EXHIBIT 4.2
HARLEY-DAVIDSON MOTORCYCLE TRUST
2005-3,
as Issuer,
and
THE BANK OF NEW YORK TRUST COMPANY,
N.A.,
not in its individual capacity but solely in its
capacity
as Indenture Trustee
INDENTURE
Dated as of August 1, 2005
$402,000,000 4.30% Harley-Davidson
Motorcycle Contract Backed Notes, Class A-1
$213,870,000 4.41% Harley-Davidson
Motorcycle Contract Backed Notes, Class A-2
$34,130,000 4.60% Harley-Davidson
Motorcycle Contract Backed Notes, Class B
CROSS-REFERENCE
TABLE
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TIA
Section
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|
Indenture
Section
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310(a)(1)
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6.11
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(a)(2)
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6.11
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(a)(3)
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6.10
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(a)(4)
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N.A.
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(a)(5)
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6.11
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(b)
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6.08; 6.11; 11.04
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(c)
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|
N.A.
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311(a)
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6.13
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(b)
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6.13
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(c)
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|
N.A.
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312(a)
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7.01; 7.02
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(b)
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7.02
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(c)
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7.02
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313(a)
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7.04
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(b)
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7.04
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(c)
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7.04
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(d)
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7.04
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314(a)
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7.03
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(b)
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3.06
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(c)(1)
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2.02; 6.02; 11.01
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(c)(2)
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11.01
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(c)(3)
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11.01
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(d)
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|
11.01
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(e)
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|
11.01
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(f)
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N.A.
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315(a)
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6.01
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(b)
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6.05
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(c)
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|
6.01
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(d)
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|
5.12; 6.01
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|
(e)
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|
5.14
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316(a)(1)(A)
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|
5.12
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|
(a)(1)(B)
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|
5.02
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|
(a)(2)
|
|
N.A.
|
|
(b)
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|
5.08
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|
(c)
|
|
N.A.
|
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317(a)
|
|
5.03; 5.04
|
|
(b)
|
|
3.03
|
|
318(a)
|
|
11.18
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* 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
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INDENTURE
Indenture, dated as of
August 1, 2005 (this “Indenture”), between
Harley-Davidson Motorcycle Trust 2005-3, a Delaware statutory trust
(the “Issuer”) and The Bank of New York Trust Company,
N.A., 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 4.30% Harley-Davidson
Motorcycle Contract Backed Notes, Class A-1 (the
“Class A-1 Notes”), 4.41% Harley-Davidson
Motorcycle Contract Backed Notes, Class A-2 (the
“Class A-2 Notes”) and 4.60% Harley-Davidson
Motorcycle Contract Backed Notes, Class B (the
“Class B Notes”) and, together with the
Class A-1 Notes and the Class B 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 (exclusive of the amount, if any, allocable to any
rebatable insurance premium financed by any Contract) in, to and
under: (i) the Initial Contracts and Subsequent Contracts
secured by the Motorcycles (which Contracts shall be listed in the
List of Contracts and Subsequent List of Contracts);
(ii) certain monies due under the Initial Contracts and
Subsequent Contracts after the Initial Cutoff Date and Subsequent
Cutoff Date, respectively, including, without limitation, all
payments of principal and interest with respect to any Motorcycles
to which a Contract relates received after the Initial Cutoff Date
or Subsequent Cutoff Date and all other proceeds received on or in
respect of such Contracts (other than payments of principal and
interest due on or prior to the Initial Cutoff Date or Subsequent
Cutoff Date); (iii) security interests in the Motorcycles;
(iv) amounts on deposit in the Collection Account, the Note
Distribution Account, the Reserve Fund, the Pre-Funding Account and
the Interest Reserve Account, including all Eligible Investments
therein and all income from the investment of funds therein and all
proceeds therefrom; (v) proceeds from claims under certain
insurance policies, debt insurance policies or debt cancellation
agreements in respect of individual Motorcycles or obligors under
the Contracts; (vi) its rights under the Sale and Servicing
Agreement; (vii) the protective security interest in certain
of the above-described property granted by the Trust Depositor in
favor of the Issuer; (viii) all present and future claims,
demands, causes of and choses in action in respect of any or all of
the foregoing; (ix) all rights to certain rebates of premiums
and other amounts relating to insurance policies, debt cancellation
agreements, extended service contracts or other repair agreements
and other items financed under such Contracts and (x) all payments
on or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of
the conversion, voluntary or involuntary, into cash of other liquid
property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of any
and every kind and other forms of obligations and receivables,
instruments and other property which at
any time constitute all or part of or are
included in the proceeds of any of the foregoing (as each such
defined term is defined in Section 1.01) (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, except for the
subordination of the Class B Notes provided herein 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 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.
(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 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
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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.
“Class A-1 Final
Distribution Date” has the meaning set forth in the Sale and
Servicing Agreement.
“Class A-1
Rate” 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 B .
“Class A-2 Final
Distribution Date” has the meaning set forth in the Sale and
Servicing Agreement.
“Class A-2
Rate” 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 C .
“Class B Final
Distribution Date” has the meaning set forth in the Sale and
Servicing Agreement.
“Class B
Rate” 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 D .
“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.
“ 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.
“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 2 North
LaSalle Street, Suite 1020, Chicago, Illinois 60602,
Attention: Corporate Trust Administration; 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.
“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.
“Event of
Default” shall have
the meaning specified in Section 5.01.
“Exchange
Act” means the
Securities Exchange Act of 1934, as amended.
“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.
“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
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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 The
Bank of New York Trust Company, N.A., as Indenture Trustee under
this Indenture, or any successor Indenture Trustee under this
Indenture.
“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
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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
Period” means, with
respect to any Distribution Date and any Class of Notes, the
period from and including the fifteenth day of the month of the
Distribution Date immediately preceding such Distribution Date (or,
in the case of the first Distribution Date, from and including the
Closing Date) to but excluding the fifteenth day of the month of
such Distribution Date.
“Interest
Rate” means the
Class A-1 Rate, the Class A-2 Rate and the Class B
Rate, as applicable.
“Issuer”
means Harley-Davidson Motorcycle
Trust 2005-3 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.
“Note”
means, as the context requires, a
Class A-1 Note, a Class A-2 Note or a Class B
Note.
“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 F 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
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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:
(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
Wilmington Trust Company, 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.
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“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.
“Rating
Agency” means each
of Moody’s and Standard & Poor’s.
“Rating Agency
Condition” means,
with respect to any action, that each Rating Agency shall have been
given ten days (or such shorter period as is acceptable to each
Rating Agency) prior notice thereof and that each Rating Agency
shall have notified the Trust Depositor, the Servicer and the
Issuer in writing that such action will not result in a
qualification, reduction or withdrawal of its then-current rating
of any Class of Notes.
“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.
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“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.
“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.
“Trust
Agreement” means
the Trust Agreement, dated as of August 4, 2005, between the
Trust Depositor and the Owner Trustee.
“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.
9
“United
States” means the
United States of America.
(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 Sale 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;
(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
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(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 and
subsection references contained in this Indenture are
references to Sections and subsections in or to this Indenture
unless otherwise specified.
ARTICLE TWO
THE NOTES
Section 2.01.
Form . The Class A-1
Notes, the Class A-2 Notes and the Class B 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 $402,000,000, (ii) Class A-2 Notes in an
aggregate principal amount of $213,870,000 and
(iii) Class B Notes in an aggregate principal amount of
$34,130,000. 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 $1,000 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
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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.
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
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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 Note in
book-entry form, 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 .
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.
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(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
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,
14
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 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 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
15
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 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 . 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;
16
(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 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.
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 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
17
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
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.
ARTICLE THREE
COVENANTS
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 and the Indenture Trustee will
cause to be deposited into the Note Distribution Account amounts
allocated pursuant to Section 7.05 of the Sale and Servicing
Agreement, and cause to be distributed all such amounts on a
Distribution 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 and (iii) for the benefit of the
Class B Notes, to the Class B 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.
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Section 3.02.
Maintenance of
Office or Agency . The Issuer will
maintain in Wilmington, Delaware, 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 hereby
initially appoints the Indenture Trustee to serve as its agent for
the foregoing purposes. The Issuer will give prompt written
notice to the Indenture Trustee of the location, and of any change
in the location, of any such office or agency. If at any time
the Issuer shall fail to maintain any such office or agency or
shall fail to furnish the Indenture Trustee with the address
thereof, such surrenders, notices and demands may be made or served
at the Corporate Trust Office, and the Issuer hereby appoints the
Indenture Trustee as its agent to receive all such surrenders,
notices and demands.
Section 3.03.
Money for
Payments to be Held in Trust . As provided in
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, and
no amounts so withdrawn from the Collection Account and the Note
Distribution Account for payments of Notes shall be paid over to
the Issuer except as provided in this Section.
On or before the Business Day
immediately preceding each Distribution Date and Redemption Date,
the Issuer shall deposit or cause to be deposited in the Note
Distribution Account 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 so to 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:
(i)
hold all sums held by it for the
payment of amounts due with respect to the Notes in trust for the
benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided
and pay such sums to such Persons as herein provided;
(ii)
give the Indenture Trustee notice of
any default by the Issuer (or any other obligor upon the Notes) in
the making of any payment required to be made with respect to the
Notes;
(iii)
at any time during the continuance
of any such default, upon the written request of the Indenture
Trustee, forthwith pay to the Indenture Trustee all sums so held in
trust by such Paying Agent;
(iv)
immediately resign as a Paying Agent
and forthwith pay to the Indenture Trustee all sums held by it in
trust for the payment of Notes if at any time it ceases
19
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 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 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.
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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 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. 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 and the
Noteholders 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 initial
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.
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.
(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
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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 Issuer agrees
that it will not waive timely performance or observance by the
Servicer or the Seller 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:
(i)
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;
(ii)
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;
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(iii)
(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 tax liens,
mechanics’ liens and other liens that arise by operation of
law, in each case on a Motorcycle and arising solely as a result of
an action or omission of the related Obligor), (C) permit the
lien created by this Indenture not to constitute a valid first
priority (other than with respect to any such tax, mechanics’
or other lien) security interest in the 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, except where the Transaction Documents allow for
amendment or modification without the consent or approval of the
Indenture Trustee;
(iv)
dissolve or liquidate in whole or in
part; or
(v)
change its name or state of
formation.
Section 3.09.
Annual
Statement as to Compliance . The Issuer will
deliver to the Indenture Trustee, on or before January 31 of
each year commencing January 31, 2006, an Officer’s
Certificate stating, as to the Authorized Officer signing such
Officer’s Certificate, that:
(i)
a review of the activities of the
Issuer during the prior calendar year and of performance under this
Indenture has been made under such Authorized Officer’s
supervision; and
(ii)
to the best of such Authorized
Officer’s knowledge, based on such review, the Issuer has
complied with all conditions and covenants under this Indenture
throughout such year, or, if there has been a default in the
compliance of any such condition or covenant, specifying each such
default known to such Authorized Officer and the nature and status
thereof.
Section 3.10.
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;
23
(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 any 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 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 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;
24
(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 any 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 3.11.
Successor or
Transferee.
(a)
Upon any
consolidation or merger of the Issuer in accordance with
Section 3.10(a), the Person formed by or surviving such
consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power
of, the Issuer under this Indenture with 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 pursuant to Section 3.10(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 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 3.12.
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 3.13.
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 shall be used exclusively to fund the
Issuer’s purchase of the Contracts and the other assets
specified in the Sale and Servicing Agreement, to fund the Reserve
Fund and to pay the transactional expenses of the
Issuer.
25
Section 3.14.
Servicer’s
Obligations . The Issuer shall
cause the Servicer to comply with Article Five and
Article Nine of its obligations under the Sale and Servicing
Agreement.
Section 3.15.
Guarantees,
Loans Advances and Other Liabilities . Except as otherwise
contemplated by the Transaction Documents, the Issuer shall not
make any loan or advance or credit to, or guarantee (directly or
indirectly or by an instrument having the effect of assuming
another’s payment or performance on any obligation or
capability of so doing or otherwise), endorse or otherwise become
contingently liable, directly or indirectly, in connection with the
obligations, stocks or dividends of, or own, purchase, repurchase
or acquire (or agree contingently to do so) any stock, obligations,
assets or securities of, any other interest in, or make any capital
contribution to, any other Person.
Section 3.16.
Capital
Expenditures . The Issuer shall not
make any expenditure (by long-term or operating lease or otherwise)
for capital assets (either realty or personalty).
Section 3.17.
Restricted
Payments . Except as permitted
by the Transaction Documents, the Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by
reduction of capital or otherwise), whether in cash, property,
securities or a combination thereof, to the Owner Trustee or any
owner of a beneficial interest in the Issuer or otherwise with
respect to any ownership or equity interest or security in or of
the Issuer or to the Servicer, (ii) redeem, purchase, retire
or otherwise acquire for value any such ownership or equity
interest or security or (iii) set aside or otherwise segregate
any amounts for any such purpose; provided, however, that the
Issuer may make, or cause to be made, (A) distributions to the
Servicer, the Owner Trustee and the Certificateholder as
contemplated by, and to the extent funds are available for such
purpose under, the Sale and Servicing Agreement or the Trust
Agreement and (B) payments to the Indenture Trustee and the
Owner Trustee pursuant to Section 1(a)(ii) of the
Administration Agreement. The Issuer will not, directly or
indirectly, make payments to or distributions from the Collection
Account except in accordance with this Indenture and the other
Transaction Documents.
Section 3.18.
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 an Event of
Termination under the Sale and Servicing Agreement.
Section 3.19.
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 3.20.
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 3.21.
Amendments of
Sale and Servicing Agreement and Trust Agreement
. The
Issuer shall not agree to any amendment to Section 11.01 of
the Trust Agreement to
26
eliminate the requirements thereunder that the
Indenture Trustee or the Holders of the Notes consent to amendments
thereto as provided therein.
Section 3.22.
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.
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, 3.20 and 3.21,
(v) the rights, obligations and immunities of the Indenture
Trustee hereunder (including the rights of the Indenture Trustee
under Section 6.07 and the obligations of the Indenture
Trustee under 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 therefore 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;
(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 their
respective final Distribution Dates 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
27
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 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 Distribution Date (if Notes shall have been called
for redemption pursuant to Section 10.01(a)), as the case may
be;
(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
(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 Sale 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 . Subject to
Section 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 and an Opinion of Counsel and
Independent Certificates in accordance with TIA
§§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.
28
ARTICLE FIVE
REMEDIES
Section 5.01.
Events of
Default . “Event 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):
(i)
default in the payment of any
interest on any Note when the same becomes due and payable, and
such default shall continue for a period of five days;
(ii)
default in the payment of the
principal of or any installment of the principal of any Note when
the same becomes due and payable;
(iii)
default in the observance or
performance of any covenant or agreement of the Issuer made in this
Indenture (other than a covenant or agreement, a default in the
observance or performance of which is elsewhere in this
Section specifically dealt with) which default has a material
adverse effect on the Noteholders, or any representation or
warranty of the Issuer made in this Indenture or in any certificate
or other writing delivered pursuant hereto or in connection
herewith proving to have been incorrect in any material respect as
of the time when the same shall have been made, and such default
shall continue or not be cured, or the circumstance or condition in
respect of which such misrepresentation or warranty was incorrect
shall not have been eliminated or otherwise cured, for a period of
30 days after there shall have been given, by registered or
certified mail, to the Indenture Trustee by the Holders of at least
25% of the Outstanding Amount of the Class A-1 Notes and the
Class A-2 Notes, taken together as a single class, or, if
there are no Class A-1 Notes or Class A-2 Notes
Outstanding, by the Holders of at least 25% of the Outstanding
Amount of the Class B Notes a written notice specifying such
default or incorrect representation or warranty and requiring it to
be remedied and stating that such notice is a “Notice of
Default” hereunder;
(iv)
the filing of a decree or order for
relief by a court having jurisdiction in the premises in respect of
the Issuer or any substantial part of the Collateral in an
involuntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any
substantial part of the Collateral, or ordering the winding-up or
liquidation of the Issuer’s affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days; or
(v)
the commencement by the Issuer of a
voluntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or the
consent by the Issuer to the entry of an order for relief in an
involuntary case under any such law, or the consent by the Issuer
to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of
the Issuer or for any substantial part of the Collateral, or the
making by the Issuer of any general
29
assignment for the benefit of creditors, or the
failure by the Issuer generally to pay its debts as such debts
become due, or the taking of action by the Issuer in furtherance of
any of the foregoing.
The Issuer shall deliver to the
Indenture Trustee within five days after obtaining knowledge of the
occurrence thereof, written notice in the form of an
Officer’s Certificate of any event which with the giving of
notice and the lapse of time would become an Event of Default under
clause (iii) above, its status and what action the Issuer is
taking or proposes to take with respect thereto.
Section 5.02.
Rights Upon
Event of Default . If an Event of
Default shall have occurred and be continuing, other than an Event
of Default described in Section 5.01(iv) or
(v) above, the Indenture Trustee or the Modified Required
Holders may declare the principal amount of the Notes immediately
due and payable at par. At any time after such declaration of
acceleration of maturity has been made and before a judgment or
decree for payment of the money due has been obtained by the
Indenture Trustee as hereinafter in this Article Five,
provided , the Required Holders may rescind such declaration
if (i) the Issuer has made all payments of principal of and
interest on all Notes when the same becomes due and payable and
(ii) the Issuer has paid all amounts due and payable to the
Indenture Trustee. If an Event of Default described in
Section 5.01(iv) or (v) shall have occurred and be
continuing, the principal amount of the Notes shall become
immediately due and payable.
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
