shall be required under Section 6.08.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being intended that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to
be performed, the Indenture Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Collateral or
any
Indenture
36
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Indenture Trustee;
(ii) no separate trustee or co-trustee hereunder shall be
personally liable by reason of any act or omission of any other trustee
hereunder; and
(iii) the Indenture Trustee and the Administrative Agent may
at any time accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Indenture
Trustee or separately, as may be provided therein, subject to all the provisions
of this Indenture and specifically including every provision of this Indenture
relating to the conduct of, affecting the liability of or affording protection
to the Indenture Trustee. Every such instrument shall be filed with the
Indenture Trustee and a copy thereof given to the Administrative Agent.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, then all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee to the extent permitted by law, without the
appointment of a new or successor trustee. Notwithstanding anything to the
contrary in this Indenture, the appointment of any separate trustee or
co-trustee shall not relieve the Indenture Trustee of its obligations and duties
under this Indenture.
SECTION 6.11 Eligibility; Disqualification. The Indenture Trustee shall
at all times satisfy the requirements of Section 310(a) of the TIA and shall in
addition have a combined capital and surplus of at least $50,000,000 (as set
forth in its most recent published annual report of condition) and a long-term
debt rating of "A" or better by Standard & Poor's, Moody's and Fitch (if rated
by Fitch) or be otherwise acceptable to each Rating Agency. The Indenture
Trustee shall satisfy the requirements of Section 310(b) of the TIA, including
the optional provision permitted by the second sentence of TIA Section
310(b)(9); provided, however, that there shall be excluded form the operation of
TIA Section 310(b)(1) any Indenture or Indentures under which other securities
of the Issuer are outstanding if the requirements for such exclusions set forth
in TIA Section 310(b)(1) are met. The Transferor, the Administrative Agent, the
Servicer and their respective Affiliates may maintain normal commercial banking
relationships with the Indenture Trustee and its Affiliates, but neither the
Issuer nor any Affiliate of the Issuer may serve as Indenture Trustee.
SECTION 6.12 Trustee as Holder of the 2004-A SUBI Certificate. So long
as any Notes are Outstanding, to the extent that the Owner Trustee or the Issuer
has rights as a Holder of
Indenture
37
the 2004-A SUBI Certificate, including rights to distributions and notice, or is
entitled to consent to any actions taken by the Transferor, the Owner Trustee or
the Issuer may initiate such action or grant such consent only with consent of
the Indenture Trustee. To the extent that the Indenture Trustee has rights as a
Holder of the 2004-A SUBI Certificate or has the right to consent or withhold
consent with respect to actions taken by the Transferor, the Owner Trustee or
the Issuer, such rights shall be exercised or consent granted (or withheld) upon
the written direction of Holders not less than a Majority Interest of the Notes
voting together as a single class; provided, however, that subject to Section
3.07, any direction to the Indenture Trustee to remove or replace the Servicer
upon a Servicer Default shall be made by Noteholders holding not less than
66 2/3% of the Outstanding Amount, voting together as a single class, and with
respect to Section 11.15, such direction shall require the written direction of
Noteholders holding 100% of the Outstanding Amount.
SECTION 6.13 Representations and Warranties of Indenture Trustee. The
Indenture Trustee hereby makes the following representations and warranties on
which the Issuer and Noteholders shall rely:
(i) the Indenture Trustee is a national banking association
duly organized, validly existing and in good standing under the laws of
the United States; and
(ii) the Indenture Trustee has full power, authority and legal
right to execute, deliver, and, perform this Indenture and shall have
taken all necessary action to authorize the execution, delivery and
performance by it of this Indenture.
SECTION 6.14 Furnishing of Documents. The Indenture Trustee shall
furnish to any Noteholder promptly upon receipt of a written request by such
Noteholder (at the expense of the requesting Noteholder) therefor, duplicates or
copies of all reports, notices, requests, demands, certificates and any other
instruments furnished to the Indenture Trustee under the Basic Documents.
SECTION 6.15 Interest Rate Cap Agreement Provisions. The Issuer has
entered into the Interest Rate Cap Agreement, in the form satisfactory to the
Rating Agencies, to hedge the floating rate interest expense on the Class A-3a
Notes. The Issuer may, from time to time, enter into one or more replacement
Interest Rate Cap Agreements if any Interest Rate Cap Agreement is terminated
prior to its scheduled expiration pursuant to a Cap Event of Default or a Cap
Termination Event.
(a) Except as provided in Section 8.03 of the Servicing Agreement, the
Indenture Trustee will be responsible for collecting Cap Payments and any Cap
Termination Payments payable by the Cap Provider.
(b) Upon the occurrence of (i) any Cap Event of Default arising from
any action taken, or failure to act, by the Cap Provider, or (ii) any Cap
Termination Event (except as described in the following sentence) with respect
to which the Cap Provider is an "Affected Party" (as defined in the Interest
Rate Cap Agreement), the Indenture Trustee may and will, at the direction of
Noteholders holding not less than a Majority Interest of the Notes, voting
together as a single
Indenture
38
class, by notice to the Cap Provider, designate an "Early Termination Date" (as
defined in the Interest Rate Cap Agreement) with respect to the Interest Rate
Cap Agreement. If a Cap Termination Event occurs as a result of the insolvency
or bankruptcy of the Cap Provider, which event has not been otherwise cured
under the terms of the Interest Rate Cap Agreement, the Indenture Trustee will
terminate the Interest Rate Cap Agreement.
(c) The Indenture Trustee, as assignee of the rights of the Issuer
under the Interest Rate Cap Agreement, may enter into any amendment or
supplement to the Interest Rate Cap Agreement (i) to cure any ambiguity or
mistake, (ii) to correct any defective provisions or to correct or supplement
any provision therein that may be inconsistent with any other provision therein
or with the Indenture or (iii) to add any other provisions with respect to
matters or questions arising under the Interest Rate Cap Agreement; provided, in
the case of clause (iii), that such amendment will not adversely affect in any
material respect the interest of any Noteholder. Any such amendment shall be
deemed not to adversely affect in any material respect the interests of any
Noteholder if Standard & Poor's and Fitch deliver a letter to the Indenture
Trustee to the effect that the amendment will not result in a Rating Event, and
if the Indenture Trustee has provided Moody's with 10 days prior written notice
of the amendment and Moody's shall not have notified the Indenture Trustee or
the Owner Trustee that the amendment might or would result in a Rating Event.
(d) The Indenture Trustee shall notify the Cap Provider of any proposed
amendment or supplement to any of the Basic Documents. If such proposed
amendment or supplement would adversely affect any of the Cap Provider's rights
or obligations under the Interest Rate Cap Agreement, the Indenture Trustee
shall obtain the consent of the Cap Provider prior to the adoption of such
amendment or supplement; provided, that the Cap Provider's consent to any such
amendment or supplement shall not be unreasonably withheld, and provided,
further, that the Cap Provider's consent will be deemed to have been given if
the Cap Provider does not object in writing within 10 days of receipt of a
written request for such consent.
SECTION 6.16 Preferred Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE SEVEN
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.01 Note Registrar to Furnish Noteholder Names and Addresses.
The Note Registrar shall furnish or cause to be furnished to the Indenture
Trustee, the Owner Trustee, the Servicer or the Administrative Agent, within 15
days after receipt by the Note Registrar of a written request therefrom, a list
of the names and addresses of the Noteholders of any Class as of the most recent
Deposit Date. If three or more Noteholders, or one or more Holders evidencing
not less than 25% of the Outstanding Amount of the Notes (hereinafter referred
to as "Applicants"), apply in writing to the Indenture Trustee, and such
application states that the Applicants desire to communicate with other
Noteholders with respect to their rights under this
Indenture
39
Indenture or under the Notes and such application is accompanied by a copy of
the communication that such Applicants propose to transmit, then the Indenture
Trustee shall, within five Business Days after the receipt of such application,
afford such Applicants access, during normal business hours, to the current list
of Noteholders. The Indenture Trustee may elect not to afford the requesting
Noteholders access to the list of Noteholders if it agrees to mail the desired
communication by proxy, on behalf of and at the expense of the requesting
Noteholders, to all Noteholders. Every Noteholder, by receiving and holding a
Note, agrees with the Indenture Trustee and the Issuer that none of the
Indenture Trustee, the Owner Trustee, the Issuer, the Servicer or the
Administrative Agent shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Noteholders under this
Indenture, regardless of the source from which such information was derived.
If the Indenture Trustee shall cease to be the Note Registrar, then
thereafter the Issuer shall furnish or cause to be furnished to the Indenture
Trustee (i) not more than five days after each Deposit Date a list, in such form
as the Indenture Trustee may reasonably require, of the names and addresses of
the Noteholders as of such Deposit Date and (ii) at such other times as the
Indenture Trustee may request in writing, within 30 days after receipt by the
Issuer of any such request, a list of similar form and content as of a date not
more than ten days prior to the time such list is furnished.
Notwithstanding the foregoing, so long as the Indenture Trustee is the
Note Registrar no such list shall be required to be furnished to the Indenture
Trustee, and so long as the Notes are issued as Book-Entry Notes, no such list
shall be required to furnished to the Indenture Trustee, Owner Trustee, Servicer
or Administrative Agent.
SECTION 7.02 Preservation of Information; Communications to
Noteholders.
(a) The Indenture Trustee shall preserve in as current a form as is
reasonably practicable the names and addresses of the Noteholders contained in
the most recent list furnished to the Indenture Trustee as provided in Section
7.01 and the names and addresses of 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 7.01 upon receipt of a new list so
furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA Section 3.12(c).
SECTION 7.03 Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by the rules and regulations prescribe) that the
Issuer
Indenture
40
may be required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with the rules and regulations prescribed from time to time
by the Commission such additional information, documents and reports
with respect to compliance by the Issuer with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA
Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i) and
(ii) of this Section 7.03(a) and by rules and regulations prescribed
from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on March 31 of each year, unless the fiscal year of the
Servicer ends on some other date, in which case, the fiscal year of the Issuer
shall be the same as the fiscal year of the Servicer.
SECTION 7.04 Reports by Indenture Trustee. If required by TIA Section
313(a), within 60 days after each March 31, beginning with March 31, 2005, the
Indenture Trustee shall mail to each Noteholder as required by TIA Section
313(c) a brief report dated as of such date that complies with TIA Section
313(a). The Indenture Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Noteholders shall
be filed by the Indenture Trustee with the Commission and each stock exchange,
if any, on which the Notes are listed. The Issuer shall notify the Indenture
Trustee if and when the Notes are listed on any stock exchange.
ARTICLE EIGHT
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.01 Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the Trust Estate, the Indenture Trustee may take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
without prejudice to any right to claim an Indenture Default under this
Indenture and any right to proceed thereafter as provided in Article Five.
Indenture
41
SECTION 8.02 Accounts.
(a) Pursuant to Section 5.01 of the Trust Agreement, there has been
established and there shall be maintained an Eligible Account (initially at U.S.
Bank) in the name of the Indenture Trustee until the Outstanding Amount is
reduced to zero, and thereafter, in the name of the Owner Trustee, which is
designated as the "Reserve Account". The Reserve Account shall be held for the
benefit of the Securityholders, and shall bear a designation clearly indicating
that the funds on deposit therein are held for the benefit of the
Securityholders. The Reserve Account shall be under the sole dominion and
control of the Indenture Trustee until the Outstanding Amount has been reduced
to zero, and thereafter under the sole dominion and control of the Owner
Trustee.
(b) The Issuer shall cause the Transferor, prior to the Closing Date,
establish and maintain an Eligible Account in the name of the Indenture Trustee
on behalf of the Noteholders, which shall be designated as the "Note
Distribution Account". The Note Distribution Account shall be held in trust for
the benefit of the Noteholders. The Note Distribution Account shall be under the
sole dominion and control of the Indenture Trustee.
(c) All monies deposited from time to time in the Accounts pursuant to
this Indenture or the 2004-A Servicing Supplement shall be held by the Indenture
Trustee as part of the Collateral and shall be applied to the purposes herein
provided. If any Account shall cease to be an Eligible Account, the Indenture
Trustee, until the Outstanding Amount has been reduced to zero, and thereafter
with respect to the Reserve Account, the Owner Trustee shall, as necessary,
assist the Servicer in causing each Account to be moved to an institution at
which it shall be an Eligible Account.
SECTION 8.03 Payment Date Certificate.
(a) Prior to 3:00 p.m., New York City time on the second Business Day
preceding each Payment Date, the Issuer shall cause the Servicer, to deliver to
the Indenture Trustee, the Owner Trustee and each Paying Agent hereunder or
under the Trust Agreement, a certificate (the "Payment Date Certificate")
including, among other things, the following information with respect to such
Payment Date and the related Collection Period and Accrual Period:
(i) the amount of SUBI Collections allocable to the 2004-A
SUBI Certificate;
(ii) Available Funds, including amounts with respect to each
of items (i) through (iv) of the definition thereof;
(iii) the amount of interest accrued during such Accrual
Period on each Class of the Notes;
(iv) the Class A-1 Note Balance, the Class A-2 Note Balance,
the Class A-3a Note Balance, the Class-3b Balance, the Certificate
Balance, in each case on the day immediately preceding such Payment
Date;
Indenture
42
(v) (A) the Reserve Account Requirement, (B) the Reserve
Account Deposit Amount, if any, (C) the Reserve Account Draw Amount, if
any, (D) the balance on deposit in the Reserve Account on such Payment
Date after giving effect to withdrawals therefrom and deposits thereto
in respect of such Payment Date and (E) the change in such balance from
the immediately preceding Payment Date;
(vi) the Note Distribution Amount for each Class of Notes and
the Certificate Distribution Amount;
(vii) the amount of the Note Distribution Amount allocable to
interest on and principal of the Notes and any Principal Carryover
Shortfall for each Class of the Notes;
(viii) the amount of any principal paid on, and Principal
Carryover Shortfall for, the Trust Certificates;
(ix) the Monthly Principal Distributable Amount and the
Optimal Principal Distributable Amount;
(x) the Note Factor for each Class of the Notes and the
Certificate Factor for the Trust Certificates after giving effect to
the distribution of the Note Distribution Amount and the Certificate
Distribution Amount, respectively;
(xi) the aggregate amount of Residual Value Losses and
Residual Value Surplus for such Collection Period;
(xii) the amount of Sales Proceeds Advances and Monthly
Payment Advances included in Available Funds;
(xiii) the amount of any Payment Date Advance Reimbursement
for such Collection Period;
(xiv) the Cap Payments and/or any Cap Termination Payment
received by the Issuer from the Cap Provider; and
(xv) the Servicing Fee for such Collection Period.
Each amount set forth pursuant to clauses (iii), (iv), (vi), (vii) and
(viii) above shall be expressed in the aggregate and as a dollar amount per
$1,000 of original principal balance of a Note or Trust Certificate, as
applicable.
(b) The Indenture Trustee shall have no duty or obligation to verify or
confirm the accuracy of any of the information or numbers set forth in the
Payment Date Certificate delivered to the Indenture Trustee in accordance with
this Section, and the Indenture Trustee shall be fully protected in relying upon
such Payment Date Certificate.
Indenture
43
SECTION 8.04 Disbursement of Funds.
(a) On each Payment Date, prior to 11:00 a.m., New York City time, the
Titling Trustee (acting through the Trust Agent) shall, in accordance with the
related Payment Date Certificate and pursuant to the instructions of the
Servicer, transfer from the 2004-A SUBI Collection Account all Securityholder
Available Funds and apply such amount, in accordance with the following
priorities:
(i) to the Note Distribution Account, for payment to the
Noteholders, an amount equal to the interest accrued at the applicable
Interest Rate for such Class of Notes during the related Accrual Period
on the applicable Outstanding Amount (plus any accrued and unpaid
interest with respect to any prior Accrual Period) for such Class (and,
to the extent permitted by applicable law, interest on any overdue
interest at the Overdue Interest Rate), on a pro rata basis;
(ii) to the related Distribution Account the Monthly Principal
Distributable Amount distributable to each Class of Notes and the Trust
Certificates, in the following order of priority:
(A) on any Payment Date (so long as the maturity
of the Notes has not been accelerated
pursuant to Section 5.02):
(1) to the Class A-1 Notes until the Class
A-1 Notes have been paid in full;
(2) after the principal amount of the Class
A-1 Notes is reduced to zero, to the Class A-2 Notes
until the Class A-2 Notes have been paid in full;
(3) after the principal amount of the Class
A-2 Notes is reduced to zero, to the Class A-3a Notes
and the Class A-3b Notes pro rata based on the
principal balances of the Class A-3a Notes and the
Class A-3b Notes until the Class A-3a Notes and Class
A-3b Notes have been paid in full;
(4) after the principal amount of the Class
A-3a Notes and the Class A-3b Notes is reduced to
zero, to the Certificate Distribution Account for
distribution of principal to the Trust
Certificateholders, until the Trust Certificates have
been paid in full; and
(B) on any Payment Date after the maturity of the
Notes has been accelerated pursuant to Section 5.02:
(1) to the Class A-1 Noteholders (until the
Class A-1 Notes have been paid in full) and second,
to the other Noteholders pro rata (based on the
Outstanding Amount of each such Class on such Payment
Date), until all Notes have been paid in full, and
Indenture
44
(2) to the Certificate Distribution Account,
for distribution to the Trust Certificateholders for
amounts due and unpaid in respect of the principal
amount of the Trust Certificates, until the Trust
Certificates have been paid in full;
(iii) until all Class of Notes have been paid in full, to the
Reserve Account, any remaining funds, until the Reserve Account
Requirement has been satisfied; and
(iv) to the Certificate Distribution Account for the
Transferor.
(b) On each Payment Date, after taking into account amounts to be
distributed to Securityholders from the 2004-A SUBI Collection Account, the
Servicer will allocate the Reserve Account Draw Amount, if any, reflected in the
Payment Date Certificate, with respect to the related Collection Period and will
instruct the Indenture Trustee to make the following deposits and distributions
in the following amounts and order of priority, prior to 11:00 a.m., New York
City time:
(i) to the Note Distribution Account, to pay any remaining
interest due on the outstanding Notes on such Payment Date (and, to the
extent permitted under applicable law, interest on any overdue interest
at the Overdue Interest Rate); and
(ii) to the Note Distribution Account, to pay principal of the
Notes in the amounts and order of priority set forth in Section
8.04(a)(ii).
(c) If on any Payment Date, after giving effect to all deposits to and
withdrawals from the Reserve Account, the amount on deposit in the Reserve
Account exceeds the Reserve Account Requirement, the Indenture Trustee shall
distribute any such excess amounts to the Transferor. Upon any such
distributions, the Securityholders will have no further rights in, or claims to
such amounts.
(d) On each Payment Date or Redemption Date, from the amounts on
deposit in the Note Distribution Account, the Indenture Trustee shall duly and
punctually distribute payments of principal and interest on the Notes due and by
check mailed to the Person whose name appears as the registered holder of a Note
(or one or more Predecessor Notes) on the Note Register as of the close of
business on the related Deposit Date, except that with respect to Notes
registered on the Deposit Date in the name of (i) the nominee of DTC (initially,
such nominee to be Cede & Co.), and (ii) a Person (other than the nominee of
DTC) that holds Notes with original denominations aggregating at least $1
million and has given the Indenture Trustee appropriate written instructions at
least five Business Days prior to the related Deposit Date (which instructions,
until revised, shall remain operative for all Payment Dates thereafter),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee or Person. Such checks shall be mailed to the
Person entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Deposit Date without requiring that the Note be
submitted for notation of payment. Any reduction in the principal amount of any
Note (or any one or more Predecessor Notes) affected by any payments made on any
Payment Date or Redemption Date shall be binding upon all future holders of any
Note issued upon the
Indenture
45
registration of transfer thereof or in exchange hereof or in lieu hereof,
whether or not noted thereon. Amounts properly withheld under the Code by any
Person from payment to any Noteholder of interest or principal shall be
considered to have been paid by the Indenture Trustee to such Noteholder for
purposes of this Indenture. If funds are expected to be available, pursuant to
the notice delivered to the Indenture Trustee, for payment in full of the
remaining unpaid principal amount of the Notes on a Payment Date or Redemption
Date, then the Indenture Trustee, in the name of and on behalf of the Issuer,
will notify each Person who was the registered holder of a Note as of the
Deposit Date preceding the most recent Payment Date or Redemption Date by notice
mailed not less than 15 but no more than 30 days of such Payment Date or
Redemption Date and the amount then due and payable shall be payable only upon
presentation and surrender of the Note at the Corporate Trust Office of the
Indenture Trustee or at the office of the Indenture Trustee's agent appointed
for such purposes located in The Borough of Manhattan in The City of New York.
(e) On each Payment Date, the Indenture Trustee shall send by first
class mail an unaudited report (which may be or may be based upon the Payment
Date Certificate prepared by the Servicer) to each Person that was a Noteholder
as of the close of business on the related Deposit Date (which shall be Cede &
Co. as the nominee of DTC unless Definitive Notes are issued under the limited
circumstances described herein), and each Rating Agency setting forth the
following information with respect to such Payment Date or the related Deposit
Date or Collection Period, as the case may be:
(i) the amount of SUBI Collections allocable to the 2004-A
SUBI Certificate;
(ii) the amount of Available Funds;
(iii) the amount of interest accrued during such Accrual
Period on each Class of the Notes;
(iv) the Class A-1 Note Balance, the Class A-2 Note Balance,
the Class A-3a Note Balance, the Class A-3b Note Balance, the
Outstanding Amount of the Certificate Balance, in each case before
giving effect to payments on such Payment Date;
(v) (A) the Reserve Account Requirement, (B) the Reserve
Account Deposit Amount, if any, (C) the Reserve Account Draw Amount, if
any, (D) the balance on deposit in the Reserve Account on such Payment
Date after giving effect to withdrawals therefrom and deposits thereto
in respect of such Payment Date and (E) the change in such balance from
the immediately preceding Payment Date;
(vi) the Note Distribution Amount for each Class of Notes and
the Certificate Distribution Amount;
(vii) the amount of the Note Distribution Amount allocable to
interest on and principal of the Notes and any Principal Carryover
Shortfall for each Class of the Notes;
(viii) the amount of any principal paid on, and Principal
Carryover Shortfall for, the Trust Certificates;
Indenture
46
(ix) the Note Factor for each Class of the Notes and the
Certificate Factor for the Trust Certificates after giving effect to
the distribution of the Note Distribution Amount and the Certificate
Distribution Amount, respectively;
(x) the aggregate amount of Residual Value Losses and Residual
Value Surplus for such Collection Period;
(xi) the amount of Sales Proceeds Advances and Monthly Payment
Advances included in Available Funds;
(xii) the amount of any Payment Date Advance Reimbursement for
such Collection Period;
(xiii) the Cap Payments and/or any Cap Termination Payment;
and
(xiv) the Servicing Fee for such Collection Period.
Each amount set forth pursuant to clauses (iii), (iv), (vi), (vii) and
(viii) above shall be expressed in the aggregate and as a dollar amount per
$1,000 of original principal balance of a Note or Trust Certificate, as
applicable. Note Owners may obtain copies of such reports upon a request in
writing to the Indenture Trustee at the Corporate Trust Office.
SECTION 8.05 General Provisions Regarding Accounts.
(a) For so long as no Default or Indenture Default shall have occurred
and be continuing, all of the funds in the Reserve Account shall be invested and
reinvested by the Indenture Trustee, until the Outstanding Amount of the Notes
has been reduced to zero and thereafter by the Owner Trustee, at the direction
of the Administrative Agent in Permitted Investments as set forth in Section
4.02(a) of the Titling Trust Agreement, which mature no later than the Deposit
Date succeeding the date of such investment, including those offered by the
Indenture Trustee or an Affiliate thereof. No such investment shall be sold
prior to maturity. Any investment earnings on the Reserve Account will be
taxable to the Transferor. On each Payment Date, net investment earnings on the
Reserve Account shall be deposited in the Reserve Account.
(b) Subject to Section 6.01(c), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in the Reserve Account
resulting from any loss on any Permitted Investment included therein, except for
losses attributable to the Indenture Trustee's failure to make payments on any
such Permitted Investments issued by the Indenture Trustee in its commercial
capacity as principal obligor and not as trustee, in accordance with their
terms.
(c) If (i) the Administrative Agent shall have failed to give
investment directions for any funds on deposit in the Reserve Account to the
Indenture Trustee by 3:00 p.m., New York City time (or such other time as may be
agreed by the Administrative Agent and Indenture Trustee), on any Business Day
or (ii) a Default or Indenture Default shall have occurred and be continuing
with respect to the Notes but the Notes shall not have been declared due and
payable pursuant to Section 5.02 or (iii) if the Notes shall have been declared
due and payable following an Indenture Default, amounts collected or receivable
from the Trust Estate are being applied in accordance
Indenture
47
with Section 5.05 as if there had not been such a declaration, then the
Indenture Trustee shall, to the fullest extent practicable, invest and reinvest
funds in investments that are Permitted Investments as set forth in paragraph
(vi) of the definition thereof.
SECTION 8.06 Release of Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to Section
6.07, the Indenture Trustee may, and when required by the provisions of this
Indenture shall, execute instruments to release property from the lien of this
Indenture, or convey the Indenture Trustee's interest in the same, in a manner
and under circumstances that are not inconsistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Indenture Trustee
as provided in this Article shall be bound to ascertain the Indenture Trustee's
authority, inquire into the satisfaction of any conditions precedent or see to
the application of any monies.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Indenture Trustee pursuant to Section 6.07 have
been paid, release any remaining portion of the Trust Estate that secured the
Notes from the lien of this Indenture and release to the Issuer or any other
Person entitled thereto any funds then on deposit in the Trust Accounts. Such
release shall include delivery to the Issuer or its designee of the 2004-A SUBI
Certificate and delivery to the Securities Intermediary under the Control
Agreement of a certificate evidencing the release of the lien of this Indenture
and transfer of dominion and control over the Reserve Account to the Owner
Trustee. The Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section only upon receipt of a Issuer Request.
SECTION 8.07 Release of Interest In 2004-A Leases and 2004-A Vehicles
Upon Purchase or Reallocation by the Servicer.
(a) Upon the reallocation or purchase of any 2004-A Lease and related
2004-A Leased by the Servicer pursuant to Section 8.02 of the Servicing
Agreement, the Indenture Trustee, on behalf of the Noteholders, shall, without
further action, be deemed to release from the lien of this Indenture any and all
rights to receive monies due or to become due with respect to such purchased or
reallocated 2004-A Lease and related 2004-A Vehicle and all proceeds thereof and
the other property with respect to such 2004-A Lease and related 2004-A Vehicle,
and all security and any documents relating thereto, and such 2004-A Lease and
related 2004-A Vehicle and all such related security and documents shall be free
of any further obligation to the Issuer, the Indenture Trustee or the
Noteholders.
(b) The Indenture Trustee shall execute such documents and instruments
and take such other actions as shall be reasonably requested by the Servicer to
effect the release of such rights with respect to such 2004-A Lease and related
2004-A Vehicle pursuant hereto and the assignment of such 2004-A Lease and
2004-A Vehicle by the Issuer.
SECTION 8.08 Opinion of Counsel. The Indenture Trustee shall receive at
least seven day notice when requested by the Issuer to take any action pursuant
to Section 8.06(a), accompanied by copies of any instruments involved, and the
Indenture Trustee may also require (and shall require, to the extent required by
the TIA), except in connection with any action
Indenture
48
contemplated by Section 8.06(b), as a condition to such action, an Opinion of
Counsel, in form and substance satisfactory to the Indenture Trustee, stating
the legal effect of any such action, outlining the steps required to complete
the same, and concluding that all conditions precedent to the taking of such
action have been complied with and such action will not materially and adversely
impair the security for the Notes or the rights of the Noteholders in
contravention of the provisions of this Indenture; provided, however, that such
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Indenture Trustee in connection with any such
action.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Noteholders, but with prior notice to
each Rating Agency and subject to the satisfaction of the Rating Agency
Condition, the Issuer and the Indenture Trustee, when so requested by a Issuer
Request, at any time and from time to time, may enter into one or more
Indentures supplemental hereto, in form satisfactory to the Indenture Trustee,
for any of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the Lien of this Indenture, or better to assure,
convey or confirm unto the Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject
additional property to the lien of this Indenture;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another Person to the Issuer and the
assumption by any such successor of the covenants of the Issuer
contained herein and in the Notes;
(iii) to add to the covenants of the Issuer for the benefit of
the Noteholders or to surrender any right or power herein conferred
upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, correct or supplement any provision
herein or in any supplemental Indenture that may be defective or
inconsistent with any other provision herein or in any supplemental
Indenture or make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental Indenture
that shall not be inconsistent with the provisions of this Indenture;
provided that such other provisions shall not adversely affect the
interests of the Noteholders; or
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes
or to add to or change any of the
Indenture
49
provisions of this Indenture as shall be necessary to facilitate the
administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Article Six.
The Indenture Trustee is hereby authorized to join in the execution of
any such supplemental Indenture and to make any further appropriate agreements
and stipulations as may be therein contained.
(b) The Issuer and the Indenture Trustee, when requested by a Issuer
Request, may enter into an Indenture or Indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or for the purpose of modifying in any
manner (other than the modifications set forth in Section 9.02, which require
consent of the Holder of each Note affected thereby) the rights of the
Noteholders under this Indenture; provided, however, that (i) such action shall
not materially adversely affect the interests of any Noteholder, (ii) the Rating
Agency Condition shall have been satisfied with respect to such action and (iii)
such action shall not, as evidenced by an Opinion of Counsel, (A) affect the
treatment of the Notes as debt for federal income tax purposes, (B) be deemed to
cause a taxable exchange of the Notes for federal income tax purposes or (C)
cause the Issuer, the Transferor or the Titling Trust to be taxable as an
association (or a publicly traded partnership) taxable as a corporation for
federal income tax purposes.
SECTION 9.02 Supplemental Indentures With Consent of Noteholders. The
Issuer and the Indenture Trustee, when requested by a Issuer Request, also may,
with the consent of Noteholders holding not less than a Majority Interest of the
Notes voting together as a single class, by Act of such Noteholders delivered to
the Issuer and the Indenture Trustee, enter into an Indenture or Indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Noteholders under this Indenture
subject to the satisfaction of the Rating Agency Condition and provided that no
such supplemental Indenture shall, without the consent of the Noteholder of each
Outstanding Note affected thereby:
(a) change the Note Final Scheduled Payment Date of or the date of
payment of any installment of principal of or interest on any Note, or reduce
the principal amount thereof, the interest rate thereon or the Redemption Price
with respect thereto, change the provision of this Indenture relating to the
application of collections on, or the proceeds of the sale of, the Trust Estate
to payment of principal of or interest on the Notes, or change any place of
payment where, or the coin or currency in which, any Note or the interest
thereon is payable, or impair the right to institute suit for the enforcement of
the provisions of this Indenture requiring the application of funds available
therefor, as provided in Article Five, to the payment of any such amount due on
the Notes on or after the respective due dates thereof (or, in the case of
redemption, on or after the Redemption Date);
(b) reduce the percentage of the Outstanding Amount, the consent of the
Noteholders of which is required for any such supplemental Indenture or the
consent of the Noteholders of which is required for any waiver of compliance
with provisions of this Indenture or Indenture Defaults hereunder and their
consequences provided for in this Indenture;
Indenture
50
(c) modify or alter the provisions of the proviso to the definition of
the term "Outstanding";
(d) reduce the percentage of the Outstanding Amount required to direct
the Indenture Trustee to direct the Owner Trustee to sell the Trust Estate
pursuant to Section 5.04, if the proceeds of such sale would be insufficient to
pay the Outstanding Amount plus accrued but unpaid interest on the Notes;
(e) modify any provision of this Section, except to increase any
percentage specified herein or to provide that certain additional provisions of
this Indenture or the other Basic Documents cannot be modified or waived without
the consent of the Noteholder of each Outstanding Note affected thereby;
(f) modify any of the provisions of this Indenture in such manner as to
affect the calculation of the amount of any payment of interest or principal due
on any Note on any Payment Date (including the calculation of any of the
individual components of such calculation);
(g) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the Trust Estate or,
except as otherwise permitted or contemplated herein, terminate the lien of this
Indenture on any property at any time subject hereto or deprive any Noteholder
of the security provided by the lien of this Indenture; or
(h) impair the right to institute suit for the enforcement of payment
as provided in Section 5.07.
Any such supplemental Indenture shall be executed only upon delivery of
an Opinion of Counsel to the same effect as in Section 9.01(b). The Indenture
Trustee may in its discretion determine whether or not any Notes would be
affected by any supplemental Indenture and any such determination shall be
conclusive upon all Noteholders, whether theretofore or thereafter authenticated
and delivered hereunder. The Indenture Trustee shall not be liable for any such
determination made in good faith.
It shall not be necessary for any Act of Noteholders under this Section
to approve the particular form of any proposed supplemental Indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental Indenture pursuant to this Section, the Indenture Trustee shall
mail to the Noteholders to which such amendment or supplemental Indenture
relates a notice setting forth in general terms the substance of such
supplemental Indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental Indenture.
SECTION 9.03 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental Indenture
permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Indenture Trustee shall be
Indenture
51
entitled to receive, and subject to Sections 6.01 and 6.02, shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental Indenture is authorized or permitted by this Indenture. The
Indenture Trustee may but shall not be obligated to enter into any such
supplemental Indenture that affects the Indenture Trustee's own rights, duties,
liabilities or indemnities under this Indenture or otherwise.
SECTION 9.04 Effect of Supplemental Indenture. Upon the execution of
any supplemental Indenture pursuant to the provisions hereof, this Indenture
shall be and shall be deemed to be modified and amended in accordance therewith
with respect to the Notes affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Issuer, the Owner Trustee and the
Noteholders shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental Indenture shall be and shall be deemed
to be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 9.05 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental Indenture
pursuant to this Article may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental Indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental Indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
ARTICLE TEN
REDEMPTION OF NOTES
SECTION 10.01 Redemption.
(a) Pursuant to Section 9.01 of the Trust Agreement, the Servicer shall
be permitted at its option to purchase the 2004-A SUBI Certificate from the
Issuer on any Redemption Date relating to the exercise of an Optional Purchase.
In connection with the exercise of an Optional Purchase, the Servicer will
deposit the Optional Purchase Price into the 2004-A SUBI Collection Account on
the Deposit Date relating to the Redemption Date. In connection with an Optional
Purchase, the Notes shall be redeemed on the Redemption Date in whole, but not
in part, for the Redemption Price and the 2004-A SUBI Certificate shall be
delivered to or upon the order of the Servicer.
(b) In connection with the exercise of an Optional Purchase, on the
Redemption Date, prior to 11:00 a.m., New York City time, the Servicer shall
transfer the Optional Purchase Price as part of the Available Funds from the
2004-A SUBI Collection Account as follows: (i) to the Note Distribution Account,
the Redemption Price and (ii) to the Certificate Distribution Account, the
Repayment Price.
Indenture
52
(c) If the Notes are to be redeemed pursuant to this Section, the
Administrative Agent or the Issuer shall provide at least 20 days' prior notice
of the redemption of the Notes to the Indenture Trustee, the Owner Trustee and
the Cap Provider, and the Indenture Trustee shall provide at least 15 days' (but
no more than 30 days') notice thereof to the Noteholders.
SECTION 10.02 Form of Redemption Notice. Notice of redemption under
Section 10.01 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, mailed to each Holder of Notes as of the close of business on
the Deposit Date preceding the applicable Redemption Date at such Holder's
address appearing in the Note Register. In addition, the Administrative Agent
shall notify each Rating Agency upon the redemption of the Notes, pursuant to
the Trust Administration Agreement.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the place where the Notes to be redeemed are to be surrendered for
payment of the Redemption Price (which shall be the office or agency of the
Issuer to be maintained as provided in Section 3.02); and
(d) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Note and that interest thereon shall cease to accrue
from and after the Redemption Date.
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuer. Failure to give notice of
redemption (or any defect therein) to any Noteholder shall not impair or affect
the validity of the redemption of any other Note.
SECTION 10.03 Notes Payable on Redemption Date. The Notes to be
redeemed shall, following notice of redemption as required by Section 10.02,
become due and payable on the Redemption Date at the Redemption Price and
(unless the Issuer shall default in the payment of the Redemption Price) no
interest shall accrue on the Redemption Price for any period after the date to
which accrued interest is calculated for purposes of calculating the Redemption
Price.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01 Compliance Certificates and Opinions.
(a) Upon any application or request by the Issuer to the Indenture
Trustee to take any action under any provision of this Indenture, the Issuer
shall furnish to the Indenture Trustee and each Rating Agency (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 (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if
Indenture
53
any, have been complied with and (iii) if required by the TIA, an Independent
Certificate from a firm of certified public accountants meeting the applicable
requirements of this Section, except that, in the case of any such application
or request as to which the furnishing of such documents is specifically required
by any provision of this Indenture, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) In addition to any obligation imposed in Section 11.01(a) or
elsewhere in this Indenture:
(i) Prior to the deposit of any Collateral or other property
or securities with the Indenture Trustee that is to be made the basis
for the release of any property or securities subject to the lien of
this Indenture, the Issuer shall furnish to the Indenture Trustee (if
so requested by the Indenture Trustee or required by the TIA) an
Officer's Certificate certifying or stating the opinion of each Person
signing such certificate as to the fair value (within 90 days of such
deposit) to the Issuer of the Collateral or other property or
securities to be so deposited.
(ii) Whenever the Issuer would be required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause (i)
above if such an Officer's Certificate had been required by the
Indenture Trustee or required by the TIA, regardless of whether such an
Officer's Certificate was so requested or required, the Issuer shall
deliver to the Indenture Trustee an Independent Certificate as to the
same matters, if the fair value of the property or securities to be so
deposited and of all other such securities made the basis of any such
withdrawal or release since the commencement of the then-current
calendar year of the Issuer, as set forth in the Officer's Certificate
delivered pursuant to clause (i) above, is 10% or more of the
Outstanding Amount; provided, however, such Independent Certificate
need not be furnished with respect to any securities so deposited, if
the fair
Indenture
54
value thereof to the Issuer as set forth in the related Officer's
Certificate is less than $25,000 or less than 1% of the Outstanding
Amount.
(iii) Other than with respect to any release described in
clause (A) or (B) of Section 11.01(b)(v), whenever any property or
securities are to be released from the lien of this Indenture, the
Issuer shall also furnish to the Indenture Trustee (if so requested by
the Indenture Trustee or required by the TIA) an Officer's Certificate
certifying or stating the opinion of each Person signing such
certificate as to the fair value (within 90 days of such release) of
the property or securities proposed to be released and stating that in
the opinion of such Person, the proposed release will not impair the
security under this Indenture in contravention of the provisions
hereof.
(iv) Whenever the Issuer would be required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(iii) above if such an Officer's Certificate had been required by the
Indenture Trustee or required by the TIA, regardless of whether such an
Officer's Certificate was so requested or required, the Issuer shall
furnish to the Indenture Trustee an Independent Certificate as to the
same matters, if the fair value of the property or securities and of
all other property, or securities (other than property described in
clauses (A) or (B) of Section 11.01(b)(v)) released from the lien of
this Indenture since the commencement of the then current calendar
year, as set forth in the Officer's Certificates required by clause
(iii) above and this clause, equals 10% or more of the Outstanding
Amount, but such Officer's Certificate need not be furnished in the
case of any release of property or securities if the fair value thereof
as set forth in the related Officer's Certificate is less than $25,000
or less than 1% of the Outstanding Amount.
(v) Notwithstanding Section 2.08 or any other provision of
this Section, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of the Collateral as and to the extent permitted or required by
the Basic Documents and (B) make cash payments out of the Accounts as
and to the extent permitted or required by the Basic Documents.
SECTION 11.02 Form of Documents Delivered to Indenture Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of or representations by an officer or officers of the Administrative
Agent, the Transferor or the Issuer, stating that the
Indenture
55
information with respect to such factual matters is in the possession of the
Administrative Agent, the Transferor or the Issuer, unless such officer or
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any terms hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article Six.
SECTION 11.03 Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agents
duly appointed in writing; and except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Indenture Trustee, and, where it is hereby expressly required,
to the Issuer. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.01) conclusive in
favor of the Indenture Trustee and the Issuer, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the holder of any Note shall bind the holder of every
Note issued upon the registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon, whether or not notation of
such action is made upon such Note.
SECTION 11.04 Notices. All demands, notices and communications
hereunder shall be in writing and shall be delivered or mailed by registered or
certified first-class United
Indenture
56
States mail, postage prepaid, hand delivery, prepaid courier service, or by
telecopier, and addressed in each case as follows: (i) if to the Issuer c/o the
Owner Trustee, at Rodney Square North, 1100 N. Market Street, Wilmington,
Delaware 19890 (telecopier no. (302) 651-8882), Attention: Corporate Trust
Administration with a copy to the Administrative Agent, at 990 West 190th
Street, Torrance, California, 90502 (telecopier no. (310) 324-2542), Attention:
Treasurer; (ii) if to the Indenture Trustee, at Wrigley Building, 400 N.
Michigan Ave., 2nd Floor, Chicago, IL 60611 (telecopier no. (312) 836-6701),
Attention: Nissan Auto Lease Trust 2004-A; (iii) if to Moody's, to 99 Church
Street, New York, New York 10007 (telecopier no. (212) 553-7820), Attention: ABS
Monitoring Group; (iv) if to Standard & Poor's, to Standard & Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc., 55 Water Street, New
York, New York, 10041 (telecopier no. (212) 208-0030), Attention: Asset Backed
Monitoring Group; (v) if to Fitch, at Fitch, Inc., One State Street Plaza, New
York, New York 10004 (telecopier no.(212) 480-4438), Attention: Romaana Zia ;or
(vi) at such other address as shall be designated by any of the foregoing in a
written notice to the other parties hereto. Delivery shall occur only upon
receipt or reported tender of such communication by an officer of the recipient
entitled to receive such notices located at the address of such recipient for
notices hereunder.
SECTION 11.05 Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first class, postage prepaid to each Noteholder affected by such
event, at its address as it appears on the Note Register, not later than the
latest and not earlier than the earliest date prescribed for the giving of such
notice. In any case where notice to Noteholders is given by mail, neither the
failure to mail such notice nor any defect in any notice so mailed to any
particular Noteholder shall affect the sufficiency of such notice with respect
to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event of Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
Where this Indenture provides for notice to each Rating Agency, failure
to give such notice shall not affect any other rights or obligations created
hereunder, and shall not under any circumstance constitute an Indenture Default.
SECTION 11.06 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Indenture
57
SECTION 11.07 Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind its successors.
SECTION 11.08 Severability. If any one or more of the covenants,
agreement, provisions or terms of this Indenture shall be for any reason
whatsoever held invalid or unenforceable in any jurisdiction, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements provisions or terms of this Indenture and shall
in no way affect the validity or enforceability of the other provisions of this
Indenture or of the Notes, the Interest Rate Cap Agreement or the Trust
Certificates or the rights of the Holders thereof.
SECTION 11.09 Benefits of Indenture. Nothing in this Indenture or the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Noteholders (and, with respect to
Sections 8.03 and 8.04, the Trust Certificateholders), any other party secured
hereunder, and any other Person with an ownership interest in any part of the
Trust Estate, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 11.10 Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 11.11 Governing Law. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.12 Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.13 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer accompanied by an Opinion of Counsel (who may be counsel
to the Indenture Trustee or any other counsel reasonably acceptable to the
Indenture Trustee) to the effect that such recording is necessary either for the
protection of the Noteholders or any other Person secured hereunder or for the
enforcement of any right or remedy granted to the Indenture Trustee under this
Indenture.
SECTION 11.14 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith
Indenture
58
or therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any Trust Certificateholder, (iii) any owner of a
beneficial interest in the Issuer or (iv) any partner, owner, beneficiary,
agent, officer, director, employee or agent of the Indenture Trustee or the
Owner Trustee in its individual capacity, any Trust Certificateholder, the Owner
Trustee or of the Indenture Trustee or any successor or assign of the Indenture
Trustee or the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed (it being understood that the Indenture Trustee
and the Owner Trustee have no such obligations in their individual capacity) and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing to
such entity.
SECTION 11.15 No Petition. The Indenture Trustee, by entering into this
Indenture, and each Noteholder or Note Owner, by accepting a Note or in the case
of a Note Owner, a beneficial interest in a Note, hereby covenant and agree that
they will not institute, or join in instituting, any bankruptcy, reorganization,
arrangement, insolvency or liquidation Proceeding, or other Proceeding under
federal or State bankruptcy or similar laws for a period of one year and a day
after:
(a) payment in full of all amounts due to each Holder in respect of the
UTI, the 2004-A SUBI or any Other SUBIs, against the UTI Beneficiary, the
Titling Trust and the Titling Trustee, without the consent of 100% of the
Holders of the 2004-A SUBI and any Other SUBI (excluding the UTI Beneficiary,
the Transferor or any of their respective Affiliates); and
(b) payment in full of the Notes, against the Transferor or the Issuer;
provided, however, that 100% of the Noteholders, or, if no Notes are then
outstanding, 100% of the Trust Certificateholders (in each case excluding the
Transferor and any of its Affiliates) may at any time institute or join in
instituting any bankruptcy, reorganization, insolvency or liquidation proceeding
against the Transferor or the Issuer.
SECTION 11.16 No Recourse. Each Noteholder or Note Owner, by acceptance
of a Note or, in the case of a Note Owner, a beneficial interest in a Note,
covenants and agrees that no recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith against (i) the Indenture Trustee or the 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 or
employee of the Indenture Trustee or the Owner Trustee in its individual
capacity or any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
SECTION 11.17 Inspection. The Issuer agrees that on reasonable prior
notice it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies
Indenture
59
and extracts therefrom, to cause such books to be audited by Independent
certified public accountants and to discuss the Issuer's affairs, finances and
accounts with the Issuer's officers, employees and Independent certified public
accountants, all at such reasonable times and as often as may be reasonably
requested. The Indenture Trustee shall and shall cause its representatives to
hold in confidence all such information, except to the extent disclosure may be
required by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent the Indenture Trustee may reasonably
determine that such disclosure is consistent with its obligations hereunder.
SECTION 11.18 Limitation of Liability of Owner Trustee. Notwithstanding
anything contained herein to the contrary, this instrument has been
countersigned by Wilmington Trust Company not in its individual capacity but
solely in its capacity as Owner Trustee of the Issuer and in no event shall
Wilmington Trust Company in its individual capacity or any beneficial owner of
the Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder, as to all of which
recourse shall be had solely to the assets of the Issuer. For all purposes of
this Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles Six, Seven and Ten of the Trust
Agreement.
SECTION 11.19 Assignment of the Interest Rate Cap Agreement.
(a) The Issuer, in furtherance of the covenants of this Indenture and
as security for the Notes and the performance and observance of the provisions
hereof, hereby assigns, transfers, conveys and sets over to the Indenture
Trustee, for the benefit of the Noteholders, all of the Issuer's estate, right,
title and interest in, to and under the Interest Rate Cap Agreement, including,
without limitation, (i) all of the Issuer's interest in all securities, monies
and proceeds held by the Cap Provider thereunder, (ii) the right to give all
notices, consents and releases thereunder, (iii) the right to give all notices
of termination and to take any legal action upon the breach of an obligation of
the Cap Provider, thereunder, including the commencement, conduct and
consummation of proceedings at law or in equity, (iv) the right to receive all
notices, accountings, consents, releases and statements thereunder and (v) the
right to do any and all other things whatsoever that the Issuer is or may be
entitled to do thereunder; provided so long as no Indenture Default has occurred
and is continuing hereunder, the Indenture Trustee hereby grants the Issuer a
license to exercise all of the Issuer's rights pursuant to the Interest Rate Cap
Agreement without notice to or the consent of the Indenture Trustee (except as
otherwise expressly required by this Indenture), which license shall be and is
hereby deemed to be automatically revoked upon the occurrence of any Indenture
Default until such time, if any, as the Indenture Default is cured or waived.
The Indenture Trustee shall have no liability with respect to any act or failure
to act by the Issuer under the Interest Rate Cap Agreement (provided that this
sentence shall not limit or relieve the Indenture Trustee from any
responsibility it may have under this Indenture upon the occurrence of and
during the continuance of any Indenture Default hereunder).
(b) The assignment made hereby is executed as collateral security, and
the execution and delivery hereby shall not in any way impair or diminish the
obligations of the Issuer under the
Indenture
60
provisions of the Interest Rate Cap Agreement, nor shall any of the obligations
contained in the Interest Rate Cap Agreement be imposed on the Indenture
Trustee.
(c) Upon the retirement of the Notes and the release of the Trust
Estate from the lien of this Indenture, this assignment and all rights herein
assigned to the Indenture Trustee for the benefit of the Noteholders shall cease
and terminate and all the estate, right, title and interest of the Indenture
Trustee and the Noteholders in, to and under the Interest Rate Cap Agreement
shall revert to the Issuer and no further instrument or act shall be necessary
to evidence such termination and reversion.
(d) The Issuer represents that the Issuer has not executed any other
assignment of the Interest Rate Cap Agreement.
(e) The Issuer agrees that this assignment is irrevocable, and that it
will not take any action which is inconsistent with this assignment or make any
other assignment inconsistent herewith. The Issuer will, upon the request of the
Indenture Trustee, execute all instruments of further assurance and all such
supplemental instruments with respect to this assignment as the Indenture
Trustee may specify.
(f) The Issuer further agrees, with respect to the Interest Rate Cap
Agreement, as follows:
(i) The Issuer will obtain on or before the Closing Date the
acknowledgement by Cap Provider that the Issuer is assigning all of its
right, title and interest in, to and under the Interest Rate Cap
Agreement to the Indenture Trustee for the benefit of the Noteholders.
(ii) Prior to the occurrence of an Indenture Default the
Issuer will deliver to the Indenture Trustee copies of all notices and
communications delivered or required to be delivered to the Issuer
pursuant to the Interest Rate Cap Agreement, but only if such notice or
communication relates to any (i) default under, (ii) early termination
or (iii) amendment of, the Interest Rate Cap Agreement.
(iii) The Issuer will not enter into any agreement amending,
modifying or terminating the Interest Rate Cap Agreement, without prior
written consent of the Noteholders holding not less than a Majority
Interest of the Notes, voting together as a single class, and written
confirmation by the Rating Agencies that such amendment, modification
or termination would not cause the ratings of any Class of Notes to be
reduced or withdrawn; provided (A) that the consent of Noteholders
holding not less than a Majority Interest of the Notes, voting together
as a single class, and confirmation by the Rating Agencies shall not be
required for an amendment or modification to cure any ambiguity or to
correct or supplement any provision with respect to matters or
questions arising under the Interest Rate Cap Agreement which shall not
be inconsistent with the provisions thereof or of this Indenture, in
each case so long as such amendment or modification does not affect in
any material respects the interests of any Noteholder (as evidenced by
an Opinion of Counsel acceptable to the Indenture Trustee) and (B)
neither the consent of Noteholders holding not less than a Majority
Interest of the Notes, voting
Indenture
61
together as a single class, confirmation by the Rating Agencies nor an
Opinion of Counsel shall be required with respect to any amendment or
modification that either only corrects a manifest error or is
principally and manifestly for the benefit of the Noteholders.
SECTION 11.20 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
Indenture
62
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized, all as of the day and year first above written.
NISSAN AUTO LEASE TRUST 2004-A
By: Wilmington Trust Company,
not in its individual capacity, but solely as
Owner Trustee
By: _____________________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, as
Indenture Trustee
By: _________________________________________________
Name:
Title:
Receipt of this original counterpart of this Agreement is hereby
acknowledged on this _________ day of _________, 2004.
NILT, INC.,
as Titling Trustee
By: _________________________________________________
Name:
Title:
Indenture
S-1
STATE OF DELAWARE
COUNTY OF NEW CASTLE
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared , known to me to be the person
and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said Wilmington Trust
Company, not in its individual capacity but as Owner Trustee of the NISSAN AUTO
LEASE TRUST 2004-A, a Delaware statutory trust, and that such person executed
the same as the act of said statutory trust for the purpose and consideration
therein expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _________th day of
_________, 2004.
Notary Public in and for the State of DELAWARE
(Seal)
My commission expires:
____________
Indenture
STATE OF ILLINOIS
COUNTY OF COOK
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared , known to me to be the person
and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said U.S. BANK NATIONAL
ASSOCIATION, not in its individual capacity but as Indenture Trustee of the
NISSAN AUTO LEASE TRUST 2004-A, a Delaware statutory trust, and that such person
executed the same as the act of said statutory trust for the purpose and
consideration therein expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this __th day of October, 2004.
Notary Public in and for the State of ILLINOIS
(Seal)
My commission expires:
___________
Indenture
EXHIBIT A
FORM OF CLASS A-1 NOTE
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
TRANSFERS OF THE NOTES MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX
TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE
Indenture.
THE HOLDER, BY ACCEPTANCE OF THIS NOTE, SHALL BE DEEMED TO HAVE AGREED
TO TREAT THE NOTES AS DEBT FOR UNITED STATES FEDERAL AND STATE INCOME TAX
PURPOSES.
THIS NOTE IS NOT AN OBLIGATION OF, AND WILL NOT BE INSURED OR
GUARANTEED BY, ANY GOVERNMENTAL AGENCY OR NISSAN AUTO LEASING LLC II, NISSAN
MOTOR ACCEPTANCE CORPORATION, NISSAN NORTH AMERICA, INC., NISSAN MOTOR CO.,
LTD., ANY TRUSTEE OR ANY OF THEIR AFFILIATES. THE PRINCIPAL AND INTEREST ON THIS
NOTE IS PAYABLE SOLELY FROM PAYMENTS ON THE RECEIVABLES AND AMOUNTS ON DEPOSIT
IN THE RESERVE ACCOUNT.
Indenture
A-1
NISSAN AUTO LEASE TRUST 2004-A
_____ % ASSET BACKED NOTE, CLASS A-1
REGISTERED $_________
No. R-___ CUSIP NO. _________
Nissan Auto Lease Trust 2004-A, a statutory trust organized and
existing under the laws of the State of Delaware (including any permitted
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, the principal sum of
_______________________ ($_____________) in monthly installments on the 15th day
of each month, or if such day is not a Business Day, on the immediately
succeeding Business Day, commencing on _________, 2004 (each, a "Payment Date"),
until the principal of this Note is paid or made available for payment, and to
pay interest on each Payment Date on the Class A-1 Note Balance as of the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), or as of the Closing Date in the case of the first
Payment Date or if no interest has yet been paid, at the rate per annum shown
above (the "Interest Rate"), in each case as and to the extent described below;
provided, however, that the entire Class A-1 Note Balance shall be due and
payable on the earlier of _________ (the "Note Final Scheduled Payment Date")
and the Redemption Date, if any, pursuant to Section 10.01 of the Indenture. The
Issuer shall pay interest on overdue installments of interest at the Interest
Rate to the extent lawful. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States as at the time of payment is legal tender for
payment of public and private debts. All payments made by the Issuer with
respect to this Note shall be applied first to interest due and payable on this
Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee the name of which appears below by manual signature, this
Note shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof or be valid or obligatory for any purpose.
Indenture
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or by facsimile, by its Authorized Officer as of the date set forth
below.
Dated: ________, 2004
NISSAN AUTO LEASE TRUST 2004-A,
By: Wilmington Trust Company,
as Owner Trustee
By: _____________________________________________
Name:
Title:
Indenture TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: _________, 2004 U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By: _______________________________
Name:
Title:
Indenture
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its "____% Asset Backed Notes, Class A-1" (herein called the
"Notes") issued under an Indenture, dated as of _________, 2004 (such Indenture,
as supplemented or amended, is herein called the "Indenture"), between the
Issuer and U.S. Bank National Association, as trustee (the "Indenture Trustee",
which term includes any successor Indenture Trustee under the Indenture), to
which Indenture and all Indentures supplemental thereto reference is hereby made
for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Noteholders. The Notes are subject to all
terms of the Indenture. All terms used in this Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3a Notes, and the
Class A-3b Notes are and will be equally and ratably secured by the Collateral
pledged as security therefor as provided in the Indenture. However, to the
extent provided in the Indenture, each Class will receive principal payment
sequentially so that, except as otherwise provided in the Indenture, no
principal payments shall be made in respect of (i) the Class A-2 Notes until the
Class A-1 Notes have been paid in full, and (ii) the Class A-3a Notes and the
Class A-3b Notes until the Class A-2 Notes have been paid in full. Principal
payments on the Class A-3a Notes and Class A-3b Notes shall be made pro rata
based on the principal balances of the Class A-3a Notes and the Class A-3b Notes
until they are paid in full.
Principal payable on the Notes will be paid on each Payment Date in the
amount specified in the Indenture. As described above, the entire unpaid
principal amount of this Note will be payable on the earlier of the Note Final
Scheduled Payment Date and the Redemption Date, if any, selected pursuant to the
Indenture. Notwithstanding the foregoing, under certain circumstances, the
entire unpaid principal amount of the Notes shall be due and payable following
the occurrence and continuance of an Indenture Default, as described in the
Indenture. In such an event, first, principal payments on the Class A-1 Notes
shall be made, and second, principal payments on the Class A-2 Notes, Class A-3a
Notes and Class A-3b Notes shall be made pro rata to the Noteholders entitled
thereto.
Payments of principal and interest on this Note due and payable on each
Payment Date or Redemption Date shall be made by check mailed to the Person
whose name appears as the registered holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on the
related Deposit Date, except that with respect to Notes registered on the
Deposit Date in the name of (i) the nominee of DTC (initially, such nominee to
be Cede & Co.), and (ii) a Person (other than the nominee of DTC) that holds
Notes with original denominations aggregating at least $1 million and has given
the Indenture Trustee appropriate written instructions at least five Business
Days prior to the related Deposit Date (which instructions, until revised, shall
remain operative for all Payment Dates thereafter), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee or Person. Such checks shall be mailed to the Person entitled thereto at
the address of such Person as it appears on the Note Register as of the
applicable Deposit Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note
Indenture
(or any one or more Predecessor Notes) affected by any payments made on any
Payment Date or Redemption Date shall be binding upon all future holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not noted hereon. If funds are
expected to be available, as provided in the Indenture, for payment in full of
the remaining unpaid principal amount of this Note on a Payment Date or
Redemption Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the registered holder hereof as of the
Deposit Date preceding such Payment Date or Redemption Date by notice mailed
within five days of such Payment Date or Redemption Date and the amount then due
and payable shall be payable only upon presentation and surrender of this Note
at the Corporate Trust Office of the Indenture Trustee or at the office of the
Indenture Trustee's agent appointed for such purposes located in The City of New
York.
As provided in the Indenture, the Servicer will be permitted at its
option to purchase the 2004-A SUBI Certificate from the Issuer on any Payment
Date if, either before or after giving effect to any payment of principal
required to be made on such Payment Date, the Securities Balance is less than or
equal to 10% of the Initial Securities Balance. The purchase price (the
"Optional Purchase Price") for the 2004-A SUBI Certificate shall equal the
Securitization Value of the 2004-A SUBI Assets plus the appraised value of any
other property (other than cash, in which case such value shall be amount of
such funds held in cash) held as part the Trust Assets (less liquidation
expenses). The Redemption Price for the Notes will equal the aggregate Note
Balance, plus accrued and unpaid interest thereon at the related Interest Rate
(including to the extent allowed by law, interest on overdue interest, if
applicable), to but not including the Redemption Date, which amount, with such
additional amounts constituting in the aggregate the Optional Purchase Price,
shall be deposited by the Servicer into the 2004-A SUBI Collection Account on
the Deposit Date relating to the Payment Date fixed for redemption. In
connection with an Optional Purchase, the Notes will be redeemed on such Payment
Date in whole, but not in part, for the Redemption Price and thereupon and the
2004-A SUBI Certificate shall be delivered to the Servicer.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
Transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith against (i) the Indenture Trustee or the 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 or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any
Indenture
such partner, owner or beneficiary shall be fully liable, to the extent provided
by applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
The Notes represent obligations of the Issuer only and do not represent
interests in, recourse to or obligations of the Transferor, the UTI
Beneficiaries or any of their respective Affiliates.
Each Noteholder by acceptance of a Note, or in the case of a Note
Owner, by acceptance of a beneficial interest in the Notes, hereby covenants and
agrees that it will not institute, or join in instituting, any bankruptcy,
reorganization, arrangement, insolvency or liquidation Proceeding, or other
Proceeding under federal or State bankruptcy or similar laws for a period of one
year and a day after:
(a) payment in full of all amounts due to each Holder in respect of the
UTI, the 2004-A SUBI or any Other SUBIs, against the UTI Beneficiary, the
Titling Trust and the Titling Trustee, without the consent of 100% of the
Holders of the 2004-A SUBI and any Other SUBI (excluding the UTI Beneficiary,
the Transferor or any of their respective Affiliates); and
(b) payment in full of the Notes, against the Transferor or the Issuer;
provided, however, that 100% of the Noteholders, or, if no Notes are then
outstanding, 100% of the Trust Certificateholders (in each case excluding the
Transferor and any of its Affiliates) may at any time institute or join in
instituting any bankruptcy, reorganization, insolvency or liquidation proceeding
against the Transferor or the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Owner Trustee, the Indenture Trustee and any agent of the Owner Trustee or
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and neither the Owner Trustee, the Indenture Trustee nor
any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of Noteholders representing not less than a Majority
Interest of the Notes. The Indenture also contains provisions permitting
Noteholders representing specified percentages of the Outstanding Amount, on
behalf of all Noteholders, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past Defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder of this Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of the Noteholders.
Indenture
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the Indenture and no provision of this Note or
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate and in the coin or currency herein prescribed.
Indenture
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee:
___________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
_______________________________________________________________________
_______________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints attorney, to transfer said Note on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:(1)
Signature Guaranteed:
_____________________________________
- ------------------------------
(1) The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
Indenture
FORM OF CLASS A-[2] [3b] NOTE
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
TRANSFERS OF THE NOTES MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX
TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE
Indenture.
THE HOLDER, BY ACCEPTANCE OF THIS NOTE, SHALL BE DEEMED TO HAVE AGREED
TO TREAT THE NOTES AS DEBT FOR UNITED STATES FEDERAL AND STATE INCOME TAX
PURPOSES.
THIS NOTE IS NOT AN OBLIGATION OF, AND WILL NOT BE INSURED OR
GUARANTEED BY, ANY GOVERNMENTAL AGENCY OR NISSAN AUTO LEASING LLC II, NISSAN
MOTOR ACCEPTANCE CORPORATION, NISSAN NORTH AMERICA, INC., NISSAN MOTOR CO.,
LTD., ANY TRUSTEE OR ANY OF THEIR AFFILIATES. THE PRINCIPAL AND INTEREST ON THIS
NOTE IS PAYABLE SOLELY FROM PAYMENTS ON THE RECEIVABLES AND AMOUNTS ON DEPOSIT
IN THE RESERVE ACCOUNT.
Indenture
NISSAN AUTO LEASE TRUST 2004-A
_____ % ASSET BACKED NOTE, CLASS A-[2] [3b]
REGISTERED $_________
No. R-___ CUSIP NO. _________
Nissan Auto Lease Trust 2004-A, a statutory trust organized and
existing under the laws of the State of Delaware (including any permitted
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, the principal sum of
_______________________ ($_____________) in monthly installments on the 15th day
of each month, or if such day is not a Business Day, on the immediately
succeeding Business Day, commencing on _________, 2004 (each, a "Payment Date"),
until the principal of this Note is paid or made available for payment, and to
pay interest on each Payment Date on the Class A-[2] [3b] Note Balance as of the
period from and including the 15th day of each month (after giving effect to all
payments of principal made on the preceding Payment Date) to but excluding the
15th day of the immediately succeeding month, or as of the Closing Date in the
case of the first Payment Date or if no interest has yet been paid, at the rate
per annum shown above (the "Interest Rate"), in each case as and to the extent
described below; provided, however, that the entire [Class A-2] [Class A-3b]
Note Balance shall be due and payable on the earlier of _________ (the "Note
Final Scheduled Payment Date") and the Redemption Date, if any, pursuant to
Section 10.01 of the Indenture. The Issuer shall pay interest on overdue
installments of interest at the Interest Rate to the extent lawful. Such
principal of and interest on this Note shall be paid in the manner specified on
the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States as at the time of payment is legal tender for
payment of public and private debts. All payments made by the Issuer with
respect to this Note shall be applied first to interest due and payable on this
Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee the name of which appears below by manual signature, this
Note shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof or be valid or obligatory for any purpose.
Indenture
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or by facsimile, by its Authorized Officer as of the date set forth
below.
Dated: ________, 2004
NISSAN AUTO LEASE TRUST 2004-A,
By: Wilmington Trust Company,
as Owner Trustee
By: __________________________________________
Name:
Title:
Indenture TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: _________, 2004 [U.S. BANK NATIONAL ASSOCIATION],
as Indenture Trustee
By: __________________________________
Name:
Title:
Indenture
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its "____% Asset Backed Notes, Class A-[2] [3b]" (herein called
the "Notes") issued under an Indenture, dated as of _________, 2004 (such
Indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and U.S. Bank National Association, as trustee (the
"Indenture Trustee", which term includes any successor Indenture Trustee under
the Indenture), to which Indenture and all Indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Noteholders.
The Notes are subject to all terms of the Indenture. All terms used in this Note
that are defined in the Indenture, as supplemented or amended, shall have the
meanings assigned to them in or pursuant to the Indenture, as so supplemented or
amended.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3a Notes and
Class A-3b Notes are and will be equally and ratably secured by the Collateral
pledged as security therefor as provided in the Indenture. However, to the
extent provided in the Indenture, each Class will receive principal payment
sequentially so that, except as otherwise provided in the Indenture, no
principal payments shall be made in respect of (i) the Class A-2 Notes until the
Class A-1 Notes have been paid in full, and (ii) the Class A-3a Notes and the
Class A-3b Notes until the Class A-2 Notes have been paid in full. Principal
payments on the Class A-3a Notes and Class A-3b Notes shall be made pro rata
based on the principal balances of the Class A-3a Notes and the Class A-3b Notes
until they are paid in full.
Principal payable on the Notes will be paid on each Payment Date in the
amount specified in the Indenture. As described above, the entire unpaid
principal amount of this Note will be payable on the earlier of the Note Final
Scheduled Payment Date and the Redemption Date, if any, selected pursuant to the
Indenture. Notwithstanding the foregoing, under certain circumstances, the
entire unpaid principal amount of the Notes shall be due and payable following
the occurrence and continuance of an Indenture Default, as described in the
Indenture. In such an event, first, principal payments on the Class A-1 Notes
shall be made, and second, principal payments on the Class A-2 Notes, Class A-3a
Notes and Class A-3b Notes shall be made pro rata to the Noteholders entitled
thereto.
Payments of principal and interest on this Note due and payable on each
Payment Date or Redemption Date shall be made by check mailed to the Person
whose name appears as the registered holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on the
related Deposit Date, except that with respect to Notes registered on the
Deposit Date in the name of (i) the nominee of DTC (initially, such nominee to
be Cede & Co.), and (ii) a Person (other than the nominee of DTC) that holds
Notes with original denominations aggregating at least $1 million and has given
the Indenture Trustee appropriate written instructions at least five Business
Days prior to the related Deposit Date (which instructions, until revised, shall
remain operative for all Payment Dates thereafter), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee or Person. Such checks shall be mailed to the Person entitled thereto at
the address of such Person as it appears on the Note Register as of the
applicable Deposit Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note
Indenture
(or any one or more Predecessor Notes) affected by any payments made on any
Payment Date or Redemption Date shall be binding upon all future holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not noted hereon. If funds are
expected to be available, as provided in the Indenture, for payment in full of
the remaining unpaid principal amount of this Note on a Payment Date or
Redemption Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the registered holder hereof as of the
Deposit Date preceding such Payment Date or Redemption Date by notice mailed
within five days of such Payment Date or Redemption Date and the amount then due
and payable shall be payable only upon presentation and surrender of this Note
at the Corporate Trust Office of the Indenture Trustee or at the office of the
Indenture Trustee's agent appointed for such purposes located in The City of New
York.
As provided in the Indenture, the Servicer will be permitted at its
option to purchase the 2004-A SUBI Certificate from the Issuer on any Payment
Date if, either before or after giving effect to any payment of principal
required to be made on such Payment Date, the Securities Balance is less than or
equal to 10% of the Initial Securities Balance. The purchase price (the
"Optional Purchase Price") for the 2004-A SUBI Certificate shall equal the
Securitization Value of the 2004-A SUBI Assets plus the appraised value of any
other property (other than cash, in which case such value shall be amount of
such funds held in cash) held as part the Trust Assets (less liquidation
expenses). The Redemption Price for the Notes will equal the aggregate Note
Balance, plus accrued and upaid interest thereon at the related Interest Rate
(including to the extent allowed by law, interest on overdue interest, if
applicable), to but not including the Redemption Date, which amount, with such
additional amounts constituting in the aggregate the Optional Purchase Price,
shall be deposited by the Servicer into the 2004-A SUBI Collection Account on
the Deposit Date relating to the Payment Date fixed for redemption. In
connection with an Optional Purchase, the Notes will be redeemed on such Payment
Date in whole, but not in part, for the Redemption Price and thereupon the
2004-A SUBI Certificate shall be delivered to the Servicer.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
Transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith against (i) the Indenture Trustee or the 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 or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any
Indenture
such partner, owner or beneficiary shall be fully liable, to the extent provided
by applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
The Notes represent obligations of the Issuer only and do not represent
interests in, recourse to or obligations of the Transferor, the UTI
Beneficiaries or any of their respective Affiliates.
Each Noteholder by acceptance of a Note, or in the case of a Note
Owner, by acceptance of a beneficial interest in the Notes, hereby covenants and
agrees that it will not institute, or join in instituting, any bankruptcy,
reorganization, arrangement, insolvency or liquidation Proceeding, or other
Proceeding under federal or State bankruptcy or similar laws for a period of one
year and a day after:
(a) payment in full of all amounts due to each Holder in respect of the
UTI, the 2004-A SUBI or any Other SUBIs, against the UTI Beneficiary, the
Titling Trust and the Titling Trustee, without the consent of 100% of the
Holders of the 2004-A SUBI and any Other SUBI (excluding the UTI Beneficiary,
the Transferor or any of their respective Affiliates); and
(b) payment in full of the Notes, against the Transferor or the Issuer;
provided, however, that 100% of the Noteholders, or, if no Notes are then
outstanding, 100% of the Trust Certificateholders (in each case excluding the
Transferor and any of its Affiliates) may at any time institute or join in
instituting any bankruptcy, reorganization, insolvency or liquidation proceeding
against the Transferor or the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Owner Trustee, the Indenture Trustee and any agent of the Owner Trustee or
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and neither the Owner Trustee, the Indenture Trustee nor
any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of Noteholders representing not less than a Majority
Interest of the Notes. The Indenture also contains provisions permitting
Noteholders representing specified percentages of the Outstanding Amount, on
behalf of all Noteholders, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past Defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder of this Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of the Noteholders.
Indenture
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the Indenture and no provision of this Note or
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate and in the coin or currency herein prescribed.
Indenture
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee:
______________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
_______________________________________________________________________
_______________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints attorney, to transfer said Note on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:(1)
Signature Guaranteed:
__________________________________
- ---------------------------
(1) The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
Indenture
FORM OF CLASS A-3a NOTE
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
TRANSFERS OF THE NOTES MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX
TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE
INDENTURE.
THE HOLDER, BY ACCEPTANCE OF THIS NOTE, SHALL BE DEEMED TO HAVE AGREED
TO TREAT THE NOTES AS DEBT FOR UNITED STATES FEDERAL AND STATE INCOME TAX
PURPOSES.
THIS NOTE IS NOT AN OBLIGATION OF, AND WILL NOT BE INSURED OR
GUARANTEED BY, ANY GOVERNMENTAL AGENCY OR NISSAN AUTO LEASING LLC II, NISSAN
MOTOR ACCEPTANCE CORPORATION, NISSAN NORTH AMERICA, INC., NISSAN MOTOR CO.,
LTD., ANY TRUSTEE OR ANY OF THEIR AFFILIATES. THE PRINCIPAL AND INTEREST ON THIS
NOTE IS PAYABLE SOLELY FROM PAYMENTS ON THE RECEIVABLES AND AMOUNTS ON DEPOSIT
IN THE RESERVE ACCOUNT.
Indenture
NISSAN AUTO LEASE TRUST 2004-A
FLOATING RATE ASSET BACKED NOTE, CLASS A-3a
REGISTERED $_________
No. R-___ CUSIP NO. _________
Nissan Auto Lease Trust 2004-A, a statutory trust organized and
existing under the laws of the State of Delaware (including any permitted
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, the principal sum of
_______________________ ($_____________) in monthly installments on the 15th day
of each month, or if such day is not a Business Day, on the immediately
succeeding Business Day, commencing on _________, 2004 (each, a "Payment Date"),
until the principal of this Note is paid or made available for payment, and to
pay interest on each Payment Date on the Class A-3a Note Balance as of the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), or as of the Closing Date in the case of the first
Payment Date or if no interest has yet been paid, at the rate of one-month
LIBOR/plus ____% (the "Interest Rate"), in each case as and to the extent
described below; provided, however, that the entire Class A-3a Note Balance
shall be due and payable on the earlier of _________ (the "Note Final Payment
Scheduled Date") and the Redemption Date, if any, pursuant to Section 10.01 of
the Indenture. The Issuer shall pay interest on overdue installments of interest
at the Interest Rate to the extent lawful. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States as at the time of payment is legal tender for
payment of public and private debts. All payments made by the Issuer with
respect to this Note shall be applied first to interest due and payable on this
Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee the name of which appears below by manual signature, this
Note shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof or be valid or obligatory for any purpose.
Indenture
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or by facsimile, by its Authorized Officer as of the date set forth
below.
Dated: ________, 2004
NISSAN AUTO LEASE TRUST 2004-A,
By: Wilmington Trust Company,
as Owner Trustee
By: ____________________________________
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: _________, 2004 U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By: ____________________________________
Name:
Title:
Indenture
A-19
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its "Floating Rate Asset Backed Notes, Class A-3a" (herein called
the "Notes") issued under an Indenture, dated as of _________, 2004 (such
Indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and U.S. Bank National Association, as trustee (the
"Indenture Trustee", which term includes any successor Indenture Trustee under
the Indenture), to which Indenture and all Indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Noteholders.
The Notes are subject to all terms of the Indenture. All terms used in this Note
that are defined in the Indenture, as supplemented or amended, shall have the
meanings assigned to them in or pursuant to the Indenture, as so supplemented or
amended.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3a Notes and
Class A-3b Notes are and will be equally and ratably secured by the Collateral
pledged as security therefor as provided in the Indenture. However, to the
extent provided in the Indenture, each Class will receive principal payment
sequentially so that, except as otherwise provided in the Indenture, no
principal payments shall be made in respect of (i) the Class A-2 Notes until the
Class A-1 Notes have been paid in full, and (ii) the Class A-3a Notes and the
Class A-3b Notes until the Class A-2 Notes have been paid in full. Principal
payments on the Class A-3a Notes and Class A-3b Notes shall be made pro rata
based on the principal balances of the Class A-3a Notes and the Class A-3b Notes
until they are paid in full.
Principal payable on the Notes will be paid on each Payment Date in the
amount specified in the Indenture. As described above, the entire unpaid
principal amount of this Note will be payable on the earlier of the Note Final
Scheduled Payment Date and the Redemption Date, if any, selected pursuant to the
Indenture. Notwithstanding the foregoing, under certain circumstances, the
entire unpaid principal amount of the Notes shall be due and payable following
the occurrence and continuance of an Indenture Default, as described in the
Indenture. In such an event, first, principal payments on the Class A-1 Notes
shall be made, and second, principal payments on the Class A-2 Notes, Class A-3a
Notes and Class A-3b Notes shall be made pro rata to the Noteholders entitled
thereto.
Payments of principal and interest on this Note due and payable on each
Payment Date or Redemption Date shall be made by check mailed to the Person
whose name appears as the registered holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on the
related Deposit Date, except that with respect to Notes registered on the
Deposit Date in the name of (i) the nominee of DTC (initially, such nominee to
be Cede & Co.), and (ii) a Person (other than the nominee of DTC) that holds
Notes with original denominations aggregating at least $1 million and has given
the Indenture Trustee appropriate written instructions at least five Business
Days prior to the related Deposit Date (which instructions, until revised, shall
remain operative for all Payment Dates thereafter), payments will be made by
wire transfer in immediately available funds to the account designated by such
nominee or Person. Such checks shall be mailed to the Person entitled thereto at
the address of such Person as it appears on the Note Register as of the
applicable Deposit Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note
Indenture
(or any one or more Predecessor Notes) affected by any payments made on any
Payment Date or Redemption Date shall be binding upon all future holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not noted hereon. If funds are
expected to be available, as provided in the Indenture, for payment in full of
the remaining unpaid principal amount of this Note on a Payment Date or
Redemption Date, then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the registered holder hereof as of the
Deposit Date preceding such Payment Date or Redemption Date by notice mailed
within five days of such Payment Date or Redemption Date and the amount then due
and payable shall be payable only upon presentation and surrender of this Note
at the Corporate Trust Office of the Indenture Trustee or at the office of the
Indenture Trustee's agent appointed for such purposes located in The City of New
York.
As provided in the Indenture, the Servicer will be permitted at its
option to purchase the 2004-A SUBI Certificate from the Issuer on any Payment
Date if, either before or after giving effect to any payment of principal
required to be made on such Payment Date, the Securities Balance is less than or
equal to 10% of the Initial Securities Balance. The purchase price (the
"Optional Purchase Price") for the 2004-A SUBI Certificate shall equal the
Securitization Value of the 2004-A SUBI Assets plus the appraised value of any
other property (other than cash, in which case such value shall be amount of
such funds held in cash) held as part the Trust Assets (less liquidation
expenses). The Redemption Price for the Notes will equal the aggregate Note
Balance, plus accrued and upaid interest thereon at the related Interest Rate
(including to the extent allowed by law, interest on overdue interest, if
applicable), to but not including the Redemption Date, which amount, with such
additional amounts constituting in the aggregate the Optional Purchase Price,
shall be deposited by the Servicer into the 2004-A SUBI Collection Account on
the Deposit Date relating to the Payment Date fixed for redemption. In
connection with an Optional Purchase, the Notes will be redeemed on such Payment
Date in whole, but not in part, for the Redemption Price and thereupon the
2004-A SUBI Certificate shall be delivered to the Servicer.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
Transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith against (i) the Indenture Trustee or the 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 or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed and except that any
Indenture
such partner, owner or beneficiary shall be fully liable, to the extent provided
by applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
The Notes represent obligations of the Issuer only and do not represent
interests in, recourse to or obligations of the Transferor, the UTI
Beneficiaries or any of their respective Affiliates.
Each Noteholder by acceptance of a Note, or in the case of a Note
Owner, by acceptance of a beneficial interest in the Notes, hereby covenants and
agrees that it will not institute, or join in instituting, any bankruptcy,
reorganization, arrangement, insolvency or liquidation Proceeding, or other
Proceeding under federal or State bankruptcy or similar laws for a period of one
year and a day after:
(a) payment in full of all amounts due to each Holder in respect of the
UTI, the 2004-A SUBI or any Other SUBIs, against the UTI Beneficiary, the
Titling Trust and the Titling Trustee, without the consent of 100% of the
Holders of the 2004-A SUBI and any Other SUBI (excluding the UTI Beneficiary,
the Transferor or any of their respective Affiliates); and
(b) payment in full of the Notes, against the Transferor or the Issuer;
provided, however, that 100% of the Noteholders, or, if no Notes are then
outstanding, 100% of the Trust Certificateholders (in each case excluding the
Transferor and any of its Affiliates) may at any time institute or join in
instituting any bankruptcy, reorganization, insolvency or liquidation proceeding
against the Transferor or the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Owner Trustee, the Indenture Trustee and any agent of the Owner Trustee or
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and neither the Owner Trustee, the Indenture Trustee nor
any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of Noteholders representing not less than a Majority
Interest of the Notes. The Indenture also contains provisions permitting
Noteholders representing specified percentages of the Outstanding Amount, on
behalf of all Noteholders, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past Defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder of this Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of the Noteholders.
Indenture
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the Indenture and no provision of this Note or
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate and in the coin or currency herein prescribed.
Indenture
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee:
________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
_______________________________________________________________________
_______________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints attorney, to transfer said Note on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:(1)
Signature Guaranteed:
___________________________________
- ----------------------------
(1) The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
Indenture
EXHIBIT B
FORM OF DEPOSITORY AGREEMENT
Indenture
B-1