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CIT EQUIPMENT COLLATERAL 2000-2,
as Issuer,
and
ALLFIRST BANK,
not in its individual capacity but solely in its capacity
as Indenture Trustee
-----------------------------------
INDENTURE
Dated as of September 1, 2000
-----------------------------------
$200,000,000 6.64% Class A-1 Receivable-Backed Notes
$356,000,000 6.81% Class A-2 Receivable-Backed Notes
$306,000,000 6.84% Class A-3 Receivable-Backed Notes
$132,549,665 6.93% Class A-4 Receivable-Backed Notes
$15,870,473 6.95% Class B Receivable-Backed Notes
$21,160,631 7.04% Class C Receivable-Backed Notes
$26,450,790 7.52% Class D Receivable-Backed Notes
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TABLE OF CONTENTS
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ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE..........................................................2
Section 1.01 Definitions...................................................................................2
Section 1.02 Incorporation by Reference of Trust Indenture Act.............................................8
Section 1.03 Rules of Construction.........................................................................8
ARTICLE TWO THE NOTES ..........................................................................................9
Section 2.01 Form .........................................................................................9
Section 2.02 Execution, Authentication and Delivery........................................................9
Section 2.03 Temporary Notes..............................................................................10
Section 2.04 Registration; Registration of Transfer and Exchange; Transfer Restriction....................10
Section 2.05 Mutilated, Destroyed, Lost or Stolen Notes...................................................11
Section 2.06 Persons Deemed Owner.........................................................................12
Section 2.07 Payment of Principal and Interest; Defaulted Interest........................................12
Section 2.08 Cancellation.................................................................................13
Section 2.09 Book-Entry Notes.............................................................................14
Section 2.10 Notices to Clearing Agency...................................................................14
Section 2.11 Definitive Notes.............................................................................14
Section 2.12 Release of Collateral........................................................................16
Section 2.13 Tax Treatment................................................................................16
ARTICLE THREE COVENANTS; REPRESENTATIONS AND WARRANTIES........................................................16
Section 3.01 Payment of Principal and Interest............................................................16
Section 3.02 Maintenance of Office or Agency..............................................................16
Section 3.03 Money for Payments to be Held in Trust.......................................................16
Section 3.04 Existence....................................................................................18
Section 3.05 Protection of Collateral.....................................................................18
Section 3.06 [Reserved]...................................................................................19
Section 3.07 Performance of Obligations; Servicing of Contracts...........................................19
Section 3.08 Negative Covenants...........................................................................20
Section 3.09 Issuer May Consolidate, etc. Only on Certain Terms...........................................21
Section 3.10 Successor or Transferee......................................................................22
Section 3.11 No Other Business............................................................................23
Section 3.12 No Borrowing.................................................................................23
Section 3.13 Notice of Events of Default..................................................................23
Section 3.14 Further Instruments and Acts.................................................................23
Section 3.15 Compliance with Laws.........................................................................23
Section 3.16 Amendments of Trust Agreement................................................................23
Section 3.17 Removal of Administrator.....................................................................23
Section 3.18 Representations and Warranties of Issuer.....................................................24
ARTICLE FOUR SATISFACTION AND DISCHARGE........................................................................25
Section 4.01 Satisfaction and Discharge of Indenture......................................................25
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Section 4.02 Application of Trust Money...................................................................26
Section 4.03 Repayment of Moneys Held by Paying Agent.....................................................26
Section 4.04 Release of Collateral........................................................................26
ARTICLE FIVE REMEDIES .........................................................................................26
Section 5.01 Events of Default............................................................................26
Section 5.02 Rights Upon Event of Default; Notice.........................................................27
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee;
Authority of Indenture Trustee..........................................................28
Section 5.04 Remedies.....................................................................................30
Section 5.05 Optional Preservation of the Contracts.......................................................31
Section 5.06 Priorities...................................................................................32
Section 5.07 Limitation of Suits..........................................................................32
Section 5.08 Unconditional Rights of Noteholders to Receive Principal and Interest........................33
Section 5.09 Restoration of Rights and Remedies...........................................................33
Section 5.10 Rights and Remedies Cumulative...............................................................33
Section 5.11 Delay or Omission Not a Waiver...............................................................33
Section 5.12 Control by Noteholders.......................................................................33
Section 5.13 Waiver of Past Defaults......................................................................34
Section 5.14 Undertaking for Costs........................................................................34
Section 5.15 Waiver of Stay or Extension Laws.............................................................34
Section 5.16 Action on Notes..............................................................................34
Section 5.17 Performance and Enforcement of Certain Obligations...........................................35
ARTICLE SIX THE INDENTURE TRUSTEE..............................................................................35
Section 6.01 Duties of Indenture Trustee..................................................................35
Section 6.02 Rights of Indenture Trustee..................................................................37
Section 6.03 Individual Rights of Indenture Trustee.......................................................38
Section 6.04 Indenture Trustee's Disclaimer...............................................................38
Section 6.05 Notice of Defaults...........................................................................38
Section 6.06 Reports by Indenture Trustee to Holders......................................................39
Section 6.07 Compensation and Indemnity...................................................................39
Section 6.08 Replacement of Indenture Trustee.............................................................40
Section 6.09 Successor Indenture Trustee by Merger........................................................41
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee............................41
Section 6.11 Eligibility..................................................................................43
Section 6.12 Preferential Collection of Claims Against Issuer.............................................43
Section 6.13 Representations and Warranties of Indenture Trustee..........................................43
Section 6.14 Execution of Transaction Documents...........................................................44
ARTICLE SEVEN NOTEHOLDERS' LISTS AND REPORTS...................................................................44
Section 7.01 Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders.......................44
Section 7.02 Preservation of Information: Communication to Noteholders....................................45
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Section 7.03 Reports by Issuer............................................................................45
Section 7.04 Reports by Indenture Trustee.................................................................46
ARTICLE EIGHT ACCOUNTS, DISBURSEMENTS AND RELEASES.............................................................46
Section 8.01 Collection of Money..........................................................................46
Section 8.02 Trust Accounts...............................................................................46
Section 8.03 General Provisions Regarding Accounts........................................................47
Section 8.04 Release of Collateral........................................................................48
Section 8.05 Opinion of Counsel...........................................................................48
ARTICLE NINE SUPPLEMENTAL INDENTURES...........................................................................49
Section 9.01 Supplemental Indentures Without Consent of Noteholders.......................................49
Section 9.02 Supplemental Indentures With Consent of Noteholders..........................................50
Section 9.03 Execution of Supplemental Indentures.........................................................51
Section 9.04 Effect of Supplemental Indenture.............................................................51
Section 9.05 Conformity With Trust Indenture Act..........................................................52
Section 9.06 Reference in Notes to Supplemental Indentures................................................52
ARTICLE TEN REDEMPTION AND OPTIONAL PURCHASE OF NOTES..........................................................52
Section 10.01 Redemption..................................................................................52
Section 10.02 Form of Redemption Notice...................................................................53
Section 10.03 Notes Payable on Redemption Date............................................................53
ARTICLE ELEVEN MISCELLANEOUS...................................................................................53
Section 11.01 Compliance Certificates and Opinions, etc...................................................53
Section 11.02 Form of Documents Delivered to Indenture Trustee............................................55
Section 11.03 Acts of Noteholders.........................................................................56
Section 11.04 Notices.....................................................................................56
Section 11.05 Notices to Noteholders; Waiver..............................................................57
Section 11.06 Alternate Payment and Notice Provisions.....................................................57
Section 11.07 Effect of Headings and Table of Contents....................................................58
Section 11.08 Successors and Assigns......................................................................58
Section 11.09 Separability................................................................................58
Section 11.10 Benefits of Indenture.......................................................................58
Section 11.11 Legal Holidays..............................................................................58
Section 11.12 Governing Law...............................................................................58
Section 11.13 Counterparts................................................................................58
Section 11.14 Recording of Indenture......................................................................58
Section 11.15 Trust Obligation............................................................................59
Section 11.16 No Petition.................................................................................59
Section 11.17 Inspection..................................................................................59
Section 11.18 Conflict with Trust Indenture Act...........................................................59
Section 11.19 Communication by Noteholders With Other Noteholders.........................................59
Section 11.20 Amendment of Cash Collateral Account Agreement..............................................60
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EXHIBITS
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Exhibit A-1 Form of Class A-1 Note...............................................................A-1-1
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Exhibit A-2 Form of Class A-2 Note...............................................................A-2-1
Exhibit A-3 Form of Class A-3 Note...............................................................A-3-1
Exhibit A-4 Form of Class A-4 Note...............................................................A-4-1
Exhibit B Form of Class B Note...................................................................B-1
Exhibit C Form of Class C Note...................................................................C-1
Exhibit D Form of Class D Note...................................................................D-1
Exhibit E RESERVED...............................................................................E-1
Exhibit F Form of Note Assignment................................................................F-1
Exhibit G Form of Note Depository Agreement......................................................G-1
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CROSS-REFERENCE TABLE
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Trust Indenture
Act of 1939 Indenture
Section Section
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310(a) 6.11
310(b) 6.11
310(c) N.A.
311(a) 6.12
311(b) 6.12
311(c) N.A.
312(a) 7.01, 7.02
312(b) 7.02
312(c) 7.02
313(a) 7.04
313(b) 7.04
313(c) 7.04
314(a) 7.03
314(b) 3.05, 7.03
314(c) 11.01
314(d) 11.01
314(e) 11.01
314(f) N.A.
315(a) 6.01
315(b) 6.05
315(c) 6.01
315(d) 6.01
315(e) 5.14
316(a) 2.07, 5.04
316(b) 9.02
316(c) N.A.
317(a) 5.03
317(b) 3.03
318(a) 11.18
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This Indenture, dated as of September 1, 2000 (this
"Indenture"), is between CIT Equipment Collateral 2000-2, a Delaware business
trust (the "Issuer") and Allfirst Bank, in its capacity as indenture trustee
(the "Indenture Trustee") and not in its individual capacity.
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Issuer's
6.64% Class A-1 Receivable-Backed Notes (the "Class A-1 Notes"), 6.81% Class A-2
Receivable-Backed Notes (the "Class A-2 Notes"), 6.84% Class A-3
Receivable-Backed Notes (the "Class A-3 Notes"), 6.93% Class A-4
Receivable-Backed Notes (the "Class A-4 Notes"), 6.95% Class B Receivable-Backed
Notes (the "Class B Notes"), 7.04% Class C Receivable-Backed Notes (the "Class C
Notes"), and 7.52% Class D Receivable-Backed Notes (the "Class D Notes"); and,
together with the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4
Notes, Class B Notes, Class C Notes and Class D Notes, the "Notes"):
GRANTING CLAUSE
The Issuer hereby grants, transfers, assigns and otherwise
conveys to the Indenture Trustee on the Closing Date, on behalf of and for the
benefit of the Holders of the Notes, without recourse, all of the Issuer's
right, title and interest, now existing or hereafter arising or acquired, in and
to (i) the Contracts and the related Transferred Assets, (ii) all general
intangibles, accounts and chattel paper, (iii) the rights of the Issuer under
the Pooling and Servicing Agreement, (iv) the Collection Account, the Note
Distribution Account, the Cash Collateral Account and any other security or
deposit account maintained by the Issuer with the Indenture Trustee or any
Qualified Institution, including, without limitation, all cash and cash
equivalents, investment property, Financial Assets, Security Entitlements, or
other Eligible Investments and all other securities and other assets now or
hereafter deposited in or credited to any such account, and all income from the
investment of the funds in such accounts, together with any successor or
replacement accounts, (v) all Security Entitlements of the Issuer in any and all
of the foregoing, and (vi) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in respect of any
or all of the foregoing, including, without limitation, all proceeds of the
conversion of any of the foregoing, voluntary or involuntary, into cash or other
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any and all
proceeds of the foregoing (collectively, the "Collateral").
The foregoing Grant is 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 and all
other sums owing by the Issuer hereunder or under any other Transaction
Document, and to secure compliance with the provisions of this Indenture, all as
provided in this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the
Holders of the Notes, acknowledges such Grant, accepts the trust under this
Indenture in accordance with the
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provisions of this Indenture and agrees to perform its duties required in this
Indenture to the best of its ability to the end that the interests of the
Holders of the Notes may be adequately and effectively protected.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions
(a) Except as otherwise specified herein or as the
context may otherwise require, the following terms have the respective meanings
set forth below for all purposes of this Indenture.
"Act" shall have the meaning specified in Section 11.03(a).
"Administration Agreement" means the Administration Agreement,
dated as of the date hereof, among the Administrator, the Issuer, the Trust
Depositor and the Indenture Trustee.
"Administrator" means Capita Corporation or any successor
Administrator under the Administration Agreement.
"Authorized Officer" means, with respect to the Issuer, any
officer of the Owner Trustee who is authorized to act for the Owner Trustee in
matters relating to the Issuer and who is identified on the list of Authorized
Officers delivered by the Owner Trustee to the Indenture Trustee on the Closing
Date (as such list may be modified or supplemented from time to time thereafter)
and, so long as the Administration Agreement is in effect, any Vice President or
more senior officer of the Administrator who is authorized to act for the
Administrator in matters relating to the Issuer and to be acted upon by the
Administrator pursuant to the Administration Agreement and who is identified on
the list of Authorized Officers delivered by the Administrator to the Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter).
"Book Entry Notes" means a beneficial interest in the Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.09.
"Business Day" means any day other than a Saturday, Sunday or
other day on which banking institutions in the cities of Wilmington, Delaware,
Livingston, New Jersey, Baltimore, Maryland or New York, New York are authorized
or obligated by law, executive order or governmental decree to be closed.
"Class" means all Notes whose form is identical except for
variation in denomination, principal amount or owner.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
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"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Collateral" means the Collateral as defined in the Granting
Clause hereof.
"Corporate Trust Office" means the principal office of the
Indenture Trustee at which at any particular time its corporate trust business
shall be administered which office at date of the execution of this Indenture is
located at Corporate Trust Department, 25 South Charles Street-MC 101-591,
Baltimore, MD 21201; or at such other address as the Indenture Trustee may
designate from time to time by notice to the Noteholders and the Issuer, or the
principal corporate trust office of any successor Indenture Trustee (the address
of which the successor Indenture Trustee will notify the Noteholders and the
Issuer).
"Default" means any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
"Definitive Notes" shall have the meaning specified in Section
2.09.
"DTC" means The Depository Trust Company, and its successors.
"Eligible Deposit Account" means either (a) a segregated
account with a Qualified Institution, or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the laws
of the United States or any one of the states thereof, including the District of
Columbia (or any domestic branch of a foreign bank), and acting as a trustee for
funds deposited in such account, so long as any of the securities of such
depository institution shall have a credit rating from each Rating Agency in one
of its short-term credit rating categories which signifies investment grade.
"Entitlement Order" has the meaning specified in Section
8-102(a)(8) of the UCC.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Event of Default" shall have the meaning specified in Section
5.01.
"Executive Officer" means, with respect to any corporation,
the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Executive Vice President, any Vice President, the Secretary or the
Treasurer of such corporation; and with respect to any partnership, any general
partner thereof.
"Financial" means CIT Financial USA, Inc., a Delaware
corporation.
"Financial Asset" has the meaning specified in Section
8-102(a)(9) of the UCC.
"Grant" means mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create and grant a lien
upon and a security interest in and right of set-off against, deposit, set over
and confirm pursuant to this Indenture. A Grant of the Collateral or of
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any other agreement or instrument shall include all rights, powers and options
(but none of the obligations) of the granting party thereunder, including the
immediate and continuing right to claim for, collect, receive and give receipt
for principal and interest payments in respect of the Collateral and all other
moneys payable thereunder, 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 granting party or otherwise and generally
to do and receive anything that the granting party is or may be entitled to do
or receive thereunder or with respect thereto.
"Holder" means, with respect to a Book-Entry Note, the Person
who is the owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency participant or as an indirect
participant, in each case in accordance with the rules of such Clearing Agency)
and with respect to a Definitive Note the Person in whose name a Note is
registered on the Note Register.
"Indenture Securities" means the Notes.
"Indenture Security Holder" means a Noteholder.
"Indenture Trustee" means Allfirst Bank, as Indenture Trustee
under this Indenture, or any successor Indenture Trustee under this Indenture.
"Indenture Trustee Documents" shall have the meaning ascribed
to such term in Section 6.13(a) hereof.
"Independent" means, when used with respect to any specified
Person, that the Person (i) is in fact independent of the Issuer, any other
obligor upon the Notes, the Trust Depositor, Financial and any of their
respective Affiliates, (ii) does not have any direct financial interest or any
material indirect financial interest in the Issuer, any such other obligor,
Financial or any of their respective Affiliates, and (iii) is not connected with
the Issuer, any such other obligor, Financial or any Affiliate of any of the
foregoing Persons as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.01, made by
an Independent appraiser or other expert appointed by an Issuer Order and
approved by the Indenture Trustee in the exercise of reasonable care, and such
opinion or certificate shall state that the signer has read the definition of
"Independent" in this Indenture and that the signer is Independent within the
meaning thereof.
"Interest Rate" means, as the context may require, the Class
A-1 Interest Rate, the Class A-2 Interest Rate, the Class A-3 Interest Rate, the
Class A-4 Interest Rate, the Class B Interest Rate, the Class C Interest Rate
and the Class D Interest Rate, or any of them, in each case as defined in the
Pooling and Servicing Agreement.
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"Issuer Order" and "Issuer Request" means a written order or
request signed in the name of the Issuer by any one of its Authorized Officers
and delivered to the Indenture Trustee.
"Majority in Interest" has the same meaning given the term
Required Holders in the Pooling and Servicing Agreement.
"Note Depository Agreement" means the agreement dated as of
the Closing Date, among the Issuer, the Administrator, the Indenture Trustee and
DTC, as the initial Clearing Agency, relating to the Notes, substantially in the
form of Exhibit G hereto.
"Note Register" and "Note Registrar" have the respective
meanings specified in Section 2.04.
"Noteholder" means, with respect to a Book-Entry Note, the
Person who is the owner of such Book-Entry Note, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly as a Clearing Agency participant or as an
indirect participant, in each case in accordance with the rules of such Clearing
Agency) and with respect to a Definitive Note the Person in whose name a Note is
registered on the Note Register.
"Officer's Certificate" means a certificate signed by any
Authorized Officer of the Issuer, under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.01, and
delivered to, the Indenture Trustee. Unless otherwise specified, any reference
in this Indenture to an Officer's Certificate shall be to an Officer's
Certificate of any Authorized Officer of the Issuer.
"Opinion of Counsel" means one or more written opinions of
counsel who may, except as otherwise expressly provided in this Indenture, be
employees of or counsel to the Issuer and who shall be satisfactory to the
Indenture Trustee and which shall comply with any applicable requirements of
Section 11.01, and shall be in form and substance satisfactory to the Indenture
Trustee.
"Outstanding" means, as of the date of determination, all
Notes theretofore authenticated and delivered under this Indenture except:
(a) Notes theretofore canceled by the Note Registrar
or delivered to the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which
money in the necessary amount has been theretofore deposited with the
Indenture Trustee or any Paying Agent in trust for the Holders of such
Notes (provided, however, that if such Notes are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision for such notice has been made, satisfactory to the Indenture
Trustee, has been made); and
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(c) Notes in exchange for or in lieu of other Notes
which have been authenticated and delivered pursuant to this Indenture
unless proof satisfactory to the Indenture Trustee is presented that
any such Notes are held by a bona fide purchaser;
provided, however, that in determining whether the Holders of
the requisite Outstanding Amount have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any other Transaction
Document, Notes owned by the Issuer, any other obligor upon the Notes, the Trust
Depositor, Financial or any of their respective Affiliates shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Indenture Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that the
Indenture Trustee knows to be so owned shall be so disregarded. Notes so owned
that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Indenture Trustee the pledgee's
right so to act with respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes, the Trust Depositor, Financial or any
of their respective Affiliates.
"Outstanding Amount" means the aggregate principal amount of
all Notes of one Class or of all Classes, as the case may be, Outstanding at the
date of determination.
"Owner Trustee" means Chase Manhattan Bank USA, National
Association, not in its individual capacity but solely as Owner Trustee under
the Trust Agreement, or any successor trustee under the Trust Agreement.
"Paying Agent" means the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 and is authorized by the Issuer to make the distributions from the
Note Distribution Account, including payment of principal of or interest on the
Notes on behalf of the Issuer.
"Payment Date" means the twentieth (20th) day (or if any such
date is not a Business Day, then on the next succeeding Business Day) of each
calendar month commencing October 20, 2000.
"Pooling and Servicing Agreement" means the Pooling and
Servicing Agreement, dated as of the date hereof, among the Issuer, the Trust
Depositor, Financial and the Servicer.
"Predecessor Note" means, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and for the purpose of this definition, any
Note authenticated and delivered under Section 2.05 in lieu of a mutilated,
lost, destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Record Date" means, with respect to any Payment Date, the
Business Day immediately preceding such Payment Date; provided, however, that
with any Definitive Note the
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Record Date shall be the last Business Day of the month preceding the month in
which such Payment Date occurs.
"Redemption Date" means in the case of a redemption of the
Notes pursuant to Section 10.01(a) or a payment to Noteholders pursuant to
Section 10.01(b), the Payment Date specified by the Servicer or the Issuer
pursuant to Section 10.01(a) or 10.01(b), as the case may be.
"Redemption Date Amount" means (i) in the case of a redemption
of the Notes pursuant to Section 10.01(a), an amount equal to the unpaid
principal amount of the Notes redeemed plus accrued and unpaid interest thereon
at the Interest Rate for each Class of Notes being so redeemed to but excluding
the Redemption Date, or (ii) in the case of a payment made to Noteholders
pursuant to Section 10.01(b), the amount on deposit in the Note Distribution
Account, but not in excess of the amount specified in clause (i) above.
"Registered Holder" means the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Responsible Officer" means, with respect to the Indenture
Trustee, any officer within the Corporate Trust Office (or any successor group
of the Indenture Trustee), including any Vice President, assistant secretary or
other officer or assistant officer of the Indenture Trustee customarily
performing functions similar to those performed by the people who at such time
shall be officers, respectively, or to whom any corporate trust matter is
referred at the Corporate Trust Office of the Indenture Trustee because of his
knowledge of and familiarity with the particular subject and, in each case,
having direct responsibility for the administration of the Indenture.
"Securities Intermediary" has the meaning specified in Section
8-102(a)(14) of the UCC.
"Security Entitlement" has the meaning specified in Section
8-102(a)(17) of the UCC.
"State" means any one of the 50 states of the United States,
or the District of Columbia or any of its territories.
"Termination Date" means the date on which the Indenture
Trustee shall have received payment and performance of 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.
"Transferred Assets" shall have the meaning ascribed thereto
in the Pooling and Servicing Agreement.
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated as of the date hereof, between the Trust Depositor and the
Owner Trustee.
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"Trust Certificate" means the Equity Certificate of the Issuer
substantially in the form of Exhibit B to the Trust Agreement.
"Trust Depositor" means NCT Funding Company, L.L.C., a
Delaware limited liability company.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended.
"UCC" means, unless the context otherwise requires, the
Uniform Commercial Code, as in effect in the relevant jurisdiction, as amended
from time to time.
(b) Except as otherwise specified herein or as the
context may otherwise require, capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement.
Section 1.02 Incorporation by Reference of Trust
Indenture Act. Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
Section 1.03 Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles as in
effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
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(v) words in the singular include the plural and words in the
plural include the singular.
(vi) any agreement, instrument or statute defined or referred
to herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns; and
(vii) the words "hereof," "herein" and "hereunder" and words
of similar import when used in this Indenture shall refer to this Indenture as a
whole and not to any particular provision of this Indenture; Section, subsection
and Schedule references contained in this Indenture are references to Sections,
subsections and Schedules in or to this Indenture unless otherwise specified.
ARTICLE TWO
THE NOTES
Section 2.01 Form. The Notes, in each case together with the
Indenture Trustee's certificate of authentication, shall be in substantially the
forms set forth as Exhibits to this Indenture with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note.
Each Note shall be dated the date of its authentication. The
terms of the Notes set forth in Exhibits hereto are part of the terms of this
Indenture.
Section 2.02 Execution, Authentication and Delivery. The
Notes shall be executed on behalf of the Issuer by any of its Authorized
Officers. The signature of any such Authorized Officer on the Notes may be
manual or facsimile. Notes bearing the manual or facsimile signature of
individuals who were at any time Authorized Officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of such Notes.
The Indenture Trustee shall, upon receipt of an Issuer Order,
authenticate and deliver for original issue (i) Class A-1 Notes in an aggregate
principal amount of $200,000,000, (ii) Class A-2 Notes in an aggregate principal
amount of $356,000,000, (iii) Class A-3 Notes in an aggregate principal amount
of $306,000,000, (iv) Class A-4 Notes in an aggregate principal amount of
$132,549,665, (v) Class B Notes in an aggregate principal amount of $15,870,473,
(vi) Class C Notes in an aggregate principal amount of $21,160,631, and (vii)
Class D Notes in an aggregate principal amount of $26,450,790. The aggregate
principal amount of such Classes
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of Notes Outstanding at any time may not exceed such respective amounts, except
as otherwise provided in Section 2.05.
Each Note shall be dated the date of its authentication. The
Notes shall be issuable as registered Notes in the minimum denomination of
$1,000 and in integral multiples of $1,000 in excess thereof or in such other
denomination as shall be necessary.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein by
the Indenture Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Note shall be conclusive evidence,
and the only evidence, that such Note has been duly authenticated and delivered
hereunder.
Section 2.03 Temporary Notes. Pending the preparation of
Book-Entry Notes or Definitive Notes, the Issuer may execute, and upon receipt
of an Issuer Order the Indenture Trustee shall authenticate and deliver,
temporary Notes that are printed, lithographed, typewritten, mimeographed or
otherwise produced, of the tenor of the definitive Notes in lieu of which they
are issued and with such variations not inconsistent with the terms of this
Indenture as the officers executing such Notes may determine, as evidenced by
their execution of such Notes.
If temporary Notes are issued, the Issuer will cause
Book-Entry Notes or Definitive Notes to be prepared without unreasonable delay.
After the preparation of Book-Entry Notes or Definitive Notes, the temporary
Notes shall be exchangeable for Book-Entry Notes or Definitive Notes upon
surrender of the temporary Notes at the office or agency of the Issuer to be
maintained as provided in Section 3.02, without charge to the Holder. Upon
surrender for cancellation of any one or more Notes, the Issuer shall execute
and the Indenture Trustee shall authenticate and deliver in exchange therefor a
like tenor and principal amount of definitive Notes of authorized denominations.
Until so exchanged, the temporary Notes shall in all respects be entitled to the
same benefits under this Indenture as Book-Entry Notes or Definitive Notes.
Section 2.04 Registration; Registration of Transfer and
Exchange; Transfer Restriction. The Issuer shall cause to be kept a register
(the "Note Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Notes and the
registration of transfers of Notes. The Indenture Trustee shall be "Note
Registrar" for the purpose of registering Notes and transfers of Notes as herein
provided. Upon any resignation of any Note Registrar, the Issuer shall promptly
appoint a successor or, if it elects not to make such an appointment, assume the
duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by
the Issuer as Note Registrar, the Issuer will give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location,
and any change in the location, of the Note Register, and the Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Indenture Trustee shall have the right to rely
upon a certificate executed on behalf of the Note Registrar by an Executive
Officer thereof as to the names and
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addresses of the Holders of the Notes and the principal amounts and the amounts
and number of such Notes.
Upon surrender for registration of transfer of any Note at the
office or agency of the Issuer to be maintained as provided in Section 3.02, the
Issuer shall execute, and 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 Class in
any authorized denominations, of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other
Notes of the same Class in any authorized denominations, of a like aggregate
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, the Issuer shall execute,
and the Indenture Trustee shall authenticate and the Noteholder shall obtain
from the Indenture Trustee, the Notes which the Noteholder making the exchange
is entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by a commercial bank or trust company
located, or having a correspondent located in the city in which the Corporate
Trust Office is located, or by a member firm of a national securities exchange,
and such other documents as the Indenture Trustee may require.
No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Issuer or the 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 Section 2.03 not
involving any transfer.
The preceding provisions of this Section notwithstanding, the
Issuer shall not be required to make and the Note Registrar need not register
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to the
Note.
Neither the Indenture Trustee nor the 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
Clearing Agency.
Section 2.05 Mutilated, Destroyed, Lost or Stolen Notes.
If (i) any mutilated Note is surrendered to the Indenture Trustee, or the
Indenture Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Note, and (ii) there is delivered to the Indenture Trustee such
security or indemnity as may be required by them to hold the Issuer and
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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 its 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 the
same Class; provided, however, that if any such destroyed, lost or stolen Note,
but not a mutilated Note, shall have become or within seven days shall be due
and payable, or shall have been called for redemption, instead of issuing a
replacement Note, the Issuer may pay such destroyed, lost or stolen Note when so
due or payable or upon the Redemption Date without surrender thereof. If, after
the delivery of such replacement Note or payment of a destroyed, lost or stolen
Note pursuant to the proviso to the preceding sentence, a bona fide purchaser of
the original Note in lieu of which such replacement Note was issued presents for
payment such original Note, the Issuer, and the Indenture Trustee shall be
entitled to recover such replacement Note (or such payment) from the Person to
whom it was delivered or any Person taking such replacement Note from such
Person to whom such replacement Note was delivered or any assignee of such
Person, except a bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Issuer or the Indenture Trustee in connection
therewith.
Upon the issuance of any replacement Note under this Section,
the Issuer 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
the fees and expenses of the Indenture Trustee or the Note Registrar) connected
therewith.
Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.06 Persons Deemed Owner. Prior to due
presentment for registration of transfer of any Note, the Issuer, the Indenture
Trustee, and any of their respective agents may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of and interest, if any,
on such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and none of the Issuer, the Indenture Trustee nor any of their
respective agents shall be affected by notice to the contrary.
Section 2.07 Payment of Principal and Interest; Defaulted
Interest.
(a) Each Class of Notes shall accrue interest at the related
Interest Rate, and such interest shall be payable on each Payment Date, subject
to Section 3.01. Any installment of interest or principal, if any, payable on
any Note which is punctually paid or duly provided for
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by the Issuer on the applicable Payment Date shall be paid to the Person in
whose name such Note (or one or more Predecessor Notes) is registered on the
Record Date, by check mailed first-class, postage prepaid to such Person's
address as it appears on the Note Register on such Record Date; provided,
however, that, unless and until Definitive Notes have been issued pursuant to
Section 2.11, with respect to Notes registered on the applicable Record Date in
the name of the nominee of the Clearing Agency (initially, Cede & Co.), payment
shall be made by wire transfer in immediately available funds to the account
designated by such nominee.
(b) The principal of each Note shall be payable on each
Payment Date to the extent provided in the form of the related Note set forth as
an Exhibit hereto. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable, if not previously paid, on the
date on which an Event of Default shall have occurred and be continuing, unless
the Required Holders have waived such Event of Default in the manner provided in
Section 5.02. All principal payments on each Class of Notes shall be made pro
rata to the Noteholders of such Class entitled thereto. The Indenture Trustee
shall, to the extent practicable, notify the Person in whose name a Note is
registered at the close of business on the Record Date preceding the Payment
Date on which the Issuer expects that the final installment of principal of and
interest on such Note will be paid. Such notice shall be mailed within five
Business Days of receipt of notice of termination of the Trust pursuant to
Section 9.01(c) of the Trust Agreement and shall specify that such final
installment will be payable only upon presentation and surrender of such Note
and shall specify the place where such Note may be presented and surrendered for
payment of such installment. Notices in connection with redemptions of Notes
shall be mailed to Noteholders as provided in Section 10.02.
(c) If the Issuer defaults in a payment of interest on
the Notes, the Issuer shall pay defaulted interest at the applicable Interest
Rate to the extent lawful. The Issuer may pay such defaulted interest to the
Persons who are Noteholders on any Payment Date in the manner and to the extent
provided in the Pooling and Servicing Agreement.
(d) All payments to be made by the Issuer under this
Indenture shall be made only from the income and proceeds from the Collateral
and only to the extent that the Issuer shall have sufficient income or proceeds
from the Collateral to enable the Issuer to make payments in accordance with the
terms hereof. The Indenture Trustee is not personally liable for any amounts
payable under this Indenture, except as expressly provided herein.
Section 2.08 Cancellation. All Notes surrendered for
payment, registration of transfer, exchange or redemption shall, if surrendered
to any Person other than the Indenture Trustee, be delivered to the Indenture
Trustee and shall be promptly canceled by the Indenture Trustee. The Issuer may
at any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder 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, 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 destroyed or returned to it; provided that such Issuer
Order is timely and the Notes have not been previously disposed of by the
Indenture Trustee.
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Section 2.09 Book-Entry Notes. The Notes, upon original
issuance, will be issued in the form of a typewritten Note or Notes representing
the Book-Entry Notes, to be delivered to DTC, the initial Depository, by, or on
behalf of, the Issuer. Such Notes shall initially be registered on the Note
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Noteholder of such Notes will receive a Definitive Note representing such
Noteholder's interest in such Note, except as provided in Section 2.11. Unless
and until definitive, fully registered Notes (the "Definitive Notes") have been
issued to Noteholders pursuant to Section 2.11:
(a) the provisions of this Section shall be in full force and
effect;
(b) the Note Registrar and the Indenture Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this Indenture
(including the payment of principal of and interest on the Notes and the giving
of instructions or directions hereunder) as the sole holder of the Notes, and
shall have no obligation to the Noteholders;
(c) to the extent that the provisions of this Section
conflict with any other provisions of this Indenture, the provisions of this
Section shall control;
(d) the rights of Noteholders shall be exercised only
through the Clearing Agency and shall be limited to those established by law and
agreements between such Noteholders and the Clearing Agency and/or the Clearing
Agency Participants. Pursuant to the Note Depository Agreement, unless and until
Definitive Notes are issued pursuant to Section 2.11, the Clearing Agency will
make book-entry transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Notes to such Clearing
Agency Participants; and
(e) whenever this Indenture requires or permits actions
to be taken based upon instructions or directions of Noteholders evidencing a
specified percentage of the Outstanding Amount, the Clearing Agency shall be
deemed to represent such percentage only to the extent that it has received
instructions to such effect from Noteholders and/or Clearing Agency Participants
owning or representing, respectively, such required percentage of the beneficial
interest in the Notes and has delivered such instructions to the Indenture
Trustee in a form reasonably acceptable to the Indenture Trustee.
Section 2.10 Notices to Clearing Agency. Whenever a
notice or other communication to the Noteholders is required under this
Indenture, unless and until Definitive Notes shall have been issued to
Noteholders pursuant to Section 2.11, the Indenture Trustee shall give all such
notices and communications specified herein to be given to Noteholders to the
Clearing Agency, and shall have no obligation to the Noteholders.
Section 2.11 Definitive Notes. With respect to the
Classes of Notes, if (i)(A) the Administrator advises the Indenture Trustee in
writing that the Clearing Agency is no longer willing or able to properly
discharge its responsibilities as described in the Note Depository Agreement,
and (B) the Indenture Trustee or the Administrator is unable to locate a
qualified successor, (ii) the Administrator at its option advises the Indenture
Trustee in writing that it elects to terminate the book-entry system through the
Clearing Agency, or (iii) after the
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occurrence of an Event of Default, Holders of Notes representing not less than
66 2/3% of the Outstanding Amount of such Class of Notes advise the Indenture
Trustee and the Clearing Agency through the Clearing Agency Participants in
writing that the continuation of a book-entry system through the Clearing Agency
is no longer in the best interests of the related Noteholders, then the
Indenture Trustee shall notify all Noteholders of the related Class or Classes
of Notes, through the Clearing Agency, of the occurrence of any such event and
of the availability of Definitive Notes of the related Class of Notes to
Noteholders requesting the same. Upon surrender to the Indenture Trustee of the
Note or Notes representing the Book-Entry Notes by the Clearing Agency,
accompanied by registration instructions, the Issuer shall execute and the
Indenture Trustee shall authenticate the Definitive Notes in accordance with the
instructions of the Clearing Agency. None of the Issuer, the Owner Trustee, the
Note Registrar or the Indenture Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Notes of a Class, the Indenture Trustee shall recognize the holders of the
Definitive Notes as Noteholders hereunder.
The Indenture Trustee shall not be liable if the Indenture
Trustee or the Administrator is unable to locate a qualified successor Clearing
Agency. Definitive Notes shall be prepared at the expense of the Servicer and
shall be typewritten, printed, lithographed or engraved or produced by any
combination of these methods (with or without steel engraved borders), all as
determined by the officers executing such Notes, as evidenced by their execution
of such Notes.
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Section 2.12 Release of Collateral. The Indenture Trustee
shall release property from the lien of this Indenture only upon receipt of an
Issuer Request stating that all conditions precedent under the Transaction
Documents to such release and Section 11.01 hereof have been satisfied,
accompanied by an Officer's Certificate.
Section 2.13 Tax Treatment. The Issuer and the purchasers of
the Notes intend, and will take all actions consistent with the intention, that
the Notes be treated as indebtedness which is solely secured by the assets of
the Trust for all federal, state, local, and foreign income and franchise tax
purposes and that, pursuant to Treasury Regulations Section 301.7701-3(b)(1)(ii)
as in effect for periods after January 1, 1997, the Trust be disregarded as a
separate entity from the Trust Depositor for federal income tax purposes. The
Issuer, by entering into this Indenture, and each Noteholder, by its acceptance
of its Note agrees to treat the Notes for federal, state and local income,
single business and franchise tax purposes as indebtedness.
ARTICLE THREE
COVENANTS; REPRESENTATIONS AND WARRANTIES
Section 3.01 Payment of Principal and Interest. The Issuer
will duly and punctually pay the principal of and interest, if any, on the Notes
in accordance with the terms of the Notes and this Indenture. Without limiting
the foregoing, subject to Section 8.02(c), the Issuer will cause to be deposited
into the Note Distribution Account amounts allocated pursuant to Section 7.05 of
the Pooling and Servicing Agreement, and cause to be distributed all such
amounts on a Payment Date as deposited therein (i) for the benefit of the Class
A-1 Notes, to the Class A-1 Noteholders, (ii) for the benefit of the Class A-2
Notes, to the Class A-2 Noteholders, (iii) for the benefit of the Class A-3
Notes, to the Class A-3 Noteholders, (iv) for the benefit of the Class A-4
Notes, to the Class A-4 Noteholders, (v) for the benefit of the Class B Notes,
to the Class B Noteholders, (vi) for the benefit of the Class C Notes, to the
Class C Noteholders and (vii) for the benefit of the Class D Notes, to the Class
D Noteholders, in each case as further specified herein. Amounts properly
withheld under the Code by any Person from a payment to any Noteholder of
interest and/or principal shall be considered as having been paid by the Issuer
to such Noteholder for all purposes of this Indenture.
Section 3.02 Maintenance of Office or Agency. The Issuer will
maintain in New York, New York, an office or agency where Notes may be
surrendered for registration of transfer or exchange, and where notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer may appoint the Indenture Trustee to serve as its agent for
the foregoing purposes.
Section 3.03 Money for Payments to be Held in Trust. As
provided in Section 8.02, all payments of amounts due and payable with respect
to any Notes that are to be made from amounts withdrawn from the Collection
Account and the Note Distribution Account pursuant to Section 8.02(b) shall be
made on behalf of the Issuer by the Indenture Trustee or by another Paying Agent
(pursuant to the written instructions of the Servicer), and no amounts so
withdrawn from the Collection Account and the Note Distribution Account for
payments of
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Notes shall be paid over to the Issuer except as provided in the Pooling and
Servicing Agreement.
On or before the Business Day immediately preceding each
Payment Date and Redemption Date, upon written notice and instruction from the
Servicer, the Indenture Trustee shall withdraw from the Collection Account and
deposit or cause to be deposited in the Note Distribution Account, to the extent
available, an aggregate sum sufficient to pay the amounts then becoming due,
such sum to be held in trust for the benefit of the Persons entitled thereto and
(unless the Paying Agent is the Indenture Trustee) shall promptly notify the
Indenture Trustee of its action or failure to so act.
The Issuer will cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an instrument
in which such Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the
provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided and pay such sums to such Persons as herein provided;
(b) give the Indenture Trustee notice of any default by the
Issuer (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;
(c) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(d) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the payment of Notes if
at any time it ceases to meet the standards required to be met by a Paying Agent
at the time of its appointment; and
(e) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds,
any money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed for
two years after such amount has become due and
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payable shall be discharged from such trust and upon receipt of an Issuer
Request shall be deposited by the Indenture Trustee in the Collection Account;
and the Holder of such Note shall thereafter, as an unsecured general creditor,
look only to the Issuer for payment thereof, and all liability of the Indenture
Trustee or such Paying Agent with respect to such trust money shall thereupon
cease; provided, however, that the Indenture Trustee or such Paying Agent,
before being required to make any such repayment, 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
will be repaid to or for the account of 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 moneys due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
Section 3.04 Existence. The Issuer will 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, in
which case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Collateral.
Section 3.05 Protection of Collateral. The Issuer intends the
security interest Granted pursuant to this Indenture in favor of the Indenture
Trustee on behalf of the Noteholders to be prior to all other liens (other than
Permitted Liens) in respect of the Collateral, and the Issuer shall take all
actions necessary to obtain and maintain, for the benefit of the Indenture
Trustee on behalf of the Noteholders, a first lien on and a first priority,
perfected security interest in the Collateral (subject to Permitted Liens). The
Issuer will from time to time execute, deliver and file all such supplements and
amendments hereto and all such financing statements, continuation statements,
instruments of further assurance and other instruments, all as prepared by the
Servicer and delivered to the Issuer, and will take such other action necessary
or advisable to:
(a) Grant more effectively all or any portion of the
Collateral;
(b) maintain or preserve the lien and security interest (and
the priority thereof) created by this Indenture or carry out more effectively
the purposes hereof;
(c) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(d) enforce any of the Collateral;
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(e) preserve and defend title to the Collateral and the rights
of the Indenture Trustee and the Noteholders in such Collateral against the
claims of all persons and parties; and
(f) pay all taxes or assessments levied or assessed upon the
Collateral when due.
The Issuer hereby designates the Indenture Trustee its agent
and attorney-in-fact to execute all financing statements, continuation
statements or other instruments prepared by and at the expense of the Servicer
required to be executed pursuant to this Section.
Section 3.0 [Reserved].
Section 3.07 Performance of Obligations; Servicing of
Contracts.
(a) The Issuer will not take any action and will use its best
efforts not to permit any action to be taken by others that would release any
Person from any such Person's material covenants or obligations under any
instrument or agreement included in the Collateral or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
expressly provided in the Transaction Documents or such other instrument or
agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties and obligations under this Indenture, and any performance
of such duties by a Person identified to the Indenture Trustee in an Officer's
Certificate shall be deemed to be action taken by the Issuer. The Indenture
Trustee and the Owner Trustee shall not be responsible for the action or
inaction of such Persons, 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 will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the other Transaction
Documents and in the instruments and agreements included in the Collateral,
including but not limited to filing or causing to be filed all UCC financing
statements and continuation statements required to be filed by the terms of this
Indenture and the Pooling and Servicing Agreement in accordance with and within
the time periods provided for herein and therein. Except as otherwise expressly
provided therein, the Issuer shall not waive, amend, modify, supplement or
terminate any Transaction Document or any provision thereof without the consent
of the Indenture Trustee, acting, if required by the terms of the Transaction
Documents, at the direction of the Required Holders.
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(d) If the Issuer shall have knowledge of the occurrence of a
Servicer Default, the Issuer shall promptly notify the Indenture Trustee and
each Rating Agency thereof. Upon any termination of the Servicer's rights and
powers pursuant to the Pooling and Servicing Agreement, the Issuer shall
promptly notify the Indenture Trustee. As soon as a Successor Servicer is
appointed, the Issuer shall notify the Indenture Trustee and the Rating Agencies
of such appointment (to the extent such party has not already been notified
pursuant to the Pooling and Servicing Agreement), specifying in such notice the
name and address of such Successor Servicer.
(e) The Issuer agrees that it will not waive timely
performance or observance by the Servicer or Financial of their respective
duties under the Transaction Documents if the effect thereof would adversely
affect the Holders of the Notes.
Section 3.08 Negative Covenants. Until the Termination Date,
the Issuer shall not:
(a) except as expressly permitted by the Transaction
Documents, sell, transfer, exchange or otherwise dispose of any of the
properties or assets of the Issuer, including those included in the Collateral,
unless directed to do so by the Indenture Trustee at the request of the Required
Holders;
(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 Collateral; or
(c) (A) permit the validity or effectiveness of this Indenture
to be impaired, or permit the lien created by this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to be
released from any covenant; or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (B) 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 Collateral or any part thereof or any interest therein
or the proceeds thereof (other than Permitted Liens), (C) permit the lien
created by this Indenture not to constitute a valid first priority (other than
with respect to Permitted Liens) security interest in the Collateral, or (D)
amend, modify or fail to comply with the provisions of the Transaction Documents
without the prior written consent of the Indenture Trustee acting at the
direction of the Required Holders, except where the Transaction Documents allow
for amendment or modification without the consent or approval of the Indenture
Trustee; or
(d) dissolve or liquidate in whole or in part.
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Section 3.09 Issuer May Consolidate, etc. Only on Certain
Terms.
(a) The Issuer shall not consolidate or merge with or into any
other Person, unless:
(i) the Person (if other than the Issuer) formed by
or surviving such consolidation or merger shall be a Person organized
and existing under the laws of the United States or any State and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form and substance satisfactory
to the Indenture Trustee, the due and punctual payment of the principal
of and interest on all Notes and the performance or observance of every
agreement and covenant of this Indenture and each other Transaction
Document on the part of the Issuer to be performed or observed, all as
provided herein;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of
Counsel which shall be delivered to and shall be satisfactory to the
Indenture Trustee to the effect that such transaction will not have any
material adverse tax consequence to the Trust, any Noteholder or the
Equity Certificateholder;
(v) any action as is necessary to maintain the lien
and security interest created by this Indenture shall have been taken;
(vi) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel (which shall
describe the actions taken as required by clause (v) above or that no
such actions will be taken) each stating that such consolidation or
merger and such supplemental indenture comply with this Article Three
and that all conditions precedent herein provided for relating to such
transaction have been complied with; and
(vii) the Person (if other than the Issuer) formed by
or surviving such consolidation or merger has a net worth, immediately
after such consolidation or merger, that is (A) greater than zero and
(B) not less than the net worth of the Issuer immediately prior to
giving effect to such consolidation or merger.
(b) The Issuer shall not convey or transfer all or
substantially all of its properties or assets, including those included in the
Collateral, to any Person (except as expressly permitted by the Transaction
Documents), unless:
(i) the Person that acquires by conveyance or
transfer the properties and assets of the Issuer shall (A) be a United
States citizen or a Person organized and existing under the laws of the
United States or any State, (B) expressly assume, by an
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indenture supplemental hereto, executed and delivered to the Indenture
Trustee, in form and substance satisfactory to the Indenture Trustee,
the due and punctual payment of the principal of and interest on all
Notes and the performance or observance of every agreement and covenant
of this Indenture and each other Transaction Document on the part of
the Issuer to be performed or observed, all as provided herein, (C)
expressly agree by means of such supplemental indenture that all right,
title and interest so conveyed or transferred shall be subject and
subordinate to the rights of Holders of the Notes and (D) unless
otherwise provided in such supplemental indenture, expressly agree to
indemnify, defend and hold harmless the Issuer and the Indenture
Trustee against and from any loss, liability or expense arising under
or related to this Indenture and the Notes;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of
Counsel which shall be delivered to and shall be satisfactory to the
Indenture Trustee to the effect that such transaction will not have any
material adverse tax consequence to the Trust, any Noteholder or the
Equity Certificateholder;
(v) any action as is necessary to maintain the lien
and security interest created by this Indenture shall have been taken;
(vi) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel (which shall
describe the actions taken as required by clause (v) above or that no
such actions will be taken) each stating that such conveyance or
transfer and such supplemental indenture comply with this Article Three
and that all conditions precedent herein provided for relating to such
transaction have been complied with (including any filings required by
Exchange Act); and
(vii) the Issuer has a net worth, immediately after
such conveyance or transfer, that is (A) greater than zero and (B) not
less than the net worth of the Issuer immediately prior to giving
effect to such conveyance or transfer.
Section 3.10 Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in
accordance with Section 3.09(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 same effect as if such Person has been named as the Issuer
herein.
(b) Upon a conveyance or transfer of all or substantially all
the assets or properties of the Issuer in accordance with Section 3.09(b), the
Issuer will be released from every covenant and agreement of this Indenture to
be observed or performed on the part of the Issuer
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with respect to the Notes immediately upon the delivery of written notice to the
Indenture Trustee stating that the Issuer is to be so released.
Section 3.11 No Other Business. The Issuer shall not engage in
any business other than financing, purchasing, owning, selling and managing the
Contracts in the manner contemplated by this Indenture and the other Transaction
Documents and activities incidental thereto.
Section 3.12 No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
Indebtedness except for (i) the Notes and (ii) any other Indebtedness permitted
by or arising under the other Transaction Documents. The proceeds of the Notes
and the Equity Certificate shall be used exclusively to fund the Issuer's
purchase of the Contracts and the other assets specified in the Pooling and
Servicing Agreement, to fund the Cash Collateral Account and to pay the
transactional expenses of the Issuer.
Section 3.13 Notice of Events of Default. The Issuer agrees to
give the Indenture Trustee and each Rating Agency prompt written notice of each
Event of Default hereunder and of a Servicer Default under the Pooling and
Servicing Agreement.
Section 3.14 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
Section 3.15 Compliance with Laws. The Issuer shall comply
with the requirements of all applicable laws, the non-compliance with which
would, individually or in the aggregate, materially and adversely affect the
ability of the Issuer to perform its obligations under the Notes, this Indenture
or any other Transaction Document.
Section 3.16 Amendments of Trust Agreement. The Issuer shall
not agree to any amendment to Section 11.01 of the Trust Agreement to eliminate
the requirements thereunder that the Indenture Trustee or the Holders of the
Notes consent to amendments thereto as provided therein.
Section 3.17 Removal of Administrator. So long as any Notes
are issued and outstanding, the Issuer shall not remove the Administrator
without cause unless the Rating Agency Condition shall have been satisfied in
connection with such removal.
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Section 3.18 Representations and Warranties of Issuer. The
Issuer represents and warrants as follows:
(a) Power and Authority. It has full power, authority and
legal right to execute, deliver and perform its obligations as Issuer under this
Indenture, the Pooling and Servicing Agreement, the Notes, the Cash Collateral
Account Agreement and the Administration Agreement (the foregoing documents, the
"Issuer Documents").
(b) Due Authorization; Binding Obligation. The execution and
delivery of the Issuer Documents and the consummation of the transactions
provided for therein have been duly authorized by all necessary action on its
part. Issuer Documents constitute the legal, valid and binding obligation of the
Issuer enforceable in accordance with their terms, except as enforcement of such
terms may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and by the availability of equitable
remedies.
(c) No Conflict. The execution and delivery of the Issuer
Documents, the performance of the transactions contemplated thereby and the
fulfillment of the terms thereof will not conflict with, result in any breach of
any of the materials terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, any indenture, contract,
agreement, mortgage, deed of trust, or other instrument to which the Issuer is a
party or by which it or any of its property is bound.
(d) No Violation. The execution and delivery of the Issuer
Documents, the performance of the transactions contemplated thereby and the
fulfillment of the terms thereof will not conflict with or violate, in any
material respect, any Requirements of Law applicable to the Issuer.
(e) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or any Governmental Authority
required in connection with the execution and delivery of the Issuer Documents,
the performance of the transactions contemplated thereby and the fulfillment of
the terms thereof have been obtained.
(f) Location. The Issuer has its chief executive office and
place of business (as such terms are used in Article 9 of the UCC) in
Wilmington, Delaware. The Issuer agrees that it will not change the location of
such office to a location outside of Wilmington, Delaware, without at least
thirty (30) days prior written notice to Financial, the Servicer, the Indenture
Trustee and the Rating Agencies.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01 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 3.01, 3.03, 3.04, 3.05, 3.07, 3.08, 3.10, 3.12, 3.13, 3.15 and 3.16,
(v) the rights, obligations and immunities of the Indenture Trustee hereunder
(including the rights of the Indenture Trustee under Article VI and the
obligations of the Indenture Trustee under Section 4.02) and (vi) the rights of
Noteholders as beneficiaries hereof with respect to the property so deposited
with the Indenture Trustee payable to all or any of them, and the Indenture
Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to the Notes, when
(A) either
1. all Notes theretofore authenticated and delivered
(other than (i) Notes that have been destroyed, lost or stolen and that
have been replaced or paid as provided in Section 2.05 and (ii) Notes
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust, as provided in Section 3.03) have
been delivered to the Indenture Trustee for cancellation; or
2. all Notes not theretofore delivered to the
Indenture Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at the applicable
Maturity Date within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Indenture Trustee for the giving
of notice of redemption by the Indenture Trustee in the name, and at
the expense of the Issuer, and the Issuer in the case of (i), (ii) or
(iii) 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 (which will mature prior to
the date such amounts are payable), in trust in an Eligible Deposit
Account (which shall be the Collection Account or Note Distribution
Account) for such purpose, in an amount sufficient to pay and discharge
the entire indebtedness on such Note not theretofore delivered to the
Indenture Trustee for cancellation when due to the final scheduled
Payment Date or Redemption Date (if Notes shall have been called for
redemption pursuant to Section 10.01(a)), as the case may be;
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(B) the Issuer has paid or performed 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 has paid or caused
to be paid or has made provision for the payment when due of all
amounts owing to the Indenture Trustee for the administration of the
trust, including the disposition of amounts paid by the Issuer pursuant
to this Section 4.01.
(C) the Issuer has delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel and (if required by
the TIA or the Indenture Trustee) an Independent Certificate from a
firm of certified public accountants, each meeting the applicable
requirements of Section 11.01(a) and, subject to Section 11.02, stating
that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with
and the Rating Agency Condition has been satisfied.
Section 4.02 Application of Trust Money. All moneys deposited
with the Indenture Trustee pursuant to Section 4.01 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Holders of the particular Notes for the
payment or redemption of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal and
interest; but such moneys need not be segregated from other funds except to the
extent required herein or in the Pooling and Servicing Agreement or required by
law.
Section 4.03 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
the Notes, all moneys then held by any Paying Agent other than the Indenture
Trustee under the provisions of this Indenture with respect to such Notes shall,
upon demand of the Issuer, be paid to the Indenture Trustee to be held and
applied according to Section 3.03 and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
Section 4.04 Release of Collateral. The Indenture Trustee
shall release property from the lien of this Indenture only upon receipt of an
Issuer Request accompanied by an Officer's Certificate and an Opinion of Counsel
and Independent Certificates in accordance with TIA 'SS''SS'.314(c) and
314(d)(1) or an Opinion of Counsel in lieu of such Independent Certificates to
the effect that the TIA does not require any such Independent Certificates.
ARTICLE FIVE
REMEDIES
Section 5.01 Events of Default.
"Events of Default," wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
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(a) failure to pay on any Payment Date the full amount of
accrued interest on any Note, which failure continues unremedied for five (5) or
more calendar days after such Payment Date;
(b) failure to pay the then outstanding principal amount of
any Note, if any, on its related Maturity Date;
(c) failure on the part of the Issuer or the Trust Depositor
to observe or perform any covenants or agreements of such entity set forth in
the Pooling and Servicing Agreement or the Indenture, which failure has a
material adverse effect on the Noteholders and which continues unremedied for a
period of sixty (60) calendar days after written notice;
(d) any representation or warranty made by the Issuer or the
Trust Depositor in the Pooling and Servicing Agreement or the Indenture or any
information required to be given by the Trust Depositor to the Indenture Trustee
to identify the Contracts proves to have been incorrect in any material respect
when made and continues to be incorrect in any material respect for a period of
(sixty) 60 days after written notice and as a result of which the interests of
the Noteholders are materially and adversely affected; provided, however, that
an Event of Default shall not be deemed to occur thereunder if Financial has
repurchased the related Contracts through the Trust Depositor during such period
in accordance with the provisions of the Pooling and Servicing Agreement and the
Purchase and Sale Agreement;
(e) the occurrence of an Insolvency Event relating to the
Trust Depositor or the Issuer; or
(f) the Issuer becomes an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
Section 5.02 Rights Upon Event of Default; Notice.
If an Event of Default referred to in subparagraph (e) of
Section 5.01 has occurred, then and in every such case the unpaid principal of
the Notes, together with interest accrued but unpaid thereon, and all other
amounts due to the Noteholders under the Indenture, shall immediately and
without further act become due and payable. If any other Event of Default has
occurred, the Required Holders by written notice to the Indenture Trustee may
require the Indenture Trustee to, or the Indenture Trustee may without such
notice, declare by written notice to the Issuer (with a copy to the Trust
Depositor and each Rating Agency) that the unpaid principal of the Notes
together with interest accrued but unpaid thereon, and all other amounts due to
the Noteholder under the Indenture shall immediately and without further act
become due and payable.
At any time after such declaration of acceleration of maturity
has been made, in the case of any event described in clause (a), (b), (c), (d)
or (f) of Section 5.01, and before a judgment or decree for payment of the money
due has been obtained by the Indenture Trustee as hereinafter provided in
Article V, the Required Holders may waive such Event of Default pursuant to a
written notice to the Issuer, Indenture Trustee and the Servicer. In the event a
Responsible Officer of the Indenture Trustee has actual knowledge of an Event of
Default, it
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shall give written notice thereof to the Trust Depositor, Financial, the
Servicer, the Owner Trustee and the Rating Agencies. The Indenture Trustee shall
not be deemed to have notice of an Event of Default unless it shall have
received a written notice pursuant to this Section 5.02 or a Responsible Officer
has actual knowledge of an Event of Default.
If an Insolvency Event relating to the Trust Depositor occurs,
pursuant to the Trust Agreement and the Pooling and Servicing Agreement, on the
day of such Insolvency Event, the Trust Depositor shall promptly give notice in
writing to the Indenture Trustee of the Insolvency Event, the Indenture Trustee
shall, following receipt of such notice, notify the Noteholders in writing of
such Insolvency Event and the Indenture Trustee shall, unless notified to the
contrary in writing by the Required Holders within 30 days after the Indenture
Trustee's so notifying them, promptly act pursuant to and in accordance with the
terms thereof to sell, dispose of or otherwise liquidate the Collateral in a
commercially reasonable manner and on commercially reasonable terms. The
proceeds from any such sale, disposition or liquidation of Contracts shall be
deposited in the Collection Account and allocated as described in the Pooling
and Servicing Agreement and herein.
Promptly following its receipt of notice hereunder or under
any other Transaction Document of any Event of Default, the Indenture Trustee
shall send a copy thereof to the Issuer and each Rating Agency.
Section 5.03 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee; Authority of Indenture Trustee.
(a) The Issuer covenants that if the Notes are accelerated
following the occurrence of an Event of Default, the Issuer will, upon demand of
the Indenture Trustee, pay to it, for the benefit of the Holders of the Notes,
the whole amount then due and payable on such Notes for principal and interest,
with interest upon the overdue principal, and, to the extent payment at such
rate of interest shall be legally enforceable, upon overdue installments of
interest, at the applicable Interest Rate and in addition thereto such further
amount as shall be sufficient to cover costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Indenture Trustee and its agents and counsel.
(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.
(c) If an Event of Default occurs, the Indenture Trustee may
in its discretion (except as provided in Section 5.03(d)), and shall at the
direction of the Required Holders, proceed to protect and enforce its rights and
the rights of the Noteholders, by appropriate Proceedings to protect and enforce
any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy or legal or equitable right vested
in the Indenture Trustee by this Indenture or by law.
(d) Notwithstanding anything to the contrary contained in this
Indenture if an Event of Default shall have occurred, and if the Issuer fails to
perform its obligations under
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Section 10.01(b) when and as due, the Indenture Trustee may in its discretion,
and shall at the direction of the Required Holders, proceed to protect and
enforce its rights and the rights of the Noteholders by such appropriate
Proceedings to protect and enforce any such rights, whether for specific
performance of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy or
legal or equitable right vested in the Indenture Trustee by this Indenture or by
law, provided that the Indenture Trustee shall only be entitled to take any such
actions to the extent such actions (i) are taken only to enforce the Issuer's
obligations to redeem the principal amount of Notes, and (ii) are taken only
against the Collateral, any investments therein and any proceeds thereof.
(e) In case there shall be pending, relative to the Issuer or
any other obligor upon the Notes or any Person having or claiming an ownership
interest in the Collateral, Proceedings under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect of the
Notes and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee
(including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence or bad faith) and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and
regulations, to vote on behalf of the 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 moneys or other
property payable or deliverable on any such claims and to distribute
all amounts received with respect to the claims of the Noteholders and
of the Indenture Trustee on their behalf; and
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(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, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Noteholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad faith.
(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
compensation 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.
(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 action or Proceedings
instituted by the Indenture Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents and attorneys, shall
be for the ratable benefit of the Holders of the Notes.
(h) In any Proceedings brought by the Indenture Trustee
(including any Proceedings involving the interpretation of any provision of this
Indenture), the Indenture Trustee shall be held to represent all of the Holders
of the Notes, and it shall not be necessary to make any Noteholder a party to
any such proceedings.
Section 5.04 Remedies. If an Event of Default shall have
occurred the Indenture Trustee (subject to Section 5.05) may, and shall (subject
to Section 6.02) if so directed by the Required Holders in writing:
(a) institute Proceedings in its own name and as or on behalf
of a trustee of an express trust for the collection of all amounts then payable
on the Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect from the
Issuer and any other obligor upon such Notes moneys adjudged due;
(b) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the Collateral;
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(c) exercise any remedies of a secured party under the UCC and
any other remedy available to the Indenture Trustee and take any other
appropriate action to protect and enforce the rights and remedies of the
Indenture Trustee on behalf of the Noteholders under this Indenture or the
Notes; and
(d) direct the Issuer to sell the Collateral or any portion
thereof or rights or interest therein, at one or more public or private sales
called and conducted in any manner permitted by law; provided, however, that the
Indenture Trustee may not sell or otherwise liquidate the Collateral following
an Event of Default, other than an Event of Default described in Section 5.01(a)
or (b), unless (A) the Holders of 100% of the Principal Amount of the Notes
consent thereto, or (B) the proceeds of such sale or liquidation distributable
to the Noteholders are sufficient to discharge in full all amounts then due and
unpaid upon such Notes for principal and interest or (C) the Indenture Trustee
determines that the Collateral will not continue to provide sufficient funds for
the payment of principal of and interest on the Notes as they would have become
due if the Notes had not been declared due and payable, and the Indenture
Trustee provides prior written notice to each Rating Agency and obtains the
consent of the Required Holders. In determining such sufficiency or
insufficiency with respect to clauses (B) and (C), the Indenture Trustee may,
but need not, obtain at the expense of the Servicer and rely upon an opinion of
an Independent investment banking or an Independent Certificate from an
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Collateral for such purpose; provided,
however, upon the occurrence of an Event of Default described in Section
5.01(e), caused solely from an event described in such subparagraph occurring
with respect to the Trust Depositor, the Collateral will be liquidated by the
Indenture Trustee and the Trust will be terminated 90 days after the date of
such Insolvency Event, unless, before the end of such 90-day period, the
Indenture Trustee shall have received written instructions from the Required
Holders, to the effect that such Required Holders disapprove of the liquidation
of such Collateral and termination of such Trust.
Section 5.05 Optional Preservation of the Contracts. Following
an Event of Default and except as otherwise provided above, the Indenture
Trustee may, but need not, at the expense of the Servicer elect to maintain
possession of the Collateral. It is the desire of the parties hereto and the
Noteholders that there be at all times sufficient funds for the payment of
principal and interest on the Notes. In determining whether to maintain
possession of the Collateral, the Indenture Trustee may, but need not, obtain at
the expense of the Servicer and rely upon an opinion of an Independent
investment banking or Independent Certificate of an accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Collateral for such purpose.
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Section 5.06 Priorities.
(a) If the Indenture Trustee collects any money or property
pursuant to this Article Five, it shall remit the money or property in the order
and priority set forth in Section 7.05(c) of the Pooling and Servicing
Agreement.
(b) The Indenture Trustee may fix a record date and payment
date for any payment to Noteholders pursuant to this Section. At least 15 days
before such record date, the Issuer shall mail to each Noteholder and the
Indenture Trustee a notice that states the record date, the payment date and the
amount to be paid.
Section 5.07 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 (and in all events subject to Section 11.16):
(a) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding Amount
of the Notes have made written request to the Indenture Trustee to institute
such Proceeding in respect of such Event of Default in its own name as Indenture
Trustee hereunder;
(c) 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;
(d) the Indenture Trustee for sixty (60) days after its
receipt of such notice, request and offer of indemnity has failed to institute
such Proceedings; and
(e) no direction inconsistent with such written request has
been given to the Indenture Trustee during such sixty (60) day period by the
Holders of a majority of the Outstanding Amount of the Notes, voting together as
a single class.
It is 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 or to enforce any right under this Indenture,
except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting
or inconsistent requests and indemnity from two or more groups of Holders of
Notes, each representing less than a majority of the Outstanding Amount of the
Notes, the Indenture Trustee in its sole discretion may determine what action,
if any, shall be taken, notwithstanding any other provisions of this Indenture.
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Section 5.08 Unconditional Rights of Noteholders to Receive
Principal and Interest. Notwithstanding any other provisions in the 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, 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 5.09 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 Indenture Trustee
and the Noteholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
Section 5.10 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 5.11 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
Five 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 5.12 Control by Noteholders. The Required Holders
shall have the right to direct the time, method and place of conducting any
Proceeding for any remedy available to the Indenture Trustee with respect to the
Notes or exercising any trust or power conferred on the Indenture Trustee (in
all events subject to Section 6.02(f)); provided that:
(a) such direction shall not be in conflict with any rule of
law or with any other provision of this Indenture;
(b) subject to the terms of Section 5.04, any direction to the
Indenture Trustee to sell or liquidate the Collateral shall be by the Holders of
Notes representing not less than 100% of the Outstanding Amount of the Notes;
(c) if the conditions set forth in Section 5.05 have been
satisfied and the Indenture Trustee elects to retain the Collateral pursuant to
such Section, then any direction to
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the Indenture Trustee by Holders of Notes representing less than 100% of the
Outstanding Amount of the Notes to sell or liquidate the Collateral shall be of
no force and effect; and
(d) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this
Section, subject to Section 6.01, the Indenture Trustee need not take any action
that it determines might involve it in liability.
Section 5.13 Waiver of Past Defaults. In the case of any
waiver of an Event of Default, the Issuer, the Indenture Trustee and the Holders
of the Notes shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Event
of Default or impair any right consequent thereto. Upon any such waiver, such
Event of Default shall cease to exist and be deemed to have been cured and not
to have occurred, for every purpose of this Indenture.
Section 5.14 Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Note by such Holder's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Indenture Trustee for any action taken, suffered or omitted
by it as Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (i) any suit instituted by the
Indenture Trustee, (ii) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes or (iii) any suit instituted by any Noteholder
for the enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture (or,
in the case of redemption, on or after the Redemption Date).
Section 5.15 Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance of
this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantages of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 5.16 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
Collateral or upon any of the
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assets of the Issuer. Any money or property collected by the Indenture Trustee
under this Article V shall be applied in accordance with Section 7.05(c) of the
Pooling and Servicing Agreement.
Section 5.17 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so
and at the Administrator's expense, the Issuer shall take all such lawful action
as the Indenture Trustee may request to compel or secure the performance and
observance by the Trust Depositor and the Servicer as applicable, of each of
their obligations to the Issuer under or in connection with the Pooling and
Servicing 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 Pooling 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 Trust Depositor or the Servicer
thereunder and the institution of legal or administrative actions or proceedings
to compel or secure performance by the Trust Depositor or the Servicer of each
of their obligations under the Pooling 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, including facsimile) of the Required Holders shall, exercise all
rights, remedies, powers, privileges and claims of the Issuer against the Trust
Depositor or the Servicer under or in connection with the Pooling and Servicing
Agreement, including the right or power to take any action to compel or secure
performance or observance by the Trust Depositor or the Servicer of each of
their obligations to the Issuer thereunder and to give any consent, request,
notice, direction, approval, extension or waiver under the Pooling and Servicing
Agreement, and any right of the Issuer to take such action shall be suspended.
ARTICLE SIX
THE INDENTURE TRUSTEE
Section 6.01 Duties of Indenture Trustee.
(a) If an Event of Default has occurred, the Indenture Trustee shall
exercise the rights and powers vested in it by this Indenture and in the same
degree of care and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of such person's own affairs.
(b) Except upon and after the occurrence of an Event of Default of
which a Responsible Officer of the Indenture Trustee has actual knowledge.
(i) the Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture against
the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the factual statements and the
correctness of the
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opinions expressed therein, upon certificates or opinions furnished to the
Indenture Trustee and conforming to the requirements of this Indenture;
however, the Indenture Trustee shall examine the certificates and opinions
to determine whether or not they conform on their face to the requirements
of this Indenture and the other Transaction Documents to which the
Indenture Trustee is a party. If any such instrument is found not to
conform in any material respect to the requirements of this Indenture or
the other Transaction Documents to which the Indenture Trustee is a party,
the Indenture Trustee shall notify the Noteholders of such instrument in
the event that the Indenture Trustee, after so requesting, does not receive
a satisfactorily corrected instrument.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of Section 6.01(b);
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or other officers of
the Indenture Trustee 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 5.12 or any written direction
of the Required Holders.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(f) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the Pooling and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayments
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) The Indenture Trustee shall have no discretionary duties other than
those explicitly set forth in this Indenture.
(i) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this section and to the provisions of the
TIA.
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Without limiting the generality of this Section 6.01, the Indenture
Trustee shall have no duty (A) to see to any recording, filing, or
depositing of this Indenture or any Transaction Document or any financing
statement or continuation statement evidencing a security interest, or to
see to the maintenance of any such recording or filing or depositing or to
any rerecording, refiling or redepositing of any thereof, (B) to see to any
insurance, or (C) to see to the payment or discharge of any tax,
assessment, or other governmental charge or any lien or encumbrance of any
kind owing with respect to, assessed or levied against, any part of the
Collateral.
(j) The Indenture Trustee hereby accepts the appointment by the Owner
Trustee (i) as the Owner Trustee's authenticating agent with respect to the
Equity Certificate, (ii) as the Certificate Registrar and (iii) as the Paying
Agent for the Equity Certificate.
Section 6.02 Rights of Indenture Trustee.
(a) The Indenture Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Indenture
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate (with respect to factual matters), advice of
counsel or an Opinion of Counsel, as applicable. The Indenture Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officer's Certificate, advice of counsel 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 any such
agent, attorney or custodian appointed by the Indenture Trustee with due care.
(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 willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
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(f) The Indenture Trustee shall, upon the occurrence of an Event of
Default (that has not been cured), exercise the rights and powers vested in it
by this Indenture in a manner consistent with Section 6.01; provided, however,
that the Indenture Trustee shall be under no obligation to institute, conduct or
defend any litigation under this Indenture or in relation to this Indenture, at
the request, order or direction of any of the Holders of Notes, pursuant to the
provisions of this Indenture, unless such Holders of Notes shall have offered to
the Indenture Trustee reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred therein or thereby.
(g) The Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless so requested by the Holders of Notes evidencing
not less than 25% of the Outstanding Amount of the Notes; provided, however,
that if the payment within a reasonable time to the Indenture Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Indenture Trustee, not reasonably
assured to the Indenture Trustee by the security afforded to it by the terms of
this Indenture or the Pooling and Servicing Agreement, the Indenture Trustee may
require reasonable indemnity against such cost, expense or liability as a
condition to so proceeding; the reasonable expense of every such examination
shall be paid by the Person making such request, or, if paid by the Indenture
Trustee, shall be reimbursed by the Person making such request upon demand.
(h) The right of the Indenture Trustee to perform any discretionary act
enumerated in this Indenture shall not be construed as a duty, and the Indenture
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of such act.
Section 6.03 Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or its Affiliates with the same
rights it would have if it were not Indenture Trustee. Any Paying Agent, Note
Registrar, co-registrar or co-paying agent may do the same with like rights.
However, the Indenture Trustee is required to comply with Section 6.11.
Section 6.04 Indenture Trustee's Disclaimer. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture, the Collateral 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 Transaction Documents
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 6.05 Notice of Defaults. If a Default occurs and if it is known
to a Responsible Officer of the Indenture Trustee, the Indenture Trustee shall
mail to each Noteholder notice of the Default within ninety (90) days after it
occurs. A Default shall be known to a Responsible Officer of the Indenture
Trustee if a Responsible Officer of the Indenture Trustee has actual knowledge
of such Default or has received notice thereof pursuant to Section 5.02. In the
absence of such knowledge or notice, the Indenture Trustee may conclusively
assume that
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there is no default. Except in the case of an Event of Default in payment of
principal of or interest on any Note (including payments pursuant to the
redemption of such Notes), 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 6.06 Reports by Indenture Trustee to Holders. The Indenture
Trustee shall deliver to each Noteholder such information, including without
limitation, IRS Form 1099, as may be required to enable such holder to prepare
its federal and state income tax returns.
Section 6.07 Compensation and Indemnity. The Issuer shall pay or shall
cause the Administrator or Servicer to pay to the Indenture Trustee from time to
time reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall or shall cause the Administrator or Servicer to
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture Trustee's
agents, counsel, accountants and experts. The Issuer shall indemnify or shall
cause the Administrator or Servicer to indemnify the Indenture Trustee and its
officers, directors, employees and agents against any and all loss, liability or
expense (including attorneys' fees) incurred by it in connection with the
administration of this trust and the performance of its duties hereunder and
under the other Transaction Documents. The Indenture Trustee shall notify the
Issuer, the Servicer and the Administrator promptly of any claim for which it
may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer,
the Servicer and the Administrator shall not relieve the Issuer or the
Administrator of its obligations hereunder. The Issuer shall defend or shall
cause the Administrator or Servicer to defend any such claim, and the Indenture
Trustee may have separate counsel and the Issuer shall pay or shall cause the
Administrator or Servicer to pay the fees and expenses of such counsel. Neither
the Issuer nor the Administrator or Servicer need reimburse any expense or
indemnify against any loss, liability or expense incurred by the Indenture
Trustee conclusively determined by a court of law of competent jurisdiction to
have been incurred by the Indenture Trustee through the Indenture Trustee's own
willful misconduct, negligence or bad faith. The parties hereto agree and
acknowledge that, notwithstanding anything to the contrary, all payments
required to be made pursuant to this Section 6.07 shall not be made from the
Trust Assets; provided, however, if an Event of Default has occurred, payments
required to be made pursuant to this Section 6.07, to the extent unpaid, shall
be paid in accordance with Section 5.06; provided, further, that any payments
required to be made pursuant to this Section 6.07, if unpaid, shall not
constitute a general recourse claim against the Issuer. Anything in this
Indenture or any other Transaction Documents to the contrary notwithstanding, in
no event shall the Indenture Trustee be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Indenture Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.
The Issuer's, Servicer's and Administrator's payment obligations to the
Indenture Trustee pursuant to this Section shall survive the resignation and
removal of the Indenture Trustee and the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of a Default specified in
Section 5.01(e) with respect to the Issuer, the expenses
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are intended to constitute expenses of administration under Title 11 of the
United States Code or any other applicable federal or state bankruptcy,
insolvency or similar law.
Section 6.08 Replacement of Indenture Trustee. The Indenture Trustee
may resign at any time by so notifying the Issuer and the Servicer. The Issuer
may remove the Indenture Trustee if:
(a) the Indenture Trustee fails to comply with Section 6.11;
(b) a court having jurisdiction in the premises in respect of the
Indenture Trustee in an involuntary case or proceeding under federal or state
banking or bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law, shall
have entered a decree or order granting relief or appointing a receiver,
liquidator, assignee, custodian, trustee, conservator, sequestrator (or similar
official) for the Indenture Trustee or for any substantial part of the Indenture
Trustee's property, or ordering the winding-up or liquidation of the Indenture
Trustee's affairs, provided any such decree or order shall have continued
unstayed and in effect for a period of thirty (30) consecutive days;
(c) the Indenture Trustee commences a voluntary case under any federal
or state banking or bankruptcy laws, as now or hereafter constituted, or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, conservator, sequestrator or other
similar official for the Indenture Trustee or for any substantial part of the
Indenture Trustee's property, or makes any assignment for the benefit of
creditors or fails generally to pay its debts as such debts become due or takes
any corporate action in furtherance of any of the foregoing; or
(d) the Indenture Trustee otherwise becomes incapable of acting.
; provided, however, that the Indenture Trustee shall not be removed by the
Issuer if an Event of Default shall have occurred and be continuing without the
written concurrence of the Noteholders of at least a majority of the aggregate
principal amount of Notes then Outstanding.
If the Indenture Trustee resigns or is removed, the Issuer shall
promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of the Indenture Trustee under this Indenture. The Issuer or the successor
Indenture Trustee shall mail a notice of its succession to Noteholders and the
Rating Agencies. The retiring Indenture Trustee shall promptly transfer all
property held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the
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Holders of a majority in Outstanding Amount of the Notes may petition any court
of competent jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Any resignation or removal of the Indenture Trustee and appointment of
a successor Indenture Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Indenture Trustee pursuant to this Section and payment of all fees and expenses
owed to the outgoing Indenture Trustee. Notwithstanding the replacement of the
Indenture Trustee pursuant to this Section, the retiring Indenture Trustee shall
be entitled to payment or reimbursement of such amounts as such Person is
entitled pursuant to Section 6.07.
Section 6.09 Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee; provided, that
such corporation or banking association shall be otherwise qualified and
eligible under Section 6.11.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture 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 Indenture 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; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have. The Rating
Agencies will be notified of any such merger or consolidation.
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.
(a) Notwithstanding any other provision of this Indenture, at any time,
for the purpose of meeting any legal requirement of any jurisdiction in which
any part of the Collateral may at the time be located, the Indenture Trustee and
the Administrator acting jointly shall have the power and may execute and
deliver all instruments to appoint one or more Persons to act as a co-Indenture
Trustee or co-Indenture Trustees, jointly with the Indenture Trustee, or
separate 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, such title to the Collateral, or any part hereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Indenture Trustee and the Administrator
may consider necessary or desirable. If the Administrator shall not have joined
in such appointment within fifteen (15) days after the receipt by it of a
request so to do, the Indenture Trustee alone shall
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have the power to make such appointment. No co-Indenture Trustee or separate
Indenture Trustee hereunder shall be required to meet the terms of eligibility
of a successor Indenture 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 6.08.
(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 Indenture Trustee
or co-Indenture 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 Trust
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate Indenture Trustee or co-Indenture
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 and the Administrator 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 Indenture Trustee or co-Indenture
Trustee shall refer to this Agreement and the conditions of this Article. 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 co-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 and a copy thereof given to the Administrator.
(d) Any separate Indenture Trustee or co-Indenture Trustee may at any
time constitute the Indenture Trustee, its agent or attorney-in-fact with full
power and authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Agreement 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. Notwithstanding anything to
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the contrary in this Indenture, the appointment of any separate Indenture
Trustee or co-Indenture Trustee shall not relieve the Indenture Trustee of its
obligations and duties under this Indenture.
Section 6.11 Eligibility. The Indenture Trustee shall at all times
satisfy the requirements of TIA 'SS'310(a). The Indenture Trustee hereunder
shall at all times be a financial institution organized and doing business under
the laws of the United States of America or any state, authorized under such
laws to exercise corporate trust powers, whose long term unsecured debt is
rated at least Baa3 by Moody's and shall have a combined capital and surplus
of at least $50,000,000 or shall be a member of a bank holding system the
aggregate combined capital and surplus of which is $50,000,000 and subject to
supervision or examination by federal or state authority, provided that the
Trustee's separate capital and surplus shall at all times be at least the amount
required by Section 310(a)(2) of the TIA. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of a
supervising or examining authority, then for the purposes of this Section
6.11, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.11, the Trustee
shall resign immediately in the manner and with the effect specified in Section
6.08. 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). An Indenture 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 in its individual capacity and as Indenture Trustee represents
and warrants as follows:
(a) Organization and Corporate Power. It is a duly organized and
validly existing Maryland state chartered commercial banking corporation in good
standing under the laws of each jurisdiction where its business so requires. It
has full corporate power, authority and legal right to execute, deliver and
perform its obligations as Indenture Trustee under this Indenture, the
Administration Agreement and Cash Collateral Account Agreement (the foregoing
documents, the "Indenture Trustee Documents") and to authenticate the Notes.
(b) Due Authorization; Binding Obligation. The execution and delivery
of the Indenture Trustee Documents, the consummation of the transactions
provided for therein and the authentication of the Notes have been duly
authorized by all necessary corporate action on its part, either in its
individual capacity or as Indenture Trustee, as the case may be. The Indenture
Trustee Documents constitute the legal, valid and binding obligation of the
Indenture Trustee enforceable in accordance with their terms, except as
enforcement may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditor's rights generally and by the availability of
equitable remedies.
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(c) No Conflict. The execution and delivery of the Indenture Trustee
Documents, the performance of the transactions contemplated thereby and the
fulfillment of the terms thereof (including the authentication of the Notes),
will not conflict with, result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or lapse of time or both) a
default under, any indenture, contract, agreement, mortgage, deed or trust, or
other instrument to which the Indenture Trustee is a party or by which it or any
of its property is bound.
(d) No Violation. The execution and delivery of the Indenture Trustee
Documents, the performance of the transactions contemplated thereby and the
fulfillment of the terms thereof (including the authentication of the Notes),
will not conflict with or violate, in any material respect, any Requirements of
Law applicable to the Indenture Trustee.
(e) All Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or any Governmental Authority applicable
to the Indenture Trustee, required in connection with the execution and delivery
of the Indenture Trustee Documents, the performance by the Indenture Trustee of
the transactions contemplated thereby and the fulfillment by the Indenture
Trustee of the terms thereof (including the authentication of the Notes), have
been obtained.
(f) Validity, Etc. Each Indenture Trustee Document constitutes a legal,
valid and binding obligation of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with its terms, except as such enforceability
may be limited by Insolvency Laws and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at law or
in equity) or by an implied covenant of good faith and fair dealing.
Section 6.14 Execution of Transaction Documents. The Issuer hereby
requests and the Indenture Trustee agrees to execute and deliver the Indenture
Trustee Documents.
ARTICLE SEVEN
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01 Issuer to Furnish Indenture Trustee Names and Addresses of
Noteholders. The Issuer will furnish or cause to be furnished to the Indenture
Trustee (i) not more than five days after the earlier of (a) each Record Date
and (b) three months after the last Record Date, a list, in such form as the
Indenture Trustee may reasonably require, of the names and addresses of the
Noteholders as of such Record Date and (ii) at such other times as the Indenture
Trustee may request in writing, within (thirty) 30 days after receipt by the
Issuer of any such request, a list of similar form and content as of a date not
more than ten days prior to the time such list is furnished; provided, however,
that so long as the Indenture Trustee is the Note Registrar, no such list shall
be required to be furnished.
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Section 7.02 Preservation of Information: Communication to Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Noteholders contained in
the most recent list furnished to the Indenture Trustee as provided in Section
7.01 and the names and addresses of Noteholders received by the Indenture
Trustee in its capacity as Note Registrar and shall otherwise comply with TIA
'SS'312(a). The Indenture Trustee may destroy any list furnished to it as
provided in such Section 7.01 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 TIA 'SS'312(c).
Section 7.03 Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within fifteen (15) days after
the Issuer or the Trust Depositor is required (if at all) to file the same
with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations
prescribe) that the Issuer or Trust Depositor may be required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports with respect
to compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations;
(iii) supply to the Indenture Trustee (and the Indenture Trustee
shall transmit by mail to all Noteholders described in TIA 'SS'313(c))
copies of any information, documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) of this Section 7.03(a) and by
rules and regulations prescribed from time to time by the Commission;
(iv) file with the Indenture Trustee reports in compliance with
TIA 'SS'314(a) and TIA 'SS'314(b).
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
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Section 7.04 Reports by Indenture Trustee. If required by TIA
'SS'313(a), within sixty (60) days after January 31 beginning with January 31,
2001, 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). The Indenture Trustee also shall comply with TIA 'SS'313(b).
A copy of each report at the time of its mailing to Noteholders shall
be filed by the Indenture Trustee with the Commission and each stock exchange,
if any, on which the Notes are listed. The Issuer shall notify the Indenture
Trustee if and when the Notes are listed on any stock exchange.
ARTICLE EIGHT
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01 Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture and the
Pooling and Servicing Agreement. The Indenture Trustee shall apply all such
money received by it as provided in this Indenture. Except as otherwise
expressly provided in this Indenture, if any default occurs in the making of any
payment or performance under any agreement or instrument that is part of the
Collateral, the Indenture Trustee may take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate Proceedings. Any such action shall be without prejudice to any
right to claim a Default or Event of Default under this Indenture and any right
to proceed thereafter as provided in Article Five.
Section 8.02 Trust Accounts.
(a) On or prior to the Closing Date, the Indenture Trustee shall
establish and maintain, in the name of the Indenture Trustee, for the benefit of
the Noteholders and the Equity Certificateholder, the Trust Accounts as provided
in Section 7.01 of the Pooling and Servicing Agreement.
(b) The Indenture Trustee agrees that if it does not act as Securities
Intermediary with respect to each of the Trust Accounts and does not have
control of the Trust Accounts as set forth in Section 8-106(e) of the UCC, then
notwithstanding anything else contained herein, the Indenture Trustee agrees
that with respect to each of the Trust Accounts, the Indenture Trustee will
cause each Securities Intermediary establishing such Trust Accounts to enter
into an agreement whereby each such Securities Intermediary agrees that it will
(i) comply with Entitlement Orders relating to such Trust Account issued by the
Indenture Trustee without further consent by the Issuer; (ii) credit all Trust
Account Property or Eligible Investments to the applicable Trust Account; (iii)
treat each item of property credited to such Trust Account as a Financial Asset;
(iv) not accept for credit to any Trust Account any Trust Account Property or
Eligible Investment which is registered in the name of, or payable to the order
of, or specially indorsed to, any person other than the Securities Intermediary
unless it has
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been indorsed to such Securities Intermediary or is indorsed in blank and (v)
such Securities Intermediary has agreed that it will waive any right of set-off
unrelated to its fees for such Trust Account. The Indenture Trustee agrees that
if it acts as Securities Intermediary with respect to a Trust Account, it will
(i) credit all Trust Account Property or Eligible Investments to the applicable
Trust Account; (ii) treat each item of property credited to such Trust Account
as a Financial Asset; and (iii) not accept for credit to any Trust Account any
Trust Account Property or Eligible Investment which is registered in the name
of, or payable to the order of, or specially indorsed to, any person other than
it unless it has been indorsed to it or is indorsed in blank.
(c) On or before each Payment Date, all amounts required to be
disbursed to the Indenture Trustee with respect to the preceding Collection
Period pursuant to Section 7.05 of the Pooling and Servicing Agreement will be
transferred from the Collection Account, and/or the Cash Collateral Account and
deposited by the Indenture Trustee upon receipt to the Note Distribution
Account.
(d) On each Payment Date, the Indenture Trustee shall distribute all
amounts on deposit in the Note Distribution Account to Noteholders in respect of
the Notes to the extent of amounts due and unpaid on the Notes for principal and
interest in the order and priority set forth in Section 7.05(b) or (c), as the
case may be, of the Pooling and Servicing Agreement.
Section 8.03 General Provisions Regarding Accounts.
(a) So long as no Default or Event of Default shall have occurred, all
or a portion of the funds in the Trust Accounts shall be invested in accordance
with the provisions of Section 7.03 of the Pooling and Servicing Agreement.
Except as otherwise provided in Section 7.03 of the Pooling and Servicing
Agreement, all income or other gain from investments of moneys deposited in the
Collection Account and the Note Distribution Account shall be deposited by the
Indenture Trustee in the Collection Account and the Note Distribution Account,
as the case may be. All income or other gain resulting from investment of funds
deposited in the Cash Collateral Account shall be retained therein until applied
in accordance with the Cash Collateral Account Agreement. Any loss resulting
from such investments shall be charged to the related Trust Account. The Issuer
will not direct the Indenture Trustee to make any investment of any funds or to
sell any investment held in any of the Trust Accounts unless the security
interest granted and perfected in such account will continue to be perfected in
such investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the Indenture
Trustee, the Issuer shall deliver to the Indenture Trustee an Opinion of
Counsel, acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.01(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 Indenture Trustee, in accordance with their
terms.
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(c) If (i) the Issuer shall have failed to give written investment
directions for any funds on deposit in the Trust Accounts to the Indenture
Trustee by 11:00 a.m., New York City time (or such other time as may be agreed
by the Issuer and Indenture Trustee), on any Business Day or (ii) a Default or
Event of Default shall have occurred and be continuing with respect to the Notes
but the Notes shall not have been declared due and payable pursuant to Section
5.02 or (iii) if such Notes shall have been declared due and payable following
an Event of Default, but amounts collected or receivable from the Collateral are
being applied in accordance with Section 5.05 as if there had not been such a
declaration, then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Trust Accounts in Eligible
Investments described in clause (vi) of the definition thereof in the Pooling
and Servicing Agreement.
Section 8.04 Release of Collateral.
(a) Subject to the payment of its fees, expenses and indemnification
pursuant to Section 6.07, the Indenture Trustee may, and when required by the
provisions of this Indenture or the Pooling and Servicing Agreement shall,
execute instruments to release property from the lien of this Indenture, or
convey the Indenture Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this Indenture.
No party relying upon an instrument executed by the Indenture Trustee as
provided in this Article shall be bound to ascertain the Indenture Trustee's
authority, inquire into the satisfaction of any conditions precedent or see to
the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Indenture Trustee pursuant to Section 6.07 have
been paid, release any remaining portion of the Collateral that secured the
Notes from the lien of this Indenture and release to the Issuer or any other
Person entitled thereto any funds then on deposit in the Trust Accounts. The
Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section 8.04(b) only upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and (if required
by the TIA as so stated in the Opinion of Counsel) Independent Certificates in
accordance with TIA 'SS''SS'314(c) and 314(d)(1) and in each case meeting the
applicable requirements of Section 11.01.
Section 8.05 Opinion of Counsel. The Indenture Trustee shall receive at
least seven days prior written notice when requested by the Issuer to take any
action pursuant to Section 8.04(a), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require, as a condition to such
action, an Opinion of Counsel, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
will not materially and adversely impair the security for the Notes or the
rights of the Noteholders in contravention of the provisions for this Indenture;
provided, however, that such Opinion of Counsel shall not be required to express
an opinion as to the fair value of the Collateral. Counsel rendering any such
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Noteholders.
Without the consent of the Holders of any Notes and with prior notice
to each Rating Agency, the Issuer and the Indenture Trustee, when authorized by
an Issuer Order and upon receipt by the Indenture Trustee of an Opinion of
Counsel, and the other parties hereto at any time from time to time, may enter
into one or more indentures supplemental hereto (which shall conform to the
provisions of the TIA 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 created by this Indenture, or to subject to the lien
created by this Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another Person to the Issuer, and the assumption by
any such successor of the covenants of the Issuer herein and in the Notes
contained;
(iii) to add to the covenants of the Issuer, for the benefit of the
Holders of the Notes, or to surrender any right or power herein conferred
upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property
to or with the Indenture Trustee;
(v) to cure any ambiguity, 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 or the Transaction
Documents or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental indenture;
provided that such action shall not adversely affect the interests of the
Holders of the Notes;
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor Indenture Trustee with respect to the Notes 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 Indenture Trustee, pursuant to the requirements of Article Six;
(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
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(viii) to elect into the FASIT provisions of the Code, provided an
Opinion of Counsel to the effect that such election will not adversely
affect the Noteholders, is delivered to the Issuer and Indenture Trustee.
The Indenture Trustee is hereby authorized to join in the exemption of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
Section 9.02 Supplemental Indentures With Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order and upon
receipt by the Indenture Trustee of an Opinion of Counsel, also may, with prior
notice to each Rating Agency, and with the consent of a Majority in Interest, by
Act of such Holders delivered to the Issuer and the Indenture Trustee, enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; provided, however, that, no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(i) change the date of payment of any installment of principal of
or interest on any Note, or reduce the principal amount thereof, the
interest rate thereon or the Redemption Date Amount with respect thereto,
change the provisions of this Indenture relating to the application of
collections on, or the proceeds of the sale of, the Collateral to payment
of principal of or interest on the Notes, or change any place of payment
where, or the coin or currency in which, any Note or the interest thereon
is payable, or impair the right to institute suit for the enforcement of
the provisions of this Indenture requiring the application of funds
available therefor, as provided in Article Five, to the payment of any such
amount due on the Notes on or after the respective due dates thereof (or,
in the case of redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding 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 provided for in this Indenture;
(iii) modify or alter the provisions of the second proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the Notes
required to direct the Indenture Trustee to sell or liquidate the
Collateral pursuant to Section 5.04 or amend the provisions of this Article
which specify the percentage of the Outstanding Amount of the Notes
required to amend this Indenture or the other Transaction Documents;
(v) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional
provisions of this
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Indenture or the other Transaction Documents cannot be modified or waived
without the consent of the Holder of each Outstanding Note affected
thereby; or
(vi) permit the creation of any lien ranking prior to or on a
parity with the lien created by this Indenture with respect to any part of
the Collateral or, except as otherwise permitted or contemplated herein,
terminate the lien created by this Indenture on any property at any time
subject hereto or deprive the Holder of any Note of the security provided
by the lien created by this Indenture.
Neither the Issuer, the Indenture Trustee nor any of their respective
affiliates shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Noteholder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture, the Pooling and Servicing Agreement or the
Notes unless such consideration is offered to be paid to all Noteholders that so
consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
The Indenture Trustee may in its discretion determine whether or not
any Notes would be affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of the Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The Indenture
Trustee shall not be liable for any such determination made in good faith as in
reliance upon an Opinion of Counsel.
It shall not be necessary for any Act of Noteholders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the parties hereto of any supplemental
indenture pursuant to this Section, the Issuer shall mail to the Holders of the
Notes to which such amendment or supplemental indenture relates a notice setting
forth in general terms the substance of such supplemental indenture. Any failure
of the Issuer to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
Section 9.03 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Indenture Trustee shall be entitled to receive, and subject
to Sections 6.01 and 6.02 shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
Section 9.04 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and 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
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under this Indenture of the parties hereto and the Holders of the Notes shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
Section 9.05 Conformity With Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act as then in
effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
Section 9.06 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and if required by the Indenture Trustee or the
Issuer shall, bear a notation in form approved by the Indenture Trustee as to
any matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
ARTICLE TEN
REDEMPTION AND OPTIONAL PURCHASE OF NOTES
Section 10.01 Redemption.
(a) In the event that Financial pursuant to Section 7.08 of the Pooling
and Servicing Agreement, purchases (through the Trust Depositor) the corpus of
the Trust, the Notes are subject to redemption in whole, but not in part, on the
Payment Date on which such repurchase occurs, for a purchase price equal to the
outstanding principal, and accrued interest on the Notes (the "Redemption
Price"); provided, however, that the Issuer has available funds sufficient to
pay such amounts. Financial, the Servicer or the Issuer shall furnish each
Rating Agency notice of such redemption. If the Notes are to be redeemed
pursuant to this Section 10.01(a), the Servicer or the Issuer shall furnish
notice of such election to the Indenture Trustee not later than twenty (20) days
prior to the Redemption Date and the Issuer shall deposit with the Indenture
Trustee in the Note Distribution Account the Redemption Price of the Notes to be
redeemed whereupon all such Notes shall be due and payable on the Redemption
Date upon the furnishing of a notice complying with Section 10.02 to each Holder
of the Notes.
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(b) In the event that the assets of the Trust are sold pursuant to
Section 9.02 of the Trust Agreement or Section 5.03(b) of this Indenture, the
proceeds of such sale shall be distributed as provided in Section 5.06. If
amounts are to be paid to Noteholders pursuant to this Section 10.01(b), the
Servicer or the Issuer shall, to the extent practicable, furnish notice of such
event to the Indenture Trustee not later than twenty (20) days prior to the
Redemption Date whereupon all such amounts shall be payable on the Redemption
Date.
Section 10.02 Form of Redemption Notice. Notice of redemption under
section 10.01(a) shall be given by the Indenture Trustee by first-class mail,
postage prepaid, mailed not less than five days prior to the applicable
Redemption Date to each Holder of Notes, as of the close of business on the
Record Date preceding the applicable Redemption Date, at such Holder's address
appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Date Amount; and
(iii) the place where such Notes are to be surrendered for payment
of the Redemption Date Amount (which shall be the office or agency of the
Issuer to be maintained as provided in Section 3.02).
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 10.03 Notes Payable on Redemption Date. The Notes or portions
thereof to be redeemed shall, following notice of redemption (if any) as
required by Section 10.02, on the Redemption Date become due and payable at the
Redemption Date Amount and (unless the Issuer shall default in the payment of
the Redemption Date Amount) no interest shall accrue on the Redemption Date
Amount for any period after the date to which accrued interest is calculated for
purposes of calculating the Redemption Date Amount.
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01 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 (i) an Officer's Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, (ii) an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, and (iii) (if required by the TIA as so stated in the Opinion of
Counsel) an
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Independent Certificate from a firm of certified public accountants meeting the
applicable requirements of this section and TIA 'SS'314(c), 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 opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for
authentication and delivery of the Notes or the release of any property subject
to the lien created by this Indenture, the Issuer shall, in addition to any
obligation imposed in Section 11.01(a) or elsewhere in this Indenture, furnish
to the Indenture Trustee an Officer's Certificate certifying or stating the
opinion of the signer thereof as to the fair value (within ninety (90) days of
such deposit) 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 Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (i) above, the Issuer
shall also deliver to the Indenture Trustee an Independent Certificate as
to the named matters, if the fair value of the property to be so deposited
and of all other such property 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 (ii), is 10% or more of the Outstanding Amount of the
Notes, but such a certificate need not be furnished with respect to any
property so deposited, 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 Amount of the Notes.
(iii) Other than with respect to any release described in clause
(A) or (B) of Section 11.01(b)(v), whenever any property or securities are
to be released from the lien created by this Indenture, the Issuer shall
also furnish to the Indenture Trustee an
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Officer's Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within ninety (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 created by 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
signer thereof as to the matters described in clause (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 or securities (other than property
described in clauses (A) or (B) of Section 11.01(b)(v)) released from the
lien created by this Indenture since the commencement of the then current
fiscal year, as set forth in the certificates required by clause (iii)
above and this clause (iv), equals 10% or more of the Outstanding Amount of
the Notes, but such certificate need not be furnished in the case of any
release of 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 then Outstanding Amount of the Notes.
(v) Notwithstanding any other provision of this Section, the Issuer
may, without compliance with the other provisions of this Section, (A)
collect, liquidate, sell or otherwise dispose of the Contracts as and to
the extent permitted or required by the Transaction Documents, (B) make
cash payments out of the Trust Accounts as and to the extent permitted or
required by the Transaction Documents, so long as the Issuer shall deliver
to the Indenture Trustee every twelve months, commencing on the December
2001 Payment Date, an Officer's Certificate stating that all the
dispositions of Collateral described in clauses (A) or (B) that occurred
during the preceding twelve calendar months were in the ordinary course of
the Issuer's business and that the proceeds thereof were applied in
accordance with the Transaction Documents.
Section 11.02 Form of Documents Delivered to Indenture Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Person as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate 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, Financial or the Issuer, stating that the information with respect
to such factual matters is in the possession of the Servicer, Financial or
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the Issuer, 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.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any 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 Six.
Section 11.03 Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken (manually
or by facsimile) by Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Noteholders in person
or by agents duly appointed in writing; and except as herein otherwise expressly
provided such action shall become effective when such instrument or instruments
are delivered to the Indenture Trustee, and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Noteholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any 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.
Section 11.04 Notices. All notices, demands, certificates, requests and
communications hereunder ("Notices") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage
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prepaid, with such receipt to be effective the date of delivery indicated on the
return receipt, or (b) one Business Day after delivery to an overnight courier,
or (c) on the date personally delivered to an Authorized Officer of the party to
which sent, or (d) on the date transmitted by legible telecopier transmission
with a confirmation of receipt, in all cases addressed to the recipient at the
address specified in the Pooling and Servicing Agreement for such recipient.
Each party hereto may, by Notice given in accordance herewith to each
of the other parties hereto, designate any further or different address to which
subsequent Notices shall be sent.
Section 11.05 Notices to Noteholders; Waiver. Where this Indenture
provides for Notice to Noteholders of any event, such Notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such Notice. In any case where Notice to Noteholders is given by mail,
neither the failure to mail such Notice nor any defect in any Notice so mailed
to any particular Noteholder shall affect the sufficiency of such Notice with
respect to other Noteholders, and any Notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for Notice in any manner, such Notice may
be waived in writing by any Person entitled to receive such Notice, either
before or after the event, and such waiver shall be the equivalent of such
Notice. Waivers of Notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event of Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default or
Event of Default.
Section 11.06 Alternate Payment and Notice Provisions. Notwithstanding
any provisions 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, at the sole
expense of the Issuer or the Holder, 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
will furnish to the Indenture Trustee a copy of each such agreement and the
Indenture Trustee will cause payments to be made and notices to be given in
accordance with such agreements.
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Section 11.07 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 11.08 Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind its successors, co-Indenture Trustees and agents.
Section 11.09 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.
Section 11.10 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, and the Noteholders, and any other party
secured hereunder, and any other Person with an ownership or security interest
in any part of the Collateral, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 11.11 Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
Section 11.12 Governing Law. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS,
AND REMEDIES OF THE PARTIES UNDER THE AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 11.13 Counterparts. This Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 11.14 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 Issuer 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.
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Section 11.15 Trust Obligation.
(a) No recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection herewith or therewith, against (i) the Indenture Trustee or the Owner
Trustee in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent 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 have no such obligations in their individual
capacity) and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law, for any unpaid consideration
for stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity. 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 Article
Six, Seven and Eight of the Trust Agreement.
Section 11.16 No Petition. The parties hereto, by entering into this
Indenture, and each Noteholder, by accepting a Note or a beneficial interest in
a Note, hereby covenant and agree that they will not at any time institute
against Financial, the Trust Depositor or the Issuer, or join in any institution
against Financial, the Trust Depositor or the Issuer, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes, this Indenture or any
of the other Transaction Documents.
Section 11.17 Inspection. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees and independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing) and except to
the extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder.
Section 11.18 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
Section 11.19 Communication by Noteholders With Other Noteholders.
Noteholders may communicate with other Noteholders with respect to their rights
under this
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Indenture or the Notes pursuant to Section 312(b) of the TIA. Every Noteholder,
by receiving and holding the same, agrees with the Issuer and the Indenture
Trustee that none of the Issuer and the Indenture Trustee nor any agent of the
Issuer and the Indenture Trustee shall be deemed to be in violation of any
existing law, or any law hereafter enacted which does not specifically refer to
Section 312 of the TIA, by reason of the disclosure of any such information as
to the names and addresses of the Noteholders in accordance with Section 312 of
the TIA, regardless of the source from which such information was derived, and
that the Indenture Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 312(b) of 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 11.20 Amendment of Cash Collateral Account Agreement.
(a) The Indenture Trustee may consent to amendments to the Cash
Collateral Account Agreement without the consent of any of the Noteholders, (i)
to cure any ambiguity, (ii) to correct or supplement any provisions in the Cash
Collateral Account Agreement that may be inconsistent with any other provision
therein, or (iii) to make any other provisions with respect to matters or
questions arising under the Cash Collateral Account Agreement that are not
inconsistent with the provisions thereof; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of the Noteholders.
(b) The Indenture Trustee may also consent to amendments to the Cash
Collateral Account Agreement with the consent of a Majority in Interest of the
Notes for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Cash Collateral Account Agreement;
provided, however, that no such amendment shall (a) reduce the amount available
in the Cash Collateral Account for the payment of interest or principal to
Noteholders, or (b) reduce the aforesaid percentage required to consent to any
such amendment, without the consent of the Holders of all Notes then Outstanding
and affected thereby; and provided, further, that no such amendment shall be
effective unless and until the Rating Agency Condition has been satisfied.
(c) Promptly after the execution of any such amendment, the Indenture
Trustee shall furnish written notification of the substance of such to each
Noteholder.
(d) It shall not be necessary for the consent of Noteholders pursuant
to Section 11.20(b) to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and delivered as of the day and year first above written.
CIT EQUIPMENT COLLATERAL 2000-2
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its individual
capacity but solely on behalf of the Issuer as Owner
Trustee under the Trust Agreement
By: /s/ John J. Cashin
------------------------------------------------
Name: John J. Cashin
-----------------------------------------------
Title: Vice President
----------------------------------------------
ALLFIRST BANK, not in its individual capacity
but solely as Indenture Trustee
By: /s/ David L. Williams
-------------------------------------------------
Name: David L. Williams
-----------------------------------------------
Title: Senior Vice President
----------------------------------------------
<PAGE>
STATE OF New York )
____________________________)
) ss
COUNTY OF New York )
___________________________)
On 9/27/00 before me, Tracey F. Dillon ,
------------- ------------------------------------------
[insert date] [Here insert name and title of notary]
personally appeared John J. Cashin ,
----------------------------------------------------------
personally known to me, or
proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within instrument,
and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ties), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which such person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Tracey F. Dillon [Seal]
-------------------------------
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<PAGE>
STATE OF New York )
___________________________)
) ss
COUNTY OF New York )
___________________________)
On 9/27/00 before me, Tracey F. Dillon ,
------------- ------------------------------------------
[insert date] [Here insert name and title of notary]
personally appeared David L. Williams ,
----------------------------------------------------------
personally known to me, or
proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within instrument,
and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ties), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which such person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Tracey F. Dillon [Seal]
--------------------------------
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EXHIBIT A-1
FORM OF CLASS A-1 NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED
BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CIT EQUIPMENT COLLATERAL 2000-2
6.64% CLASS A-1 RECEIVABLE-BACKED NOTES
REGISTERED $200,000,000
No. R-1 CUSIP NO. 125564 AJ 3
CIT Equipment Collateral 2000-2, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of Two Hundred Million Dollars
($200,000,000) payable on the earlier of June 20, 2001 (the "Class A-1 Maturity
Date") and the Redemption Date, if any, pursuant to Section 10.01 of the
Indenture referred to on the reverse hereof.
The Issuer will pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in Section
3.01 of the Indenture. Interest on this Note will accrue for each Payment Date
from the most recent Payment Date on which interest has been paid to but
excluding such Payment Date or, if no interest has yet been paid, from the
Closing Date. Interest will be
A-1-1
<PAGE>
computed on the basis of a 360-day year and actual days elapsed. Such principal
of and interest on this Note shall be paid in the manner specified on the
reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
A-1-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by an Authorized Officer, as of the date set forth
below.
Date: _________, 2000 CIT EQUIPMENT COLLATERAL 2000-2
By: Chase Manhattan Bank USA, National Association,
not in its individual capacity but solely on behalf
of the Issuer as Owner Trustee under the Trust
Agreement
By: ______________________________________________
Name:_________________________________________
Title:________________________________________
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Allfirst Bank, not in its individual
capacity but solely as Indenture Trustee
By: ______________________________________________
Authorized Signatory
A-1-3
<PAGE>
[REVERSE OF CLASS A-1 NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 6.64% Class A-1 Receivable-Backed Notes (the "Class
A-1 Notes"), all issued under an Indenture, dated as of September 1, 2000 (the
"Indenture"), between the Issuer and Allfirst Bank, as Indenture Trustee (the
"Indenture Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Class A-1 Notes are subject to all terms of the Indenture. All
terms used in this Note that are defined in the Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the
Indenture, as so supplemented or amended. All terms used in this Note that are
defined in the Pooling and Servicing Agreement dated as of September 1, 2000 by
and among CIT Financial USA, Inc., Capita Corporation, NCT Funding Company,
L.L.C. and the Issuer (the "Pooling and Servicing Agreement") shall have the
meanings assigned to them therein.
The Class A-1 Notes and the other Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture subject to the priorities of allocations as to interest and principal
payments as described therein and in the Pooling and Servicing Agreement.
Principal of the Class A-1 Notes will be payable on the
earlier of the Class A-1 Maturity Date and the Redemption Date, if any, selected
pursuant to the Indenture. Notwithstanding the foregoing, the entire unpaid
principal amount of the Class A-1 Notes shall be due and payable on the date on
which an Event of Default shall have occurred and be continuing unless the
Required Holders have waived such Event of Default.
Payments of interest on this Note due and payable on each
Payment Date shall be made by check mailed to the Person whose name appears as
the Registered Holder of this Note (or one or more Predecessor Notes) on the
Note Register as of the close of business on each Record Date, except that with
respect to Notes registered on the Record Date in the name of nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account designated
by such nominee. Such checks shall be mailed to the Person entitled thereto at
the address of such Person as it appears on the Note Register as of the
applicable Record Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note (or any
one or more Predecessor Notes) affected by any payments made on any Payment Date
shall be binding upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five (5) Business Days of such Payment Date and the amount
then due and payable shall be payable only upon presentation and surrender of
this Note at the Corporate Trust Office of the Indenture Trustee or at the
office of the Indenture Trustee's agent appointed for such purposes located in
New York City.
A-1-4
<PAGE>
As provided in the Indenture, the Notes may be redeemed
pursuant to Section 10.01 of the Indenture, in whole, but not in part, at the
option of Financial, on the Payment Date on or after the date on which the
Aggregate Principal Amount of the Notes outstanding is less than 10% of the
Contract Pool Principal Balance on the Initial Cutoff Date.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
eligible guarantor institution which is a participant in the Securities Transfer
Agent's Medallion Program (STAMP) or similar signature guarantee program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new program, and such other documents as the Indenture Trustee may require,
and thereupon one or more new Class A-1 Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign
of the Indenture Trustee or the Owner Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
Indenture Trustee and the Owner Trustee have no such obligations in their
individual capacities) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that by accepting the benefits of the
Indenture and such Note that such Noteholder will not at any time institute
against Financial, the Trust Depositor or the Issuer, or join in any institution
against the Trust Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness
which is solely secured by the Collateral and that the Trust will be disregarded
as a separate entity for federal income tax purposes pursuant to Treasury
A-1-5
<PAGE>
Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder, by acceptance of a
Note (and each Noteholder by acceptance of a beneficial interest in a Note),
agrees to treat the Notes for federal, state and local income, single business
and franchise tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of
this Note, the Issuer and the Indenture Trustee and any agent of the Issuer and
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such
agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with its consent of the Majority in Interest of the
Notes. The Indenture also contains provisions permitting the Noteholders
representing specified percentages of the Outstanding Amount of the Notes, on
behalf of the Noteholders, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder (or any one of
more Predecessor Notes) shall be conclusive and binding upon such Holders and
upon all future Noteholders and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Noteholders issued thereunder.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency herein
prescribed.
A-1-6
<PAGE>
EXHIBIT A-2
FORM OF CLASS A-2 NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS
NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CIT EQUIPMENT COLLATERAL 2000-2
6.81% CLASS A-2 RECEIVABLE-BACKED NOTES
REGISTERED $356,000,000
No. R-1 CUSIP NO. 125564 AK 0
CIT Equipment Collateral 2000-2, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of Three Hundred Fifty-Six Million Dollars
($356,000,000) payable on the earlier of December 20, 2002 (the "Class A-2
Maturity Date") and the Redemption Date, if any, pursuant to Section 10.01 of
the Indenture referred to on the reverse hereof.
The Issuer will pay interest on this Note at the rate per
annum shown above on each Payment Date until the principal of this Note is paid
or made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
the Indenture. Interest on this Note will accrue for each Payment Date from the
most recent Payment Date on which interest has been paid to but excluding such
Payment Date or, if no interest has yet been paid, from the Closing Date.
Interest will be computed on the basis
A-2-1
<PAGE>
of a 360-day year of twelve 30-day months. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
A-2-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Date: ________, 2000 CIT EQUIPMENT COLLATERAL 2000-2
By: Chase Manhattan Bank USA, National Association,
not in its individual capacity but solely on
behalf of the Issuer as Owner Trustee under the
Trust Agreement
By:______________________________________
Printed Name:_________________________
Title:________________________________
A-2-3
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Allfirst Bank, not in its individual capacity but
solely as Indenture Trustee
By: ______________________________________
Authorized Signatory
A-2-4
<PAGE>
[REVERSE OF CLASS A-2 NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 6.81% Class A-2 Receivable-Backed Notes (the "Class
A-2 Notes"), all issued under an Indenture, dated as of September 1, 2000 (the
"Indenture"), between the Issuer and Allfirst Bank, as Indenture Trustee (the
"Indenture Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Class A-2 Notes are subject to all terms of the Indenture. All
terms used in this Note that are defined in the Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the
Indenture, as so supplemented or amended. All terms used in this Note that are
defined in the Pooling and Servicing Agreement dated as of September 1, 2000 by
and among CIT Financial USA, Inc., Capita Corporation, NCT Funding Company,
L.L.C. and the Issuer (the "Pooling and Servicing Agreement") shall have the
meanings assigned to them therein.
The Class A-2 Notes and the other Classes of Notes described
in the Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture subject to the priorities of allocations as to interest and principal
payments as described therein and in the Pooling and Servicing Agreement.
Principal of the Class A-2 Notes will be payable on the
earlier of the Class A-2 Maturity Date and the Redemption Date, if any, pursuant
to Section 10.1 of the Indenture. Notwithstanding the foregoing, the entire
unpaid principal amount of the Class A-2 Notes shall be due and payable on the
date on which an Event of Default shall have occurred and be continuing unless
the Required Holders have waived such Event of Default.
Payments of interest on this Note due and payable on each
Payment Date shall be made by check mailed to the Person whose name appears as
the Registered Holder of this Note (or one or more Predecessor Notes) on the
Note Register as of the close of business on each Record Date, except that with
respect to Notes registered on the Record Date in the name of nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account designated
by such nominee. Such checks shall be mailed to the Person entitled thereto at
the address of such Person as it appears on the Note Register as of the
applicable Record Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note (or any
one or more Predecessor Notes) affected by any payments made on any Payment Date
shall be binding upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five (5) Business Days of such Payment Date and the amount
then due and payable shall be payable only upon presentation and surrender of
this Note at the Corporate Trust Office of the
A-2-5
<PAGE>
Indenture Trustee or at the office of the Indenture Trustee's agent appointed
for such purposes located in New York City.
As provided in the Indenture, the Notes may be redeemed
pursuant to Section 10.01 of the Indenture, in whole, but not in part, at the
option of Financial, on the Payment Date on or after the date on which the
Aggregate Principal Amount of the Notes outstanding is less than 10% of the
Contract Pool Principal Balance on the Initial Cutoff Date.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
eligible guarantor institution which is a participant in the Securities Transfer
Agent's Medallion Program (STAMP) or similar signature guarantee program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new program, and such other documents as the Indenture Trustee may require,
and thereupon one or more new Class A-2 Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign
of the Indenture Trustee or the Owner Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
Indenture Trustee and the Owner Trustee have no such obligations in their
individual capacities) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that by accepting the benefits of the
Indenture and such Note that such Noteholder will not at any time institute
against Financial, the Trust Depositor or the Issuer, or join in any institution
against the Trust Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents.
A-2-6
<PAGE>
The Issuer has entered into the Indenture, and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness
which is solely secured by the Collateral and that the Trust will be disregarded
as a separate entity for federal income tax purposes pursuant to Treasury
Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder, by acceptance of a
Note (and each Noteholder by acceptance of a beneficial interest in a Note),
agrees to treat the Notes for federal, state and local income, single business
and franchise tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of
this Note, the Issuer and the Indenture Trustee and any agent of the Issuer and
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such
agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with its consent of the Majority in Interest of the
Notes. The Indenture also contains provisions permitting the Noteholders
representing specified percentages of the Outstanding Amount of the Notes, on
behalf of the Noteholders, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder (or any one of
more Predecessor Notes) shall be conclusive and binding upon such Holders and
upon all future Noteholders and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Noteholders issued thereunder.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency herein
prescribed.
A-2-7
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-3 NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS
NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CIT EQUIPMENT COLLATERAL 2000-2
6.84% CLASS A-3 RECEIVABLE-BACKED NOTES
REGISTERED $306,000,000
No. R-1 CUSIP NO. 125564 AL 8
CIT Equipment Collateral 2000-2, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of Three Hundred Six Million Dollars
($306,000,000) payable on the earlier of June 20, 2004 (the "Class A-3 Maturity
Date") and the Redemption Date, if any, pursuant to Section 10.01 of the
Indenture referred to on the reverse hereof.
The Issuer will pay interest on this Note at the rate per
annum shown above on each Payment Date until the principal of this Note is paid
or made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
Section 3.01 of the Indenture. Interest on this Note will accrue for each
Payment Date from the most recent Payment Date on which interest has been paid
to but excluding such Payment Date or, if no interest has yet been paid, from
the Closing Date. Interest will be
A-3-1
<PAGE>
computed on the basis of a 360-day year of twelve 30-day months. Such principal
of and interest on this Note shall be paid in the manner specified on the
reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
A-3-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Date: ____________, 2000 CIT EQUIPMENT COLLATERAL 2000-2
By: Chase Manhattan Bank USA, National Association,
not in its individual capacity but solely on
behalf of the Issuer as Owner Trustee under the
Trust Agreement
By:______________________________________
Printed Name:________________________
Title:_______________________________
A-3-3
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Allfirst Bank, not in its individual capacity but
solely as Indenture Trustee
By: ______________________________________
Authorized Signatory
A-3-4
<PAGE>
[REVERSE OF CLASS A-3 NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 6.84% Class A-3 Receivable-Backed Notes (the "Class
A-3 Notes"), all issued under an Indenture, dated as of September 1, 2000 (the
"Indenture"), between the Issuer and Allfirst Bank, as Indenture Trustee (the
"Indenture Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Class A-1 Notes are subject to all terms of the Indenture. All
terms used in this Note that are defined in the Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the
Indenture, as so supplemented or amended. All terms used in this Note that are
defined in the Pooling and Servicing Agreement dated as of September 1, 2000 by
and among CIT Financial USA, Inc., Capita Corporation, NCT Funding Company,
L.L.C. and the Issuer (the "Pooling and Servicing Agreement") shall have the
meanings assigned to them therein.
The Class A-3 Notes and the other Classes of Notes described
in the Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture subject to the priorities of allocations as to interest and principal
payments as described therein and in the Pooling and Servicing Agreement.
Principal of the Class A-3 Notes will be payable on the
earlier of the Class A-3 Maturity Date and the Redemption Date, if any, pursuant
to Section 10.01 of the Indenture. Notwithstanding the foregoing, the entire
unpaid principal amount of the Class A-3 Notes shall be due and payable on the
date on which an Event of Default shall have occurred and be continuing unless
the Required Holders waive such Event of Default.
Payments of interest on this Note due and payable on each
Payment Date shall be made by check mailed to the Person whose name appears as
the Registered Holder of this Note (or one or more Predecessor Notes) on the
Note Register as of the close of business on each Record Date, except that with
respect to Notes registered on the Record Date in the name of nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account designated
by such nominee. Such checks shall be mailed to the Person entitled thereto at
the address of such Person as it appears on the Note Register as of the
applicable Record Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note (or any
one or more Predecessor Notes) affected by any payments made on any Payment Date
shall be binding upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five (5) Business Days of such Payment Date and the amount
then due and payable shall be payable only upon presentation and surrender of
this Note at the Indenture Trustee's principal
A-3-5
<PAGE>
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in New York City.
As provided in the Indenture, the Notes may be redeemed
pursuant to Section 10.01 of the Indenture, in whole, but not in part, at the
option of Financial, on any Payment Date on or after the date on which the
aggregate Principal Amount of the Notes outstanding is less than 10% of the
Contract Pool Principal Balance as of the Initial Cutoff Date.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
eligible guarantor institution which is a participant in the Securities Transfer
Agent's Medallion Program (STAMP) or similar signature guarantee program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new program, and such other documents as the Indenture Trustee may require,
and thereupon one or more new Class A-3 Notes of authorized denomination and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, 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 their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacities) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that by accepting the benefits of the
Indenture and such Note that such Noteholder will not at any time institute
against Financial, the Trust Depositor or the Issuer, or join in any institution
against the Trust Depositor or the Issuer, of any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents.
A-3-6
<PAGE>
The Issuer has entered into the Indenture, and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness
which is solely secured by the Collateral and that the Trust will be disregarded
as a separate entity for federal income tax purposes pursuant to Treasury
Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder, by acceptance of a
Note or of a beneficial interest in a Note, agrees to treat the Notes for the
federal, state and local income, single business and franchise tax purposes as
indebtedness.
Prior to the due presentment for registration of transfer of
this Note, the Issuer and the Indenture Trustee and any agent of the Issuer, the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Majority in Interest
of its Notes. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Outstanding Amount of the Notes,
on behalf of the Holders of all the Notes, to waive compliance by the Issuer
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note (or any one of more Predecessor Notes) shall be conclusive and binding
upon such Holders and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
The Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency herein
prescribed.
A-3-7
<PAGE>
EXHIBIT A-4
FORM OF CLASS A-4 NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS
NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CIT EQUIPMENT COLLATERAL 2000-2
6.93% CLASS A-4 RECEIVABLE-BACKED NOTES
REGISTERED $132,549,665
No. R-1 CUSIP NO. 125564 AM 6
CIT Equipment Collateral 2000-2, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of One Hundred Thirty-Two Million Five
Hundred Forty-Nine Thousand Six Hundred Sixty-Five Dollars ($132,549,665)
payable on the earlier of July 20, 2011 (the "Class A-4 Maturity Date") and the
Redemption Date, if any, pursuant to Section 10.01 of the Indenture referred to
on the reverse hereof.
The Issuer will pay interest on this Note at the rate per
annum shown above on each Payment Date until the principal of this Note is paid
or made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
the Indenture. Interest on this Note will accrue for each Payment Date from the
most recent Payment Date on which interest has been paid to but excluding such
Payment Date or, if no interest has yet been paid, from the Closing Date.
Interest will be computed on the basis
A-4-1
<PAGE>
of a 360-day year of twelve 30-day months. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
A-4-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Date: _____________ CIT EQUIPMENT COLLATERAL 2000-2
By: Chase Manhattan Bank USA, National Association,
not in its individual capacity but solely on
behalf of the Issuer as Owner Trustee under the
Trust Agreement
By:______________________________________
Name:________________________________
Title:_______________________________
A-4-3
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Allfirst Bank, not in its individual capacity but
solely as Indenture Trustee
By:______________________________________
Authorized Signatory
A-4-4
<PAGE>
[REVERSE OF CLASS A-4 NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 6.93% Class A-4 Receivable-Backed Notes (the "Class
A-4 Notes"), all issued under an Indenture, dated as of September 1, 2000 (the
"Indenture"), between the Issuer and Allfirst Bank, as Indenture Trustee (the
"Indenture Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are defined in the Indenture, as supplemented or amended,
shall have the meanings assigned to them in or pursuant to the Indenture, as so
supplemented or amended. All terms used in this Note that are defined in the
Pooling and Servicing Agreement dated as of September 1, 2000 by and among CIT
Financial USA, Inc., Capita Corporation, NCT Funding Company, L.L.C. and the
Issuer (the "Pooling and Servicing Agreement") shall have the meanings assigned
to them therein.
The Class A-4 Notes and the other Classes of Notes described
in the Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture subject to the priorities of allocations as to interest and principal
payments as described therein and in the Pooling and Servicing Agreement.
Principal of the Class A-4 Notes will be payable on the
earlier of the Class A-4 Maturity Date and the Redemption Date, if any, pursuant
to Section 10.01 of the Indenture. Notwithstanding the foregoing, the entire
unpaid principal amount of the Class A-4 Notes shall be due and payable on the
date on which an Event of Default shall have occurred and be continuing unless
the Required Holders waive such Event of Default.
Payments of interest on this Note due and payable on each
Payment Date shall be made by check mailed to the Person whose name appears as
the Registered Holder of this Note (or one or more Predecessor Notes) on the
Note Register as of the close of business on each Record Date, except that with
respect to Notes registered on the Record Date in the name of nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account designated
by such nominee. Such checks shall be mailed to the Person entitled thereto at
the address of such Person as it appears on the Note Register as of the
applicable Record Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note (or any
one or more Predecessor Notes) affected by any payments made on any Payment Date
shall be binding upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five (5) Business Days of such Payment Date and the amount
then due and payable shall be payable only upon presentation and surrender of
this Note at the Indenture Trustee's principal Corporate Trust Office or at the
office of the Indenture Trustee's agent appointed for such purposes located in
New York City.
A-4-5
<PAGE>
As provided in the Indenture, the Notes may be redeemed
pursuant to Section 10.01 of the Indenture, in whole, but not in part, at the
option of Financial, on any Payment Date on or after the date on which the
aggregate Principal Amount of the Notes outstanding is less than 10% of the
Contract Pool Principal Balance as of the Initial Cutoff Date.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
eligible guarantor institution which is a participant in the Securities Transfer
Agent's Medallion Program (STAMP) or similar signature guarantee program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new program, and such other documents as the Indenture Trustee may require,
and thereupon one or more new Class A-4 Notes of authorized denomination and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, 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 their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacities) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that by accepting the benefits of the
Indenture and such Note that such Noteholder will not at any time institute
against Financial, the Trust Depositor or the Issuer, or join in any institution
against the Trust Depositor or the Issuer, of any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness
which is solely secured by the Collateral and that the Trust will be disregarded
as a separate entity for federal income tax purposes pursuant to Treasury
A-4-6
<PAGE>
Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder, by acceptance of a
Note or of a beneficial interest in a Note, agrees to treat the Notes for the
federal, state and local income, single business and franchise tax purposes as
indebtedness.
Prior to the due presentment for registration of transfer of
this Note, the Issuer and the Indenture Trustee and any agent of the Issuer, the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Majority in Interest
of its Notes. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Outstanding Amount of the Notes,
on behalf of the Holders of all the Notes, to waive compliance by the Issuer
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note (or any one of more Predecessor Notes) shall be conclusive and binding
upon such Holders and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
The Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency herein
prescribed.
A-4-7
<PAGE>
EXHIBIT B
FORM OF CLASS B NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS
NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CIT EQUIPMENT COLLATERAL 2000-2
6.95% CLASS B RECEIVABLE-BACKED NOTES
REGISTERED $15,870,473
No. R-1 CUSIP NO. 125564 AN 4
CIT Equipment Collateral 2000-2, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of Fifteen Million Eight Hundred Seventy
Thousand Four Hundred Seventy-Three Dollars ($15,870,473) payable on the earlier
of July 20, 2011 (the "Class B Maturity Date") and the Redemption Date, if any,
pursuant to Section 10.01 of the Indenture referred to on the reverse hereof.
The Issuer will pay interest on this Note at the rate per
annum shown above on each Payment Date until the principal of this Note is paid
or made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
the Indenture. Interest on this Note will accrue for each Payment Date from the
most recent Payment Date on which interest has been paid to but excluding such
Payment Date or, if no interest has yet been paid, from the Closing Date.
Interest will be computed on the basis
B-1
<PAGE>
of a 360-day year of twelve 30-day months. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
The payment of interest and principal on the Class B Notes is
subject to certain prior payment rights of the Holders of Class A Notes, as set
forth in the Indenture.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
B-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
<TABLE>
<S> <C>
Date: _____________ CIT EQUIPMENT COLLATERAL 2000-2
By: Chase Manhattan Bank USA, National Association,
not in its individual capacity but solely on behalf of
the Issuer as Owner Trustee under the Trust
Agreement
By:___________________________________________________
Name: _____________________________________________
Title: ____________________________________________
</TABLE>
B-3
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Allfirst Bank, not in its individual capacity
but solely as Indenture Trustee
By: ________________________________
Authorized Signatory
B-4
<PAGE>
[REVERSE OF CLASS B NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 6.95% Class B Receivable-Backed Notes (the "Class B
Notes"), all issued under an Indenture, dated as of September 1, 2000 (the
"Indenture"), between the Issuer and Allfirst Bank, as Indenture Trustee (the
"Indenture Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are defined in the Indenture, as supplemented or amended,
shall have the meanings assigned to them in or pursuant to the Indenture, as so
supplemented or amended. All terms used in this Note that are defined in the
Pooling and Servicing Agreement dated as of September 1, 2000 by and among CIT
Financial USA, Inc., Capita Corporation, NCT Funding Company, L.L.C. and the
Issuer (the "Pooling and Servicing Agreement") shall have the meanings assigned
to them therein.
The Class B Notes and the other Classes of Notes described in
the Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture subject to the priorities of allocations as to interest and principal
payments as described therein and in the Pooling and Servicing Agreement.
Principal of the Class B Notes will be payable on the earlier
of the Class B Maturity Date and the Redemption Date, if any, pursuant to
Section 10.01 of the Indenture. Notwithstanding the foregoing, the entire unpaid
principal amount of the Class B Notes shall be due and payable on the date on
which an Event of Default shall have occurred and be continuing unless the
Required Holders waive such Event of Default.
Payments of interest on this Note due and payable on each
Payment Date shall be made by check mailed to the Person whose name appears as
the Registered Holder of this Note (or one or more Predecessor Notes) on the
Note Register as of the close of business on each Record Date, except that with
respect to Notes registered on the Record Date in the name of nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account designated
by such nominee. Such checks shall be mailed to the Person entitled thereto at
the address of such Person as it appears on the Note Register as of the
applicable Record Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note (or any
one or more Predecessor Notes) affected by any payments made on any Payment Date
shall be binding upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five (5) Business Days of such Payment Date and the amount
then due and payable shall be payable only upon presentation and surrender of
this Note at the Indenture Trustee's principal Corporate Trust Office or at the
office of the Indenture Trustee's agent appointed for such purposes located in
New York City.
B-5
<PAGE>
As provided in the Indenture, the Notes may be redeemed
pursuant to Section 10.01 of the Indenture, in whole, but not in part, at the
option of Financial, on any Payment Date on or after the date on which the
aggregate Principal Amount of the Notes outstanding is less than 10% of the
initial Contract Pool Principal Balance as of the Initial Cutoff Date.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
eligible guarantor institution which is a participant in the Securities Transfer
Agent's Medallion Program (STAMP) or similar signature guarantee program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new program, and such other documents as the Indenture Trustee may require,
and thereupon one or more new Class B Notes of authorized denomination and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, 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 their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacities) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that by accepting the benefits of the
Indenture and such Note that such Noteholder will not at any time institute
against Financial, the Trust Depositor or the Issuer, or join in any institution
against the Trust Depositor or the Issuer, of any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness
which is solely secured by the Collateral and that the Trust will be disregarded
as a separate entity for federal income tax purposes pursuant to Treasury
B-6
<PAGE>
Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder, by acceptance of a
Note or of a beneficial interest in a Note, agrees to treat the Notes for the
federal, state and local income, single business and franchise tax purposes as
indebtedness.
Prior to the due presentment for registration of transfer of
this Note, the Issuer and the Indenture Trustee and any agent of the Issuer, the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Majority in Interest
of the Notes. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Outstanding Amount of the Notes,
on behalf of the Holders of all the Notes, to waive compliance by the Issuer
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note (or any one of more Predecessor Notes) shall be conclusive and binding
upon such Holders and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
The Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency herein
prescribed.
B-7
<PAGE>
EXHIBIT C
FORM OF CLASS C NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS
NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CIT EQUIPMENT COLLATERAL 2000-2
7.04% CLASS C RECEIVABLE-BACKED NOTES
REGISTERED $21,160,631
No. R-1 CUSIP NO. 125564 AP 9
CIT Equipment Collateral 2000-2, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of Twenty-One Million One Hundred Sixty
Thousand Six Hundred Thirty-One Dollars ($21,160,631) payable on the earlier of
July 20, 2011 (the "Class C Maturity Date") and the Redemption Date, if any,
pursuant to Section 10.01 of the Indenture referred to on the reverse hereof.
The Issuer will pay interest on this Note at the rate per
annum shown above on each Payment Date until the principal of this Note is paid
or made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
the Indenture. Interest on this Note will accrue for each Payment Date from the
most recent Payment Date on which interest has been paid to but excluding such
Payment Date or, if no interest has yet been paid, from the Closing Date.
Interest will be computed on the basis
C-1
<PAGE>
of a 360-day year of twelve 30-day months. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The payment of interest and principal on the Class C Notes is
subject to certain prior payment rights of the Holders of Class A and Class B
Notes, as set forth in the Indenture.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
C-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
<TABLE>
<S> <C>
Date: _______________ CIT EQUIPMENT COLLATERAL 2000-2
By: Chase Manhattan Bank USA, National Association,
not in its individual capacity but solely on behalf of
the Issuer as Owner Trustee under the
Trust Agreement
By:___________________________________________________
Name: _____________________________________________
Title: ____________________________________________
</TABLE>
C-3
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Allfirst Bank, not in its individual capacity but
solely as Indenture Trustee
By: ____________________________________
Authorized Signatory
C-4
<PAGE>
[REVERSE OF CLASS C NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 7.04% Class C Receivable- Backed Notes (the "Class C
Notes"), all issued under an Indenture, dated as of September 1, 2000 (the
"Indenture"), between the Issuer and Allfirst Bank, as Indenture Trustee (the
"Indenture Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are defined in the Indenture, as supplemented or amended,
shall have the meanings assigned to them in or pursuant to the Indenture, as so
supplemented or amended. All terms used in this Note that are defined in the
Pooling and Servicing Agreement dated as of September 1, 2000 by and among CIT
Financial USA, Inc., Capita Corporation, NCT Funding Company, L.L.C. and the
Issuer (the "Pooling and Servicing Agreement") shall have the meanings assigned
to them therein.
The Class C Notes and the other Classes of Notes described in
the Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture subject to the priorities of allocations as to interest and principal
payments as described therein and in the Pooling and Servicing Agreement.
Principal of the Class C Notes will be payable on the earlier
of the Class C Maturity Date and the Redemption Date, if any, pursuant to
Section 10.01 of the Indenture. Notwithstanding the foregoing, the entire unpaid
principal amount of the Class C Notes shall be due and payable on the date on
which an Event of Default shall have occurred and be continuing unless the
Required Holders waive such Event of Default.
Payments of interest on this Note due and payable on each
Payment Date shall be made by check mailed to the Person whose name appears as
the Registered Holder of this Note (or one or more Predecessor Notes) on the
Note Register as of the close of business on each Record Date, except that with
respect to Notes registered on the Record Date in the name of nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account designated
by such nominee. Such checks shall be mailed to the Person entitled thereto at
the address of such Person as it appears on the Note Register as of the
applicable Record Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note (or any
one or more Predecessor Notes) affected by any payments made on any Payment Date
shall be binding upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five (5) Business Days of such Payment Date and the amount
then due and payable shall be payable only upon presentation and surrender of
this Note at the Indenture Trustee's principal Corporate Trust Office or at the
office of the Indenture Trustee's agent appointed for such purposes located in
New York City.
C-5
<PAGE>
As provided in the Indenture, the Notes may be redeemed
pursuant to Section 10.01 of the Indenture, in whole, but not in part, at the
option of Financial, on any Payment Date on or after the date on which the
aggregate Principal Amount of the Notes outstanding is less than 10% of the
initial Contract Pool Principal Balance as of the Initial Cutoff Date.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
eligible guarantor institution which is a participant in the Securities Transfer
Agent's Medallion Program (STAMP) or similar signature guarantee program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new program, and such other documents as the Indenture Trustee may require,
and thereupon one or more new Class C Notes of authorized denomination and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or beneficial
interest in a Note covenants and agrees that no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, 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 their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacities) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that by accepting the benefits of the
Indenture and such Note that such Noteholder will not at any time institute
against Financial, the Trust Depositor or the Issuer, or join in any institution
against the Trust Depositor or the Issuer of any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness
which is solely secured by the Collateral and that the Trust will be disregarded
as a separate entity for federal income tax purposes pursuant to Treasury
C-6
<PAGE>
Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder, by acceptance of a
Note or of a beneficial interest in a Note, agrees to treat the Notes for the
federal, state and local income, single business and franchise tax purposes as
indebtedness.
Prior to the due presentment for registration of transfer of
this Note, the Issuer and the Indenture Trustee and any agent of the Issuer, the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Majority in Interest
of the Notes. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Outstanding Amount of the Notes,
on behalf of the Holders of all the Notes, to waive compliance by the Issuer
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note (or any one of more Predecessor Notes) shall be conclusive and binding
upon such Holders and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
The Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency herein
prescribed.
C-7
<PAGE>
EXHIBIT D
FORM OF CLASS D NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS
NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CIT EQUIPMENT COLLATERAL 2000-2
7.52% CLASS D RECEIVABLE-BACKED NOTES
REGISTERED $26,450,790
No. R-1 CUSIP NO. 125564 AQ 7
CIT Equipment Collateral 2000-2, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of Twenty-Six Million Four Hundred Fifty
Thousand Seven Hundred Ninety Dollars ($26,450,790) payable on the earlier of
July 20, 2011 (the "Class D Maturity Date") and the Redemption Date, if any,
pursuant to Section 10.01 of the Indenture referred to on the reverse hereof.
The Issuer will pay interest on this Note at the rate per
annum shown above on each Payment Date until the principal of this Note is paid
or made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
the Indenture. Interest on this Note will accrue for each Payment Date from the
most recent Payment Date on which interest has been paid to but excluding such
Payment Date or, if no interest has yet been paid, from the Closing Date.
Interest will be computed on the basis
D-1
<PAGE>
of a 360-day year of twelve 30-day months. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
The payment of interest and principal on the Class D Notes is
subject to certain prior payment rights of the Holders of Class A, Class B and
Class C Notes, as set forth in the Indenture.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
D-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
<TABLE>
<S> <C>
Date: _______________________ CIT EQUIPMENT COLLATERAL 2000-2
By: Chase Manhattan Bank USA, National Association,
not in its individual capacity but solely on behalf of
the Issuer as Owner Trustee under the Trust
Agreement
By:____________________________________________________
Name: ______________________________________________
Title: _____________________________________________
</TABLE>
D-3
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Allfirst Bank, not in its individual capacity
but solely as Indenture Trustee
By:______________________________________
Authorized Signatory
D-4
<PAGE>
[REVERSE OF CLASS D NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 7.52% Class D Receivable- Backed Notes (the "Class D
Notes"), all issued under an Indenture, dated as of September 1, 2000 (the
"Indenture"), between the Issuer and Allfirst Bank, as Indenture Trustee (the
"Indenture Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are defined in the Indenture, as supplemented or amended,
shall have the meanings assigned to them in or pursuant to the Indenture, as so
supplemented or amended. All terms used in this Note that are defined in the
Pooling and Servicing Agreement dated as of September 1, 2000 by and among CIT
Financial USA, Inc., Capita Corporation, NCT Funding Company, L.L.C. and the
Issuer (the "Pooling and Servicing Agreement") shall have the meanings assigned
to them therein.
The Class D Notes and the other Classes of Notes described in
the Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture subject to the priorities of allocations as to interest and principal
payments as described therein and in the Pooling and Servicing Agreement.
Principal of the Class D Notes will be payable on the earlier
of the Class D Maturity Date and the Redemption Date, if any, pursuant to
Section 10.01 of the Indenture. Notwithstanding the foregoing, the entire unpaid
principal amount of the Class D Notes shall be due and payable on the date on
which an Event of Default shall have occurred and be continuing unless the
Required Holders waive such Event of Default.
Payments of interest on this Note due and payable on each
Payment Date shall be made by check mailed to the Person whose name appears as
the Registered Holder of this Note (or one or more Predecessor Notes) on the
Note Register as of the close of business on each Record Date, except that with
respect to Notes registered on the Record Date in the name of nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account designated
by such nominee. Such checks shall be mailed to the Person entitled thereto at
the address of such Person as it appears on the Note Register as of the
applicable Record Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note (or any
one or more Predecessor Notes) affected by any payments made on any Payment Date
shall be binding upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five (5) Business Days of such Payment Date and the amount
then due and payable shall be payable only upon presentation and surrender of
this Note at the Indenture Trustee's principal Corporate Trust Office or at the
office of the Indenture Trustee's agent appointed for such purposes located in
New York City.
D-5
<PAGE>
As provided in the Indenture, the Notes may be redeemed
pursuant to Section 10.01 of the Indenture, in whole, but not in part, at the
option of Financial, on any Payment Date on or after the date on which the
aggregate Principal Amount of the Notes outstanding is less than 10% of the
initial Contract Pool Principal Balance as of the Initial Cutoff Date.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
eligible guarantor institution which is a participant in the Securities Transfer
Agent's Medallion Program (STAMP) or similar signature guarantee program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new program, and such other documents as the Indenture Trustee may require,
and thereupon one or more new Class D Notes of authorized denomination and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, 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 their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacities) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that by accepting the benefits of the
Indenture and such Note that such Noteholder will not at any time institute
against Financial, the Trust Depositor or the Issuer, or join in any institution
against the Trust Depositor or the Issuer of any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness
which is solely secured by the Collateral and that the Trust will be disregarded
as a separate entity for federal income tax purposes pursuant to Treasury
D-6
<PAGE>
Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder, by acceptance of a
Note or of a beneficial interest in a Note, agrees to treat the Notes for the
federal, state and local income, single business and franchise tax purposes as
indebtedness.
Prior to the due presentment for registration of transfer of
this Note, the Issuer and the Indenture Trustee and any agent of the Issuer, the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Majority in Interest
of the Notes. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Outstanding Amount of the Notes,
on behalf of the Holders of all the Notes, to waive compliance by the Issuer
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note (or any one of more Predecessor Notes) shall be conclusive and binding
upon such Holders and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
The Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency herein
prescribed.
D-7
<PAGE>
EXHIBIT E
[RESERVED]
E-1
<PAGE>
EXHIBIT F
FORM OF NOTE ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
________________________________________________________________________________
to transfer said Note on the books kept for registration thereof, with full
power of substitution in the premises.
Dated: ____________________
Signature Guaranteed:
<TABLE>
<S> <C>
______________________________________________________ _________________________________________________
Signature must be guaranteed by an eligible Notice: The signature(s) on this assignment must
guarantor institution which is a participant in the correspond with the name(s) as it appears on the
Securities Transfer Agent's Medallion Program face of the within Note in every particular,
(STAMP) or similar signature guarantee without alteration or enlargement or any change
program whatsoever
______________________________________________________
(Authorized Officer)
</TABLE>
F-1
<PAGE>
EXHIBIT G
FORM OF NOTE DEPOSITORY AGREEMENT
G-1
