CROSS-REFERENCE TABLE

 

TIA			Indenture
Section			Section
310(a)	(1)		6.11
(a)	(2)		6.11
(a)	(3)		6.10
(a)	(4)		N.A.
(a)	(5)		6.11
(b)			6.08; 6.11; 11.04
(c)			N.A.
311(a)			6.13
(b)			6.13
(c)			N.A.
312(a)			7.01; 7.02
(b)			7.02
(c)			7.02
313(a)			7.04
(b)			7.04
(c)			7.04
(d)			7.04
314(a)			7.03
(b)			3.06
(c)	(1)		2.02; 6.02; 11.01
(c)	(2)		11.01
(c)	(3)		11.01
(d)			11.01
(e)			11.01
(f)			N.A.
315(a)			6.01
(b)			6.05
(c)			6.01
(d)			5.12; 6.01
(e)			5.14
316(a)	(1)(A)		5.12
(a)	(1)(B)		5.02
(a)	(2)		N.A.
(b)			5.08
(c)			N.A.
317(a)			5.03; 5.04
(b)			3.03
318(a)			11.18

 

*            N.A. means Not Applicable

*            This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the Indenture.

 

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TABLE OF CONTENTS

 

				Page
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE				2
Section 1.01.		Definitions		2
Section 1.02.		Incorporation by Reference of Trust Indenture Act		9
Section 1.03.		Rules of Construction		10
ARTICLE TWO THE NOTES				10
Section 2.01.		Form		10
Section 2.02.		Execution, Authentication and Delivery		10
Section 2.03.		Temporary Notes		11
Section 2.04.		Registration; Registration of Transfer and Exchange		11
Section 2.05.		Mutilated, Destroyed, Lost or Stolen Notes		13
Section 2.06.		Persons Deemed Owner		14
Section 2.07.		Payment of Principal and Interest; Defaulted Interest		14
Section 2.08.		Cancellation		15
Section 2.09.		Book-Entry Notes		15
Section 2.10.		Notices to Clearing Agency		16
Section 2.11.		Definitive Notes		16
Section 2.12.		Release of Collateral		17
Section 2.13.		Tax Treatment		17
Section 2.14.		Transfer Provisions; Enforcement of Transfer Restrictions		17
Section 2.15.		Legends on Notes		19
Section 2.16.		Calculation Agent		21
ARTICLE THREE COVENANTS				22
Section 3.01.		Payment of Principal and Interest		22
Section 3.02.		Maintenance of Office or Agency		22

 

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Section 3.03.		Money for Payments to be Held in Trust		22
Section 3.04.		Existence		23
Section 3.05.		Protection of Collateral		24
Section 3.06.		Opinions as to Collateral		24
Section 3.07.		Performance of Obligations; Servicing of Contracts		24
Section 3.08.		Negative Covenants		25
Section 3.09.		Annual Statement as to Compliance		26
Section 3.10.		Issuer May Consolidate, etc. Only on Certain Terms		26
Section 3.11.		Successor or Transferee		28
Section 3.12.		No Other Business		28
Section 3.13.		No Borrowing		28
Section 3.14.		Servicer’s Obligations		28
Section 3.15.		Guarantees, Loans Advances and Other Liabilities		28
Section 3.16.		Capital Expenditures		28
Section 3.17.		Restricted Payments		28
Section 3.18.		Notice of Events of Default		29
Section 3.19.		Further Instruments and Acts		29
Section 3.20.		Compliance with Laws		29
Section 3.21.		Amendments of Sale and Servicing Agreement and Trust Agreement		29
Section 3.22.		Removal of Administrator		29
ARTICLE FOUR SATISFACTION AND DISCHARGE				29
Section 4.01.		Satisfaction and Discharge of Indenture		29
Section 4.02.		Application of Trust Money		30
Section 4.03.		Repayment of Moneys Held by Paying Agent		30
Section 4.04.		Release of Collateral		30
ARTICLE FIVE REMEDIES				30

 

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Section 5.01.		Events of Default		31
Section 5.02.		Rights Upon Event of Default		31
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee; Authority of Indenture Trustee				32
Section 5.04.		Remedies		34
Section 5.05.		Optional Preservation of the Contracts		34
Section 5.06.		Priorities		34
Section 5.07.		Limitation of Suits		35
Section 5.08.		Unconditional Rights of Noteholders to Receive Principal and Interest		35
Section 5.09.		Restoration of Rights and Remedies		35
Section 5.10.		Rights and Remedies Cumulative		36
Section 5.11.		Delay or Omission Not a Waiver		36
Section 5.12.		Control by Noteholders		36
Section 5.13.		Waiver of Past Defaults		36
Section 5.14.		Undertaking for Costs		36
Section 5.15.		Waiver of Stay or Extension Laws		37
Section 5.16.		Action on Notes		37
Section 5.17.		Performance and Enforcement of Certain Obligations		37
ARTICLE SIX THE INDENTURE TRUSTEE				38
Section 6.01.		Duties of Indenture Trustee		38
Section 6.02.		Rights of Indenture Trustee		39
Section 6.03.		Individual Rights of Indenture Trustee		40
Section 6.04.		Indenture Trustee’s Disclaimer		40
Section 6.05.		Notice of Defaults		40
Section 6.06.		Reports by Indenture Trustee to Holders		40
Section 6.07.		Compensation and Indemnity		40
Section 6.08.		Replacement of Indenture Trustee		41

 

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Section 6.09.		Successor Indenture Trustee by Merger		42
Section 6.10.		Appointment of Co-Indenture Trustee or Separate Indenture Trustee		42
Section 6.11.		Eligibility		43
Section 6.12.		Pennsylvania Motor Vehicle Sales Finance Act Licenses		44
Section 6.13.		Preferential Collection of Claims Against Issuer		44
Section 6.14.		Representations and Warranties of Indenture Trustee		44
ARTICLE SEVEN NOTEHOLDERS’ LISTS AND REPORTS				45
Section 7.01.		Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders		45
Section 7.02.		Preservation of Information: Communication to Noteholders		45
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		47
Section 8.05.		Opinion of Counsel		48
ARTICLE NINE SUPPLEMENTAL INDENTURES				48
Section 9.01.		Supplemental Indentures Without Consent of Noteholders		48
Section 9.02.		Supplemental Indentures With Consent of Noteholders and the Swap Counterparty		49
Section 9.03.		Execution of Supplemental Indentures		50
Section 9.04.		Effect of Supplemental Indenture		51
Section 9.05.		Conformity With Trust Indenture Act		51
Section 9.06.		Reference in Notes to Supplemental Indentures		51
ARTICLE TEN REDEMPTION OF NOTES				51
Section 10.01.		Redemption		51

 

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Section 10.02.		Form of Redemption Notice		52
Section 10.03.		Notes Payable on Redemption Date		52
ARTICLE ELEVEN MISCELLANEOUS				52
Section 11.01.		Compliance Certificates and Opinions, etc.		52
Section 11.02.		Form of Documents Delivered to Indenture Trustee		54
Section 11.03.		Acts of Noteholders and the Swap Counterparty		54
Section 11.04.		Notices		55
Section 11.05.		Notices to Noteholders; Waiver		55
Section 11.06.		Alternate Payment and Notice Provisions		56
Section 11.07.		Effect of Headings and Table of Contents		56
Section 11.08.		Successors and Assigns		56
Section 11.09.		Separability		56
Section 11.10.		Benefits of Indenture		56
Section 11.11.		Legal Holidays		56
Section 11.12.		Governing Law		56
Section 11.13.		Counterparts		56
Section 11.14.		Recording of Indenture		56
Section 11.15.		Trust Obligation		57
Section 11.16.		No Petition		57
Section 11.17.		Inspection		57
Section 11.18.		Conflict with Trust Indenture Act		57
Section 11.19.		Disclaimer and Subordination		57
Section 11.20.		Limitation of Rights		58

 

			Page
EXHIBITS
Exhibit A-1 -	Form of Class A-1 Note		A-1-1
Exhibit A-2 -	Form of Class A-2 Note		A-2-1
Exhibit A-3a -	Form of Class A-3a Note		A-3a-1

 

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Exhibit A-3b -	Form of Class A-3b Note		A-3b-1
Exhibit A-4 -	Form of Class A-4 Note		A-4-1
Exhibit A-5 -	Form of Class B Note		A-5-1
Exhibit A-6 -	Form of Class C Note		A-6-1
Exhibit A-7 -	Form of Class D Note		A-7-1
Exhibit B -	Form of Assignment		B-1
Exhibit C -	Form of Note Depository Agreement		C-1
Exhibit D - Form of Regulation S Transfer Certificate			D-1
Exhibit E - Form of Rule 144A Transfer Certificate			E-1
Exhibit F - Form of Non-U.S. Certificate			F-1
Exhibit G - Form of Regulation S Certificate			G-1

 

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provisions of this Indenture and agrees to perform its duties required in this Indenture in accordance with its terms and the terms of the other Transaction Documents to which it is a party.

 

ARTICLE ONE

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01.        Definitions .

 

Except as otherwise specified herein or as the context may otherwise require, capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Sale and Servicing Agreement and 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 Harley-Davidson Credit Corp. or any successor Administrator under the Administration Agreement.

 

“Affiliate” means, with respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person.  For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“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 city of Chicago, Illinois, Wilmington, Delaware or New York, New York are authorized or obligated by law, executive order or governmental decree to be closed.

 

“Certificate of Trust” means the Certificate of Trust of the Issuer substantially in the form of Exhibit A to the Trust Agreement.

 

“Class” means all Notes whose form is identical except for variation in denomination, principal amount or owner.

 

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“Class A-1 Final Distribution Date” has the meaning set forth in the Sale and Servicing Agreement.

 

“Class A-1 Notes” means the Class A-1 Notes, substantially in the form of Exhibit A-1.

 

“Class A-1 Rate” has the meaning set forth in the Sale and Servicing Agreement.

 

“Class A-2 Final Distribution Date” has the meaning set forth in the Sale and Servicing Agreement.

 

“Class A-2 Notes” means the Class A-2 Notes, substantially in the form of Exhibit A-2.

 

“Class A-2 Rate” has the meaning set forth in the Sale and Servicing Agreement.

 

“Class A-3 Final Distribution Date” has the meaning set forth in the Sale and Servicing Agreement.

 

“Class A-3 Notes” means the Class A-3a Notes and the Class A-3b Notes.

 

“Class A-3a Notes” means the Class A-3a Notes, substantially in the form of Exhibit A-3a.

 

“Class A-3a Rate” has the meaning set forth in the Sale and Servicing Agreement.

 

“Class A-3b Notes” means the Class A-3b Notes, substantially in the form of Exhibit A-3b .

 

“Class A-3b Rate” has the meaning set forth in the Sale and Servicing Agreement.

 

“Class A-4 Final Distribution Date” has the meaning set forth in the Sale and Servicing Agreement.

 

“Class A-4 Notes” means the Class A-4 Notes, substantially in the form of Exhibit A-4 .

 

“Class A-4 Rate” has the meaning set forth in the Sale and Servicing Agreement.

 

“Class B Final Distribution Date” has the meaning set forth in the Sale and Servicing Agreement.

 

“Class B Notes” means the Class B Notes, substantially in the form of Exhibit A-5.

 

“Class B Rate” has the meaning set forth in the Sale and Servicing Agreement.

 

“Class C Final Distribution Date” has the meaning set forth in the Sale and Servicing Agreement.

 

“Class C Notes” means the Class C Notes, substantially in the form of Exhibit A-6 .

 

“Class C Rate” has the meaning set forth in the Sale and Servicing Agreement.

 

“Class D Final Distribution Date” has the meaning set forth in the Sale and Servicing Agreement.

 

“Class D Notes” means the Class D Notes, substantially in the form of Exhibit A-7.

 

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“Class D Rate” has the meaning set forth in the Sale and Servicing Agreement.

 

“Clearing Agency” means an organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act.

 

“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.

 

“Clearstream” means Clearstream Banking, société anonyme , and its successors in interest.

 

“ Closing Date ” has the meaning set forth in the Sale and Servicing Agreement.

 

“ Code ” means the Internal Revenue Code of 1986, as amended.

 

“ Collateral ” means the Collateral Granted to the Indenture Trustee under this Indenture, including all proceeds thereof.

 

“Commission” means the Securities and Exchange Commission.

 

“Controlling Class” has the meaning set forth in the Sale and Servicing Agreement.

 

“Corporate Trust Office” means the office of the Indenture Trustee at which at any particular time its corporate trusts business shall be administered which office at date of the execution of this Indenture is located at [        ], Attention: [        ]; or at such other address as the Indenture Trustee may designate from time to time by notice to the Noteholders, the Swap Counterparty 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, the Swap Counterparty 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.

 

“Distribution Date” has the meaning set forth in the Sale and Servicing Agreement.

 

“DTC” means The Depository Trust Company, and its successors and assigns.

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

 

“Euroclear” means the Euroclear Bank S.A./N.V., as operator of the Euroclear System, or any successor thereto in such capacity.

 

“Event of Default” shall have the meaning specified in Section 5.01.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

“Exchange Date” shall have the meaning specified in Section 2.09.

 

“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

 

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Secretary or the Treasurer of such corporation; and with respect to any partnership, any general partner thereof.

 

“Floating Rate Notes” has the meaning set forth in the Sale and Servicing Agreement.

 

“Global Note” means either Rule 144A Global Note or a Regulation S Global Note, as the case may be.

 

“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 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.

 

“Harley-Davidson Credit” means Harley-Davidson Credit Corp., and its successors and assigns.

 

“Holder” or “Noteholder” or “Note Owner ” 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.

 

“Indebtedness” means, with respect to any Person at any time, (i) indebtedness or liability of such Person for borrowed money whether or not evidenced by bonds, debentures, notes or other instruments, or for the deferred purchase price of property or services (including trade obligations); (ii) obligations of such Person as lessee under leases which should have been or should be, in accordance with generally accepted accounting principles, recorded as capital leases; (iii) current liabilities of such Person in respect of unfunded vested benefits under plans covered by Title IV of ERISA; (iv) obligations issued for or liabilities incurred on the account of such Person; (v) obligations or liabilities of such Person arising under acceptance facilities; (vi) obligations of such Person under any guaranties, endorsements (other than for collection or deposit in the ordinary course of business) and other contingent obligations to purchase, to provide funds for payment, to supply funds to invest in any Person or otherwise to assure a creditor against loss; (vii) obligations of such Person secured by any lien on property or assets of such Person, whether or not the obligations have been assumed by such Person; or (viii) obligations of such Person under any interest rate or currency exchange agreement.

 

“Indenture” means this Indenture, as amended or supplemented from time to time.

 

“Indenture Securities” means the Notes.

 

“Indenture Security Holder” means a Noteholder.

 

“Indenture Trustee” means [          ], as Indenture Trustee under this Indenture, or any successor Indenture Trustee under this Indenture.

 

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“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, the Seller 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, the Seller or any of their respective Affiliates, and (iii) is not connected with the Issuer, any such other obligor, the Seller 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 the Class A-1 Rate, the Class A-2 Rate, the Class A-3a Rate, the Class A-3b Rate, the Class A-4 Rate, the Class B Rate, the Class C Rate and/or the Class D Rate, as applicable.

 

“Issuer” means Harley-Davidson Motorcycle Trust [          ] until a successor replaces it and, thereafter, means the successor and, for purposes of any provision contained herein and required by the TIA, each other obligor on the Notes.

 

“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.

 

“Non-Offered Note” means, as the context requires, a Class B Note, a Class C Note or a Class D Note.

 

“Note” means, as the context requires, a Class A-1 Note, a Class A-2 Note, a Class A-3a Note, a Class A-3b Note, a Class A-4 Note, a Class B Note, a Class C Note or a Class D Note.

 

“Note Depository Agreement” means one or more agreements dated as of the Closing Date, between the Issuer and DTC, as the initial Clearing Agency, relating to the Notes, substantially in the form of Exhibit C hereto.

 

“Note Register” and “Note Registrar” have the respective meanings specified in Section 2.04.

 

“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:

 

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(i)            Notes theretofore cancelled by the Note Registrar or delivered to the Note Registrar for cancellation;

 

(ii)           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

 

(iii)          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 protected purchaser, within the meaning of § 8-303 of the UCC;

 

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, Harley-Davidson Credit 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, Harley-Davidson Credit 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 [        ], 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.

 

“Person” means any individual, corporation, estate, partnership, limited liability company, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization or government or any agency or political subdivision thereof.

 

“Plan” means an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA or a plan, as defined in Section 4975(e)(1) of the Code.

 

“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.

 

7

 

“QIB”  means a “qualified institutional buyer” as defined in Rule 144A.

 

“Rating Agency” means each of Moody’s and Standard & Poor’s.

 

“Rating Event” means the qualification, reduction or withdrawal by either Rating Agency of its then-current rating of any Class of Notes.

 

“Record Date” means, with respect to a Redemption Date, the close of business on the last Business Day of the immediately preceding month and, with respect to a Distribution Date, the close of business on the day immediately preceding such date.

 

“Redemption Date” means (a) 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 Distribution Date specified by the Servicer or the Issuer pursuant to Section 10.01(a) or 10.01(b), as the case may be and (b) in the case of a redemption of Notes pursuant to Section 10.01(c), the Distribution Date specified in Section 7.07 of the Sale and Servicing Agreement on which the Indenture Trustee shall withdraw any amount remaining in the Pre-Funding Account and deposit the applicable amount in the Note Distribution Account.

 

“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 weighted average of 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.

 

“Regulation S” means Regulation S under the Securities Act.

 

“Regulation S Global Legend” shall have the meaning specified in Section 2.15(b).

 

“Regulation S Global Note” shall have the meaning specified in Section 2.09.

 

“Regulation S Legend” shall have the meaning specified in Section 2.15(b).

 

“Regulation S Transfer Certificate” shall have the meaning specified in Section 2.04.

 

“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.

 

“Restrictive Legend” shall have the meaning specified in Section 2.15(a).

 

“Rule 144A” means Rule 144A under the Securities Act.

 

“Rule 144A Global Note” shall have the meaning specified in Section 2.09.

 

“Rule 144A Transfer Certificate” shall have the meaning specified in Section 2.04.

 

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“Sale and Servicing Agreement” means the Sale and Servicing Agreement, dated as of the date hereof, among the Issuer, the Trust Depositor, the Indenture Trustee and the Servicer.

 

“Seller”   means Harley-Davidson Credit, in its capacity as Seller under the Transfer and Sale Agreement, and any successors and assigns.

 

“Servicer” means Harley-Davidson Credit, in its capacity as Servicer under the Sale and Servicing Agreement, and any Successor Servicer thereunder.

 

“Similar Law” means any foreign, federal, state or local law with provisions substantially similar to Title I of ERISA or Section 4975 of the Code.

 

“State” means any one of the 50 states of the United States or any of its territories, or the District of Columbia.

 

“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.

 

“Transfer Certificate” shall have the meaning specified in Section 2.04.

 

“Trust Depositor” shall mean Harley-Davidson Customer Funding Corp., in its capacity as trust depositor under the Sale and Servicing Agreement.

 

“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as amended.

 

“UCC” means the Uniform Commercial Code as in effect on the date hereof and from time to time in the State of Illinois, provided that if by reason of mandatory provisions of law, the perfection or the effect of perfection or non-perfection or priority of the security interests in any collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code as in effect on or after the date hereof in any other jurisdiction, “UCC” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection or priority or availability of such remedy.

 

“United States” means the United States of America.

 

“US Person” shall have the meaning set forth in Regulation S.

 

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.

 

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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 the Notes for original issue in the Classes and aggregate principal amounts set forth below:

 

Class		Aggregate Principal Amount
Class A-1		$	[      ]
Class A-2		$	[      ]
Class A-3a		$	[      ]
Class A-3b		$	[      ]
Class A-4		$	[      ]
Class B		$	[      ]
Class C		$	[      ]
Class D		$	[      ]

 

The aggregate principal amount of such Classes 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 $100,000 and in integral multiples of $1,000 in excess thereof.

 

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 temporary 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 .  The Issuer shall cause to be kept a register (the “Note Register”) in which, subject to such reasonable regulations as it may prescribe, the Note Registrar 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.

 

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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 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 principal 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.

 

Each Person that acquires a Note shall be required to represent, or in the case of a Book Entry Note, will be deemed to represent by its acceptance of the Note, that (i) it is not, and is not acquiring the Note on behalf of or with “plan assets” (as determined under Department of Labor Regulation Section 2510.3-101 or otherwise) of a Plan, or any employee benefit plan subject to Similar Law, or (ii) its acquisition and holding of the Note do not give rise to a nonexempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code, or any Similar Law.  Any transfer with respect to which the representation in clause (i) or (ii) above is not true shall be void ab initio .

 

Each purchaser (including any transferee) of a Non-Offered Note (other than the Trust Depositor or an Affiliate thereof) must satisfy the transfer restrictions as set forth herein and in the applicable transfer certificate attached hereto as Exhibit D (the “Regulation S Transfer Certificate”) and Exhibit  E (the “Rule 144A Transfer Certificate” and, together with the Regulation S Transfer Certificate, the “Transfer Certificates”) and, in the case of such a purchaser taking delivery in the form of an interest in a Rule 144A Global Note or a Regulation S Global Note, as the case may be, by its acceptance of a

 

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beneficial interest in the Notes, shall be deemed to have made the representations and warranties set forth in the applicable Transfer Certificate.

 

The Notes may not be purchased with the assets of a Plan if the Issuer, the Indenture Trustee, the Owner Trustee, the Servicer or the Underwriters or any of their affiliates has investment or administrative discretion with respect to those Plan assets; has authority or responsibility to give, or regularly gives, investment advice with respect to those Plan assets for a fee and pursuant to an agreement or understanding that the advice will serve as a primary basis for investment decisions with respect to those Plan assets and will be based on the particular investment needs for the Plan; or is an employer maintaining or contributing to the Plan.

 

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.

 

(i)                                      the Note Registrar and the Indenture Trustee will 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;

 

(ii)                                   the rights of Noteholders will be exercised only through the Clearing Agency and will 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 Depository Agreement;

 

(iii)                                whenever this Indenture requires or permits actions to be taken based upon instructions or directions of Holders of Notes evidencing a specified percentage of the Outstanding Amount of the Notes, the Clearing Agency will 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; and

 

(iv)                               without the consent of the Issuer and the Indenture Trustee, no such Note may be transferred by the Depository except to a successor Depository that agrees to hold such Note for the account of the Owners or except upon the election of the Owner thereof or a subsequent transferee to hold such Note in physical form.

 

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 Depository.

 

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 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 protected purchaser, within the meaning of § 8-303 of the UCC, the Issuer shall execute and upon its 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 and denomination; 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

 

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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 protected purchaser, within the meaning of § 8-303 of the UCC, of the original Note in lieu of which such replacement Note was issued presents for payment such original Note, the Issuer, and the Indenture Trustee shall be entitled to recover such replacement Note (or such payment) from the Person to whom it was delivered or any Person taking such replacement Note from such Person to whom such replacement Note was delivered or any assignee of such Person, except a protected purchaser, within the meaning of § 8-303 of the UCC, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the Indenture Trustee in connection therewith.

 

Upon the issuance of any replacement Note under this Section, the Issuer or the Indenture Trustee may require the payment by the 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 of 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 Distribution Date as specified therein, 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 by the Issuer on the applicable Distribution 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 wire transfer in immediately available funds to the account designated by such nominee and except for the final installment of principal payable with respect to such Note on a Distribution Date or on the related Final Distribution Date, as the case may be (and except for the Redemption Price for any Note called for redemption pursuant to Section 10.01(a)), which shall be payable as provided below.  The funds represented by any such checks returned undelivered shall be held in accordance with Section 3.03.

 

(b)                                  The principal of each Note shall be payable on each Distribution 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 the maturity of the Notes has been accelerated 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 

 

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entitled thereto.  The Indenture Trustee shall notify the Person in whose name a Note is registered at the close of business on the Record Date preceding the Distribution 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 (plus interest on such defaulted interest to the extent lawful) at the applicable Interest Rate in any lawful manner.  The Issuer may pay such defaulted interest to the Persons who are Noteholders on a subsequent special record date, which date shall be at least five Business Days prior to the related payment date.  The Issuer shall fix or cause to be fixed any such special record date and payment date and, at least 15 days before any such special record date, the Issuer shall mail to the Indenture Trustee and each Noteholder a notice that states the special record date, the payment date and the amount of defaulted interest to be paid.

 

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 cancelled by the Indenture Trustee.  The Issuer may at any time deliver to the Indenture Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Indenture Trustee.  No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section, except as expressly permitted by this Indenture.  All cancelled Notes may be held or disposed of by the Indenture Trustee in accordance with its standard retention or disposal policy as in effect at the time unless the Issuer shall direct by 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.

 

Section 2.09.        Book-Entry Notes.

 

(a)                                   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 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:

 

(i)                                      the provisions of this Section shall be in full force and effect;

 

(ii)                                   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;

 

(iii)                                to the extent that the provisions of this Section conflict with any other provisions of this Indenture, the provisions of this Section shall control;

 

(iv)                               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

 

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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

 

(v)                                  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.

 

(b)                                  The Non-Offered Notes issued to the Trust Depositor will be represented by one or more permanent global notes in definitive, fully registered form without interest coupons (each, a “Rule 144A Global Note”).  Each Rule 144A Global Note shall be deposited with the Indenture Trustee, as custodian for DTC, and shall be registered in the name of DTC or its nominee.  The aggregate principal amount of a Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Indenture Trustee (as custodian for DTC), DTC, or its nominee, as herein provided, which adjustments shall be conclusive as to the Outstanding Amount of such Rule 144A Global Note.

 

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 of the Notes to the Clearing Agency, and shall have no obligation to the Noteholders.

 

Section 2.11.        Definitive 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 applicable Note Depository Agreement, and (B) Indenture Trustee or the Administrator is unable to locate a qualified successor, (ii) the Administrator or the Owner Trustee, as applicable, notifies the Clearing Agency of its intent to terminate the book-entry system through the Clearing Agency and requests a withdrawal of the Book-Entry Notes held by the Clearing Agency, and after receipt by the Clearing Agency Participants of an important notice issued by the Clearing Agency notifying the Clearing Agency Participants of such withdrawal request, the Clearing Agency Participants holding beneficial interests in the Book-Entry Notes agree to initiate such termination, or (iii) after the occurrence of an Event of Default, the Modified Required Holders 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 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 Noteholders 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.  The Definitive Notes shall be typewritten, printed, lithographed or engraved or produced by any combination of these methods (with or without steel

 

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engraved borders), all as determined by the officers executing such Notes, as evidenced by their execution of such Notes.

 

Section 2.12.        Release of Collateral .  Subject to Sections 4.04, 8.04 and 11.01 and the terms of the Transaction Documents, 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.

 

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 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 agree to treat the Notes for federal, state and local income, single business and franchise tax purposes as indebtedness of the Issuer.

 

Section 2.14.        Transfer Provisions; Enforcement of Transfer Restrictions.

 

(a)                                   Until the Issuer (or the Administrator on behalf of the Issuer) and the Indenture Trustee determine that other procedures are appropriate and consistent with applicable law, the Non-Offered Notes may be sold, pledged, or otherwise transferred subject to compliance with the applicable legends set forth on the Non-Offered Notes as follows:

 

(i)                                      Rule 144A Global Note to Rule 144A Global Note .  All or a portion of an interest in a Rule 144A Global Note may be transferred to an Affiliate of the Trust Depositor or to a Person taking delivery in the form of an interest in a Rule 144A Global Note that is a QIB, purchasing for its own account or for the account of one or more Persons each of which is a QIB, in accordance with the applicable procedures of DTC (in addition to those under this Indenture), and only in a denomination greater than or equal to the required minimum denomination for each account; provided that any remaining principal amount of the transferor’s interest in the Rule 144A Global Note will either equal zero or meet the required minimum denomination, provided, further , that the transferee by purchase of such interest shall be deemed to have made all acknowledgements, representations and warranties applicable to such transfer or purchase of an interest in a Rule 144A Global Note as set forth in the Rule 144A Transfer Certificate.

 

(ii)                                   Rule 144A Global Note to Regulation S Global Note .  All or a portion of an interest in a Rule 144A Global Note may be transferred to non-U.S. Persons in offshore transactions in reliance on Regulation S under the Securities Act represented by one or more global notes in definitive, fully registered form without interest coupons (each, a “Regulation S Global Note”) or exchanged for an interest in a Regulation S Global Note only in accordance with the applicable procedures of the Depository and, as applicable, Clearstream or Euroclear (in addition to those under this Indenture) and subject to the receipt by the Indenture Trustee of a Regulation S Transfer Certificate from the transferee (in the case of a transfer) or the holder (in the case of an exchange) to the effect that, among other things, the transfer or exchange is being made to a Person that is not a U.S. Person, purchasing for its own account or one or more accounts with respect to which it exercises complete investment discretion, each of which is not a U.S. Person, in an offshore transaction in accordance with Regulation S and only in a denomination greater than or equal to the required minimum denomination for each account; provided that any remaining principal amount of the interest of the transferor or the holder making the exchange in the Rule 144A Global Note will either equal zero or meet the required minimum denomination. Any interest in a Rule 144A Global Note that is transferred to a Person taking delivery in the form of an interest in a Regulation S Global Note shall, upon transfer, cease to be an interest in such Rule 144A Global Note and become an interest in the Regulation S Global Note and, accordingly, will thereafter be

 

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subject to all transfer restrictions and other procedures applicable to interests in a Regulation S Global Note for as long as it remains such an interest.

 

Each Regulation S Global Note initially shall be issued, and until the Exchange Date (as defined below) shall remain, in the form of a temporary Regulation S Global Note, which shall be deposited with the Indenture Trustee, as custodian for DTC, and registered in the name of DTC or its nominee for the respective accounts of Euroclear or Clearstream, as the case may be.  On and after the first Business Day following the 40 th  day after the later of the Closing Date and the commencement of the offering of the Notes (the “Exchange Date”), beneficial interests in a temporary Regulation S Global Note will be exchangeable for interests in one or more permanent Regulation S Global Notes upon written certification from DTC, together with copies of certificates substantially in the form of Exhibit  F from Euroclear and Clearstream, certifying that they have received written certification substantially in the form of Exhibit  G that the beneficial interests in 100% of the Outstanding Amount of such temporary Regulation S Global Note (except to the extent of any Noteholders who will take delivery of beneficial interests in a Rule 144A Global Note, as contemplated by Section 2.14(a)(iv)) are owned by Persons who are not U.S. Persons.  Each permanent Regulation S Global Note shall be deposited with the Indenture Trustee, as custodian for DTC, and registered in the name of DTC or its nominee for the respective accounts of Euroclear and Clearstream, as the case may be.  Simultaneously with the authentication of the permanent Regulation S Global Notes, the Indenture Trustee shall cancel the temporary Regulation S Global Notes.  The Outstanding Amount of a temporary or permanent Regulation S Global Note may from time to time be increased or decreased by adjustments made on the Note Register and the records of the Indenture Trustee (as custodian for DTC) and DTC, or its nominee, as herein provided, which adjustments shall be conclusive as to the Outstanding Amount of such Regulation S Global Note.

 

(iii)                                Regulation S Global Note to Regulation S Global Note .  All or a portion of an interest in a Regulation S Global Note may be transferred to a Person that is not a U.S. Person taking delivery in the form of an interest in a Regulation S Global Note in accordance with the applicable procedures of the Depository and, as applicable, Clearstream or Euroclear (in addition to those under this Indenture) in an offshore transaction in accordance with Regulation S, and only in a denomination greater than or equal to the required minimum denomination for each account; provided  that any remaining principal amount of the transferor’s interest in the Regulation S Global Note will either equal zero or meet the required minimum denomination. Interests in a Regulation S Global Note may be held only through Euroclear or Clearstream and may not be held by a U.S. Person at any time, provided, further , that the transferee or purchaser of such interest shall be deemed to have made all acknowledgements, representations and warranties applicable to such transfer or purchase of an interest in a Regulation S Global Note as set forth in the Regulation S Transfer Certificate.

 

(iv)                               Regulation S Global Note to Rule 144A Global Note .  All or a portion of an interest in a Regulation S Global Note may be transferred to a Person taking delivery in the form of an interest in a Rule 144A Global Note or exchanged for an interest in a Rule 144A Global Note only in accordance with the applicable procedures of the Depository and, as applicable, Clearstream or Euroclear (in addition to those under this Indenture) and subject to the receipt by the Indenture Trustee of a Rule 144A Transfer Certificate from the transferee (in the case of a transfer) or the holder (in the case of an exchange) to the effect that, among other things, the transfer or exchange is to a Person that is a QIB, purchasing for its own account or one or more accounts with respect to which it exercises complete investment discretion, each of which is a QIB, and only in a denomination greater than or equal to the required minimum denomination for each account; provided that any remaining principal amount of the interest of the transferor or the holder making the exchange in the Regulation S Global Note will either equal zero or meet the required minimum denomination.  Any interest in a Regulation S Global Note that is transferred to a Person taking delivery in the form of an interest in a Rule 144A Global Note shall, upon transfer, cease to be an interest in such Regulation S Global Note and become an interest in the Rule 

 

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144A Global Note and, accordingly, will thereafter be subject to all transfer restrictions and other procedures applicable to interests in a Rule 144A Global Note for as long as it remains such an interest.

 

In connection with any transfers under this Section 2.14(a), transferee and transferor of such notes shall furnish such other information as the Indenture Trustee shall reasonably request.

 

If the conditions to transfer set forth in Section 2.14(a) are not fully satisfied or if the Note Registrar receives written notice or a Responsible Officer of the Note Registrar otherwise obtains actual knowledge that (i) a transfer or attempted or purported transfer of any interest in any Non-Offered Note was consummated on the basis of an incorrect form or certification from the transferor regarding the transfer or purported transferee or (ii) the holder of any interest in a Note is in breach of any deemed representation or agreement of such holder, the Note Registrar will not register such attempted or purported transfer and if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall vest no rights in the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding Noteholder of such Non-Offered Note that was not a Disqualified Transferee shall be restored to all rights as a Noteholder thereof retroactively to the date of transfer of such Non-Offered Note by such Noteholder.  In furtherance of the foregoing, the Indenture Trustee shall be entitled to force a transferee of Non-Offered Notes or any related beneficial interest therein that acquired such Non-Offered Notes or related beneficial interest therein in violation of the provisions of this Indenture to sell such Non-Offered Notes or related beneficial interest therein to a person that satisfies the requirements of this Indenture at the then-current market price therefor, and if the transferee does not comply with such demand within 30 days thereof, the Indenture Trustee may sell or cause such transferee to sell such Non-Offered Notes or related beneficial interest therein to a permitted transferee under this Indenture on such terms as the Indenture Trustee may choose.  Nothing herein shall be deemed to imply for the Indenture Trustee and the Note Registrar any duty of investigation or monitoring subsequent to the date of any transfer.

 

No payments will be made on the Notes from the date notice of the sale requirement is sent to the date on which the interest is sold.

 

For the avoidance of doubt, the Issuer (or the Administrator on its behalf) may determine that the transfer restrictions in this Section 2.14 shall no longer be applicable with respect to the Non-Offered Notes upon delivery of written notice to the Indenture Trustee.

 

Section 2.15.        Legends on Notes.

 

(a)                                   Restrictive Legend .  Each Non-Offered Note shall, unless the Issuer (or the Administrator on its behalf) determines otherwise in compliance with applicable law, bear on its face a legend (the “Restrictive Legend”) in substantially the following form:

 

“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER RELEVANT JURISDICTION AND MAY BE RESOLD, PLEDGED, OR OTHERWISE TRANSFERRED (A)(1) TO A PERSON WHO IS A “QUALIFIED INSTITUTIONAL BUYER” (A “QIB”) WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), PURCHASING FOR ITS OWN ACCOUNT OR ONE OR MORE ACCOUNTS WITH RESPECT TO WHICH IT EXERCISES COMPLETE INVESTMENT DISCRETION, EACH OF WHICH IS A PERSON THAT THE SELLER REASONABLY BELIEVES IS A QIB, (2) OUTSIDE THE UNITED STATES TO CERTAIN PERSONS WHO ARE NOT U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT (“REGULATION S”)) PURCHASING FOR ITS OWN

 

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ACCOUNT OR ONE OR MORE ACCOUNTS WITH RESPECT TO WHICH IT EXERCISES COMPLETE INVESTMENT DISCRETION, EACH OF WHICH IS NOT A U.S. PERSON, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S, IN EACH CASE IN A PRINCIPAL AMOUNT OF NOT LESS THAN U.S.$100,000 AND INTEGRAL MULTIPLES OF U.S.$1,000 IN EXCESS THEREOF FOR THE PURCHASER AND FOR EACH ACCOUNT FOR WHICH  IT IS ACTING OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT, (B) IN COMPLIANCE WITH THE CERTIFICATION AND OTHER REQUIREMENTS SPECIFIED IN THE INDENTURE REFERRED TO HEREIN AND (C) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION.  EACH PURCHASER OR TRANSFEREE OF THIS NOTE WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE INDENTURE.

 

NO SALE OR TRANSFER OF THIS NOTE MAY BE MADE TO A PURCHASER WHO IS (A) ACTING ON BEHALF, OR USING ANY “PLAN ASSETS,” OF AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN WITHIN THE MEANING OF SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AN ENTITY WHICH IS DEEMED TO HOLD THE ASSETS OF ANY SUCH PLAN PURSUANT TO 29 C.F.R. SECTION 2510.3-101 OR OTHERWISE UNDER ERISA, WHICH PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL OR CHURCH PLAN WHICH IS SUBJECT TO ANY FEDERAL, STATE, OR LOCAL LAW (EACH, A “SIMILAR LAW’) THAT IS SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (COLLECTIVELY, A “PLAN”) AND (B) ACQUIRING OR HOLDING SUCH NOTE IN A MANNER THAT IS NOT ELIGIBLE FOR AN EXEMPTION GRANTED BY UNITED STATES DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23, OR A SIMILAR EXEMPTION, OR, IN THE CASE OF A PLAN SUBJECT TO SIMILAR LAW, THAT WOULD EITHER CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION.

 

NO TRANSFER OF THIS NOTE (OR ANY INTEREST HEREIN) MAY BE MADE (AND NEITHER THE INDENTURE TRUSTEE NOR THE NOTE REGISTRAR WILL RECOGNIZE ANY SUCH TRANSFER) IF SUCH TRANSFER WOULD BE MADE TO A PERSON THAT IS OTHERWISE UNABLE TO MAKE THE CERTIFICATIONS AND REPRESENTATIONS DEEMED TO BE MADE BY SUCH PERSON IN THE INDENTURE REFERRED TO HEREIN.  ACCORDINGLY, TRANSFER OF THIS NOTE IS RESTRICTED, AND AN INVESTOR IN THIS NOTE MUST BE PREPARED TO BEAR THE ECONOMIC RISK OF THE INVESTMENT FOR AN INDEFINITE PERIOD OF TIME OR UNTIL MATURITY.

 

ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO , AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE INDENTURE TRUSTEE OR ANY INTERMEDIARY.  EACH TRANSFEROR OF THIS NOTE AGREES TO PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS SET FORTH HEREIN AND IN THE INDENTURE TO THE TRANSFEREE.  IN ADDITION TO THE FOREGOING, THE ISSUER MAINTAINS THE RIGHT TO RESELL ANY INTEREST IN THIS NOTE PREVIOUSLY

 

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TRANSFERRED TO AN IMPERMISSIBLE HOLDER IN ACCORDANCE WITH AND SUBJECT TO THE TERMS OF THE INDENTURE.”

 

(b)                                  Regulation S Note Legends .  Each Non-Offered Note sold in accordance with Regulation S shall, in addition to the Restrictive Legend and unless the Issuer  (or the Administrator on its behalf) determines otherwise in compliance with applicable law, bear on its face a legend (the “Regulation S Legend”) in substantially the following form:

 

“AN INTEREST IN THIS NOTE MAY NOT BE HELD BY A PERSON THAT IS A U.S. PERSON (AS DEFINED IN REGULATION S) AT ANY TIME.”

 

Each Regulation S Global Note shall, in addition to the Restrictive Legend and the Regulation S Legend and unless the Issuer (or the Administrator on its behalf) determines otherwise in compliance with applicable law, bear on its face a legend (the “Regulation S Global Legend”) in substantially the following form:

 

“THIS REGULATION S GLOBAL NOTE IS A GLOBAL NOTE WHICH IS EXCHANGEABLE FOR INTERESTS IN OTHER GLOBAL NOTES AND DEFINITIVE NOTES SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN AND IN THE INDENTURE. IN ADDITION, AN INTEREST IN THIS REGULATION S GLOBAL NOTE MAY ONLY BE HELD THROUGH EUROCLEAR OR CLEARSTREAM AT ANY TIME.”

 

Section 2.16.        Calculation Agent .

 

(a)                                   The Issuer agrees that for so long as any of the Floating Rate Notes are Outstanding there will at all times be an agent appointed to calculate LIBOR in respect of each Interest Period (the “ Calculation Agent ”).  The Issuer appoints The Bank of New York Mellon Trust Company, N.A., as the initial Calculation Agent for purposes of determining LIBOR for each Interest Period and The Bank of New York Mellon Trust Company, N.A. accepts such appointment.  On each Interest Determination Date, the Calculation Agent will calculate the interest rate with respect to the Floating Rate Notes.  All determinations of interest by the Calculation Agent shall, in the absence of manifest error, be conclusive for all purposes and binding on the Noteholders.

 

(b)                                  The Calculation Agent may be removed by the Issuer at any time.  If the Calculation Agent is unable or unwilling to act as such or is removed by the Issuer, the Issuer will promptly appoint as a replacement Calculation Agent a leading bank which is engaged in transactions in Eurodollar deposits in the international Eurodollar market and which does not control or is not controlled by or under common control with the Issuer or its Affiliates.  The Calculation Agent may not resign its duties without a successor having been duly appointed; provided, however , that upon the appointment of a successor Indenture Trustee pursuant to Section 6.09, The Bank of New York Mellon Trust Company, N.A., as initial Calculation Agent, may immediately resign and such successor Indenture Trustee shall automatically become the Calculation Agent under this Indenture.

 

(c)                                   The Calculation Agent shall be entitled to the same rights, protections, indemnities and immunities as the Indenture Trustee, as set forth in Article VI of this Indenture.

 

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such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;

 

(ii)           give the Indenture Trustee notice of any default by the Issuer (or any other obligor upon the Notes) in the making of any payment required to be made with respect to the Notes or under the Interest Rate Swap Agreement;

 

(iii)          at any time during the continuance of any such default, upon the written request of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in trust by such Paying Agent;

 

(iv)          immediately resign as a Paying Agent and forthwith pay to the Indenture Trustee all sums held by it in trust for the payment of Notes or in respect of the Interest Rate Swap Agreement 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

 

(v)           comply with all requirements of the Code with respect to the withholding from any payments made by it on any Notes or under the Interest Rate Swap Agreement 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 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 if such money or any portion thereof had been previously deposited by the Issuer with the Indenture Trustee for the payment of principal or interest on the Notes; and provided, further, 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 not 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 statutory 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

 

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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 and the Swap Counterparty to be prior to all other 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 and the Swap Counterparty, a first lien on and a first priority, perfected security interest in the Collateral.  The Issuer will from time to time execute and deliver all such supplements and amendments hereto and all such financing statements, continuation statements, instruments of further assurance and other instruments, all as prepared by the Servicer and delivered to the Issuer, and will take such other action necessary or advisable to:

 

(i)            Grant more effectively all or any portion of the Collateral;

 

(ii)           maintain or preserve the lien and security interest (and the priority thereof) created by this Indenture or carry out more effectively the purposes hereof;

 

(iii)          perfect, publish notice of or protect the validity of any Grant made or to be made by this Indenture;

 

(iv)          enforce any of the Collateral;

 

(v)           preserve and defend title to the Collateral and the rights of the Indenture Trustee, the Noteholders and the Swap Counterparty in such Collateral against the claims of all persons and parties; and

 

(vi)          pay all taxes or assessments levied or assessed upon the Collateral when due.

 

The Issuer shall file the financing statements on Form UCC1.  All financing statements filed or to be filed against the Issuer in favor of the Indenture Trustee in connection herewith describing the Collateral shall contain a statement to the following effect:  “A purchase of or security interest in any collateral described in this financing statement, except as permitted in the Indenture, will violate the rights of the Secured Party.”  The Issuer hereby authorizes the Indenture Trustee to file all continuation statements or other instruments required to be executed pursuant to this Section and hereby designates the Indenture Trustee its agent and attorney-in-fact for such purpose; provided, however, that the Indenture Trustee shall have no obligation to monitor or file any financing statements, continuation statements, financing statement amendments or any other instrument.

 

Section 3.06.         Opinions as to Collateral .  On the Closing Date, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel to the effect that, in the opinion of such counsel, either (i) all financing statements and continuation statements have been executed and filed that are necessary to create and continue the Indenture Trustee’s first priority perfected security interest in the Collateral for the benefit of the Noteholders, and reciting the details of such filings or (ii) no such action shall be necessary to perfect such security interest.

 

Section 3.07.         Performance of Obligations; Servicing of Contracts .

 

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(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 shall not be responsible for the action or inaction of the Servicer or the Administrator.  Initially, the Issuer has contracted with the Servicer and the Administrator to assist the Issuer in performing its duties under this Indenture.

 

(c)            The Issuer 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 Sale 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 or the Required Holders.

 

(d)            If the Issuer shall have knowledge of the occurrence of an Event of Termination, 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 Sale 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, specifying in such notice the name and address of such Successor Servicer.

 

(e)            The Is