WORLD OMNI MASTER OWNER TRUST
Asset-Backed Notes
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AMENDED AND RESTATED INDENTURE
Dated as of April 6, 2000
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HARRIS TRUST AND SAVINGS BANK
Indenture Trustee
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310 (a)(1) .................................................. 6.11
(a)(2) .................................................. 6.11
(a)(3) .................................................. 6.10
(a)(4) .................................................. 6.14
(b) .................................................. 6.11
(c) .................................................. N.A.
311 (a) .................................................. 6.12
(b) .................................................. 6.12
(c) .................................................. N.A.
312 (a) .................................................. 7.1, 7.2
(b) .................................................. 7.2
(c) .................................................. 7.2
313 (a) .................................................. 7.4(a), 7.4(b)
(b)(1) .................................................. 7.4(a)
(b)(2) .................................................. 7.4(a)
(c) .................................................. 7.4(a)
(d) .................................................. 7.4(a)
314 (a) .................................................. 7.3(a), 3.9
(b) .................................................. 3.6
(c)(1) .................................................. 2.1, 2.9, 4.1, 11.1(a)
(c)(2) .................................................. 2.1, 2.9, 4.1, 11.1(a)
(c)(3) .................................................. 2.9, 4.1, 11.1(a)
(d) .................................................. 2.9, 11.1(b)
(e) .................................................. 11.1(a)
(f) .................................................. 11.1(a)
315 (a) .................................................. 6.1(b)
(b) .................................................. 6.5
(c) .................................................. 6.1(a)
(d) .................................................. 6.2, 6.1(c)
(e) .................................................. 5.13
316 (a) last
sentence .................................................. 1.1
(a)(1)(A) .................................................. 5.11
(a)(1)(B) .................................................. 5.12
(a)(2) .................................................. Omitted
316 (b), (c) .................................................. 5.7
317 (a)(1) .................................................. 5.3(b)
(a)(2) .................................................. 5.3(d)
(b) .................................................. 3.3
318 (a) .................................................. 11.7
N.A. means Not Applicable. Note: This cross reference table shall not, for any
purpose, be deemed to be part of this Indenture.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1 Definitions.....................................................................................2
1.2 Incorporation by Reference of Trust Indenture Act...............................................3
ARTICLE II
THE NOTES
2.1 Issuance of Notes; Execution, Authentication and Delivery.......................................5
2.2 Form of Notes and Indenture Trustee's Certificate of Authentication.............................5
2.3 Temporary Notes.................................................................................6
2.4 Registration; Registration of Transfer and Exchange of Notes....................................7
2.5 Mutilated, Destroyed, Lost or Stolen Notes......................................................8
2.6 Persons Deemed Noteholders......................................................................8
2.7 Payment of Principal and Interest...............................................................9
2.8 Cancellation of Notes..........................................................................10
2.9 Release of Collateral..........................................................................10
2.10 Book-Entry Notes...............................................................................11
2.11 Notices to Clearing Agency.....................................................................11
2.12 Definitive Notes...............................................................................11
2.13 Transferor as Noteholder.......................................................................11
2.14 Tax Treatment..................................................................................12
2.15 Special Terms Applicable to Subsequent Transfers of Certain Notes..............................12
ARTICLE III
COVENANTS
3.1 Payment of Principal and Interest..............................................................13
3.2 Maintenance of Agency Office...................................................................13
3.3 Money for Payments To Be Held in Trust.........................................................15
3.4 Existence......................................................................................15
3.5 Protection of Trust Estate; Acknowledgment of Pledge...........................................16
3.6 Opinions as to Trust Estate....................................................................16
3.7 Performance of Obligations; Servicing of Receivables...........................................17
3.8 Negative Covenants.............................................................................18
3.9 Annual Statement as to Compliance..............................................................18
3.10 Consolidation, Merger, etc., of Issuer; Disposition of Trust Assets............................20
3.11 Successor or Transferee........................................................................20
3.12 No Other Business..............................................................................20
3.13 No Borrowing...................................................................................20
3.14 Guarantees, Loans, Advances and Other Liabilities..............................................21
3.15 Servicer's Obligations.........................................................................21
3.16 Capital Expenditures...........................................................................21
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3.17 Removal of Administrator.......................................................................21
3.18 Restricted Payments............................................................................21
3.19 Notice of Events of Default....................................................................22
3.20 Further Instruments and Acts...................................................................22
3.21 Indenture Trustee's Assignment of Interests in Certain Receivables.............................22
3.22 Representations and Warranties by the Issuer to the Indenture Trustee..........................23
ARTICLE IV
SATISFACTION AND DISCHARGE
4.1 Satisfaction and Discharge of Indenture........................................................24
4.2 Application of Trust Money.....................................................................24
4.3 Repayment of Monies Held by Paying Agent.......................................................24
4.4 Duration of Position of Indenture Trustee......................................................24
ARTICLE V
DEFAULT AND REMEDIES
5.1 Events of Default..............................................................................26
5.2 Acceleration of Maturity; Rescission and Annulment.............................................26
5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee......................29
5.4 Remedies; Priorities...........................................................................30
5.5 Optional Preservation of the Trust Estate......................................................30
5.6 Limitation of Suits............................................................................31
5.7 Unconditional Rights of Noteholders To Receive Principal and Interest..........................31
5.8 Restoration of Rights and Remedies.............................................................32
5.9 Rights and Remedies Cumulative.................................................................32
5.10 Delay or Omission Not a Waiver.................................................................32
5.11 Control by Noteholders.........................................................................33
5.12 Waiver of Past Defaults........................................................................33
5.13 Undertaking for Costs..........................................................................33
5.14 Waiver of Stay or Extension Laws...............................................................34
5.15 Action on Notes................................................................................34
5.16 Performance and Enforcement of Certain Obligations.............................................35
5.17 Early Amortization Events......................................................................36
5.18 Investment Event...............................................................................36
ARTICLE VI
THE INDENTURE TRUSTEE
6.1 Duties of Indenture Trustee....................................................................38
6.2 Rights of Indenture Trustee....................................................................39
6.3 Indenture Trustee May Own Notes................................................................39
6.4 Indenture Trustee's Disclaimer.................................................................39
6.5 Notice of Defaults.............................................................................39
6.6 Reports by Indenture Trustee to Holders........................................................40
6.7 Compensation; Indemnity........................................................................40
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6.8 Replacement of Indenture Trustee...............................................................42
6.9 Merger or Consolidation of Indenture Trustee...................................................42
6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee..............................43
6.11 Eligibility; Disqualification..................................................................44
6.12 Preferential Collection of Claims Against Issuer...............................................44
6.13 Representations and Warranties of Indenture Trustee............................................45
6.14 Indenture Trustee May Enforce Claims Without Possession of Notes...............................45
6.15 Suit for Enforcement...........................................................................45
6.16 Rights of Noteholders to Direct Indenture Trustee..............................................45
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders.........................46
7.2 Preservation of Information, Communications to Noteholders.....................................46
7.3 Reports by Issuer..............................................................................47
7.4 Reports by Indenture Trustee...................................................................47
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
8.1 Collection of Money............................................................................48
8.2 Trust Accounts; Allocations; Payments..........................................................49
8.3 General Provisions Regarding Trust Accounts....................................................50
8.4 Release of Trust Estate........................................................................50
8.5 Opinion of Counsel.............................................................................51
8.6 Effect of Fully Funded Date....................................................................52
ARTICLE IX
SUPPLEMENTAL INDENTURES
9.1 Supplemental Indentures Without Consent of Noteholders.........................................53
9.2 Supplemental Indentures With Consent of Noteholders............................................54
9.3 Execution of Supplemental Indentures...........................................................54
9.4 Effect of Supplemental Indenture...............................................................55
9.5 Conformity with Trust Indenture Act............................................................55
9.6 Reference in Notes to Supplemental Indentures..................................................55
ARTICLE X
REDEMPTION OF NOTES
10.1 Redemption.....................................................................................56
10.2 Form of Redemption Notice......................................................................56
10.3 Notes Payable on Redemption Date...............................................................57
ARTICLE XI
MISCELLANEOUS
11.1 Compliance Certificates and Opinions, etc......................................................58
11.2 Form of Documents Delivered to Indenture Trustee...............................................59
11.3 Acts of Noteholders............................................................................60
11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies................................60
11.5 Notices to Noteholders; Waiver.................................................................61
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11.6 Alternate Payment and Notice Provisions........................................................61
11.7 Conflict with Trust Indenture Act..............................................................61
11.8 Effect of Headings and Table of Contents.......................................................61
11.9 Successors and Assigns.........................................................................62
11.10 Separability....................................................................................62
11.11 Benefits of Indenture...........................................................................62
11.12 Legal Holidays..................................................................................62
11.13 GOVERNING LAW...................................................................................62
11.14 Counterparts....................................................................................62
11.15 Recording of Indenture..........................................................................63
11.16 No Recourse.....................................................................................64
11.17 No Petition.....................................................................................64
11.18 Inspection......................................................................................64
11.19 No Substantive Review of Compliance Documents...................................................64
11.20 Amendment of Basic Documents....................................................................64
11.21 Effect of Amendment and Restatement.............................................................64
EXHIBIT A Form of Transfer Certificate
EXHIBIT B Form of Undertaking Letter
EXHIBIT C Form of Indenture Trustee Certificate
Schedule 2 Collection Accounts
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AMENDED AND RESTATED INDENTURE, dated as of April 6, 2000,
between WORLD OMNI MASTER OWNER TRUST, a Delaware business trust (the "Issuer"
or the "Trust"), and Harris Trust and Savings Bank, an Illinois banking
corporation, as indenture trustee (as indenture trustee and not in its
individual capacity the "Indenture Trustee").
RECITALS
WHEREAS, the Issuer and the Indenture Trustee are parties to
the Indenture, dated as of November 22, 1999 (the "Original Indenture").
WHEREAS, the Issuer and the Indenture Trustee desire to amend
and restate the Original Indenture.
IN WITNESS WHEREOF, each party agrees to follow for the
benefit of the other party and for the equal and ratable benefit of the Holders
of the Notes and (only to the extent expressly provided herein) the
Certificateholders:
GRANTING CLAUSE
The Issuer hereby confirms its grant of a security interest
in, transfer, assignment and conveyance to the Indenture Trustee on the Closing
Date, as trustee for the benefit of the Noteholders and (only to the extent
expressly provided herein) the Certificateholders, all of the Issuer's right,
title and interest in, to and under (a) all Receivables, all Collateral
Security with respect thereto, all monies due or to become due thereon
(including all interest thereon accruing after October 31, 1999, whether paid
or payable) and all amounts received with respect thereto and all proceeds
thereof (including "proceeds" as defined in Section 9-306 of the UCC) and
Recoveries, existing in Accounts on the Initial Cut-Off Date, generated in the
Accounts after the Initial Cut-Off Date and Receivables existing in or
generated in any Accounts added to the Trust on any Addition Date; (b) the
Trust Sale and Servicing Agreement (including the rights of WODFI LLC (the
"Transferor") under the Receivables Purchase Agreement assigned to the Issuer
pursuant to the Trust Sale and Servicing Agreement); (c) all Collections; (d)
all funds on deposit in the Trust Accounts; (e) any Enhancement issued for a
Series or class of Notes; (f) a security interest in the Vehicles; and (g) any
proceeds of the foregoing (collectively, the "Collateral").
The foregoing grant has been made and will continue to be made
in trust to secure the payment of principal of and interest on, and any other
amounts owing in respect of, the Notes, equally and ratably without prejudice,
priority or distinction (except as otherwise provided in any Series Supplement
or supplement hereto), to secure (only to the extent expressly provided herein)
distributions with respect to and interest on the Certificates, and to secure
compliance with the provisions of this Indenture, all as provided in this
Indenture. This Indenture constitutes a security agreement under the UCC.
The foregoing grant included and will continue to include all
rights, powers and options (but none of the obligations, if any) of the Issuer
under any agreement or instrument
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included in the Collateral, including the immediate and continuing right to
claim for, collect, receive and give receipt for principal and interest
payments in respect of the Receivables included in the Collateral and all other
monies payable under the Collateral, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights and
options, to bring Proceedings in the name of the Issuer or otherwise and
generally to do and receive anything that the Issuer is or may be entitled to
do or receive under or with respect to the Collateral.
The Indenture Trustee, as trustee on behalf of the
Noteholders, and (only to the extent expressly provided herein) the
Certificateholders, acknowledges such grant and accepts the trusts under this
Indenture in accordance with the provisions of this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Certain capitalized terms used in
this Indenture shall have the respective meanings assigned them in Part I of
Appendix A to the Trust Sale and Servicing Agreement dated as of November 22,
1999 as amended and restated on April 6, 2000 (the "Trust Sale and Servicing
Agreement") among World Omni Financial Corp. ("World Omni"), WODFI LLC (the
"Transferor"), and Chase Manhattan Bank Delaware (the "Owner Trustee"). All
references herein to "this Indenture" are to this Indenture as it may be
amended, supplemented or modified from time to time, and all references herein
to Articles, Sections, subsections and exhibits are to Articles, Sections,
subsections and exhibits of this Indenture unless otherwise specified. All
terms defined in this Indenture shall have the defined meanings when used in
any certificate, notice, Note or other document made or delivered pursuant
hereto unless otherwise defined therein. The rules of construction set forth in
Part II of Appendix A to the Trust Sale and Servicing Agreement shall be
applicable to this Indenture.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act
("TIA"), such 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 trustee" means the Indenture Trustee.
"obligor" on the indenture securities means the Issuer and
any other obligor on the indenture securities.
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All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by a Commission
rule have the respective meanings assigned to them by such definitions.
ARTICLE II
THE NOTES
SECTION 2.1 Issuance of Notes; Execution, Authentication and
Delivery.
(a) Notes may be issued by the Issuer upon execution of this
Indenture and from time to time thereafter, in each case, in accordance with
the terms and conditions authorized by or pursuant to a Series Supplement. The
Notes may be issued in one or more Series. The aggregate principal amount of
the Notes of all Series that may be authenticated and delivered and outstanding
under this Indenture is not limited.
(b) The Notes shall be executed on behalf of the Issuer by any
of its Authorized Officers. The signature of any such Authorized Officer on the
Notes may be manual or facsimile. Notes bearing the manual or facsimile
signature of individuals who were at any time Authorized Officers of the Issuer
shall bind the Issuer, notwithstanding that such individuals or any of them
have ceased to hold such office prior to the authentication and delivery of
such Notes or did not hold such office at the date of such Notes.
(c) Prior to or concurrently with the delivery of any Note to
the Indenture Trustee for authentication, the parties hereto shall execute and
deliver a Series Supplement which will specify the principal terms of such new
Series. The terms of such Series Supplement may modify or amend the terms of
this Indenture solely as applied to such new Series of Notes.
(i) The Series Supplement shall set forth, in addition to all
other requirements of such certificate:
(A) the name or designation of the particular Series (which
shall distinguish such Series from all other Series);
(B) the initial aggregate principal amount of the Series (or
method for calculating its initial principal amount) which may be
authenticated and delivered under this Indenture (except for Notes
authenticated and delivered upon registration and transfer of, or in
exchange for, or in lieu of, other Notes of such Series pursuant to
this Indenture);
(C) the method for allocating principal and interest to the
Noteholders;
(D) the rate or rates (or the method for determining its rate)
at which the Notes of such Series shall bear interest, if any, or the
initial interest rate and the method for determining subsequent
interest rates;
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(E) the terms on which the Notes may be exchanged for Notes of
another Series, be subject to repurchase, optional redemption or
mandatory redemption by the Transferor or be remarketed by any
remarketing agent;
(F) the date on which the Notes will begin their Accumulation
Period or Controlled Amortization Period;
(G) the percentage used to calculate monthly Servicing Fees;
(H) the issuer and terms of any Enhancement for that Series or
the level of subordination provided by the Certificateholder's
Interest;
(I) the Final Maturity Date for that Series; and
(J) any other terms permitted by this Indenture.
(ii) The obligation of the Indenture Trustee to authenticate
the Notes of such new Series and to execute and deliver the related
Series Supplement is subject to satisfaction of the Modified Rating
Agency condition with respect to the issuance and the delivery to the
Indenture Trustee of the following:
(A) on or before the fifth Business Day immediately preceding
the Series Issuance Date, the Transferor shall have given the Indenture
Trustee, the Owner Trustee, the Servicer, each Rating Agency, any Agent
and any Enhancement Provider written notice of such issuance and the
Series Issuance Date;
(B) a Series Supplement in form satisfactory to the Indenture
Trustee, executed by each party hereto other than the Indenture
Trustee;
(C) the related Enhancement Agreement and any related
agreement, executed by each party hereto other than the Indenture
Trustee; and
(D) an Opinion of Counsel to the effect that, (i) for federal
income tax purposes, the issuance of the Notes will not adversely
affect the characterization of the Notes of any outstanding Series or
class of Notes, as debt, nor will the issuance cause a taxable event
for any Noteholder, (ii) the issuance of a new Series of Notes will be
characterized as debt and (iii) the Trust will not be an association or
publicly traded partnership taxable as a corporation.
(d) Prior to or concurrently with each new issuance, the
Transferor shall have represented and warranted that the issuance shall not, in
the reasonable belief of the Transferor, cause an Early Amortization Event or
Investment Event to occur for any outstanding Series or class of Notes.
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(e) Upon execution and delivery of a Series Supplement and
Opinion of Counsel to the Indenture Trustee, the Indenture Trustee shall
thereupon authenticate and deliver the related Notes to or upon the written
order of the Issuer, signed by any Authorized Officer.
SECTION 2.2 Form of Notes and Indenture Trustee's Certificate
of Authentication.
(a) The Notes shall be in the forms provided from time to time
by or pursuant to a Series Supplement in accordance with the terms of this
Indenture and may have such letters, numbers or other marks of identification
or designation and such legends or endorsements printed, lithographed or
engraved thereon as the Issuer may deem appropriate and as are not inconsistent
with the provisions of this Indenture, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Notes may be listed or to conform
to usage. Any portion of the text of any Note may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the Note. The
Definitive Notes shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods (with or without steel engraved
borders), all as determined by the Authorized Officer executing such Notes, as
evidenced by such officer's execution of such Notes.
(b) The Indenture Trustee's certificate of authentication
shall be substantially in the following form:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Harris Trust and Savings Bank, not in its
individual capacity but solely as Indenture
Trustee
By: ______________________________
Name:
Title:
Dated: ______________________________
(c) Each Note shall be dated the date of its authentication.
Unless otherwise provided in the related Series Supplement, each Note shall be
issuable as a registered Note in the minimum denomination of $1,000 and in
integral multiples thereof.
SECTION 2.3 Temporary Notes.
(a) Pending the preparation of Definitive Notes, if any, to be
issued in exchange for Book-Entry Notes the Issuer may execute, and upon
receipt of an Issuer Order the Indenture Trustee shall authenticate and
deliver, such Temporary Notes which are printed, lithographed, typewritten,
mimeographed or otherwise produced, of the tenor of the Definitive Notes in
lieu of which they are issued and with such variations as are consistent with
the terms of this Indenture as the officers executing such Notes may determine,
as evidenced by their execution of such Notes.
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(b) 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 the Temporary Notes at the Agency Office of
the Issuer to be maintained as provided in Section 3.2, without charge to the
Noteholder. Upon surrender for cancellation of any one or more Temporary Notes,
the Issuer shall execute and the Indenture Trustee shall authenticate and
deliver in exchange therefor a like principal amount of Definitive Notes of
authorized denominations. Until so delivered in exchange, the Temporary Notes
shall in all respects be entitled to the same benefits under this Indenture as
Definitive Notes.
SECTION 2.4 Registration; Registration of Transfer and
Exchange of Notes.
(a) The Issuer shall cause to be kept the Note Register,
comprising separate registers for each Series and class of Notes, in which,
subject to such reasonable regulations as the Issuer may prescribe, the Issuer
shall provide for the registration of the Notes and the registration of
transfers and exchanges of the Notes (the "Note Register"). The Indenture
Trustee shall initially be the Note Registrar for the purpose of registering
the Notes and transfers of the Notes as herein provided. Upon any resignation
of any Note Registrar, the Issuer shall promptly appoint a successor Note
Registrar or, if it elects not to make such an appointment, assume the duties
of the Note Registrar.
(b) 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 the appointment of such Note Registrar and of the
location, and any change in the location, of the Note Register. The Indenture
Trustee shall have the right to inspect the Note Register at all reasonable
times and to obtain copies thereof. The Indenture Trustee shall have the right
to rely upon a certificate executed on behalf of the Note Registrar by an
Executive Officer thereof as to the names and addresses of the Noteholders and
the principal amounts and number of such Notes.
(c) Upon surrender for registration of transfer of any Note at
the Corporate Trust Office of the Indenture Trustee or the Agency Office of the
Issuer (and following the delivery, in the former case, of such Notes to the
Issuer by the Indenture Trustee), the Issuer shall execute, the Indenture
Trustee shall authenticate and the Noteholder shall obtain from the Indenture
Trustee, in the name of the designated transferee or transferees, one or more
new Notes of the same Series in any authorized denominations of a like
aggregate principal amount.
(d) At the option of the Noteholder, Notes may be exchanged
for other Notes of the same Series and class in any authorized denominations,
of a like aggregate principal amount, upon surrender of such Notes to be
exchanged at the Corporate Trust Office of the Indenture Trustee or the Agency
Office of the Issuer (and following the delivery, in the former case, of such
Notes to the Issuer by the Indenture Trustee), the Issuer shall execute, and
the Indenture Trustee shall authenticate and the Noteholder shall obtain from
the Indenture Trustee, such Notes which the Noteholder making the exchange is
entitled to receive.
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(e) All Notes issued upon any registration of transfer or
exchange of other 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.
(f) Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee and the
Note Registrar, duly executed by the Holder thereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by a commercial bank
or trust company.
(g) No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Issuer or Indenture
Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Notes, other than exchanges pursuant to Sections 2.3 or
9.6 not involving any transfer.
(h) The preceding provisions of this Section 2.4
notwithstanding, the Issuer shall not be required to transfer or make
exchanges, and the Note Registrar need not register transfers or exchanges, (i)
of Notes that have been selected for redemption pursuant to Article X, if
applicable; (ii) of Notes that are due for repayment within 15 days of
submission to the Corporate Trust Office or the Agency Office; or (iii) if
Section 2.15 has not been complied with in connection with such transfer.
(i) Neither the Indenture Trustee nor the Note Registrar shall
have any responsibility to monitor or restrict the transfer of beneficial
ownership in any Note an interest in which is transferable through the
facilities of the Depository.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes.
(a) 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 and the Indenture Trustee harmless, then, in the absence of notice to
the Issuer, the Note Registrar or the Indenture Trustee that such Note has been
acquired by a bona fide purchaser, the Issuer shall execute and upon the
Issuer's written 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 of a like Series and class and aggregate principal
amount; provided, however, that if any such destroyed, lost or stolen Note, but
not a mutilated Note, shall have become or within seven days shall be due and
payable, or shall have been called for redemption, instead of issuing a
replacement Note, the Issuer may make payment to the Holder of such destroyed,
lost or stolen Note when so due or payable or upon the Redemption Date, if
applicable, without surrender thereof.
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(b) If, after the delivery of a replacement Note or payment in
respect of a destroyed, lost or stolen Note pursuant to subsection (a), a bona
fide purchaser of the original Note in lieu of which such replacement Note was
issued presents for payment such original Note, the Issuer and the Indenture
Trustee shall be entitled to recover such replacement Note (or such payment)
from (i) any Person to whom it was delivered, (ii) the Person taking such
replacement Note from the Person to whom such replacement Note was delivered or
(iii) any assignee of such Person, except a bona fide purchaser, and the Issuer
and the Indenture Trustee 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.
(c) In connection with the issuance of any replacement Note
under this Section 2.5, the Issuer or the Indenture Trustee may require the
payment by the Holder of such Note of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including all fees and expenses of the Indenture Trustee)
connected therewith.
(d) Any duplicate Note issued pursuant to this Section 2.5 in
replacement for 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 found at any time or be
enforced by any Person, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.
(e) The provisions of this Section 2.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 Persons Deemed Noteholders. Prior to due
presentment for registration of transfer of any Note, the Issuer, the Indenture
Trustee and any agent of the Issuer or the Indenture Trustee may treat the
Person in whose name any Note is registered (as of the day of determination) as
the Noteholder for the purpose of receiving payments of principal of and
interest on such Note and for all other purposes whatsoever, whether or not
such Note be overdue, and neither the Issuer, the Indenture Trustee nor any
agent of the Issuer or the Indenture Trustee shall be affected by notice to the
contrary.
SECTION 2.7 Payment of Principal and Interest.
(a) Interest on each Series of Notes shall accrue and be
payable as provided in the applicable Series Supplement. Unless otherwise
provided in the applicable Series Supplement, any installment of interest
payable on any Note shall be punctually paid or duly provided for with funds
set aside in the Collection Account, on the applicable Payment Date and shall
be paid to the Person in whose name such Note (or one or more Predecessor
Notes) is registered on the applicable Record Date, by check mailed
first-class, postage prepaid to such Person's address as it appears on the Note
Register on such Record Date; provided, however, that, with respect to
Book-Entry Notes registered on the applicable Record Date in the name of the
Note Depository for which Definitive Notes have not been issued pursuant to
Section 2.12, payment shall be made by wire transfer in immediately available
funds to the account designated by such Holder.
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(b) The principal of each Series of Notes shall be payable as
provided in the applicable Series Supplement. All principal payments on each
Series of Notes shall be made pro rata to the Noteholders of such Series
entitled thereto unless otherwise provided in the related Series Supplement.
Unless otherwise provided in the applicable Series Supplement, any installment
of principal payable on any Note shall be punctually paid or duly provided for
by a deposit by or at the direction of the Issuer into the Principal Funding
Account on the applicable Payment Date and shall be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered on the
applicable Record Date, by check mailed first-class, postage prepaid to such
Person's address as it appears on the Note Register on such Record Date;
provided, however, that, with respect to Book-Entry Notes registered on the
Record Date in the name of the Note Depository for which Definitive Notes have
not been issued pursuant to Section 2.12, payment shall be made by wire
transfer in immediately available funds to the account designated by such
Holder, except for the final installment of principal on any such Note and the
Redemption Price for any Notes, if so called, which, in each case, shall be
payable as provided herein. The funds represented by any such checks in respect
of interest or principal returned undelivered shall be held in accordance with
Section 3.3.
(c) With respect to any Payment Date on which the final
installment of principal and interest on a Series of Notes is to be paid, the
Indenture Trustee shall notify each Noteholder of such Series of Notes as of
the Record Date for such Payment Date of the fact that the final installment of
principal of and interest on such Note is to be paid on such Payment Date. With
respect to Book-Entry Notes for which Definitive Notes have not been issued,
such notice shall be sent on the Business Day prior to such Payment Date by
facsimile, and with respect to Definitive Notes, such notice shall be sent not
later than three Business Days after such Record Date in accordance with
Section 11.5(a), and, in each case, shall specify that such final installment
shall be payable only upon presentation and surrender of such Note and shall
specify the place where such Note may be presented and surrendered for payment
of such installment. The Indenture Trustee shall not be liable for any failure
to provide notice to the Noteholders as required pursuant to this Section
2.7(c) to the extent it has not received notice of such expected final Payment
Date from the Issuer not later than two Business Days after the Record Date.
Notices in connection with redemptions of Notes shall be mailed to Noteholders
as provided in Section 10.2.
SECTION 2.8 Cancellation of Notes. All Notes surrendered for
payment, redemption, exchange or registration of transfer shall, if surrendered
to any Person other than the Indenture Trustee, be delivered to the Indenture
Trustee and shall be promptly canceled by the Indenture Trustee. The Issuer may
at any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be promptly
canceled by the Indenture Trustee. No Notes shall be authenticated in lieu of
or in exchange for any Notes canceled as provided in this Section 2.8, except
as expressly permitted by this Indenture. All canceled Notes may be held or
disposed of by the Indenture Trustee in accordance with its standard retention
or disposal policy as in effect at the time unless the Issuer shall direct by
an Issuer Order that they be returned to it; provided, however, that such
Issuer Order is timely and the Notes have not been previously disposed of by
the Indenture Trustee.
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SECTION 2.9 Release of Collateral. If the Indenture is or is
required to be qualified under the TIA, the Indenture Trustee shall release
property from the lien of this Indenture, other than as permitted by Sections
3.21, 8.2, 8.4 and 11.1, only upon receipt of an Issuer Request accompanied by
an Officers' Certificate, an Opinion of Counsel and (to the extent required by
the TIA) Independent Certificates in accordance with TIA ss.ss. 314(c) and
314(d)(1).
SECTION 2.10 Book-Entry Notes. Unless otherwise provided in
the applicable Series Supplement, each Series of Notes, upon original issuance,
shall be issued in the form of a typewritten Note or Notes representing the
Book-Entry Notes, to be delivered to The Depository Trust Company, the initial
Clearing Agency by or on behalf of the Issuer and such Note or Notes shall be
registered on the Note Register in the name of the Note Depository (initially,
Cede & Co.). No Note Owner shall receive a Definitive Note representing such
Note Owner's interest in such Note, except as provided in Section 2.12. Unless
and until Definitive Notes with respect to such Notes have been issued to such
Note Owners pursuant to Section 2.12, with respect to such Notes:
(a) the provisions of this Section 2.10 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 such Notes and the
giving of instructions or directions hereunder) as the sole Holder of such
Notes and shall have no obligation to such Note Owners;
(c) to the extent that the provisions of this Section 2.10
conflict with any other provisions of this Indenture, the provisions of this
Section 2.10 shall control;
(d) the rights of the Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by law
and agreements between such Note Owners and the Clearing Agency and/or the
Clearing Agency Participants, and unless and until Definitive Notes are issued
pursuant to Section 2.12, the initial Clearing Agency shall make book-entry
transfers between the Clearing Agency Participants and receive and transmit
payments of principal of and interest on such Notes to such Clearing Agency
Participants, pursuant to the Note Depository Agreement; and
(e) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of Notes evidencing a
specified percentage of the Outstanding Amount of the Notes, the Clearing
Agency shall be deemed to represent such percentage only to the extent that it
has (i) received written 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 (ii) has
delivered such instructions to the Indenture Trustee.
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SECTION 2.11 Notices to Clearing Agency. With respect to any
Notes issued as Book-Entry Notes, whenever a notice or other communication to
the Noteholders is required under this Indenture, unless and until Definitive
Notes representing such Notes shall have been issued to the related Note Owners
pursuant to Section 2.12, the Indenture Trustee shall give all such notices and
communications specified herein to be given to the related Noteholders to the
Clearing Agency and shall have no obligation to such Note Owners.
SECTION 2.12 Definitive Notes. If for any Notes issued as
Book-Entry Notes (i) the Administrator advises the Indenture Trustee in writing
that the Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to such Notes and the Issuer is unable to locate
a qualified successor; (ii) the Administrator, at its option, advises the
Indenture Trustee in writing that it elects to terminate the book-entry system
through the Clearing Agency; or (iii) after the occurrence of an Event of
Default or a Servicing Default, Note Owners representing beneficial interests
aggregating at least a majority of the Outstanding Amount of such Notes advise
the Clearing Agency in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interests of such Note
Owners, then the Clearing Agency shall notify all Note Owners and the Indenture
Trustee in writing of the occurrence of any such event and of the availability
of Definitive Notes to such Note Owners requesting the same. Upon surrender to
the Indenture Trustee of the typewritten Note or Notes representing such
Book-Entry Notes by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee shall
authenticate the related Definitive Notes in accordance with the instructions
of the Clearing Agency. None of the Issuer, the Note Registrar or the Indenture
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be fully protected in relying on, such
instructions. Upon the issuance of such Definitive Notes, the Indenture Trustee
shall recognize the Holders of such Definitive Notes as Noteholders. The
Indenture Trustee shall not be liable if the Administrator or the Indenture
Trustee is unable to locate a qualified successor Depository (or Clearing
Agency).
SECTION 2.13 Transferor as Noteholder. The Transferor in its
individual or any other capacity may become the owner or pledgee of Notes of
any Series and may otherwise deal with the Issuer or its affiliates with the
same rights it would have if it were not the Transferor.
SECTION 2.14 Tax Treatment. The Issuer and the Indenture
Trustee, by entering into this Indenture, and the Noteholders and the Note
Owners, by acquiring any Note or interest therein, (i) express their intention
that the Notes qualify under applicable tax law as indebtedness secured by the
Collateral and (ii) unless otherwise required by appropriate taxing authorities,
agree to treat the Notes as indebtedness secured by the Collateral for the
purpose of federal income, state and local income and franchise taxes, any
applicable single business tax, and any other taxes imposed upon, measured by or
based upon gross or net income.
SECTION 2.15 Special Terms Applicable to Subsequent Transfers
of Certain Notes.
(a) The Notes may not have been registered under the
Securities Act, or the securities laws of any other jurisdiction. Consequently,
such Notes (the "Unregistered Notes") are not transferable other than pursuant
to an exemption from the registration requirements of the Securities Act and
satisfaction of certain other provisions specified herein or in the related
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Series Supplement. Unless otherwise provided in the related Series Supplement,
no sale, pledge or other transfer of any Unregistered Note (or interest
therein) after the date thereof may be made by any Person unless either such
sale, pledge or other transfer is (i) otherwise made in a transaction exempt
from the registration requirements of the Securities Act, in which case (A) the
Indenture Trustee shall require that both the prospective transferor and the
prospective transferee certify to the Indenture Trustee and the Transferor in
writing the facts surrounding such transfer, which certification shall be in
form and substance satisfactory to the Indenture Trustee and the Transferor,
and (B) the Indenture Trustee shall require a written opinion of counsel (which
shall not be at the expense of the Transferor, the Servicer or the Indenture
Trustee) satisfactory to the Transferor and the Indenture Trustee to the effect
that such transfer will not violate the Securities Act or (ii) satisfies the
restrictions on transfer set forth in the applicable Series Supplement. Neither
the Transferor nor the Indenture Trustee shall be obligated to register any
Unregistered Notes under the Securities Act, qualify any Unregistered Notes
under the securities laws of any state or provide registration rights to any
purchaser or holder thereof.
(b) Unless otherwise provided in the related Series
Supplement, the Unregistered Notes may not be acquired by or for the account of
a Benefit Plan and, by accepting and holding an Unregistered Note, the Holder
thereof shall be deemed to have represented and warranted that it is not a
Benefit Plan and, if requested to do so by the Transferor or the Indenture
Trustee, the Holder of an Unregistered Note shall execute and deliver to the
Indenture Trustee an undertaking letter in the form set forth in Exhibit B.
(c) Unless otherwise provided in the related Series
Supplement, Unregistered Notes shall be issued in the form of Definitive Notes,
shall be in fully registered form and Sections 2.10, 2.11 and 2.12 of this
Indenture shall not apply thereto.
(d) Each Unregistered Note shall bear legends to the effect
set forth in subsections (a) and (b) (if subsection (b) is applicable) above.
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest. The Issuer
shall duly and punctually pay the principal of and interest on the Notes in
accordance with the terms of the Notes and this Indenture. On each date on
which any payments are to be made, the Issuer shall cause amounts on deposit in
the Collection Account or any Principal Funding Account to be paid to the
Noteholders in accordance with the terms of the Notes and this Indenture, less
amounts properly withheld under the Code by any Person from a payment to any
Noteholder of interest and/or principal. Any amounts so withheld shall be
considered as having been paid by the Issuer to such Noteholder for all
purposes of this Indenture.
SECTION 3.2 Maintenance of Agency Office. As long as any of
the Notes remains outstanding, the Issuer shall maintain in the Borough of
Manhattan, the City of New York, an office (the "Agency Office"), being an
office or agency where Notes may be surrendered to the Issuer for registration
of transfer or exchange, and where notices and demands to or upon the Issuer in
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respect of the Notes and this Indenture may be served. The Issuer hereby
initially appoints the Indenture Trustee to serve as its agent for the
foregoing purposes, which address is 88 Pine Street, 19th Floor, New York, New
York 10005. If the Indenture Trustee is not the agent, 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 of the Indenture
Trustee, and the Issuer hereby appoints the Indenture Trustee as its agent to
receive all such surrenders, notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust.
(a) All payments of amounts due and payable with respect to
any Notes that are to be made from amounts withdrawn from the Collection
Account or the applicable Principal Funding Account shall be made on behalf of
the Issuer by the Indenture Trustee or by another Paying Agent, and no amounts
so withdrawn from the Collection Account or such Principal Funding Account for
payments of Notes shall be paid over to the Issuer except as provided in this
Section 3.3.
(b) On or before each date on which payments are to be made or
the Redemption Date (if applicable), the Issuer shall deposit or cause to be
deposited in the applicable Principal Funding Account aggregate sums sufficient
to pay the amounts then becoming due with respect to the Notes, such sums to be
held in trust for the benefit of the Persons entitled thereto and (unless the
Paying Agent is the Indenture Trustee) shall promptly notify the Indenture
Trustee in writing of its action or failure to so act.
(c) The Issuer shall cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an instrument
in which such Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the
provisions of this Section 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment of
amounts due with respect to the Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any default
by the Issuer (or any other obligor upon the Notes) of which it has
actual knowledge in the making of any payment required to be made with
respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee, forthwith
pay to the Indenture Trustee all sums so held in trust by such Paying
Agent;
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(iv) immediately resign as a Paying Agent and
forthwith pay to the Indenture Trustee all sums held by it in trust
for the payment of Notes if at any time it ceases to meet the
standards required to be met by a Paying Agent in effect at the time
of determination; and
(v) 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.
(d) The Issuer may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Indenture
Trustee upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
(e) Subject to applicable laws with respect to escheat of
funds, any money held by the Indenture Trustee or any Paying Agent in trust for
the payment of any amount due with respect to any Note and remaining unclaimed
for one year after such amount has become due and payable shall be discharged
from such trust and be paid by the Indenture Trustee to the Issuer upon receipt
of an Issuer Request; and the Holder of such Note shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof (but
only to the extent of the amounts so paid to the Issuer), and all liability of
the Indenture Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided, however, that the Indenture Trustee or such
Paying Agent, before being required to make any such payment, may at the expense
of the Issuer cause to be published once, in a newspaper published in the
English language, customarily published on each Business Day and of general
circulation in the City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining shall be paid to the Issuer. The Indenture Trustee may also adopt and
employ, at the expense of the Issuer, any other reasonable means of notification
of such repayment (including, but not limited to, mailing notice of such
repayment to Holders whose Notes have been called but have not been surrendered
for redemption or whose right to or interest in monies due and payable but not
claimed is determinable from the records of the Indenture Trustee or of any
Paying Agent, at the last address of record for each such Holder).
SECTION 3.4 Existence. The Issuer shall keep in full effect
its existence, rights and franchises as a business 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 of
America, 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.
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SECTION 3.5 Protection of Trust Estate; Acknowledgment of
Pledge.
The Issuer shall from time to time execute and deliver all
such supplements and amendments hereto and all such financing statements,
amendments thereto, continuation statements, assignments, certificates,
instruments of further assurance and other instruments, and shall take such
other action necessary or advisable to:
(a) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more effectively the
purposes hereof, including by making the necessary filings of financing
statements or amendments thereto within ninety days after the occurrence of any
of the following: (A) any change in the Issuer's name, (B) any change in the
location of the Issuer's principal place of business, (C) any merger or
consolidation or other change in the Issuer's identity or organizational
structure and by promptly notifying in writing the Indenture Trustee of any
such filings and (D) any other change or occurrence that would make any
financing statement or amendment seriously misleading within the meaning of
Section 9-402(7) of the UCC;
(b) perfect, publish notice of or protect the validity of any
grant of a security interest made or to be made by this Indenture;
(c) enforce the rights of the Indenture Trustee and the
Noteholders in any of the Collateral; or
(d) preserve and defend title to the Trust Estate and the
rights of the Indenture Trustee and the Noteholders in such Trust Estate against
the claims of all Persons and parties, and the Issuer hereby designates the
Indenture Trustee its agent and attorney-in-fact to execute any financing
statement, continuation statement or other instrument required pursuant to this
Section 3.5. In addition, the Issuer shall deliver to the Indenture Trustee all
documents constituting "instruments" (as defined in the UCC as in effect in the
applicable jurisdiction) as shall have been delivered to it by the Transferor
pursuant to the terms of the Trust Sale and Servicing Agreement relating to the
Trust Estate with such endorsements attached as the Indenture Trustee may
reasonably require.
SECTION 3.6 Opinions as to Trust Estate.
(a) On the Initial Closing Date, the Issuer shall furnish to
the Indenture Trustee an Opinion of Counsel either stating that, in the opinion
of such counsel, such action has been taken with respect to the recording and
filing of this Indenture, any indentures supplemental hereto and any other
requisite documents, and with respect to the execution and filing of any
financing statements and continuation statements as are necessary to perfect
and make effective the lien and security interest of this Indenture and
reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such lien and security interest
effective.
(b) On or before April 30 in each calendar year, beginning
April 30, 2000, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, re-recording and refiling of
this Indenture, any indentures supplemental hereto and any other requisite
documents and with respect to the execution and filing of any financing
15
statements and continuation statements as is necessary to maintain the lien and
security interest created by this Indenture and reciting the details of such
action or stating that in the opinion of such counsel no such action is
necessary to maintain the lien and security interest created by this Indenture.
Such Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any
other requisite documents and the execution and filing of any financing
statements and continuation statements that will, in the opinion of such
counsel, be required to maintain the lien and security interest of this
Indenture until April 30 in the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of
Receivables.
(a) The Issuer shall not take any action and shall use its
reasonable efforts not to permit any action to be taken by others that would
release any Person from any of such Person's material covenants or obligations
under any instrument or agreement included in the 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 otherwise expressly provided in this Indenture, the Trust
Sale and Servicing Agreement, the Receivables Purchase Agreement, the
Administration Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee herein or in the Basic
Documents or an Officers' Certificate of the Issuer shall be deemed to be
action taken by the Issuer. The Indenture Trustee shall not be responsible for
the action or inaction of the Servicer or the Administrator. Initially, the
Issuer has contracted with the Servicer and the Administrator to assist the
Issuer in performing its duties under this Indenture.
(c) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents and
in the instruments and agreements included in the Trust Estate, including but
not limited to filing or causing to be filed all Uniform Commercial Code
financing statements and continuation statements required to be filed under the
terms of this Indenture, the Trust Sale and Servicing Agreement and the
Receivables Purchase Agreement in accordance with and within the time periods
provided for herein and therein. Except as otherwise expressly provided
therein, the Issuer shall not waive, amend, modify, supplement or terminate any
Basic Document or any provision thereof without the consent of the Indenture
Trustee.
(d) If the Issuer shall have knowledge of the occurrence of a
Servicing Default under the Trust Sale and Servicing Agreement, the Issuer
shall promptly notify the Indenture Trustee and the Rating Agencies in writing
thereof, and shall specify in such notice the response or action, if any, the
Issuer has taken or is taking with respect to such default. If a Servicing
Default shall arise from the failure of the Servicer to perform any of its
duties or obligations under the Trust Sale and Servicing Agreement or the
Receivables Purchase Agreement with respect to the Receivables in the Accounts,
the Issuer and the Indenture Trustee shall take all reasonable steps available
to them pursuant to the Trust Sale and Servicing Agreement and the Receivables
Purchase Agreement to remedy such failure.
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SECTION 3.8 Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of any of
the properties or assets of the Issuer, except the Issuer may: (i) collect,
liquidate, sell or otherwise dispose of the Trust's interest in Receivables
including Defaulted Receivables, (ii) make cash payments out of the Trust
Accounts and any Principal Funding Account and (iii) take other actions, in
each case as contemplated by the Basic Documents;
(b) 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;
(c) voluntarily commence any insolvency, readjustment of debt,
marshaling of assets and liabilities or other proceeding, or apply for an order
by a court or agency or supervisory authority for the winding-up or liquidation
of its affairs or any other event specified in Section 5.1(f); or
(d) either (i) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (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 or 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 or as otherwise contemplated by the
Basic Documents) or (iii) permit the lien of this Indenture not to constitute a
valid first priority security interest in the Trust Estate (other than with
respect to any such tax, mechanics' or other lien); provided, however, that
nothing in this Section 3.8(d) shall prohibit a Lien in favor of World Omni
subject to the provisions of Article VII of the Receivables Purchase Agreement.
SECTION 3.9 Annual Statement as to Compliance. The Issuer
shall deliver to the Indenture Trustee, on or before April 30 of each year,
beginning April 30, 2000, an Officer's Certificate signed by an Authorized
Officer of the Issuer, dated as of December 31 of such year, stating that:
(a) a review of the activities of the Issuer during such
fiscal year and of the Issuer's performance under this Indenture has been made
under such Authorized Officer's supervision; and
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(b) to the best of such Authorized Officer's knowledge, based
on such review, the Issuer has fulfilled in all material respects all of its
obligations under this Indenture throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such Authorized Officer and the nature and status thereof. A copy of
such certificate may be obtained by any Noteholder by a request in writing to
the Issuer addressed to the Corporate Trust Office of the Indenture Trustee.
SECTION 3.10 Consolidation, Merger, etc., of Issuer;
Disposition of Trust Assets.
(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 due and
timely 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 merger
or consolidation, no Event of Default shall have occurred and
be continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction and such Person for each
then outstanding Series of Notes;
(iv) any action as is necessary to maintain the lien
and security interest created by this Indenture shall have
been taken;
(v) the Issuer shall have delivered to the Indenture
Trustee an Officers' Certificate and an Opinion of Counsel addressed
to the Issuer, each stating:
(A) that such consolidation or merger and such
supplemental indenture comply with this Section 3.10; and
(B) that all conditions precedent herein provided for
in this Section 3.10 have been complied with, which shall include any
filing required by the Exchange Act; and
(vi) the Issuer has received a Tax Opinion regarding
the merger or consolidation.
(b) Except as otherwise expressly permitted by this Indenture
or the other Basic Documents, the Issuer shall not sell, convey, exchange,
transfer or otherwise dispose of any material portion of the properties and
assets included in the Trust Estate to any Person, unless:
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(i) the Person that acquires such properties or
assets of the Issuer (A) shall be a United States citizen or a Person
organized and existing under the laws of the United States of America
or any State and (B) by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee:
(1) expressly assumes the due and
punctual payment of the principal of and interest on
all Notes and the performance or observance of every
agreement and covenant of this Indenture (and so long
as any Enhancement is in effect, such Enhancement and
all related documents) on the part of the Issuer to
be performed or observed, all as provided herein;
(2) expressly agrees that all right,
title and interest so sold, conveyed, exchanged,
transferred or otherwise disposed of shall be subject
and subordinate to the rights of Noteholders;
(3) unless otherwise provided in such
supplemental indenture, expressly agrees to
indemnify, defend and hold harmless the Issuer
against and from any loss, liability or expense
arising under or related to this Indenture and the
Notes; and
(4) expressly agrees that such Person
(or if a group of Persons, then one specified Person)
shall make all filings with the Commission (and
any other appropriate Person) required by the
Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such
transaction, no Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction and such Person for each
then outstanding Series of Notes;
(iv) any action as is necessary to maintain the lien
and security interest created by this Indenture shall have
been taken; and
(v) the Issuer shall have delivered to the Indenture
Trustee an Officers' Certificate and an Opinion of Counsel addressed
to the Issuer, each stating that:
(A) such sale, conveyance, exchange, transfer or
disposition and such supplemental indenture comply with this Section
3.10;
(B) such sale, conveyance, exchange, transfer or
disposition and such supplemental indenture have no material adverse
tax consequence to the Issuer or to any Securityholder; and
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(C) that all conditions precedent herein provided for in this
Section 3.10 have been complied with, which shall include any filing required by
the Exchange Act.
SECTION 3.11 Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in
accordance with Section 3.10(a), the Person formed by or surviving such
consolidation or merger (if other than the Issuer) shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such Person had been named as the
Issuer herein.
(b) Upon a conveyance or transfer of all the assets and
properties of the Issuer pursuant to Section 3.10(b), the Issuer shall be
released from every covenant and agreement of this Indenture to be observed or
performed on the part of the Issuer with respect to the Notes immediately upon
the delivery of written notice to the Indenture Trustee from the Person
acquiring such assets and properties stating that the Issuer is to be so
released.
SECTION 3.12 No Other Business. The Issuer shall not engage in
any business or activity other than acquiring, holding and managing the
Collateral and the proceeds therefrom in the manner contemplated by the Basic
Documents, issuing the Notes and the Certificates, making payments on the Notes
and the Certificates and such other activities that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto, as set forth
in Section 2.3 of the Trust Agreement, including entering into and making
payments under any Enhancements.
SECTION 3.13 No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness for money borrowed other than indebtedness for money borrowed in
respect of the Notes or in accordance with the Basic Documents.
SECTION 3.14 Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by this Indenture or the other Basic
Documents, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any
stock, obligations, assets or securities of, or any other interest in, or make
any capital contribution to, any other Person.
SECTION 3.15 Servicer's Obligations. The Issuer shall use its
best efforts to cause the Servicer to comply with its obligations under
Sections 3.4, 3.5 and 3.6 of the Trust Sale and Servicing Agreement.
SECTION 3.16 Capital Expenditures. The Issuer shall not make
any expenditure (whether by long-term or operating lease or otherwise) for
capital assets (either real, personal or intangible property) other than the
purchase of the Receivables and other property and rights from the Transferor
on the Initial Closing Date and from time to time thereafter pursuant to the
Trust Sale and Servicing Agreement.
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SECTION 3.17 Removal of Administrator. So long as any Notes
are Outstanding, the Issuer shall not remove the Administrator without cause
unless the Rating Agency Condition for each Series of Notes then outstanding
shall have been satisfied in connection with such removal.
SECTION 3.18 Restricted Payments. Except for payments of
principal or interest on or redemption of the Notes, so long as any Notes are
outstanding, the Issuer shall not, directly or indirectly:
(a) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise, in each case with respect to any ownership or equity
interest or similar security in or of the Issuer or to the Servicer;
(b) redeem, purchase, retire or otherwise acquire for value
any such ownership or equity interest or similar security; or
(c) set aside or otherwise segregate any amounts for any such
purpose; provided, however, that the Issuer may make, or cause to be made,
distributions to the Servicer, the Transferor, the Indenture Trustee, the Owner
Trustee and the Securityholders as permitted by, and to the extent funds are
available for such purpose under, the Trust Sale and Servicing Agreement, the
Trust Agreement or the other Basic Documents. The Issuer shall not, directly or
indirectly, make payments to or distributions from the Collection Account or any
other Trust Account except in accordance with the Basic Documents.
SECTION 3.19 Notice of Events of Default. The Issuer agrees to
give the Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder, each Servicing Default, any Insolvency Event with
respect to the Transferor, each default on the part of the Transferor or the
Servicer of its respective obligations under the Trust Sale and Servicing
Agreement and each default on the part of World Omni of its obligations under
the Receivables Purchase Agreement, in each case promptly after the discovery
thereof by the Issuer.
SECTION 3.20 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 purpose of this Indenture.
SECTION 3.21 Indenture Trustee's Assignment of Interests in
Certain Receivables. The Indenture Trustee shall assign, without recourse,
representation or warranty, to the Servicer, World Omni or the Transferor, as
the case may be, all of the Indenture Trustee's right, title and interest in
and to any Receivable assigned by the Issuer to the Servicer, World Omni or the
Transferor, as applicable, pursuant to the Receivables Purchase Agreement or
the Trust Sale and Servicing Agreement (in each case, to the extent so assigned
and upon the receipt of any related payment, if applicable), such assignment
21
being an assignment outright and not for security; and the Servicer, World Omni
or the Transferor, as applicable, shall thereupon own the interest purchased in
such Receivable, free of any further obligation to the Indenture Trustee or the
Securityholders with respect thereto. If in any enforcement suit or legal
proceeding it is held that the Servicer may not enforce a Receivable on the
ground that it is not a real party in interest or a holder entitled to enforce
such Receivable, the Indenture Trustee shall, at the Servicer's expense, take
such steps as the Servicer deems necessary to enforce the Receivable, including
bringing suit in the Indenture Trustee's name, the names of the Noteholders or
the names of the Certificateholders.
SECTION 3.22 Representations and Warranties by the Issuer to
the Indenture Trustee. The Issuer hereby represents and warrants to the
Indenture Trustee as follows:
(a) Good Title. No interest in any Receivable conveyed to the
Issuer has been sold, transferred, assigned or pledged by the Issuer to any
Person other than the Indenture Trustee; immediately prior to the conveyance of
such Receivables pursuant to this Indenture, the Issuer had good and marketable
title thereto, free of any Lien; and, upon execution and delivery of this
Indenture by the Issuer, the Indenture Trustee shall have all of the right,
title and interest of the Issuer in, to and under such Receivables, free of any
Lien; and
(b) All Filings Made. All filings (including, without
limitation, Uniform Commercial Code filings) necessary in any jurisdiction to
give the Indenture Trustee, upon the acquisition by the Issuer of any Eligible
Receivable, a first priority perfected security interest in such Eligible
Receivable have been made.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the Notes except
as to: (i) rights of registration of transfer and exchange; (ii) substitution
of mutilated, destroyed, lost or stolen Notes; (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon; (iv) Sections 3.3,
3.4, 3.5, 3.8, 3.10, 3.12, 3.13, 3.19 and 3.21; (v) the rights, obligations and
immunities of the Indenture Trustee hereunder (including the rights of the
Indenture Trustee under Section 6.7 and the obligations of the Indenture
Trustee under Sections 4.2 and 4.4); and (vi) the rights of Noteholders as
beneficiaries hereof with respect to the property so deposited with the
Indenture Trustee payable to all or any of them, and the Indenture Trustee, on
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the
Notes, if:
(a) either:
(i) all Notes theretofore authenticated and delivered
(other than (A) Notes that have been destroyed, lost or stolen and
that have been replaced or paid as provided in Section 2.5 and (B)
Notes for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Issuer and thereafter repaid to
the Issuer or discharged from such trust, as provided in Section 3.3)
have been delivered to the Indenture Trustee for cancellation; or
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(ii) all Notes not theretofore delivered to the
Indenture Trustee for cancellation:
(A) have become due and payable,
(B) will be due and payable on their respective
stated final maturity dates within one year, or
(C) 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 (A), (B) or (C) of subsection
4.1(a)(ii) 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 of
America (which will mature prior to the date such amounts are
payable), in trust for such purpose, in an amount sufficient to pay
and discharge the entire unpaid principal and accrued interest on such
Notes not theretofore delivered to the Indenture Trustee for
cancellation when due;
(b) the Issuer has paid or caused to be paid or performed all
amounts and obligations which the Issuer may owe to or on behalf of the
Indenture Trustee for the benefit of the Noteholders under this Indenture or
the Notes; and
(c) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate of the Issuer, an Opinion of Counsel and (if required by
the TIA or the Indenture Trustee) an Independent Certificate from a firm of
certified public accountants, each meeting the applicable requirements of
Section 11.1(a) and each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
SECTION 4.2 Application of Trust Money. All monies deposited
with the Indenture Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture and the applicable provisions of the Trust Sale and Servicing
Agreement, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Holders of the particular Notes for the
payment or redemption of which such monies have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal and
interest; but such monies need not be segregated from other funds except to the
extent required herein or in the Trust Sale and Servicing Agreement or by
applicable law.
SECTION 4.3 Repayment of Monies Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to each Series of Notes, all monies then held by any Paying Agent other than
the Indenture Trustee under the provisions of this Indenture with respect to
all such Notes shall, upon demand of the Issuer, be paid to the Indenture
Trustee to be held and applied according to Section 3.3 and thereupon such
Paying Agent shall be released from all further liability with respect to such
monies.
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SECTION 4.4 Duration of Position of Indenture Trustee.
Notwithstanding the earlier payment in full of all principal and interest due
to all Noteholders under the terms of the Notes of each Series and the
cancellation of such Notes pursuant to Section 3.1, the Indenture Trustee shall
continue to act in the capacity as Indenture Trustee hereunder to the benefit
of the Certificateholders and the Indenture Trustee, for the benefit of the
Certificateholders, shall comply with its obligations under Sections 6.1(a),
8.2 and 8.3 of the Trust Sale and Servicing Agreement, as appropriate, until
such time as all distributions due to the Certificateholders have been paid in
full.
ARTICLE V
DEFAULT AND REMEDIES
SECTION 5.1 Events of Default. For the purposes of this
Indenture, "Event of Default" wherever used herein, means any one of the
following events:
(a) failure to pay any interest on any Note as and when the
same becomes due and payable, and such default shall continue unremedied for a
period of 5 days; or
(b) except as set forth in Section 5.1(c), failure to pay any
installment of the principal of any Note as and when the same becomes due and
payable, and such default continues unremedied for a period of 5 days after
there shall have been given, by registered or certified mail, written notice
thereof to the Servicer by the Indenture Trustee or to the Servicer and the
Indenture Trustee by the Holders of not less than 25% of the aggregate
outstanding principal amount of the Notes, a written notice specifying such
default and demanding that it be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(c) failure to pay in full the unpaid principal balance
attributable to any Series of Notes on or prior to the Final Maturity Date for
such Series or class; or
(d) default in the observance or performance in any material
respect 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 specifically dealt with elsewhere in this Section 5.1) which
failure materially and adversely affects the rights of the Noteholders, and
such default shall continue or not be cured for a period of 30 days after there
shall have been given, by registered, certified or overnight mail or by hand
delivery, to the Issuer and the Transferor (or the Servicer, as applicable) by
the Indenture Trustee or to the Issuer and the Transferor (or the Servicer, as
applicable) and the Indenture Trustee by the Holders of at least 25% of the
aggregate outstanding principal amount of the Notes, a written notice
specifying such default and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
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(e) the filing of an 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 the Bankruptcy Code, and such
order shall have continued undischarged or unstayed for a period of 90 days; or
the filing of a decree or order by a court having jurisdiction in the premises
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of the Issuer under any other Insolvency Law, and
such decree or order shall have continued undischarged or unstayed for a period
of 90 days; or the filing of a decree or order of a court having jurisdiction
in the premises 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 decree or order shall have continued undischarged
and unstayed for a period of 90 consecutive days; or
(f) the commencement by the Issuer of a voluntary case under
the Bankruptcy Code; or the filing of a petition or answer or consent by the
Issuer seeking reorganization, arrangement, adjustment or composition under any
other Insolvency Law, or consent to the filing of any such petition, answer or
consent; or the consent by the Issuer to the appointment or taking possession
by a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the Trust Estate,
or the making by the Issuer of an assignment for the benefit of creditors, or
the admission in writing of its inability to pay its debts generally as such
debts become due; or
(g) any other event designated as such in a Series Supplement.
The Issuer shall deliver to the Indenture Trustee within five Business Days
after learning of the occurrence thereof, written notice in the form of an
Officer's Certificate of any event which with the giving of notice and the
lapse of time would become an Event of Default under Section 5.1(d), its status
and what action the Issuer is taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment.
(a) If an Event of Default with respect to any Series of Notes
should occur and be continuing, then and in every such case, unless the
principal amount of the Notes shall have already become due and payable, either
the Indenture Trustee or the Holders of Notes representing not less than a
majority of the principal amount of the then outstanding Controlling Class for
that Series of Notes may declare the principal of those Notes to be immediately
due and payable, by a notice in writing to the Issuer (and to the Indenture
Trustee if given by the Noteholders) setting forth the Event or Events of
Default, and upon any such declaration the unpaid principal amount of such
Notes, together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable. Such declaration will
constitute an Early Amortization Event for that Series and may be rescinded as
set forth in Section 5.2(b).
(b) At any time after such declaration of acceleration of
maturity has been made and before a judgment or decree for payment of the money
due has been obtained by the Indenture Trustee as hereinafter provided in this
Article V, the Holders of Notes representing a majority of the principal amount
25
of the Notes of the Controlling Class, by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration and its consequences;
provided, however, that no such rescission and annulment shall extend to or
affect any subsequent Event of Default or impair any right consequent thereto;
and provided, further, that if the Indenture Trustee shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission and annulment or for any
other reason, or shall have been determined adversely to the Indenture Trustee,
then and in every such case, the Indenture Trustee, the Issuer and the
Noteholders, as the case may be, shall be restored to their respective former
positions and rights hereunder, and all rights, remedies and powers of the
Indenture Trustee, the Issuer and the Noteholders, as the case may be, shall
continue as though no such proceedings had been commenced.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee.
(a) The Issuer covenants that if there shall occur an Event of
Default under Sections 5.1(a), (b) or (c) that has not been waived pursuant to
Section 5.12, then the Issuer shall, upon demand of the Indenture Trustee, pay
to the Indenture Trustee, for the ratable benefit of the parties to receive
such amounts pursuant to the terms of this Indenture, the entire amount then
due and payable on the Notes for principal and interest, with interest upon the
overdue principal for each Series of Notes, at the rate borne by such Notes and
in addition thereto such further amount as shall be sufficient to cover the
costs and expenses of collection, including any fees and Variable Funding
Increased Cost Amounts, the reasonable compensation, expenses, disbursements
and advances of the Indenture Trustee and its agents and counsel, with all such
amounts applied as described in clause SECOND of Section 5.4(b).
(b) The Indenture Trustee, following the occurrence of an
Event of Default, shall have full right, power and authority to take, or defer
from taking, any and all acts with respect to the administration, maintenance
or disposition of the collateral, including the exercise of any remedies
specified in Sections 5.3 and 5.4.
(c) If the Issuer shall fail forthwith to pay such amounts
upon such demand, the Indenture Trustee, in its own name and as trustee of an
express trust, may institute a Proceeding for the collection of the sums so due
and unpaid, and may prosecute such Proceeding to judgment or final decree, and
may enforce the same against the Issuer or other obligor upon such Notes and
collect in the manner provided by law out of the property of the Issuer or
other obligor upon such Notes, wherever situated, the monies adjudged or
decreed to be payable.
(d) If an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders, by such appropriate Proceedings as the Indenture Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy or legal or equitable right vested in the Indenture Trustee by this
Indenture or by applicable law.
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(e) If 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 any Insolvency Law, or if 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 5.3, 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 trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Indenture Trustee
and each predecessor 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 Holders of Notes in any election
of a trustee, a standby trustee or Person performing similar functions
in any such Proceedings;
(iii) 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 and
of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee or the Holders of Notes allowed in any
judicial proceedings relative to the Issuer, its creditors and its
property; and any trustee, receiver, liquidator, custodian or other
similar official in any such Proceeding is hereby authorized by each
of such Noteholders to make payments to the Indenture Trustee, and, if
the Indenture Trustee shall consent to the making of payments directly
to such Noteholders, to pay to the Indenture Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Indenture
Trustee, each predecessor trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each
predecessor trustee except as a result of negligence or bad faith.
(f) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
27
(g) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such 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, disbursements and compensation of the Indenture Trustee, each
predecessor trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Noteholders.
(h) 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 5.4 Remedies; Priorities.
(a) If an Event of Default shall have occurred and be
continuing and the Notes have been accelerated under Section 5.2(a), the
Indenture Trustee may (but shall not be required to) do one or more of the
following (subject to Section 5.5):
(i) institute Proceedings in its own name and as
trustee of an express trust for the collection of all amounts then
payable on the Notes or under this Indenture with respect thereto,
whether by declaration of acceleration or otherwise, enforce any
judgment obtained, and collect from the Issuer 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) sell the portions of the related Trust Estate
allocated to that Series, 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 or elect to have the Issuer maintain
possession of the Trust Estate, including the Receivables included
therein, and continue to apply Collections on such Receivables as if
there had been no declaration of acceleration (although the Early
Amortization Period commenced by that declaration shall continue
unless the declaration is rescinded); provided, however, that the
Indenture Trustee may not sell or otherwise liquidate an interest in
the Trust Estate following an Event of Default and acceleration of the
Notes, unless (A) the Holders of all of the outstanding Notes of the
affected Series consent thereto, (B) the proceeds of such sale or
liquidation distributable to the Securityholders are sufficient to
discharge in full the principal of and the accrued interest on the
Notes of the affected Series as of the date of such sale or
liquidation or (C) (i) there has been an Event of Default under
Section 5.1(a), (b) or (c) or otherwise arising from a failure to make
a required payment of principal on any Notes, (ii) the Indenture
Trustee determines that the Trust Estate is reasonably unlikely to
provide sufficient funds for the payment of principal of and interest
on the Notes as and when they would have become due if the Notes had
not been declared due and payable and (iii) the Indenture Trustee
obtains
28
the consent of Holders of a majority of the aggregate outstanding
principal amount of the Controlling Class of such Series of Notes. In
determining such sufficiency or insufficiency with respect to clauses
(B) and (C), the Indenture Trustee may, but need not, obtain and rely
upon an opinion of an Independent investment banking or accounting
firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out the money or property in the
following order:
FIRST: to the Indenture Trustee for amounts due under
Section 6.7; and
SECOND: to the Collection Account for distribution
pursuant to Section 4.3(d) of the Trust Sale and Servicing Agreement,
with such amounts being deemed to be Principal Collections and
Non-Principal Collections in the same proportion as (x) the
outstanding principal balance of the Notes bears to (y) the sum of the
accrued and unpaid interest on the Notes and other fees and expenses
payable in connection therewith under the applicable Series Supplement
(and, if any Series of Notes has Enhancements, the amount unpaid under
such Enhancements). Repayment in full of the accrued interest on and
unpaid principal balance of the Notes of that Series will be made
prior to any further distribution on the subordinated portion of the
Certificates.
(c) Notwithstanding the foregoing, if an Event of Default
shall have occurred and be continuing and the Notes of any Series shall have
been accelerated under Section 5.2(a) and the Final Maturity Date for such
Series of Note shall have occurred, on the first Payment Date thereafter, the
Indenture Trustee will sell or cause to be sold on such Payment Date such
Principal Receivables (or interests therein) in the amount and manner described
in the related Series Supplement; provided, however, that in no event shall the
amount of Principal Receivables sold exceed the Series Allocation Percentage
for that Series (for the Collection Period in which such Payment Date occurs)
of Principal Receivables on such Payment Date. The proceeds from such sale,
shall be immediately deposited into the applicable Principal Funding Account or
such other Trust Account as shall be specified in the related Series Supplement
and shall be allocated and distributed to the Noteholders of such Series in
accordance with the terms of the related Series Supplement.
SECTION 5.5 Optional Preservation of the Trust Estate. If the
Notes have been declared to be due and payable under Section 5.2 following an
Event of Default and such declaration and its consequences have not been
rescinded and annulled, the Indenture Trustee may, but need not, elect to take
and maintain possession of the Trust Estate. It is the desire of the parties
hereto and the Noteholders that there be at all times sufficient funds for the
payment of principal of and interest on the Notes, and the Indenture Trustee
shall take such desire into account when determining whether or not to take and
maintain possession of the Trust Estate. In determining whether to take and
maintain possession of the Trust Estate, the Indenture Trustee may, but need
not, obtain and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as
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to the feasibility of such proposed action and as to the sufficiency of the
Trust Estate for such purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note shall
have any right to institute any Proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) such Holder's Note is in the Controlling Class;
(b) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(c) the Holders of not less than 25% in aggregate principal
amount of the outstanding Notes of the Controlling Class have made written
request to the Indenture Trustee to institute such Proceeding in respect of
such Event of Default in its own name as Indenture Trustee hereunder;
(d) such Holder or Holders have offered to the Indenture
Trustee reasonable indemnity against the costs, expenses and liabilities to be
incurred in complying with such request;
(e) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute such
Proceedings; and
(f) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the Holders of
a majority of the Outstanding Amount of the Notes; it being understood and
intended that no one or more Holders of Notes shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holders of
Notes or to obtain or to seek to obtain priority or preference over any other
Holders of Notes or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
holders of Notes. For the protection and enforcement of the provisions of this
Section 5.6, each and every Noteholder shall be entitled to such relief as can
be given either at law or in equity.
If the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Notes, each representing less than a majority of the aggregate principal amount
of the outstanding Notes, the Indenture Trustee in its sole discretion may
determine what action, if any, shall be taken, notwithstanding any other
provisions of this Indenture.
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SECTION 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this Indenture,
the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest on such Note
on or after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, if applicable, on or after the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent of such Holder.
SECTION 5.8 Restoration of Rights and Remedies. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce
any right or remedy under this Indenture and such Proceeding has been
discontinued or abandoned for any reason or has been determined adversely to
the Indenture Trustee or to such Noteholder, then and in every such case the
Issuer, the Indenture Trustee and the Noteholders shall, subject to any
determination in such Proceeding, be restored severally and to their respective
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 5.9 Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee or any Holder of any Note to exercise any
right or remedy accruing upon any Default or Event of Default shall impair any
such right or remedy or constitute a waiver of any such Default or Event of
Default or an acquiescence therein. Every right and remedy given by this
Article V or by law to the Indenture Trustee or to the Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Indenture Trustee or by the Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. The Holders of a majority
in aggregate principal amount of the outstanding Notes of the Controlling Class
shall, subject to provision being made for indemnification against costs,
expenses and liabilities in a form satisfactory to the Indenture Trustee, have
the right to direct the time, method and place of conducting any Proceeding for
any remedy available to the Indenture Trustee with respect to the Notes or
exercising any trust or power conferred on the Indenture Trustee; provided,
however, that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
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(b) subject to the express terms of Section 5.4, any direction
to the Indenture Trustee to sell or liquidate the Trust Estate shall be by the
Holders of Notes representing not less than 100% of the outstanding Notes;
(c) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Trust Estate pursuant
to Section 5.5, then any direction to the Indenture Trustee by Holders of Notes
representing less than 100% of the outstanding Notes 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;
provided, however, that, subject to Section 6.1, the Indenture Trustee need not
take any action that it determines might cause it to incur any liability (y)
with respect to which the Indenture Trustee shall have reasonable grounds to
believe that adequate indemnity against such liability is not assured to it and
(z) which might materially adversely affect the rights of any Noteholders not
consenting to such action.
SECTION 5.12 Waiver of Past Defaults.
(a) Prior to the declaration of the acceleration of the
maturity of the Notes as provided in Section 5.2, the Holders of not less than
a majority in principal amount of the outstanding Notes of the Controlling
Class may waive any past Default or Event of Default and its consequences
except a Default (i) in the payment of principal of or interest on any of the
Notes or (ii) in respect of a covenant or provision hereof that cannot be
modified or amended without the consent of the Holder of each such Note. 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 Default or impair
any right consequent thereto.
(b) Upon any such waiver, such Default shall cease to exist
and be deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Note by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any Proceeding for the enforcement of any right or remedy under
this Indenture, or in any Proceeding against the Indenture Trustee for any
action taken, suffered or omitted by it as Indenture Trustee, the filing by any
party litigant in such Proceeding of an undertaking to pay the costs of such
Proceeding, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant
in such Proceeding, 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 5.13 shall not apply to:
(a) any Proceeding instituted by the Indenture Trustee;
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(b) any Proceeding instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
aggregate principal amount of the Notes; or
(c) any Proceeding instituted by any Noteholder for the
enforcement of the payment of principal of or interest on any Note on or after
the respective due dates expressed in such Note and in this Indenture (or, in
the case of redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it shall 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 adversely affect the covenants or the
performance of this Indenture. 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 shall not hinder, delay or impede the execution of any power
herein granted to the Indenture Trustee, but shall 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 under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture. Neither the lien of this Indenture nor any
rights or remedies of the Indenture Trustee or the Noteholders shall be
impaired by the recovery of any judgment by the Indenture Trustee against the
Issuer or by the levy of any execution under such judgment upon any portion of
the Trust Estate or upon any of the assets of the Issuer. Any money or property
collected by the Indenture Trustee shall be applied in accordance with Section
5.4(b) hereof.
SECTION 5.16 Performance and Enforcement of Certain
Obligations.
(a) Promptly following a request from the Indenture Trustee to
do so and at the Administrator's expense, the Issuer agrees to take all such
lawful action as the Indenture Trustee may request to compel or secure the
performance and observance by the Transferor and the Servicer of their
respective obligations to the Issuer under or in connection with the Trust Sale
and Servicing Agreement and the Receivables Purchase Agreement or by World Omni
of its obligations under or in connection with the Receivables Purchase
Agreement in accordance with the terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Issuer under
or in connection with the Trust Sale and Servicing 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 Transferor or the Servicer thereunder and
the institution of legal or administrative actions or proceedings to compel or
secure performance by the Transferor or the Servicer of each of their
obligations under the Trust Sale and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the outstanding Notes of any outstanding Series shall,
exercise all rights, remedies, powers, privileges and claims of the Issuer
against the Transferor or the Servicer under or in connection with the Trust
Sale and Servicing Agreement, including the right or power to take any action
to compel or secure performance or observance by the Transferor or the Servicer
of each of their obligations to the Issuer thereunder and to give any consent,
request,
33
notice, direction, approval, extension or waiver under the Trust Sale and
Servicing Agreement, and any right of the Issuer to take such action shall be
suspended.
(c) Promptly following a request from the Indenture Trustee to
do so and at the Administrator's expense, the Issuer agrees to take all such
lawful action as the Indenture Trustee may request to compel or secure the
performance and observance by World Omni and the Servicer of each of their
obligations to the Transferor under or in connection with the Receivables
Purchase Agreement in accordance with the terms thereof, and to exercise any
and all rights, remedies, powers and privileges lawfully available to the
Issuer under or in connection with the Receivables Purchase Agreement to the
extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Transferor thereunder and
the institution of legal or administrative actions or proceedings to compel or
secure performance by World Omni and the Servicer of each of their obligations
under the Receivables Purchase Agreement.
(d) If an Event of 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 the
Holders of 66-2/3% of the outstanding Notes of any outstanding Series shall,
exercise all rights, remedies, powers, privileges and claims of the Transferor
against World Omni and the Servicer under or in connection with the Receivables
Purchase Agreement, including the right or power to take any action to compel
or secure performance or observance by World Omni and the Servicer of each of
their obligations to the Transferor thereunder and to give any consent,
request, notice, direction, approval, extension or waiver under the Receivables
Purchase Agreement, and any right of the Transferor to take such action shall
be suspended.
SECTION 5.17 Early Amortization Events. An Early Amortization
Event for any Series of Notes shall be any of the events so defined in the
Series Supplement relating to a Series of Notes, as well as the following
events:
(a) a failure by the Transferor to convey Receivables in
Additional Accounts to the Trust within 15 Business Days after the day on which
it is required to convey such Receivables;
(b) the Transferor or the Servicer shall file a petition
commencing a voluntary case under any chapter of the federal bankruptcy laws;
or the Transferor or the Servicer shall file a petition or answer or consent
seeking reorganization, arrangement, adjustment, or composition under any other
similar applicable federal law, or shall consent to the filing of any such
petition, answer, or consent; or the Transferor or the Servicer shall appoint,
or consent to the appointment of, a custodian, receiver, liquidator, trustee,
assignee, sequestrator or other similar official in bankruptcy or insolvency of
it or of any substantial part of its property; or the Transferor or the
Servicer shall make an assignment for the benefit of creditors, or shall admit
in writing its inability to pay its debts generally as they become due;
34
(c) any order for relief against the Transferor or the
Servicer shall have been entered by a court having jurisdiction in the premises
under any chapter of the federal bankruptcy laws, and such order shall have
continued undischarged or unstayed for a period of 60 days; or a
decree or order by a court having jurisdiction in the premises shall have been
entered approving as properly filed a petition seeking reorganization,
arrangement, adjustment, or composition of the Transferor or the Servicer under
any other similar applicable federal law, and such decree or order shall have
continued undischarged or unstayed for a period of 120 days; or a decree or
order of a court having jurisdiction in the premises for the appointment of a
custodian, receiver, liquidator, trustee, assignee, sequestrator, or other
similar official in bankruptcy or insolvency of the Transferor or the Servicer
or of any substantial part of its property or for the winding up or liquidation
of its affairs, shall have been entered, and such decree or order shall have
remained in force undischarged or unstayed for a period of 120 days;
(d) World Omni or Toyota shall file a petition commencing a
voluntary case under any chapter of the federal bankruptcy laws; or World Omni
or Toyota shall file a petition or answer or consent seeking reorganization,
arrangement, adjustment, or composition under any other similar applicable
federal law, or shall consent to the filing of any such petition, answer, or
consent; or World Omni or Toyota shall appoint, or consent to the appointment
of, a custodian, receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of it or of any substantial part
of its property; or World Omni or Toyota shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its debts
generally as they become due;
(e) any order for relief against World Omni or Toyota shall
have been entered by a court having jurisdiction in the premises under any
chapter of the federal bankruptcy laws, and such order shall have continued
undischarged or unstayed for a period of sixty (60) days; or a decree or order
by a court having jurisdiction in the premises shall have been entered
approving as properly filed a petition seeking reorganization, arrangement,
adjustment, or composition of World Omni or Toyota under any other similar
applicable state or federal law, and such decree or order shall have continued
undischarged or unstayed for a period of one hundred and twenty (120) days; or
a decree or order of a court having jurisdiction in the premises for the
appointment of a custodian, receiver, liquidator, trustee, assignee,
sequestrator, or other similar official in bankruptcy or insolvency of World
Omni or Toyota or of any substantial part of its property, or for the winding
up or liquidation of its affairs, shall have been entered, and such decree or
order shall have remained in force undischarged or unstayed for a period of one
hundred and twenty (120) days; or
(f) the Trust or the Transferor shall become an "investment
company" within the meaning of the Investment Company Act.
Immediately upon the occurrence of any event described above or in the
related Series Supplement for a Series of Notes, subject to applicable law and
any other condition specified in the related Series Supplement, and after the
applicable grace period, if any, an amortization event (an "Early Amortization
Event") shall occur without any notice or other action on the part of any party
solely with respect to the affected Series.
35
SECTION 5.18 Investment Event. An Investment Event for any
Series of Notes shall be any of the events so defined in the Series Supplement
relating to the Series of Notes.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing of
which a Responsible Officer of the Indenture Trustee has actual knowledge, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs, including without limitation, continuing to hold the
Trust Estate and receive collections on the Receivables included therein as
provided in the Trust Sale and Servicing Agreement.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this
Indenture and the Trust Sale and Servicing Agreement and no implied
covenants or obligations shall be read into this Indenture or the
Trust Sale and Servicing Agreement against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; provided, however,
that the Indenture Trustee shall examine the certificates and opinions
to determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of any
mathematical calculations or other facts stated therein).
(c) The Indenture Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act or its own
wilful misconduct or bad faith, except that:
(i) this Section 6.1(c) does not limit the effect
of Section 6.1(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) 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.
36
(e) 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 Trust Sale and Servicing Agreement.
(f) 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 to it is not reasonably assured or it has not received
an indemnity reasonably satisfactory to it against such risk or liability.
(g) The Indenture Trustee shall have no discretionary duties
other than performing those ministerial acts set forth above necessary to
accomplish the purpose of the Trust as set forth in this Indenture.
(h) Every provision of this Indenture relating to the
Indenture Trustee shall be subject to the provisions of this Section 6.1 and,
if the Indenture is or is required to be qualified under this TIA, to the
provisions of the TIA.
SECTION 6.2 Rights of Indenture Trustee.
(a) The Indenture Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting on any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
Indenture Trustee shall not be bound to make any investigation into any fact or
matter stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other paper or
document.
(b) Before the Indenture Trustee acts or refrains from acting,
it may require an Officer's Certificate from the Issuer or an Opinion of
Counsel that such action or omission is required or permitted hereunder. 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, any such agent, attorney, custodian or nominee
appointed with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action
it takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the Indenture Trustee's
conduct does not constitute wilful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and
37
complete authorization and protection from liability in respect to any action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
(f) The Indenture Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this Indenture.
(g) The Indenture Trustee shall not be charged with knowledge
of any default or event of default unless either (i) a Responsible Officer of
the Indenture Trustee shall have actual knowledge or (ii) the Indenture Trustee
shall have received written notice thereof from the Issuer or a Holder.
(h) The Indenture Trustee shall have no duty to monitor the
performance of the Issuer nor shall it have any liability (in its capacity as
Indenture Trustee) in connection with the malfeasance or nonmalfeasance by the
Issuer. The Indenture Trustee shall have no liability in connection with
compliance by the Issuer with statutory or regulatory requirements related to
the Collateral. The Indenture Trustee shall not make or be deemed to have made
any representations or warranties with respect to the Collateral or adequacy
thereof or the validity or sufficiency of any assignment of the Collateral to
the Indenture Trustee.
(i) Except as otherwise explicitly set forth in this
Indenture, the Indenture Trustee shall have no duty or obligation, implied or
otherwise, to (i) attend any meetings of the Issuer's management or membership,
(ii) inspect the accounts or books and records of the Issuer, (iii) otherwise
insure that the Noteholders remain informed about the business of the Issuer or
(iv) furnish to the Noteholders any information from the Issuer by the
Indenture Trustee.
SECTION 6.3 Indenture Trustee May Own Notes. 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, the Servicer or any of their
respective Affiliates with the same rights it would have if it were not
Indenture Trustee; provided, however, that the Indenture Trustee shall comply
with Sections 6.10 and 6.11. Any Paying Agent, Note Registrar, co-registrar or
co-paying agent may do the same with like rights.
SECTION 6.4 Indenture Trustee's Disclaimer. The Indenture
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Issuer's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Issuer in the Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Indenture Trustee's certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is
continuing and if it is actually known to a Responsible Officer of the
Indenture Trustee, the Indenture Trustee shall mail to each Noteholder notice
of the Default within 60 days after obtaining actual knowledge of the
occurrence thereof. Except in the case of a Default in payment of principal of
or interest on any
38
Note, the Indenture Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Noteholders.
SECTION 6.6 Reports by Indenture Trustee to Holders. The
Indenture Trustee shall deliver to each Noteholder the information and
documents set forth in Article VII, and, in addition, all such information with
respect to the Notes as may be required by the terms of the Trust Sale and
Servicing Agreement to be provided to Holders by the Indenture Trustee to
enable such Holder to prepare its federal and state income tax returns within a
reasonable time after the Servicer has provided the Indenture Trustee with the
information required by the Indenture Trustee to make such deliveries.
SECTION 6.7 Compensation; Indemnity.
(a) The Issuer shall pay, out of funds which are otherwise to
be distributed to the Certificateholders or to be deposited in the Certificate
Distribution Account, or shall cause the Servicer pursuant to any Series
Supplement and Section 3.2 of the Trust Sale and Servicing Agreement to pay to
the Indenture Trustee from time to time such compensation for its services as
shall be agreed upon in writing. The Indenture Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Issuer shall or shall cause the Servicer pursuant to any Series Supplement and
Section 3.2 of the Trust Sale and Servicing Agreement to reimburse, out of
funds which are otherwise to be distributed to the Certificateholders or to be
deposited in the Certificate Distribution Account, the Indenture Trustee for
all reasonable out-of-pocket expenses incurred or made by it, including costs
of collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Indenture Trustee's agents, counsel, accountants and experts.
The Issuer shall or shall cause the Servicer pursuant to the Trust Sale and
Servicing Agreement to indemnify, out of funds which are otherwise to be
distributed to the Certificateholders or to be deposited in the Certificate
Distribution Account, against any and all loss, liability or expense (including
attorneys' fees and expenses) incurred by the Indenture Trustee in accordance
with Section 6.4 of the Trust Sale and Servicing Agreement. The Indenture
Trustee shall notify the Servicer promptly of any claim for which it may seek
indemnity. Failure by the Indenture Trustee to so notify the Issuer shall not
relieve the Issuer or the Servicer of its obligations hereunder. The Issuer
shall defend or cause the Servicer to defend any such claim, and the Indenture
Trustee may have separate counsel and the Issuer shall pay, out of funds which
are otherwise to be distributed to the Certificateholders or to be deposited in
the Certificate Distribution Account, or shall cause the Servicer to pay the
fees and expenses of such counsel.
(b) The Issuer's obligation to cause the Servicer to honor the
Issuer's obligations to the Indenture Trustee specified in Section 6.7(a) shall
survive the discharge of this Indenture or the earlier resignation or removal
of the Indenture Trustee. When the Indenture Trustee incurs expenses after the
occurrence of a Default specified in Section 5.1(e) or (f) with respect to the
Issuer, if the surviving entity has failed to honor such obligation the
expenses are intended to constitute expenses of administration under any
Insolvency Law or under Title 11 of the United States Code.
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SECTION 6.8 Replacement of Indenture Trustee.
(a) The Indenture Trustee may at any time give notice of its
intent to resign by so notifying the Issuer; provided, however, that no such
resignation shall become effective and the Indenture Trustee shall not resign
prior to the time set forth in Section 6.8(c). The Holders of a majority in
aggregate amount of the outstanding Notes may remove the Indenture Trustee by
so notifying the Indenture Trustee and may appoint a successor Indenture
Trustee. Such resignation or removal shall become effective in accordance with
Section 6.8(c). The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply
with Section 6.11,
(ii) the Indenture Trustee is adjudged
bankrupt or insolvent;
(iii) a receiver or other public officer
takes charge of the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes
incapable of acting.
(b) If the Indenture Trustee gives notice of its intent to
resign or is removed or if a vacancy exists in the office of Indenture Trustee
for any reason (the Indenture Trustee in such event being referred to herein as
the retiring Indenture Trustee), the Issuer shall promptly appoint and
designate a successor Indenture Trustee by written notice to the resigning
Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written
acceptance of its appointment and designation to the retiring Indenture Trustee
and to the Issuer. Thereupon the resignation or removal of the retiring
Indenture Trustee shall become effective, and the successor Indenture Trustee
shall have all the rights, powers and duties of the Indenture Trustee under
this Indenture. The successor Indenture Trustee shall mail a notice of its
succession to Noteholders. The Issuer shall release the resigning Indenture
Trustee from its obligations hereunder by written instrument. The retiring
Indenture Trustee shall promptly transfer all property held by it as Indenture
Trustee to the successor Indenture Trustee.
(d) If a successor Indenture Trustee does not take office
within 60 days after the retiring Indenture Trustee gives notice of its intent
to resign or is removed, the retiring Indenture Trustee, the Issuer or the
Holders of a majority in aggregate amount of the outstanding Notes may petition
any court of competent jurisdiction for the appointment and designation of a
successor Indenture Trustee.
(e) 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.
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(f) Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section 6.8, the Issuer's obligations under Section 6.7 and
the Servicer's corresponding obligations under the Trust Sale and Servicing
Agreement shall continue for the benefit of the retiring Indenture Trustee.
SECTION 6.9 Merger or Consolidation of Indenture Trustee.
(a) Any corporation into which the Indenture Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Indenture
Trustee shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of the Indenture Trustee, shall be the
successor of the Indenture Trustee under this Indenture; provided, however,
that such corporation shall be eligible under the provisions of Section 6.11,
without the execution or filing of any instrument or any further act on the
part of any of the parties to this Indenture except where an instrument of
transfer or assignment is required by law to effect such succession, anything
in this Indenture to the contrary notwithstanding.
(b) If at the time such successor or successors by merger or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture, any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such
Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any successor to the Indenture Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Indenture Trustee. In all such cases such
certificate of authentication shall have the same full force as is provided
anywhere in the Notes or herein with respect to the certificate of
authentication of the Indenture Trustee.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture 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 Issuer or any Dealer may at the time be located, the
Indenture Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons approved by the Indenture Trustee to
act as a co-trustee or co-trustees, jointly with the Indenture Trustee, or
separate indenture trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity and for the benefit of the Noteholders
and (only to the extent expressly provided herein) the Certificateholders, such
title to the Collateral, or any part hereof, and, subject to the other
provisions of this Section 6.10, such powers, duties, obligations, rights and
trusts as the Indenture Trustee may consider necessary or desirable. No
co-indenture trustee or separate indenture trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 6.11 and
no notice to Noteholders of the appointment of any co-indenture trustee or
separate indenture trustee shall be required under Section 6.8.
41
(b) Every separate indenture trustee and co-indenture trustee
shall, to the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Indenture Trustee shall be conferred or
imposed upon and exercised or performed by the Indenture Trustee and
such separate trustee or co-trustee jointly (it being understood that
such separate indenture trustee or co-indenture 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 Issuer 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 indenture trustee hereunder shall be
personally liable by reason of any act or omission of any other
indenture trustee hereunder; and
(iii) the Indenture Trustee may at any time accept
the resignation of or remove any separate indenture trustee or
co-indenture 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 indenture trustees and co-indenture 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 VI.
Each separate indenture trustee and co-indenture trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Indenture Trustee or
separately, as may be provided therein, subject to all the provisions of this
Indenture, specifically including every provision of this Indenture relating to
the conduct of, affecting the liability of, or affording protection to, the
Indenture Trustee. Every such instrument shall be filed with the Indenture
Trustee.
(d) Any separate indenture trustee or co-indenture trustee may
at any time appoint the Indenture Trustee as its agent or attorney-in-fact with
full power and authority, to the extent not prohibited by law, to do any lawful
act under or in respect of this Indenture on its behalf and in its name. If any
separate indenture trustee or co-indenture trustee shall die, become incapable
of acting, resign or be removed, all of its estates, properties, rights,
remedies and trusts shall vest in and be exercised by the Indenture Trustee, to
the extent permitted by law, without the appointment of a new or successor
indenture trustee.
SECTION 6.11 Eligibility; Disqualification. The Indenture
Trustee shall at all times satisfy the requirements of TIA ss. 310(a) and
Section 26(a) of the Investment Company Act. The Indenture Trustee shall have a
combined capital and surplus, and an aggregate capital, surplus and undivided
profits, of at least $50,000,000 as set forth in its most recent published
annual report of condition and (unless waived by Moody's and Standard and
Poor's) it shall have a long term
42
unsecured debt rating of Baa3 or better by Moody's. The Indenture Trustee shall
comply with TIA ss. 310(b); provided, however, that there shall be excluded
from the operation of TIA ss. 310(b)(1) any indenture or indentures under which
other securities of the Issuer are outstanding if the requirements for such
exclusion set forth in TIA ss. 310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against Issuer.
The Indenture Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
SECTION 6.13 Representations and Warranties of Indenture
Trustee. The Indenture Trustee represents and warrants as of the Closing Date
that:
(a) the Indenture Trustee is an Illinois banking corporation
and satisfies the eligibility requirements set forth in Section 6.11;
(b) the Indenture Trustee has full power, authority and legal
right to execute, deliver and perform this Indenture, and has taken all
necessary action to authorize the execution, delivery and performance by it of
this Indenture;
(c) the execution, delivery and performance by the Indenture
Trustee of this Indenture (i) shall not violate any provision of any law or
regulation governing the banking and trust powers of the Indenture Trustee or
any order, writ, judgment or decree of any court, arbitrator, or Governmental
Authority applicable to the Indenture Trustee or any of its assets, (ii) shall
not violate any provision of the corporate charter or by-laws of the Indenture
Trustee and (iii) shall not violate any provision of, or constitute, with or
without notice or lapse of time, a default under, or result in the creation or
imposition of any lien on any properties included in the Trust Estate pursuant
to the provisions of any mortgage, indenture, contract, agreement or other
undertaking to which it is a party, which violation, default or lien could
reasonably be expected to have a materially adverse effect on the Indenture
Trustee's performance or ability to perform its duties under this Indenture or
on the transactions contemplated in this Indenture;
(d) the execution, delivery and performance by the Indenture
Trustee of this Indenture shall not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any Governmental Authority or agency
regulating the banking and corporate trust activities of the Indenture Trustee;
and
(e) this Indenture has been duly executed and delivered by the
Indenture Trustee and constitutes the legal, valid and binding agreement of the
Indenture Trustee, enforceable in accordance with its terms.
(f) The Indenture Trustee certifies that (a) its principal
place of business is outside the State of Florida, and it has no place of
business or assets in the State of Florida; (b) its usual place of business
where books and records pertaining to the Indenture will be kept is outside
43
the State of Florida; (c) it has a division that is licensed to sell municipal
bonds in the State of Florida, but it has no offices located in the State of
Florida to sell the municipal bonds or provide banking and trustee services,
and files no tax returns with the State of Florida; (d) it has employees
employed within the State of Florida who provide services to an affiliate of
the Indenture Trustee, but who in no event manage or control assets of the
Indenture Trustee, and it does not engage in any material actions on behalf of
the Indenture Trustee in the State of Florida; and (f) it is not organized
under the laws of the State of Florida. The Indenture Trustee will certify the
above by September 30 each year this Agreement is in effect by providing an
Officer's Certificate in the form of Exhibit C attached hereto. Additionally,
the Indenture Trustee certifies and agrees that it will promptly notify the
Issuer if any of the above changes.
SECTION 6.14 Indenture Trustee May Enforce Claims Without
Possession of Notes. All rights of action and claims under this Indenture or
the Notes may be prosecuted and enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Indenture Trustee
shall be brought in its own name as Indenture Trustee. Any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel, be for the ratable benefit of the Noteholders and (only to the extent
expressly provided herein) the Certificateholders in respect of which such
judgment has been obtained.
SECTION 6.15 Suit for Enforcement. If an Event of Default
shall occur and be continuing, the Indenture Trustee, in its discretion may,
subject to the provisions of Section 6.1, proceed to protect and enforce its
rights and the rights of the Noteholders under this Indenture by a Proceeding
whether for the specific performance of any covenant or agreement contained in
this Indenture or in aid of the execution of any power granted in this
Indenture or for the enforcement of any other legal, equitable or other remedy
as the Indenture Trustee, being advised by counsel, shall deem necessary to
protect and enforce any of the rights of the Indenture Trustee or the
Noteholders.
SECTION 6.16 Rights of Noteholders to Direct Indenture
Trustee. Holders of Notes evidencing not less than a majority in aggregate
principal amount of the outstanding Notes shall have the right to direct in
writing the time, method and place of conducting any Proceeding for any remedy
available to the Indenture Trustee or exercising any trust or power conferred
on the Indenture Trustee; provided, however, that subject to Section 6.1, the
Indenture Trustee shall have the right to decline to follow any such direction
if the Indenture Trustee, being advised by counsel, determines that the action
so directed may not lawfully be taken, or if the Indenture Trustee in good
faith shall, by a Responsible Officer, determine that the proceedings so
directed would be illegal or subject it to personal liability or be unduly
prejudicial to the rights of Noteholders not parties to such direction; and
provided, further, that nothing in this Indenture shall impair the right of the
Indenture Trustee to take any action deemed proper by the Indenture Trustee and
which is not inconsistent with such direction by the Noteholders.
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ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuer shall furnish or cause to be furnished by
the Servicer to the Indenture Trustee (a) not more than five days before each
date on which payments are to be made, a list, in such form as the Indenture
Trustee may reasonably require, of the names and addresses of the Holders of
Notes as of the close of business on the related Record Date, and (b) at such
other times as the Indenture Trustee may request in writing, within 14 days
after receipt by the Issuer of any such request, a list of similar form and
content as of a date not more than 10 days prior to the time such list is
furnished; provided, however, that so long as the Indenture Trustee is the Note
Registrar, no such list shall be required to be furnished.
SECTION 7.2 Preservation of Information, Communications to
Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as
provided in Section 7.1 and the names and addresses of Holders of Notes
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA ss. 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 TIAss. 312(c).
SECTION 7.3 Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days
after the Issuer is required to file the same with the Commission or
any applicable state agencies, copies of the annual reports and of the
information, documents and other reports (or copies of such portions
of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Issuer may be required to
file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act or any applicable state agencies pursuant to comparable
regulation;
(ii) file with the Indenture Trustee and the
Commission or any applicable state agencies in accordance with rules
and regulations prescribed from time to time by the Commission or any
applicable state agencies such additional information, documents and
45
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 ss. 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 7.3(a) as may be required by rules and
regulations prescribed from time to time by the Commission or any
applicable state agencies.
(b) Unless the Issuer otherwise determines, the fiscal year of
the Issuer shall end on December 31 of such year.
SECTION 7.4 Reports by Indenture Trustee.
(a) If required by TIA ss. 313(a), within 60 days after each
May 1, beginning with May 1, 2000, the Indenture Trustee shall mail to each
Noteholder as required by TIA ss. 313(c) a brief report dated as of such date
that complies with TIA ss. 313(a). If the Indenture is or is required to be
qualified under the TIA, the Indenture Trustee also shall comply with TIA ss.
313(b). A copy of any report delivered pursuant to this Section 7.4(a) shall,
at the time of its mailing to Noteholders, be filed by the Indenture Trustee
with the Commission, if required by applicable rules, and each stock exchange,
if any, on which the Notes are listed. The Issuer shall notify the Indenture
Trustee in writing if and when the Notes are listed on any stock exchange. The
report contemplated by this Section 7.4(a) shall include the following
information concerning the Indenture Trustee:
(i) its eligibility and qualifications to continue
as Indenture Trustee under this Indenture;
(ii) any amounts advanced by the Indenture Trustee
under this Indenture;
(iii) the amount, interest rate and maturity date of
specified indebtedness owing by the Issuer to the Indenture Trustee in
its individual capacity;
(iv) the property and funds physically held by the
Indenture Trustee as trustee; and
(v) any action taken by the Indenture Trustee that
materially affects the Notes and that has not been previously
reported.
(b) On each Payment Date, the Indenture Trustee shall include
with each payment to each Noteholder a copy of the statement for the Collection
Period or Periods applicable to such Payment Date as required pursuant to
Section 3.4 of the Trust Sale and Servicing Agreement provided, the Servicer
has provided the Indenture Trustee with such information as required.
46
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture. The
Indenture Trustee shall apply all such money received by it as provided in this
Indenture, the Receivables Purchase Agreement and the Trust Sale and Servicing
Agreement. 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 Event of Default
under this Indenture and any right to proceed thereafter as provided in Article
V.
SECTION 8.2 Trust Accounts; Allocations; Payments.
(a) On or prior to the Closing Date, the Issuer shall cause
the Servicer to establish and maintain, in the name of the Indenture Trustee,
for the benefit of the Noteholders, the Trust Accounts as provided in any
Series Supplement and Section 4.2 of the Trust Sale and Servicing Agreement (or
with respect to any Trust Account for any Series of Notes issued after the
Closing Date, on or prior to the closing date with respect to such Series of
Notes).
(b) Subject to and in accordance with Section 8.2(c),
collections of Non-Principal Receivables and Principal Receivables, Defaulted
Receivables and Miscellaneous Payments will be allocated to each Series from
and after the related Series Cut-Off Date on the basis of the Series Allocable
Non-Principal Collections, Series Allocable Principal Collections, Series
Allocable Defaulted Amount and Series Allocable Miscellaneous Payments for such
Series, respectively, and amounts so allocated to any Series will not, except
as specified in the related Supplement, be available to the Noteholders of any
other Series. Allocations thereof among the Series in any group and among the
Classes in any Series and between the Noteholders and the Certificateholders
shall be set forth in the related Supplement or Supplements; provided, however,
that collections of Non- Principal Receivables and Principal Receivables,
Defaulted Receivables and Miscellaneous Payments shall not be allocated to any
Excluded Series until the Invested Amount of the Series relating to the
Excluded Series is reduced to zero.
(c) For purposes of determining the Series Allocation
Percentage for any Series in connection with the allocation of Non-Principal
Receivables and Principal Receivables, Defaulted Receivables and Miscellaneous
Payments for the specified Collection Period:
(i) unless the related Supplement shall provide
otherwise, each Series upon issuance, shall be deemed to have been
created and in existence as of the first day of the Collection Period
in which the related Series Cut-Off Date falls and, as a result, shall
be
47
allocated (based on its Series Allocation Percentage) its allocable
portion of Non-Principal Receivables and Principal Receivables,
Defaulted Receivables and Miscellaneous Payments for such Collection
Period; and
(ii) unless the related Series Supplement shall
provide otherwise, with respect to any Series, if (x) as of the last
day of any Collection Period the amounts on deposit in the Collection
Account and the related Series Accounts are sufficient to pay in full
the outstanding principal amount, accrued interest and all other
amounts payable by the Trust (whether or not then due) with respect to
any such Series of Notes on the Payment Date relating to such
Collection Period (after giving effect to the allocations,
distributions, withdrawals and deposits to be made on such related
Payment Date) then (y) such Series shall be deemed to have been paid
in full on such last day and, as a result, shall not be allocated any
portion of Non-Principal Receivables and Principal Receivables,
Defaulted Receivables and Miscellaneous Payments for any subsequent
Collection Period. For purposes of making the determination in clause
(x) above, on the date of any such determination it shall be assumed
that any theretofore unpaid Adjustment Payments with respect to the
immediately preceding Collection Period shall be allocated to such
Series on the related Determination Date and shall be payable from
amounts allocated to or available with respect to such Series on the
related Payment Date.
(d) On or before the date any distribution is to be made by
the Indenture Trustee, all amounts required to be disbursed by the Indenture
Trustee will be deposited by the Indenture Trustee upon receipt into the
applicable Principal Funding Account or such other Trust Account as shall be
specified in the related Series Supplement. The Indenture Trustee shall (unless
otherwise provided in any Series Supplement) allocate the amount deposited into
such Principal Funding Account and such other Trust Accounts to the extent and
at the times as provided in the related Series Supplement. The Indenture
Trustee shall pay amounts to the Holders of such Series to the extent and at
the times provided in the related Series Supplement.
(e) The Indenture Trustee shall allocate amounts deposited in
a Principal Funding Account for payments of principal on the applicable Series
of Notes, and pay amounts to the Holders thereof, to the extent and at the
times provided in the related Series Supplements.
(f) Notwithstanding anything to the contrary herein, all
investment earnings on funds on deposit in the Principal Funding Account, net
of losses and investment expenses, shall constitute Investment Proceeds and be
applied as described in the related Series Supplement.
(g) Notwithstanding any provision of this Indenture to the
contrary, for so long as the Transferor is the sole Certificateholder and until
the Indenture Trustee shall have received written notice from the Trust or the
Transferor to the contrary, all amounts to be distributed by the Indenture
Trustee to the Certificateholders or the Certificate Distribution Account shall
be distributed to the Transferor to the account specified by the Transferor.
SECTION 8.3 General Provisions Regarding Trust Accounts.
48
(a) Subject to Section 6.1(c), the Indenture Trustee shall not
in any way be held liable by reason of any insufficiency in any of the Trust
Accounts resulting from any loss on any Eligible Investment included therein
except for losses attributable to the Indenture Trustee's failure to make
payments on such Eligible Investments issued by the Indenture Trustee, in its
commercial capacity as principal obligor and not as trustee, in accordance with
their terms.
(b) If (i) the Servicer shall have failed to give investment
directions for any funds on deposit in the Trust Accounts to the Indenture
Trustee by 11:00 a.m., New York City time (or such other time as may be agreed
by the Servicer and the Indenture Trustee) on any Business Day or (ii) an Event
of Default shall have occurred and be continuing with respect to the Notes but
the Notes shall not have been declared due and payable pursuant to Section 5.2,
or, (iii) if such Notes shall have been declared due and payable following an
Event of Default, but amounts collected or receivable from the Trust Estate are
being applied in accordance with Section 5.5 as if there had not been such a
declaration, then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Trust Accounts in Eligible
Investments specified in clause (j) of the definition thereof.
SECTION 8.4 Release of Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant
to Section 6.7, the Indenture Trustee may, and when required by 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 consistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Indenture
Trustee as provided in this Article VIII 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 to the Indenture Trustee pursuant to Section
6.7 have been paid, notify the Issuer thereof in writing and upon receipt of an
Issuer Request, 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 Collection
Account, the Excess Funding Account and, except as otherwise specified in the
related Series Supplement, any other Trust Account. The Indenture Trustee shall
(i) release any remaining portion of the Trust Estate that secured the
Certificates from the lien of this Indenture and (ii) release to the Issuer or
any other Person entitled thereto any funds then on deposit in the Collection
Account only at such time as (x) there are no Notes Outstanding and (y) all
sums due to the Indenture Trustee pursuant to Section 6.7 have been paid.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall
receive at least seven days' notice when requested by the Issuer to take any
action pursuant to this Section 8.4, accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require as a condition to such
action, an Opinion of Counsel and an Officer's Certificate, in form and
substance
49
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 shall 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 pursuant to the provisions of this Indenture in
connection with any such action.
SECTION 8.6 Effect of Fully Funded Date. Following the
occurrence of the Fully Funded Date for any Series of Notes, Noteholders of
that Series will no longer have any interest in the Collateral and shall have
no rights under this Indenture except as set forth in the first paragraph of
Section 4.1, and all other representations and covenants of the Transferor or
the Servicer, as applicable, and other provisions set forth below and all
remedies for breaches thereof, will no longer accrue to the benefit of the
Noteholders of that Series, in each case, unless the Revolving Period for such
Series recommences as provided in the related Series Supplement:
(a) representations and covenants of the Transferor in
Sections 2.3 and 2.6 of the Trust Sale and Servicing Agreement, to the extent
they relate to the Receivables and the Collateral Security;
(b) representations and covenants of the Servicer in Section
3.3 of the Trust Sale and Servicing Agreement, to the extent they relate to the
Collateral Security;
(c) the conditions to exchange of the Transferor Certificate
in Section 3.4 of the Trust Sale and Servicing Agreement;
(d) the conditions to the issuance of a new Series of Notes in
Section 2.1 of this Indenture;
(e) the representations made in Section 2.4 of the Trust Sale
and Servicing Agreement, to the extent they relate to the Receivables and the
Collateral Security;
(f) the limitations on additions and removals of Accounts in
Sections 2.5, 2.7 and 2.8 of the Trust Sale and Servicing Agreement; and
(g) the obligations of the Servicer to service the Receivables
under Section 3.1 of the Trust Sale and Servicing Agreement.
In addition, upon the occurrence of the Fully Funded Date for any
Series of Notes, no Non- Principal Collections, Principal Collections,
Defaulted Amount or Miscellaneous Payments will be allocated to that Series,
unless the Revolving Period with respect thereto recommences as described
above.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of
Noteholders.
(a) Without the consent of the Holders of any Notes but with
prior notice to the Rating Agencies, the Issuer and the Indenture Trustee, when
authorized by an Issuer Order, at any time and from time to time, may enter
into one or more indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as in force at the date of the execution
thereof), in form satisfactory to the Indenture Trustee, for any of the
following purposes:
(i) to correct or amplify the description of any
property at any time subject to the lien of this Indenture, or better
to assure, convey and confirm unto the Indenture Trustee any property
subject or required to be subjected to the lien of this Indenture, or
to subject additional property to the lien of this Indenture;
(ii) to evidence the succession, in compliance with
Section 3.10 and 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;
(iv) to convey, transfer, assign, mortgage or
pledge any property to or with the Indenture Trustee;
(v) to cure any ambiguity or to correct or
supplement any provision herein or in any supplemental indenture
which may be inconsistent with any other provision herein or in any
supplemental indenture;
(vi) to evidence and provide for the acceptance of
the appointment hereunder by a successor trustee with respect to the
Notes and the Indenture and 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 VI; and
(vii) to modify, eliminate or add to the provisions
of this Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA, and 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 that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by
an Issuer Order, may, also without the consent of any of the Noteholders but
with prior notice to the Rating
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Agencies, at any time and from time to time enter into one or more indentures
supplemental hereto for the purpose of adding any provisions to, changing in
any manner, or eliminating any of the provisions of, this Indenture or
modifying in any manner the rights of the Noteholders under this Indenture;
provided, however, that such action shall not, as evidenced by an Officer's
Certificate, adversely affect in any material respect the interests of any
Noteholder unless such Noteholders' consent is obtained.
SECTION 9.2 Supplemental Indentures With Consent of
Noteholders.
(a) The Issuer and the Indenture Trustee, when authorized by
an Issuer Order, also may, with prior notice to the Rating Agencies and with
the written consent of the Holders of not less than a majority of the principal
amount of the Controlling Class of each Series of Notes affected in any
material respect thereby, by Act of such Holders delivered to the Issuer and
the Indenture Trustee, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, changing in any manner, or
eliminating any of the provisions of, this Indenture or modifying in any manner
the rights of the Noteholders under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
outstanding Note affected thereby:
(i) change the due date of any installment of
principal of or interest on any Note, or reduce the principal amount
thereof, the interest rate applicable thereto, or the Redemption Price
with respect thereto, change any place of payment where, or the coin
or currency in which, any Note or any 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 V, 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);
(ii) reduce the percentage of the aggregate
outstanding principal amount of the Notes, the consent of the Holders
of which is required for any such supplemental indenture, or the
consent of the Holders of which is required for any waiver of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences as provided for in this
Indenture;
(iii) impair the right to institute suit for the
enforcement of specified provisions of this Indenture regarding
payment;
(iv) reduce the percentage of the aggregate
outstanding principal amount of the Notes required to direct the
Indenture Trustee to sell or liquidate the Trust Estate pursuant to
Section 5.4 if the proceeds of such sale would be insufficient to pay
the principal amount of and accrued but unpaid interest on the
outstanding Notes;
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(v) modify any provision of this Section 9.2 to
decrease the required minimum percentage necessary to approve any
amendments to any provisions of this Indenture;
(vi) modify or alter the provisions of the Indenture
regarding the voting of Notes held by the Issuer, the Transferor or
any Affiliate of either of them; or
(vii) permit the creation of any Lien ranking prior
to or on a parity with the Lien of this Indenture with respect to any
part of the Trust Estate or, except as otherwise permitted or
contemplated herein, terminate the Lien of this Indenture on any
property at any time subject hereto or deprive the Holder of any Note
of the security afforded by the lien of this Indenture.
(b) The Indenture Trustee may in its discretion determine
whether or not any Notes would be affected (such that the consent of each
Noteholder would be required) by any supplemental indenture proposed pursuant
to this Section 9.2 and any such determination shall be conclusive and binding
upon the Holders of all Notes, whether authenticated and delivered thereunder
before or after the date upon which such supplemental indenture becomes
effective. The Indenture Trustee shall not be liable for any such determination
made in good faith.
(c) It shall be sufficient if an Act of Noteholders approves
the substance, but not the form, of any proposed supplemental indenture.
(d) Promptly after the execution by the Issuer and the
Indenture Trustee of any supplemental indenture pursuant to this Section 9.2,
the Indenture Trustee shall mail to the Noteholders to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 9.3 Execution of Supplemental Indentures. In
executing, or permitting the additional trusts created by any supplemental
indenture permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture, the Indenture Trustee shall be entitled to
receive, and subject to Sections 6.1 and 6.2, shall be fully protected in
relying upon, an Opinion of Counsel and an Officer's Certificate stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture and that all conditions precedent to the execution of any such
amendment have been satisfied. The Indenture Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to the Notes affected thereby, and the respective
rights, limitations of rights, obligations, duties, liabilities and immunities
under this
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Indenture of the Indenture Trustee, the Issuer 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 be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every
amendment of this Indenture and every supplemental indenture executed pursuant
to this Article IX shall conform to the requirements of the TIA as then in
effect so long as this Indenture shall then be qualified under the TIA.
SECTION 9.6 Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX 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 of the
same Series.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption.
(a) A Series of Notes shall be subject to redemption if and to
the extent provided in the related Series Supplement.
(b) Each Series of Notes shall be subject to redemption as set
forth in this Section 10.1(b). In the event of any breach of any of the
representations and warranties set forth in Section 2.3 of the Trust Sale and
Servicing Agreement shall have a material adverse effect on the Noteholders,
then either the Indenture Trustee or the Holders of Notes evidencing not less
than a majority in aggregate unpaid principal amount of the Controlling Class
of each Series of Notes, by written notice to the Issuer and the Indenture
Trustee may direct the Issuer to redeem all of the Notes then outstanding on
the second Payment Date following the date of such notice (or such later date
as may be specified in such notice); provided, however, that no such redemption
shall be required to be made if on or prior to the earlier of the date the
Redemption Notice is or is required to be sent to Noteholders, the
representations and warranties set forth in Section 2.3 of the Trust Sale and
Servicing Agreement are satisfied in all material respects and any material
adverse effect on the Noteholders caused thereby shall have been cured. The
Issuer shall promptly furnish a copy of such notice to the Transferor.
(c) The redemption price for any Notes shall be equal to the
applicable Redemption Price set forth in the related Series Supplement. The
Issuer shall only be required to redeem Notes if it has available funds
sufficient to pay such amount. The Issuer shall furnish the
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Rating Agencies notice of any such redemption. If any Notes are to be redeemed
pursuant to this Section 10.1(a), the Issuer shall furnish notice thereof to
the Indenture Trustee not later than 10 days prior to the applicable Redemption
Date and the Issuer shall deposit into the applicable Principal Funding
Account, on or before the applicable Redemption Date, the aggregate Redemption
Price of the Notes to be redeemed, whereupon all such Notes shall be due and
payable on the Redemption Date.
SECTION 10.2 Form of Redemption Notice.
(a) Notice of redemption of any Notes under Section 10.1 shall
be given by the Indenture Trustee by first-class mail, postage prepaid, mailed
not less than five days prior to the applicable Redemption Date to each
Noteholder of record of the Notes to be redeemed at such Noteholder's address
appearing in the Note Register.
(b) All notices of redemption shall state:
(i) the applicable Redemption Date;
(ii) the applicable Redemption Price;
(iii) the place where the Notes are to be surrendered
for payment of the Redemption Price (which shall be the Agency Office
of the Indenture Trustee to be maintained as provided in Section 3.2);
(iv) the CUSIP number, if applicable; and
(v) the principal amount of Notes to be
redeemed.
(c) 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 Holder of any Note shall
not impair or affect the validity of the redemption of any other Note.
SECTION 10.3 Notes Payable on Redemption Date.
With respect to any Notes, such Notes shall, following notice
of redemption as required by Section 10.2 (in the case of redemption pursuant
to Section 10.1), on the applicable Redemption Date cease to be Outstanding for
purposes of this Indenture and shall thereafter represent only the right to
receive the applicable Redemption Price and (unless the Issuer shall default in
the payment of such Redemption Price) no interest shall accrue on such
Redemption Price for any period after the date to which accrued interest is
calculated for purposes of calculating such Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the
Indenture Trustee to take any action under any provision of this Indenture, the
Issuer shall furnish to the Indenture Trustee upon request: (i) an Officer's
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, (ii) an
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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 11.1, 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 or has caused to be 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 judgment 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) (i) Prior to the deposit with the Indenture Trustee of any
Collateral or other property or securities that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture,
the Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officers'
Certificate certifying or stating the opinion of each Person signing such
certificate as to the fair value (within 90 days of such deposit) to the Issuer
of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to
the Indenture Trustee an Officers' Certificate certifying or stating
the opinion of any signer thereof as to the matters described in
clause (b)(i) above, the Issuer shall also deliver to the Indenture
Trustee an
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Independent Certificate as to the same matters, if the fair value to
the Issuer of the 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 fiscal year of the Issuer, as set
forth in the certificates delivered pursuant to clause (i) above and
this clause (b)(ii), is 10% or more of the Outstanding Amount of the
Notes, but such a certificate need not be furnished with respect to
any securities so deposited, if the fair value thereof to the Issuer
as set forth in the related Officers' Certificate is less than $25,000
or less than one percent of the outstanding Notes.
(iii) Other than with respect to the release of any
Defaulted Receivables, whenever any property or securities are to be
released from the lien of this Indenture, the Issuer shall also
furnish to the Indenture Trustee 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 is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signatory thereof as to the matters described in
clause (b)(iii) above, the Issuer shall also 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, other
than Defaulted Receivables, or securities released from the lien of
this Indenture since the commencement of the then current calendar
year, as set forth in the certificates required by clause (b)(iii)
above and this clause (b)(iv), equals 10% or more of the Outstanding
Amount of the Notes, but such certificate need not be furnished in the
case of any release of 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 one percent of the outstanding Notes.
(v) Notwithstanding Section 2.9 or any other
provision of this Section 11.1, the Issuer may (A) collect, liquidate,
sell or otherwise dispose of Receivables and related Collateral
Security and proceeds of both as and to the extent permitted or
required by the Basic Documents, (B) make cash payments out of the
Trust Accounts as and to the extent permitted or required by the Basic
Documents and (C) take any other action not inconsistent with the TIA
so long as the Indenture is or is required to be qualified under the
TIA.
SECTION 11.2 Form of Documents Delivered to Indenture Trustee.
(a) 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.
(b) Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate 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 Servicer, the Transferor, the Issuer or the Administrator, stating that
the information with respect to such factual matters is in the possession of
the Servicer, the Transferor, the Issuer or the Administrator, unless such
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.
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(c) 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.
(d) 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 term
hereof, it is intended that the truth and accuracy, at the time of the granting
of such application or at the effective date of such certificate or report (as
the case may be), of the facts and opinions stated in such document shall in
such case be conditions precedent to the right of the Issuer to have such
application granted or to the sufficiency of such certificate or report. The
foregoing shall not, however, be construed to affect the Indenture Trustee's
right to rely upon the truth and accuracy of any statement or opinion contained
in any such document as provided in Article VI.
SECTION 11.3 Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Noteholders or a Series of 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 shall be
subject to Section 5.11 hereof; 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
6.1) conclusive in favor of the Indenture Trustee and the Issuer, if made in
the manner provided in this Section 11.3.
(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 Notes (or any one or more
Predecessor Notes) 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.
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SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and
Rating Agencies. Any request, demand, authorization, direction, notice,
consent, waiver or Act of Noteholders or other documents provided or permitted
by this Indenture to be made upon, given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer
shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Indenture Trustee at its Corporate Trust
Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder
shall be sufficient for every purpose hereunder if in writing and either sent
by electronic facsimile transmission (with hard copy to follow via first class
mail) or mailed, by certified mail, return receipt requested, or by overnight
mail to the Issuer and the Owner Trustee each at the address specified in
Appendix B to the Trust Sale and Servicing Agreement.
The Issuer shall promptly transmit any notice received by it
from the Noteholders to the Indenture Trustee and the Indenture Trustee shall
likewise promptly transmit any notice received by it from the Noteholders to
the Issuer.
(c) Notices required to be given to the Rating Agencies by the
Issuer, the Indenture Trustee or the Owner Trustee shall be delivered as
specified in Appendix B to the Trust Sale and Servicing Agreement.
SECTION 11.5 Notices to Noteholders; Waiver.
(a) Where this Indenture provides for notice to Noteholders of
any condition or event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if it is in writing and mailed,
first-class, postage prepaid to each Noteholder affected by such event, at such
Person's address as it appears on the Note Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. If 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 regardless of whether such notice is in fact
actually received.
(b) 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.
(c) 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.
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(d) Where this Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance constitute
an Event of Default.
SECTION 11.6 Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the
Notes to the contrary, the Issuer may enter into any agreement with any Holder
of a Note providing for a method of payment, or notice by the Indenture Trustee
or any Paying Agent to such Holder, that is different from the methods provided
for in this Indenture for such payments or notices. The Issuer shall furnish to
the Indenture Trustee a copy of each such agreement and the Indenture Trustee
shall cause payments to be made and notices to be given in accordance with such
agreements.
SECTION 11.7 Conflict with Trust Indenture Act.
(a) 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 TIA, such required provision shall control.
(b) If this Indenture is or is required to be qualified under
the TIA, the provisions of TIA ss.ss. 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns.
(a) All covenants and agreements in this Indenture and the
Notes by the Issuer shall bind its successors and assigns, whether so expressed
or not.
(b) All covenants and agreements of the Indenture Trustee in
this Indenture shall bind its successors and assigns, whether so expressed or
not.
SECTION 11.10 Separability.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
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SECTION 11.11 Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the Noteholders and the Note Owners and (only to the extent
expressly provided herein) the Certificateholders and the Certificate Owners
and any other party secured hereunder, and any other Person with an ownership
interest in any part of the Trust Estate, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 11.12 Legal Holidays.
If 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 11.13 GOVERNING LAW.
THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS OR ANY OTHER JURISDICTION'S
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
SECTION 11.15 Recording of Indenture.
If this Indenture is subject to recording in any appropriate
public recording offices, such recording is to be effected by the Issuer and at
its expense accompanied by an Opinion of Counsel (which may be counsel to the
Indenture Trustee or any other counsel reasonably acceptable to the Indenture
Trustee) to the effect that such recording is necessary either for the
protection of the Noteholders or any other Person secured hereunder or for the
enforcement of any right or remedy granted to the Indenture Trustee under this
Indenture.
SECTION 11.16 No Recourse.
(a) Each Noteholder will agree by acceptance of a Note (or
interest therein) 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 this Indenture or any certificate or other
writing delivered in connection herewith or therewith, against:
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(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 (it being understood that the Indenture Trustee and
the Owner Trustee has no such obligation in its 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. 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 IV, V and VI
of the Trust Agreement.
(b) Except as expressly provided in the Basic Documents,
neither the Transferor, the Servicer, the Indenture Trustee nor the Owner
Trustee in their respective individual capacities, any owner of a beneficial
interest in the Issuer, nor any of their respective partners, owners,
beneficiaries, agents, officers, directors, employees or successors or assigns,
shall be personally liable for, nor shall recourse be had to any of them for,
the payment of principal of or interest on, or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in the
Notes or this Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Owner Trustee solely as
the Owner Trustee in the assets of the Issuer. Each Noteholder or Note Owner by
the acceptance of a Note (or beneficial interest therein) will agree that,
except as expressly provided in the Basic Documents, in the case of an Event of
Default under this Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and enforcement
against, the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in this Indenture or in the Notes.
SECTION 11.17 No Petition.
The Indenture Trustee, by entering into this Indenture, and
each Noteholder and Note Owner, by accepting a Note (or interest therein)
issued hereunder, hereby covenant and agree that they shall not, prior to the
date which is one year and one day after the termination of the Trust
Agreement, acquiesce, petition or otherwise invoke or cause the Transferor or
the Issuer to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Transferor or the Issuer
under any Insolvency Law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Transferor or
the Issuer or any substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Transferor or the Issuer.
62
SECTION 11.18 Inspection.
The Issuer agrees that, on reasonable prior notice, it shall
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 except to the
extent that the Indenture Trustee may reasonably determine that such disclosure
is consistent with its obligations hereunder.
SECTION 11.19 No Substantive Review of Compliance Documents.
Other than as specifically set forth in this Indenture for
notices which specifically contain information of which the Indenture Trustee
is to have notice, any reports, information or other documents provided to the
Indenture Trustee are for the purposes only of enabling the sending party to
comply with its document delivery requirements hereunder and such party's
receipt of any such information shall not, in and of itself, constitute
constructive or actual notice to the Indenture Trustee of any information
contained therein or determinable from any information contained therein,
including the Issuer or the Servicer's compliance with any of its covenants,
representations or warranties hereunder.
SECTION 11.20 Amendment of Basic Documents.
The Issuer shall not amend, modify or grant any consent or
waiver with respect to the provisions of any of the Basic Documents without the
prior written consent of the Indenture Trustee, except where the Basic
Documents do not require the consent of the Indenture Trustee for such
amendment, modification, consent or waiver.
SECTION 11.21 Effect of Amendment and Restatement.
It is the intent of the parties hereto that this Indenture, as
amended and restated as of April 6, 2000, shall as of such date, replace in its
entirety the Original Indenture; provided that, with respect to the period of
time from November 22, 1999 through April 5, 2000, the rights and obligations
of the parties shall be governed by the Original Indenture; provided further,
that the amendment and restatement of the Original Indenture shall not effect
any of the grants, transfers or conveyances contemplated by the Original
Indenture to have occurred prior to April 6, 2000.
* * * * *
63
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have
caused this Amended and Restated Indenture to be duly executed by their
respective officers, thereunto duly authorized, all as of the day and year
first above written.
WORLD OMNI MASTER OWNER TRUST
By: Chase Manhattan Bank Delaware, not in its
individual capacity but solely as Owner
Trustee
By:
---------------------------------------------
Name:
Title:
HARRIS TRUST AND SAVINGS BANK
as Indenture Trustee
By:
----------------------------------------------
Name: Megan F. Carmody
Title: Assistant Vice President
Acknowledged and Accepted:
WORLD OMNI FINANCIAL CORP.,
Servicer
By:
-------------------------
Name: Eric M. Gebhard
Title: Assistant Secretary
64
EXHIBIT A
FORM OF TRANSFER CERTIFICATE
WODFI LLC
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
Harris Trust and Savings Bank
311 West Monroe St. 12th Floor
Chicago, Illinois 60606
Attn: Indenture Trustee Administration
as Indenture Trustee for
World Omni Master Owner Trust
Ladies and Gentlemen:
In connection with the purchase of a Note subject to Section
2.15 of the Amended and Restated Indenture dated as of __________, 2000 (the
"Unregistered Note") of the World Omni Master Owner Trust, the undersigned
buyer ("Buyer") hereby acknowledges, represents and agrees that:
(a) The Buyer has received the [describe offering document]
relating to the offering of the Unregistered Note (including exhibits thereto).
(b) The Buyer understands that the Unregistered Note has not
been registered under the Securities Act of 1933, as amended (the "Securities
Act"), and may not be sold except as permitted in the following sentence. The
Buyer agrees, on its own behalf and on behalf of any accounts for which it is
acting as hereinafter stated, that such Unregistered Note may be resold,
pledged or transferred only (i) to an [institutional] investor that is an
"Accredited Investor" as defined in Rule 501(a)(1),(2),(3) or (7) (an
"Institutional Accredited Investor") under the Securities Act acting for its
own account (and not for the account of others) or as a fiduciary or agent for
others (which others also are Institutional Accredited Investors unless the
holder is a bank acting in its fiduciary capacity) that, if so requested by the
Transferor or the Indenture Trustee, executes a certificate in the form hereof,
(ii) [so long as such Unregistered Note is eligible for resale pursuant to Rule
144A under the Securities Act ("Rule 144A"), to a person whom the Buyer
reasonably believes after due inquiry to be a "qualified institutional buyer"
(as defined in Rule 144A) acting for its own account (and not for the account
of others) or as a fiduciary or agent for others (which others also are
"qualified institutional buyers") that, if so requested by the Transferor or
the Indenture Trustee, executes a certificate in the form hereof or (iii)]
A-1
in a sale, pledge or other transfer made in a transaction otherwise exempt from
the registration requirements of the Securities Act, in which case (A) the
Indenture Trustee shall require that both the prospective transferor and the
prospective transferee certify to the Indenture Trustee and the Transferor in
writing the facts surrounding such transfer, which certification shall be in
form and substance satisfactory to the Indenture Trustee and the Transferor,
and (B) the Indenture Trustee shall require a written opinion of counsel (which
will not be at the expense of the Transferor, the Servicer or the Indenture
Trustee) satisfactory to the Transferor and the Indenture Trustee to the effect
that such transfer will not violate the Securities Act, in each case in
accordance with any applicable securities laws of any state of the United
States. The Buyer will notify any purchaser of the Unregistered Note from it of
the above resale restrictions, if then applicable. The Buyer further
understands that in connection with any transfer of the Unregistered Note by it
that the Transferor and the Indenture Trustee may request, and if so requested
the Buyer will furnish, such certificates and other information as they may
reasonably require to confirm that any such transfer complies with the
foregoing restrictions.
CHECK [ONE]
o (1) The Buyer is an [institutional investor and] an
"accredited investor" (as defined in Rule
501(a)(1),(2),(3) or (7) of Regulation D under the
Securities Act) acting for its own account (and not
for the account of others) or as a fiduciary or agent
for others (which others also are Institutional
Accredited Investors unless the Buyer is a bank
acting in its fiduciary capacity). The Buyer has such
knowledge and experience in financial and business
matters as to be capable of evaluating the merits and
risks of its investment in the Unregistered Note, and
the Buyer and any accounts for which it is acting are
able to bear the economic risk of investment in the
Unregistered Note for an indefinite period of time.
The Buyer is acquiring the Unregistered Note for
investment and not with a view to, or for offer and
sale in connection with, a public distribution.
o (2) The Buyer is a "qualified institutional buyer" as
defined under Rule 144A under the Securities Act and
is acquiring the Unregistered Note for its own
account (and not for the account of others) or as a
fiduciary or agent for others (which others also are
"qualified institutional buyers"). The Buyer is are
familiar with Rule 144A under the Securities Act and
is aware that the transferor of the Unregistered Note
and other parties intend to rely on the statements
made herein and the exemption from the registration
requirements of the Securities Act provided by Rule
144A.]
A-2
(c) You are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
------------------------------------------
Print Name of Buyer
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Date:
--------------------------------------
A-3
EXHIBIT B
UNDERTAKING LETTER
WODFI LLC
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
Harris Trust and Savings Bank
311 West Monroe St., 12th Floor
Chicago, IL 60606
Attn: Indenture Trust Administration
as Indenture Trustee for
World Omni Master Owner Trust
Ladies and Gentlemen:
In connection with our purchase of record or beneficial
ownership of a Note subject to the provisions of Section 2.15 of the Amended
and Restated Indenture dated as of __________, 2000 (the "Unregistered Note")
of the World Omni Master Owner Trust, the undersigned purchaser, record owner
or beneficial owner hereby acknowledges, represents and warrants that such
purchaser, record owner or beneficial owner:
(1) is not, and has not acquired the Unregistered Note by or
for the benefit of, (i) an employee benefit plan (as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) that
is subject to the provisions of Title I of ERISA, (ii) a plan described in
Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended, or [(iii)
any entity whose underlying assets include plan assets by reason of a plan's
investment in such entity]; and
B-1
(2) acknowledges that you and others will rely on our
acknowledgments, representations and warranties, and agrees to notify you
promptly in writing if any of our acknowledgments, representations or
warranties herein cease to be accurate and complete.
------------------------------------------
Print Name of Owner
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Date:
--------------------------------------
B-2