Exhibit 4.1
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NISSAN AUTO LEASE TRUST 2003-A
$240,300,000
1.16563% Asset Backed Notes, Class A-1
$277,000,000
1.69000% Asset Backed Notes, Class A-2
$379,950,000
Floating Rate Asset Backed Notes, Class A-3a
$342,450,000
2.57000% Asset Backed Notes, Class A-3b
NISSAN AUTO LEASE TRUST 2003-A
and
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee,
---------------------
INDENTURE
Dated as of October 29, 2003
---------------------
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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 2003-A SUBI Assets............................. 13
SECTION 3.08 Negative Covenants.......................................................................... 14
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 2003-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
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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
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 2003-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
SECTION 8.03 Payment Date Certificate.................................................................... 43
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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 2003-A Leases and 2003-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
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
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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.
315(a) ...........................................................................6.01
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(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
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(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.
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INDENTURE
This Indenture, dated as of October 29, 2003 (the "Indenture"), is between
the Nissan Auto Lease Trust 2003-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 1.16563% Asset
Backed Notes, Class A-1 (the "Class A-1 Notes"), 1.69000% Asset Backed Notes,
Class A-2 (the "Class A-2 Notes"), Floating Rate Asset Backed Notes, Class A-3a
(the "Class A-3a Notes") 2.57000% 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 October 29, 2003, 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 Trustee"),
Wilmington Trust Company, a Delaware banking corporation, as owner trustee and
Indenture
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.
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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) $240,300,000 of Class A-1 Notes, (ii) $277,000,000 of Class A-2
Notes, (iii) $379,950,000 of Class A-3a Notes and (iv) $342,450,000 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.
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,
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3
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.
(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
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4
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 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.
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5
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 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
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6
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 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%
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7
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.
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
Indenture
8
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 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
Indenture
9
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.
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
Indenture
10
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 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
Indenture
11
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);
(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
Indenture
12
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
2003-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 2003-A SUBI Certificate.
(b) Upon written request by the Indenture Trustee, on or before June 30 of
each calendar year, beginning with June 30, 2004, 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 2003-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
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 2003-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
Indenture
13
to perform any of its duties or obligations under the Servicing Agreement with
respect to the 2003-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 2003-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 2003-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 2003-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 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 2003-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.
Indenture
14
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, 2004, 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
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 2003-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).
Indenture
15
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 2003-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 2003-A SUBI Certificate. The
Indenture Trustee shall take possession of the 2003-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 2003-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:
(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;
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16
(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 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
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17
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 2003-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 the Notes and the Trust
Certificates immediately upon the delivery of written notice to the Indenture
Trustee stating that Nissan Auto Lease Trust 2003-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
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18
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 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
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19
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;
(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;
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20
(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.
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
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21
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.
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.
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22
(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 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
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23
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.
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;
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24
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
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.
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25
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 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
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26
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.
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.
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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
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
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28
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.
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:
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(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);
(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.
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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.
(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,
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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.
(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
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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, 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
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33
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 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.
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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.
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
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35
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 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.
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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 2003-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 the 2003-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 2003-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.
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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 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
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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 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.
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(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 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, 2004, 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.
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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.
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 2003-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
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"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 2003-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;
(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
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(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.
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 2003-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
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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
(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 2003-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
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44
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 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 2003-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;
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(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 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.
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46
(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 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 2003-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 2003-A Leases and 2003-A Vehicles Upon
Purchase or Reallocation by the Servicer.
(a) Upon the reallocation or purchase of any 2003-A Lease and related
2003-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 2003-A Lease and related 2003-A Vehicle and all proceeds thereof and
the other property with respect to such 2003-A Lease and related 2003-A Vehicle,
and all security and any documents relating thereto, and such 2003-A Lease and
related 2003-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
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rights with respect to such 2003-A Lease and related 2003-A Vehicle pursuant
hereto and the assignment of such 2003-A Lease and 2003-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 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
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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 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);
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(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;
(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.
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50
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 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 2003-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 2003-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 2003-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
2003-A SUBI Collection Account as follows: (i) to the
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Note Distribution Account, the Redemption Price and (ii) to the Certificate
Distribution Account, the Repayment Price.
(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,
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52
provided for in this Indenture relating to the proposed action have been
complied with (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with and (iii)
if required by the TIA, an Independent Certificate from a firm of certified
public accountants meeting the applicable requirements of this Section, except
that, in the case of any such application or request as to which the furnishing
of such documents is specifically required by 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
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53
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 information with respect
to such factual matters is in the possession of the Administrative Agent,
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54
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 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),
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55
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 2003-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.
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.
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56
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 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
Indenture
57
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 2003-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 2003-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 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
Indenture
58
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 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
Indenture
59
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 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
60
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 2003-A
By: WILMINGTON TRUST COMPANY ,
not in its individual capacity, but solely as
Owner Trustee
By: /s/ Anita E. Dallago
-----------------------------------------
Name: Anita E. Dallago
Title: Senior Financial Services Officer
U.S. BANK NATIONAL ASSOCIATION, as Indenture
Trustee
By: /s/ Patricia M. Child
---------------------------------------------
Name: Patricia M. Child
Title: Vice President
Receipt of this original counterpart of this Agreement is hereby
acknowledged on this 29 day of October, 2003.
NILT, INC.,
as Titling Trustee
By: /s/ Patricia M. Child
---------------------------------------------
Name: Patricia M. Child
Title: President
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 2003-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 27th day of October, 2003.
/s/ Kathleen A. Pedelini
----------------------------------------------
Notary Public in and for the State of DELAWARE
------------
(Seal)
My commission expires:
October 31, 2006
- ----------------
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 2003-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 24th day of October, 2003.
/s/ Jacqueline Rios
----------------------------------------------
Notary Public in and for the State of ILLINOIS
------------
(Seal)
My commission expires:
June 13, 2007
- -------------
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 2003-A
_____ % ASSET BACKED NOTE, CLASS A-1
REGISTERED $_________
No. R-___ CUSIP NO. _________
Nissan Auto Lease Trust 2003-A, a statutory trust organized and existing
under the laws of the State of Delaware (including any permitted successors and
assigns, the "Issuer"), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of _______________________
($_____________) 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 November 17, 2003 (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
A-2
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: ________, 2003
NISSAN AUTO LEASE TRUST 2003-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: _________, 2003 U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By: ______________________________
Name:
Title:
Indenture
A-3
[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 October 29, 2003 (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 (or any
one or more Predecessor Notes) affected by any payments made on any Payment Date
or
Indenture
A-4
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 2003-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 2003-A SUBI Certificate shall equal the Securitization Value of
the 2003-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 2003-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 2003-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 such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law,
Indenture
A-5
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:
payment in full of all amounts due to each Holder in respect of the UTI,
the 2003-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
2003-A SUBI and any Other SUBI (excluding the UTI Beneficiary, the Transferor or
any of their respective Affiliates); and
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.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
Indenture
A-6
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
A-7
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
A-8
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
A-9
NISSAN AUTO LEASE TRUST 2003-A
_____ % ASSET BACKED NOTE, CLASS A-[2] [3b]
REGISTERED $_________
No. R-___ CUSIP NO. _________
Nissan Auto Lease Trust 2003-A, a statutory trust organized and existing
under the laws of the State of Delaware (including any permitted successors and
assigns, the "Issuer"), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of _______________________
($_____________) 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 November 17, 2003 (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
A-10
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: ________, 2003
NISSAN AUTO LEASE TRUST 2003-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: _________, 2003 U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By: ______________________________
Name:
Title:
Indenture
A-11
[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 October 29, 2003 (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 (or any
one or more Predecessor Notes) affected by any payments made on any Payment Date
or
Indenture
A-12
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 2003-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 2003-A SUBI Certificate shall equal the Securitization Value of
the 2003-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 2003-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 2003-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 such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law,
Indenture
A-13
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 2003-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 2003-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.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
Indenture
A-14
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
A-15
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
A-16
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
A-17
NISSAN AUTO LEASE TRUST 2003-A
FLOATING RATE ASSET BACKED NOTE, CLASS A-3a
REGISTERED $_________
No. R-___ CUSIP NO. _________
Nissan Auto Lease Trust 2003-A, a statutory trust organized and existing
under the laws of the State of Delaware (including any permitted successors and
assigns, the "Issuer"), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of _______________________
($_____________) 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 November 17, 2003 (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
A-18
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: ________, 2003
NISSAN AUTO LEASE TRUST 2003-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: _________, 2003 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 October 29, 2003 (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 (or any
one or more Predecessor Notes) affected by any payments made on any Payment Date
or
Indenture
A-20
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 2003-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 2003-A SUBI Certificate shall equal the Securitization Value of
the 2003-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 2003-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 2003-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 such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law,
Indenture
A-21
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 2003-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 2003-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.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
Indenture
A-22
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
A-23
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
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FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
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(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:
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(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.
A-24
EXHIBIT B
FORM OF DEPOSITORY AGREEMENT
B-1