Exhibit 4.1


 


EXECUTION COPY


 


SSCE
FUNDING, LLC, 

as Issuer


 


and


 


DEUTSCHE BANK TRUST
COMPANY AMERICAS,

as Indenture Trustee


 


 


MASTER

INDENTURE


 


Dated as of November 23,
2004


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
  SECTION 1.1.

  	
   

  	
  Definitions

  	
   

  
	
  SECTION 1.2.

  	
   

  	
  Other Interpretive Matters

  	
   

  
	
  SECTION 1.3.

  	
   

  	
  Incorporation by Reference of TIA

  	
   

  
	
  ARTICLE II

  	
  THE NOTES

  	
   

  
	
  SECTION 2.1.

  	
   

  	
  Form

  	
   

  
	
  SECTION 2.2.

  	
   

  	
  Execution, Authentication and Delivery

  	
   

  
	
  SECTION 2.3.

  	
   

  	
  Temporary Notes

  	
   

  
	
  SECTION 2.4.

  	
   

  	
  Registration; Registration of Transfer and
  Exchange

  	
   

  
	
  SECTION 2.5.

  	
   

  	
  Mutilated, Destroyed, Lost or Stolen Notes

  	
   

  
	
  SECTION 2.6.

  	
   

  	
  Persons Deemed Owner

  	
   

  
	
  SECTION 2.7.

  	
   

  	
  Payment of Principal and Interest;
  Defaulted Interest

  	
   

  
	
  SECTION 2.8.

  	
   

  	
  New Issuances

  	
   

  
	
  SECTION 2.9.

  	
   

  	
  Cancellation

  	
   

  
	
  SECTION 2.10.

  	
   

  	
  Book-Entry Notes

  	
   

  
	
  SECTION 2.11.

  	
   

  	
  Notices to Clearing Agency

  	
   

  
	
  SECTION 2.12.

  	
   

  	
  Definitive Notes

  	
   

  
	
  SECTION 2.13.

  	
   

  	
  Treasury Notes

  	
   

  
	
  SECTION 2.14.

  	
   

  	
  CUSIP Numbers

  	
   

  
	
  SECTION 2.15.

  	
   

  	
  Perfection Representations and Warranties

  	
   

  
	
  SECTION 2.16.

  	
   

  	
  Certain Transfer Restrictions

  	
   

  
	
  SECTION 2.17.

  	
   

  	
  Legending of Notes

  	
   

  
	
  SECTION 2.18.

  	
   

  	
  Notes to Constitute Indebtedness

  	
   

  
	
  SECTION 2.19.

  	
   

  	
  Redemption

  	
   

  
	
  ARTICLE III

  	
  COVENANTS

  	
   

  
	
  SECTION 3.1.

  	
   

  	
  Payment of Principal and Interest

  	
   

  
	
  SECTION 3.2.

  	
   

  	
  Maintenance of Office or Agency

  	
   

  
	
  SECTION 3.3.

  	
   

  	
  Paying Agent’s Obligations

  	
   

  
	
  SECTION 3.4.

  	
   

  	
  Existence

  	
   

  
	
  SECTION 3.5.

  	
   

  	
  Protection of the Collateral; Further
  Assurances

  	
   

  
					



 


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  SECTION 3.6.

  	
   

  	
  Opinion as to the Collateral

  	
   

  
	
  SECTION 3.7.

  	
   

  	
  Performance of Obligations; Servicing of
  Transferred Receivables

  	
   

  
	
  SECTION 3.8.

  	
   

  	
  Taxes

  	
   

  
	
  SECTION 3.9.

  	
   

  	
  Annual Statement as to Compliance

  	
   

  
	
  SECTION 3.10.

  	
   

  	
  Negative Covenants

  	
   

  
	
  SECTION 3.11.

  	
   

  	
  Successor or Transferee

  	
   

  
	
  SECTION 3.12.

  	
   

  	
  Notice of Pay Out Events and Events of
  Default

  	
   

  
	
  SECTION 3.13.

  	
   

  	
  Further Instruments and Acts

  	
   

  
	
  ARTICLE IV

  	
  [RESERVED]

  	
   

  
	
  ARTICLE V

  	
  ISSUER PAY OUT EVENTS, EVENTS OF DEFAULTS AND
  REMEDIES

  	
   

  
	
  SECTION 5.1.

  	
   

  	
  Issuer Pay Out Events

  	
   

  
	
  SECTION 5.2.

  	
   

  	
  Events of Default

  	
   

  
	
  SECTION 5.3.

  	
   

  	
  Remedies

  	
   

  
	
  SECTION 5.4.

  	
   

  	
  Limitation of Suits

  	
   

  
	
  SECTION 5.5.

  	
   

  	
  Unconditional Rights of Noteholders to
  Receive Principal and Interest

  	
   

  
	
  SECTION 5.6.

  	
   

  	
  Restoration of Rights and Remedies

  	
   

  
	
  SECTION 5.7.

  	
   

  	
  Rights and Remedies Cumulative

  	
   

  
	
  SECTION 5.8.

  	
   

  	
  Delay or Omission Not a Waiver

  	
   

  
	
  SECTION 5.9.

  	
   

  	
  Control by Noteholders

  	
   

  
	
  SECTION 5.10.

  	
   

  	
  Waiver of Past Defaults

  	
   

  
	
  SECTION 5.11.

  	
   

  	
  Undertaking for Costs

  	
   

  
	
  SECTION 5.12.

  	
   

  	
  Waiver of Stay or Extension Laws

  	
   

  
	
  SECTION 5.13.

  	
   

  	
  Action on Notes

  	
   

  
	
  SECTION 5.14.

  	
   

  	
  Performance and Enforcement of
  Certain Obligations

  	
   

  
	
  SECTION 5.15.

  	
   

  	
  Sale of Collateral

  	
   

  
	
  ARTICLE
  VI

  	
  INDENTURE
  TRUSTEE AND THE PAYING AGENT

  	
   

  
	
  SECTION 6.1.

  	
   

  	
  Duties of Indenture Trustee

  	
   

  
	
  SECTION 6.2.

  	
   

  	
  Rights of Indenture Trustee

  	
   

  
					



 


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  SECTION 6.3.

  	
   

  	
  Individual Rights of Indenture Trustee

  	
   

  
	
  SECTION 6.4.

  	
   

  	
  Funds Held in Trust

  	
   

  
	
  SECTION 6.5.

  	
   

  	
  Notice of Pay Out Events or Defaults

  	
   

  
	
  SECTION 6.6.

  	
   

  	
  Reports by Indenture Trustee to the
  Noteholders

  	
   

  
	
  SECTION 6.7.

  	
   

  	
  Compensation and Indemnity

  	
   

  
	
  SECTION 6.8.

  	
   

  	
  Resignation and Removal; Appointment
  of Successor

  	
   

  
	
  SECTION 6.9.

  	
   

  	
  Successor Indenture Trustee by Merger

  	
   

  
	
  SECTION 6.10.

  	
   

  	
  Appointment of Co-Trustee or Separate
  Trustee

  	
   

  
	
  SECTION 6.11.

  	
   

  	
  Eligibility; Disqualification

  	
   

  
	
  SECTION 6.12.

  	
   

  	
  Acceptance by Trustee

  	
   

  
	
  SECTION 6.13.

  	
   

  	
  Preferential Collection of Claims
  Against Issuer

  	
   

  
	
  SECTION 6.14.

  	
   

  	
  Reports by Indenture Trustee to
  Noteholders

  	
   

  
	
  SECTION 6.15.

  	
   

  	
  Representations and Warranties

  	
   

  
	
  SECTION 6.16.

  	
   

  	
  The Paying Agent

  	
   

  
	
  ARTICLE
  VII

  	
  NOTEHOLDERS
  LISTS AND REPORTS

  	
   

  
	
  SECTION 7.1.

  	
   

  	
  Note Registrar to Furnish Indenture
  Trustee Names and Addresses of Noteholders

  	
   

  
	
  SECTION 7.2.

  	
   

  	
  Preservation of Information;
  Communications to Noteholders

  	
   

  
	
  SECTION 7.3.

  	
   

  	
  Reports by Issuer

  	
   

  
	
  ARTICLE
  VIII

  	
  ACCOUNTS,
  DISBURSEMENTS AND RELEASES

  	
   

  
	
  SECTION 8.1.

  	
   

  	
  Collection of Amounts Due

  	
   

  
	
  SECTION 8.2.

  	
   

  	
  Trust Accounts

  	
   

  
	
  SECTION 8.3.

  	
   

  	
  General Provisions Regarding Accounts

  	
   

  
	
  SECTION 8.4.

  	
   

  	
  Rights of Noteholders

  	
   

  
	
  SECTION 8.5.

  	
   

  	
  Statements to Noteholders

  	
   

  
	
  SECTION 8.6.

  	
   

  	
  Collections and Allocations

  	
   

  
	
  SECTION 8.7.

  	
   

  	
  Release of Collateral

  	
   

  
	
  SECTION 8.8.

  	
   

  	
  Opinion of Counsel

  	
   

  
	
  ARTICLE
  IX

  	
  SUPPLEMENTAL
  INDENTURES

  	
   

  
	
  SECTION 9.1.

  	
   

  	
  Supplemental Indentures Without
  Consent of Noteholders

  	
   

  
					



 


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  SECTION 9.2.

  	
   

  	
  Supplemental Indentures with Consent
  of Noteholders

  	
   

  
	
  SECTION 9.3.

  	
   

  	
  Execution of Supplemental Indentures

  	
   

  
	
  SECTION 9.4.

  	
   

  	
  Effect of Supplemental Indenture

  	
   

  
	
  SECTION 9.5.

  	
   

  	
  Reference in Notes to Supplemental
  Indentures

  	
   

  
	
  SECTION 9.6.

  	
   

  	
  Conformity with Trust Indenture Act

  	
   

  
	
  ARTICLE
  X

  	
  MISCELLANEOUS

  	
   

  
	
  SECTION 10.1.

  	
   

  	
  Compliance Certificates and Opinions,
  etc

  	
   

  
	
  SECTION 10.2.

  	
   

  	
  Form of Documents Delivered to
  Indenture Trustee

  	
   

  
	
  SECTION 10.3.

  	
   

  	
  Acts of Noteholders

  	
   

  
	
  SECTION 10.4.

  	
   

  	
  Notices, etc., to Indenture Trustee,
  Issuer and Rating Agencies

  	
   

  
	
  SECTION 10.5.

  	
   

  	
  Notices to Noteholders; Waiver

  	
   

  
	
  SECTION 10.6.

  	
   

  	
  Alternate Payment and Notice
  Provisions

  	
   

  
	
  SECTION 10.7.

  	
   

  	
  Successors and Assigns

  	
   

  
	
  SECTION 10.8.

  	
   

  	
  Severability

  	
   

  
	
  SECTION 10.9.

  	
   

  	
  Benefits of Indenture

  	
   

  
	
  SECTION 10.10.

  	
   

  	
  Legal Holidays

  	
   

  
	
  SECTION 10.11.

  	
   

  	
  Governing Law

  	
   

  
	
  SECTION 10.12.

  	
   

  	
  Counterparts

  	
   

  
	
  SECTION 10.13.

  	
   

  	
  Recording of Indenture

  	
   

  
	
  SECTION 10.14.

  	
   

  	
  Issuer Obligation

  	
   

  
	
  SECTION 10.15.

  	
   

  	
  Communication by Noteholders with
  Other Noteholders

  	
   

  
	
  SECTION 10.16.

  	
   

  	
  Agents of Issuer

  	
   

  
	
  SECTION 10.17.

  	
   

  	
  Survival of Representations and
  Warranties

  	
   

  
	
  SECTION 10.18.

  	
   

  	
  No Petition

  	
   

  
					



 


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  EXHIBIT A

  	
  Form of Section
  3.9 Officers’ Certificate

  
	
   

  	
   

  
	
  SCHEDULE
  1

  	
  Perfection
  Representations and Warranties

  
	
   

  	
   

  
	
  ANNEX A

  	
  Definitions

  



 


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INDENTURE, dated as
of November 23, 2004, between SSCE FUNDING, LLC, a Delaware limited liability
company (“Issuer”), and DEUTSCHE BANK TRUST COMPANY
AMERICAS, a New York banking corporation, as trustee and not in its individual
capacity (“Indenture Trustee”). 
This Indenture may be supplemented at any time and from time to time by
an indenture supplement in accordance with Article
IX (an “Indenture Supplement,”
and together with this Indenture and any amendments, the “Agreement”).  If a conflict exists between the terms and
provisions of this Indenture and any Indenture Supplement, the terms and
provisions of the Indenture Supplement shall be controlling with respect to the
related Series.


 


NOW, THEREFORE, THIS INDENTURE
WITNESSETH:


 


For and in consideration of the premises and the
purchase of the Notes by the holders thereof, it is mutually covenanted and
agreed, for the benefit of all Noteholders, as follows:


 


GRANTING CLAUSE


 


Issuer, as security for Issuer’s obligations under the
Notes and this Indenture, hereby Grants to the Indenture Trustee, on the date
hereof, for the benefit of the Noteholders and Indenture Trustee, a security
interest in all of Issuer’s right, title and interest in, to and under the
following, whether now existing or hereafter arising or acquired (collectively,
the “Collateral”):


 


(a)           the Transferred Receivables,
including all obligations of the Obligors thereunder and all amounts due or to
become due thereunder;


 


(b)           the Sale Agreement (excluding any
obligations thereunder, but including the rights of Transferor under the Sale
Agreement assigned to Issuer pursuant to the Transfer and Servicing Agreement),
including the right of any Person to cause any Seller to repurchase SA
Receivables from Transferor under the circumstances described therein;


 


(c)           the Transfer and Servicing Agreement
(excluding any obligations thereunder, but including all rights of Transferor
under the Sale Agreement assigned to Issuer pursuant to the Transfer and
Servicing Agreement), including the right of any Person to cause Transferor to
repurchase Transferred Receivables from Issuer under the circumstances
described therein;


 


(d)           all funds, Financial Assets,
Investment Property or other property on deposit from time to time in or
credited to any of the Lock-Box Accounts or any of the Trust Accounts,
including the proceeds thereof and income thereon;


 


(e)           all proceeds of any derivative
contracts between Issuer or, to the extent assigned to Issuer, Transferor and a
counterparty, as described in any Indenture Supplement;


 


(f)            all present and future claims,
demands, causes and causes in action in respect of any or all of the property
described in the foregoing clauses (a)
through (e) and all payments on,
under or in respect of any or all of the foregoing, including all proceeds of
the conversion, voluntary or involuntary, into cash or other liquid property,
all cash proceeds, Series Accounts, promissory 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 that at any time constitute all or part of or
are included in the proceeds of any and all of the foregoing;


 


(g)           all rights, remedies, powers,
privileges and claims of Issuer under or with respect to any Series Enhancement
(whether arising pursuant to the terms of the Transfer and Servicing Agreement
or otherwise available to Issuer at law or in equity);


 


(h)           all general intangibles relating to
or arising out of any of the property described in the foregoing clauses (a) through (g);


 


(i)            all proceeds of any of the property
described in the foregoing clauses (a)
through (h); and


 


(j)            all other personal property of
Issuer, of whatever kind or nature and wherever located.


 


Such Grant is made in trust to Indenture Trustee.


 


The Indenture Trustee (i) acknowledges such Grant and
(ii) accepts the trusts under this Indenture in accordance with this Indenture
and agrees, subject to the terms and conditions hereof, to perform its duties
required in this Indenture to the best of its ability in accordance with the
provisions hereof.


 


Issuer shall file, and hereby authorizes Indenture
Trustee to file, a UCC financing Statement with a collateral description
covering all of Issuer’s personal property, wherever located, whether now
existing or arising in the future.


 


ARTICLE I

DEFINITIONS AND INCORPORATION BY REFERENCE


 


SECTION 1.1.  Definitions.  Except as otherwise specified or as the
context may otherwise require, capitalized terms used herein are defined in Annex A hereto.


 


SECTION 1.2.  Other Interpretive Matters.  All terms defined directly or by reference in
this Indenture shall have the defined meanings when used in any certificate or
other document delivered pursuant hereto unless otherwise defined therein. For
purposes of this Indenture and all such certificates and other documents,
unless the context otherwise requires: (a) accounting terms not otherwise
defined herein and accounting terms partly defined herein to the extent not
defined, shall have the respective meanings given to them under GAAP, as in
effect from time to time; and unless otherwise provided, references to any
month, quarter or year refer to a fiscal month, quarter or year as determined
in accordance with Issuer’s fiscal calendar; (b) unless defined in this
Indenture or the context otherwise requires, capitalized terms used in this
Indenture which are defined in the UCC shall have the meaning given such term
in the UCC; (c) any reference to each Rating Agency shall only apply to any
specific rating agency if such rating agency is then rating any outstanding
Series; (d) references to any amount as on deposit or outstanding on any
particular date means such amount at the close of business on such day; 


 


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(e) the words “hereof,” “herein” and “hereunder”
and words of similar import refer to this Indenture (or the certificate or
other document in which they are used) as a whole and not to any particular
provision of this Indenture (or the certificate or other document in which
reference is made); (f) references to any Section, Schedule or Exhibit are
references to Sections, Schedules and Exhibits in or to this Indenture, and
references to any paragraph, subsection, clause or other subdivision within any
Section or definition refer to such paragraph, subsection, clause or other
subdivision of such Section or definition; (g) the term “including” means “including
without limitation”; (h) references to any law or regulation refer to that law
or regulation as amended from time to time and include any successor law or
regulation; (i) references to any agreement refer to that agreement as
from time to time amended, restated or supplemented or as the terms of such
agreement are waived or modified in accordance with its terms; (j) references
to any Person include that Person’s successors and permitted assigns; and (k)
headings are for purposes of reference only and shall not otherwise affect the
meaning or interpretation of any provision hereof.


 


SECTION 1.3.  Incorporation by Reference of TIA.  Whenever this Indenture refers to a provision
of the TIA, at any time that this Indenture shall be qualified under the TIA,
the provision is incorporated by reference in and made a part of this Indenture.
The following terms, where used in the TIA shall have the following meanings
for the purposes hereof:


 


“indenture securities” means the Notes.


 


“indenture security holder” means a Noteholder.


 


“indenture to be qualified” means this Indenture.


 


“indenture trustee” or “institutional trustee” means
Indenture Trustee.


 


“obligor” on the indenture securities means Issuer.


 


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 meanings assigned to them by such definitions.  References in this Indenture to any
requirement under the TIA shall not be applicable unless this Indenture shall
be qualified under the TIA.


 


ARTICLE II

THE NOTES


 


SECTION 2.1.  Form.  With respect to any Series, the Notes related
thereto, together with Indenture Trustee’s certificate of authentication, shall
be in substantially the form of an exhibit to the Indenture Supplement for such
Series, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or such Indenture
Supplement, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon, as may, consistently herewith,
be determined by the officers executing such Notes, as evidenced by their
execution of such Notes. Any portion of the text of any Note may be set forth
on the reverse thereof, with an appropriate reference thereto on the face of
the Note.


 


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The 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.


 


Each Note shall be dated the date of its
authentication. The terms of the Notes set forth in an exhibit to the related
Indenture Supplement are part of the terms of this Indenture.


 


Except as
otherwise specified in the related Indenture Supplement, the Notes of each
Series shall be issuable only in registered form and only in minimum
denominations of at least $100,000; provided that
the foregoing shall not restrict or prevent the registration or transfer in
accordance with Section 2.4 of any Note having an
Outstanding Principal Balance of other than an integral multiple of $1,000, or
the issuance of a single Note of each Class, with a denomination less than
$100,000.


 


SECTION 2.2.  Execution, Authentication and Delivery.  (a)  Each Note shall be executed by manual or
facsimile signature on behalf of Issuer by any of its Authorized Officers.


 


(b)  Notes bearing the manual or facsimile
signature of individuals who were at the time of signature Authorized Officers
of Issuer shall bind 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.


 


(c)  No Note shall be entitled to any benefit
under this Indenture or the related Indenture Supplement 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 or in the related
Indenture Supplement executed by Indenture Trustee by the manual signature of
one of its authorized signatories, and such certificate of authentication shall
be conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.


 


(d)  From time to time when permitted hereunder,
Issuer shall execute and deliver Notes to Indenture Trustee for authentication
together with an Issuer Request to the Trustee directing the authentication and
delivery of such Notes and thereupon the same shall be authenticated and
delivered by Indenture Trustee in accordance with such Issuer Request.


 


SECTION 2.3.  Temporary Notes.  Pending the preparation of Definitive Notes,
when permitted hereunder, Issuer shall execute, and upon receipt of an Issuer
Order, Indenture Trustee shall authenticate and deliver, temporary Notes of the
tenor of the Definitive Notes in lieu of which they are issued and with such
variations not inconsistent with this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes.


 


If temporary Notes are issued, Issuer will cause
Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the temporary Notes shall be exchangeable for
Definitive Notes upon surrender of the temporary Notes at the office or agency
of Issuer to be maintained as provided in Section
3.2, without charge to the Noteholder. Upon surrender for
cancellation of any one or more temporary Notes, Issuer shall execute and
Indenture Trustee shall authenticate and deliver in exchange therefor a like
principal amount of Definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall in 


 


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all respects be entitled to the same benefits under
this Indenture and the applicable Indenture Supplement as if they were
Definitive Notes.


 


SECTION 2.4.  Registration; Registration of Transfer and
Exchange.  (a)  Issuer shall cause to be kept a register (the “Note Register”) in which, subject to such reasonable regulations as it may
prescribe, Issuer shall provide for the registration of Notes and the
registration of transfers of Notes. Issuer hereby appoints Indenture Trustee as
the initial “Note Registrar” for the purpose of registering
Notes and transfers of Notes as herein provided and Indenture Trustee hereby
accepts such appointment. Upon any resignation of any Note Registrar, Issuer
shall promptly appoint a successor or, if it elects not to make such an
appointment, assume the duties of the Note Registrar.


 


If a Person other than Indenture Trustee is appointed
by Issuer as the Note Registrar, Issuer will give 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 Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times, to
obtain copies thereof and to rely upon a certificate executed on behalf of the
Note Registrar by an Executive Officer thereof as to the names and addresses of
the Noteholders and the principal amounts and number of such Notes.


 


(b)  Subject to Section
2.4(a) and any restrictions
set forth in the related Indenture Supplement, upon surrender for
registration of transfer of any Note at the office or agency of Issuer to be
maintained as provided in Section 3.2,
together with an assignment duly executed by the Noteholder of such Note or its
duly authorized attorney-in-fact in form acceptable to the Indenture Trustee, Issuer
shall execute, Indenture Trustee shall authenticate and the Noteholder shall
obtain from Indenture Trustee, in the name of the designated transferee or
transferees, one or more new Notes of the same Series and Class in any
authorized denominations of a like aggregate principal amount.  At the option of a Noteholder, its Notes may
be exchanged for other new Notes of the same Series or Class in any authorized
denominations of a like aggregate principal amount, upon surrender of the Notes
to be exchanged at such office or agency. Whenever any Notes are so surrendered
for exchange, subject to the terms hereof, Issuer shall execute, Indenture
Trustee shall authenticate and the Noteholder shall obtain from Indenture
Trustee, the Notes that the Noteholder making the exchange is entitled to
receive.  Indenture Trustee shall make a
notation on any such new Note of the amount of principal, if any, that has been
paid on such Note.


 


(c)  All Notes issued upon any registration of
transfer or exchange of Notes shall be the valid obligations of Issuer,
evidencing the same debt and entitled to the same benefits under this Indenture
and the related Indenture Supplement as the Notes surrendered upon such
registration of transfer or exchange.


 


(d)  Every Note presented or surrendered for
registration of transfer or exchange shall (if so required by Issuer or
Indenture Trustee) be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to Issuer and Indenture Trustee
duly executed by, the Noteholder thereof or such Noteholder’s attorney duly
authorized in writing, with such signature guaranteed by an “eligible guarantor
institution” meeting the requirements of the Note Registrar, which requirements
include membership or participation in the Securities Transfer Agent’s 


 


5





















 


Medallion Program (“STAMP”) or such other “signature guarantee
program” as may be determined by the Note Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act.


 


(e)  The registration of transfer of any Note
shall be subject to the additional requirements, if any, set forth in the
Indenture Supplement related to such Note.


 


(f)  No service charge shall be made to a Noteholder
for any registration of transfer or exchange of Notes, but Issuer or Indenture
Trustee may require the payment by such Noteholder 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 2.3 or 9.5.


 


SECTION 2.5.  Mutilated, Destroyed, Lost or Stolen Notes.  (a)  If:  (i)
any mutilated Note is surrendered to Indenture Trustee, or Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to Indenture Trustee such security or
indemnity as may be required by Indenture Trustee and Issuer to hold Indenture
Trustee and Issuer, respectively, harmless, then, in the absence of notice to
Issuer, the Note Registrar or Indenture Trustee that such Note has been
acquired by a protected purchaser, Issuer shall execute, and upon its request
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, Series and principal amount and bearing a number not
contemporaneously outstanding; 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, 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 of the original Note in lieu of which such replacement Note was
issued presents for payment such original Note, Issuer and 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 payment made) or
any assignee of such Person, except a protected purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor to the
extent of any loss, damage, cost or expense incurred by Issuer or Indenture
Trustee in connection therewith.


 


(b)  Upon the issuance of any replacement Note
under this Section 2.5, Issuer or Indenture Trustee
may require the payment by such Noteholder of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and expenses of Indenture
Trustee) connected therewith.


 


(c)  Every replacement Note issued pursuant to
this Section 2.5 in replacement of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of 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 of the same Class and Series duly
issued hereunder.


 


6





















 


(d)  The provisions of this Section 2.5
are exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes.


 


SECTION 2.6.  Persons Deemed Owner.  Prior to due presentment for registration of
transfer of any Note, Issuer, Indenture Trustee and any agent of Issuer or
Indenture Trustee 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 payment on such Note pursuant to the terms of the applicable
Indenture Supplement and for all other purposes whatsoever, whether or not such
Note be overdue, and neither Issuer, Indenture Trustee nor any agent of Issuer
or Indenture Trustee shall be affected by notice to the contrary.


 


SECTION 2.7.  Payment of Principal and Interest;
Defaulted Interest.  (a)   Any installment of interest or principal, if
any, payable on any Note that is punctually paid or duly provided for by Issuer
on the applicable Payment Date shall be paid to the Person in whose name such
Note (or one or more Predecessor Notes) is registered on the Record Date by
check mailed first-class, postage prepaid, to such Person’s address as it
appears on the Note Register on such Record Date unless otherwise specified in
the applicable Indenture Supplement. 
However, with respect to Notes registered on the Record Date in the name
of the nominee of the Clearing Agency (initially, such nominee to be Cede &
Co.), payment will be made by wire transfer in immediately available funds to
the account designated by such nominee. Notwithstanding the above, the final
installment of principal payable with respect to such Note (and except for the
Redemption Price for any Note called for redemption pursuant to Section 2.19) shall be payable as provided
in clause (b)(ii). The funds
represented by any such checks returned undelivered shall be held in accordance
with Section 6.16.


 


(b)  (i)   The principal of each Note shall be payable
in installments on each applicable Payment Date in an amount set forth in the
related Indenture Supplement, for such Payment Date.


 


(ii)  Notwithstanding the foregoing, the entire
Outstanding Principal Balance of any affected Series shall be due and payable
on: (A) the date on which an Event of Default shall have occurred and be
continuing with respect to such Series if Indenture Trustee or the Noteholders
representing not less than a majority of the Outstanding Principal Balance of
the Notes of such Series have declared the Notes to be immediately due and
payable in the manner provided in Section
5.2, and (B) if the Notes in any Series remain Outstanding, the
Legal Final Maturity for such Series.


 


(iii)  Issuer shall notify Indenture Trustee, and
Indenture Trustee shall subsequently notify the Person in whose name a Note is
registered at the close of business on the Record Date preceding the Payment
Date, of the date on which Issuer expects that the final installment of
principal of and interest on such Note will be paid. Subject to its timely
receipt of notice from the Issuer, the Indenture Trustee shall mail such notice
no later than five days prior to such final Payment Date and shall specify that
such final installment will be payable only upon


 


7





















 


presentation and surrender
of such Note and shall specify the place where such Note may be presented and
surrendered for payment of such installment.


 


(c)  All reductions in the principal amount of a
Note effected by payments of installments of principal made on any Payment Date
shall be binding upon all Noteholders of such Note and of any Note issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof, whether or not such payment is noted on such Note. All payments on the
Notes shall be made without any requirement of presentment but each Noteholder
of any Note shall be deemed to agree, by its acceptance of the same, to
surrender such Note at the Corporate Trust Office against payment of the final
installment of principal of such Note.


 


SECTION 2.8.  New Issuances.  (a)  Pursuant to one or more Indenture Supplements,
Issuer may issue one or more new Series of Notes (a “New Issuance”).  The Notes of all outstanding Series shall be
equally and ratably entitled as provided herein to the benefits of this
Indenture without preference, priority or distinction, all in accordance with
the terms and provisions of this Indenture and the related Indenture Supplement
except, with respect to any Series or Class, as provided in the Indenture
Supplement related to such Series. 
Interest on and principal of the Notes of each outstanding Series shall
be paid as specified in the Indenture Supplement relating to such outstanding
Series.


 


(b)  On or before the Closing Date relating to any
New Issuance, the parties hereto will execute and deliver an Indenture
Supplement which will specify the Principal Terms of the new Series to be
issued. The terms of such Indenture Supplement may modify or amend the terms of
this Indenture solely as applied to such new Series. The obligation of Issuer
to execute the Notes of any Series and of Indenture Trustee to authenticate
such Notes (other than any Series issued pursuant to an Indenture Supplement
dated as of the date hereof) and to execute and deliver the related Indenture
Supplement is subject to the satisfaction of the following conditions:


 


(i)  on or before the fifth Business Day
immediately preceding the applicable Closing Date (unless a shorter period
shall be acceptable to Indenture Trustee and each applicable Rating Agency),
Issuer shall have given Indenture Trustee and, if there are any Rated Notes
Outstanding, each Rating Agency notice (unless such notice requirement is
otherwise waived) of such New Issuance and the Closing Date;


 


(ii)  Issuer shall have delivered to Indenture
Trustee any related Indenture Supplement, in form satisfactory to Issuer and
reasonably satisfactory to the Indenture Trustee, executed by each party
hereto;


 


(iii)  Issuer shall have delivered to Indenture
Trustee any Enhancement Agreement to be entered into in connection with such
New Issuance executed by the Series Enhancer;


 


(iv)  if there are any Rated Notes Outstanding, the
Rating Agency Condition shall have been satisfied with respect to such
issuance;


 


(v)  such New Issuance will not result in any
Event of Default or Issuer Pay Out Event and Issuer shall have delivered to
Indenture Trustee an Officer’s 


 


8





















 


Certificate, dated the
Closing Date to the effect that Issuer reasonably believes that such issuance
will not, based on the facts known to such officer at the time of such
certification, result in an Event of Default or Issuer Pay Out Event;


 


(vi)  the Issuer shall have delivered to the
Indenture Trustee an Officer’s Certificate to the effect that the Aggregate
Receivables Balance shall not be less than the Minimum Aggregate Receivables
Balance as of the applicable Closing Date and after giving effect to such New
Issuance; and


 


(vii)  Issuer shall have delivered to the Indenture
Trustee an Opinion of Counsel with respect to the enforceability of the related
Indenture Supplement against the Issuer.


 


(c)  Upon satisfaction of the above conditions,
pursuant to Section 2.2, Issuer,
shall execute and Indenture Trustee shall, upon receipt of an Issuer Request,
authenticate and deliver the Notes of such Series as provided in this Indenture
and the applicable Indenture Supplement.


 


SECTION 2.9.  Cancellation.  All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than Indenture Trustee, be delivered to Indenture Trustee and
shall be promptly canceled by Indenture Trustee. Issuer may at any time deliver
to Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder that Issuer may have acquired in any manner whatsoever, and
all Notes so delivered shall be promptly canceled by Indenture Trustee. No
Notes shall be authenticated in lieu of or in exchange for any Notes canceled
as provided in this Section except
as expressly permitted by this Indenture. All canceled Notes may be held or
disposed of by Indenture Trustee in accordance with its standard retention or
disposal policy as in effect at the time unless Issuer shall direct by an
Issuer Order that they be returned to it; provided,
that such Issuer Order is timely and the Notes have not been previously
disposed of by Indenture Trustee.


 


SECTION 2.10.  Book-Entry Notes.  Unless otherwise provided in any related
Indenture Supplement, the Notes of each Series and Class, upon original
issuance, will be issued in the form of typewritten Notes representing the
Book-Entry Notes, to be delivered to The Depository Trust Company (the initial
Clearing Agency), or its custodian, by, or on behalf of, Issuer.  The Notes of each Series and Class shall,
unless otherwise provided in the related Indenture Supplement, initially be
registered in the Note Register in the name of Cede & Co., the nominee of
The Depository Trust Company as the initial Clearing Agency.


 


Unless and until definitive fully registered Notes
(the “Definitive Notes”) are
issued under the circumstances described in Section
2.12 or any applicable Indenture Supplement, no Note Owner shall be
entitled to receive a Definitive Note representing such Note Owner’s interest
in such Note.  Unless and until
Definitive Notes have been issued to the Note Owners pursuant to Section 2.12 or any applicable Indenture
Supplement:


 


(i)  the provisions of this Section 2.10 shall be in full force and
effect with respect to each such Series;


 


(ii)  Issuer, the Note Registrar and Indenture
Trustee, and their officers, directors, employees and agents may deal with the
Clearing Agency for all 


 


9





















 


purposes (including the
payment of principal of and interest on the Notes of each such Series) as the
authorized representative of the respective Note Owners;


 


(iii)  to the extent that this Section 2.10
conflicts with any other provisions of this Indenture, this Section 2.10 shall control with respect to each such Series;


 


(iv)  the rights of the respective Note Owners of
each such Series shall be exercised only through the Clearing Agency and the
Clearing Agency Participants and shall be limited to those established by law
and agreements between such respective Note Owners and the Clearing Agency
and/or the Clearing Agency Participants. 
Pursuant to the Note Depository Agreement applicable to a Series, unless
and until Definitive Notes of such Series are issued pursuant to Section 2.12, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the related Notes to such
Clearing Agency Participants; and


 


(v)  whenever this Indenture or any applicable
Indenture Supplement requires or permits actions to be taken based upon
instructions, directions, or the consent of Noteholders evidencing a specified
percentage of the Outstanding Principal Balance of the Notes or of a particular
Series or Class of Notes, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to such effect
from Note Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in such
Notes, Series or Class, as applicable, and has delivered such instructions to
Indenture Trustee.


 


SECTION 2.11.  Notices to Clearing Agency.  Whenever a notice or other communication to
any Noteholder is required under this Indenture, unless and until Definitive
Notes have been issued to the related Note Owners, Indenture Trustee shall give
all such notices and communications to the Clearing Agency.


 


SECTION 2.12.  Definitive Notes.  (a)   If: (i) Issuer advises Indenture Trustee in
writing that the Clearing Agency is no longer willing or able to properly
discharge its responsibilities under the Note Depository Agreement with respect
to the Notes of a given Series, and Issuer is unable to locate a qualified
successor, (ii) circumstances change so that the book-entry system through the
Clearing Agency is less advantageous due to economic or administrative burden
or if the use of the book-entry system becomes unlawful with respect to such
Series and Issuer notifies Indenture Trustee in writing that because of such
changes in circumstances it is terminating such book-entry system through the
Clearing Agency with respect to such Series or (iii) after the occurrence of an
Event of Default, Note Owners representing beneficial interests aggregating at
least a majority of the Outstanding Principal Balance of the Notes (or such
other percentage as specified in the related Indenture Supplement) of such
Series advise the Clearing Agency in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best
interests of the Note Owners of such Series, then the Clearing Agency has
undertaken to notify all Note Owners of such Series and Indenture Trustee of
the occurrence of any such event and of the availability of Definitive Notes to
Note Owners of such Series requesting the same. Upon surrender to Indenture
Trustee of the typewritten Notes of such Series


 


10





















 


representing the Book-Entry Notes by the Clearing
Agency, accompanied by registration and transfer instructions from the Clearing
Agency for registration, Issuer shall execute, and Indenture Trustee shall
authenticate, the Definitive Notes of such Series in accordance with the
instructions of the Clearing Agency and shall recognize registered holders of
such Definitive Notes as Noteholders under this Indenture.  None of Issuer, the Note Registrar or
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 such Series, all references herein to obligations
imposed upon or to be performed by the Clearing Agency with respect to such
Series shall be deemed to be imposed upon and performed by Issuer, to the
extent applicable with respect to such Definitive Notes, and Issuer shall
recognize the holders of the relevant Definitive Notes of such Series as
Noteholders hereunder.


 


(b)  Definitive Notes will not be eligible for
clearing or settlement through DTC, Euroclear or Clearstream.


 


SECTION 2.13.  Treasury Notes.  In determining whether the Noteholders of the
required Outstanding Principal Balance of Notes of a given Series have
concurred in any direction, waiver or consent, any such Notes owned by Issuer
or an Affiliate of Issuer shall be considered as though not Outstanding, except
that for the purposes of determining whether Indenture Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes which
a Responsible Officer actually knows are so owned shall be so disregarded.


 


SECTION 2.14.  CUSIP Numbers.  Issuer in issuing the Notes may use “CUSIP”
numbers (if then generally in use), and, if so, Indenture Trustee shall
indicate the “CUSIP” numbers of the Notes in notices of redemption and related
materials as a convenience to Noteholders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of redemption and
related materials.


 


SECTION 2.15.  Perfection
Representations and Warranties. 
The parties hereto agree that the representations, warranties and
covenants set forth in Schedule 1 shall be a part of this Indenture for all
purposes.


 


SECTION 2.16.  Certain Transfer
Restrictions.  (a)   The issuance, sale and transfer of the Notes
of any Series shall be governed by the terms of this Indenture and the
Indenture Supplement related to such Series.


 


(b)  No Note or any interest thereon may be sold
or transferred (including by pledge or hypothecation) unless such sale or
transfer is (i) pursuant to a valid registration under the Securities Act and
any applicable state securities or “Blue Sky” laws, (ii) pursuant to Rule 144A,
(iii) to a Non-U.S. Person in accordance with Regulation S or (iv) pursuant to
another exemption from the registration requirements of the Securities Act and
subject to the receipt by Issuer and Indenture Trustee of a certification by
the transferee and, if requested by the Indenture Trustee, an Opinion of
Counsel (satisfactory to Indenture Trustee) to the effect that the transfer is
in compliance with the Securities Act, and, in each case, in compliance with
any applicable state securities or “Blue Sky” laws.


 


11





















 


In addition, such prospective purchaser shall be
responsible for providing additional information or certification, as shall be
reasonably requested by Indenture Trustee or Issuer, to support the truth and
accuracy of the foregoing acknowledgments, representations and agreements, it
being understood that such additional information is not intended to create
additional restrictions on the transfer of the Notes or any interest therein.  Neither Issuer nor Indenture Trustee is
obligated to register the Notes under the Securities Act or any state
securities laws.


 


In determining compliance with the transfer
restrictions contained in this Section 2.16,
Indenture Trustee may rely upon a written Opinion of Counsel (which may include
in-house counsel of an Affiliate of Issuer), the cost of obtaining which shall
be an expense of the Noteholder holding the Note to be transferred (or the
transferee thereof).


 


(c)  Notwithstanding anything herein to the contrary,
the Indenture Trustee shall have no obligation or duty to ascertain whether any
transfer of a Note complies with, or otherwise to monitor or determine
compliance with, the requirements or terms of this Indenture or the Securities
Act, applicable state securities laws, or any other applicable law other than
to require delivery of such certificates or opinions as are specifically
required by the terms of this Indenture (and any Supplemental Indenture hereto
with respect to a Series) to be provided to the Indenture Trustee by a
prospective transferee or transferor, and to examine the same to determine
whether it conforms substantially on its face to the applicable requirements of
this Indenture.


 


SECTION 2.17.  Legending of Notes.  Unless otherwise provided in any related
Indenture Supplement, each Note shall bear a legend in substantially the
following form:


 


THIS NOTE HAS NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, AND ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”).  THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED, EXCEPT (A) (1) TO A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A “QUALIFIED
INSTITUTIONAL BUYER”) WHO IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN A PRINCIPAL AMOUNT OF NOT LESS
THAN $100,000 AND IN GREATER WHOLE DOLLAR DENOMINATIONS, FOR THE PURCHASER AND
FOR EACH SUCH ACCOUNT, IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A
SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, SUBJECT TO
THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE, OR (2) TO A
NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904
(AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT, IN A PRINCIPAL AMOUNT
OF NOT LESS THAN $100,000 AND IN GREATER WHOLE DOLLAR DENOMINATIONS AND (B) IN
ACCORDANCE WITH 


 


12





















 


ALL APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE
JURISDICTION.  EACH PURCHASER WILL BE
DEEMED TO HAVE MADE, CERTAIN REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE
INDENTURE.  ANY TRANSFER IN VIOLATION OF
THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL
NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY
INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE INDENTURE TRUSTEE OR ANY
INTERMEDIARY.  IF AT ANY TIME, THE ISSUER
DETERMINES OR IS NOTIFIED THAT THE HOLDER OF THIS NOTE OR ANY BENEFICIAL
INTEREST HEREIN WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS
SET FORTH IN THE INDENTURE, THE INDENTURE TRUSTEE MAY CONSIDER THE ACQUISITION
OF THIS NOTE OR SUCH INTEREST HEREIN VOID AND REQUIRE THAT THIS NOTE OR SUCH
INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER.


 


SECTION 2.18.  Notes to Constitute Indebtedness.  The parties hereto agree that it is their
mutual intent that, for federal, state and local tax purposes, the Notes will
constitute indebtedness. Further, each party hereto and each Noteholder (by
accepting and holding a Note) hereby covenants to every other party hereto and
to every other Noteholder to treat the Notes as indebtedness for federal, state
and local tax purposes in all tax filings, 
reports and returns and otherwise, and further covenants that neither it
nor any of its Affiliates will take, or participate in the taking of or permit
to be taken, any action that is inconsistent with the treatment of the Notes as
indebtedness for federal, state and local tax purposes. All successors and
assignees of the parties hereto shall be bound by the provisions hereof.


 


SECTION 2.19.  Redemption.  (a)      If
specified in the related Indenture Supplement, the Notes of any Series may be
subject to redemption in whole, but not in part, on any Redemption Date
specified in the related Indenture Supplement. 
Following deposit of the applicable Redemption Price into the Collection
Account for any Series in accordance with the related Indenture Supplement, the
Noteholders of such Series shall have no further rights with respect to the Transferred
Receivables or other Collateral, subject to Section 2.19(b).  In the event that Servicer or Issuer fails
for any reason to deposit the applicable Redemption Price in the Collection
Account, payments shall continue to be made to the Noteholders in accordance
with the terms of the Indenture and the applicable Indenture Supplements.


 


(b)  All monies deposited pursuant to Section 2.19(a) shall be held in trust and applied by the
Indenture Trustee to pay interest and principal on the related Notes for whose
payment such monies have been deposited with the Indenture Trustee.


 


13





















 


ARTICLE III

COVENANTS


 


SECTION 3.1.  Payment of Principal and Interest.   (a)   Issuer will duly and punctually pay the
principal of and interest, if any, on the Notes in accordance with the terms of
the Notes, as specified in the Indenture Supplement related to such Notes.


 


(b)  The Noteholders of any Series as of the
Record Date in respect of a Payment Date shall be entitled to the interest
accrued and payable and principal payable on such Payment Date with respect to
such Series as specified in the related Indenture Supplement.  All payment obligations under a Note are
discharged to the extent such payments are made to the Noteholder of record.


 


SECTION 3.2.  Maintenance of Office or Agency.  (a)   Issuer will maintain an office or agency
where Notes may be surrendered for registration of transfer or exchange and
where notices and demands to or upon Issuer in respect of the Notes and this
Indenture may be served. Issuer hereby initially appoints Indenture Trustee at
its Corporate Trust Office to serve as its agent for the purposes of the
surrender of Notes for transfer, exchange and payment.  Notices and demands upon the Issuer may be
served at the Issuer’s address specified for notices in Section 10.4.


 


(b)  The chief executive office of Issuer at which
Issuer maintains its records with respect to the Transferred Receivables and
the transactions contemplated hereby, is currently located at 8182 Maryland,
Clayton, Missouri 63105.  Issuer will not change the location of such
offices or its jurisdiction of organization, as defined in the UCC, without
giving Indenture Trustee at least 30 days prior written notice thereof.


 


SECTION 3.3.  Paying Agent’s Obligations.  Issuer will cause each Paying Agent to comply
with the obligations of the Paying Agent set forth in Section 6.16.


 


SECTION 3.4.  Existence.  (a)   Issuer will keep in full effect its
existence, rights and franchises as a limited liability company under the laws
of the jurisdiction of its organization.


 


(b)  Issuer shall at all times observe and comply
in all material respects with (i) all laws applicable to it, and (ii) all
requisite and appropriate organizational and other formalities in the
management of its business and affairs and the conduct of the transactions
contemplated hereby.


 


SECTION 3.5.  Protection of the Collateral; Further
Assurances.  Issuer will
from time to time execute and deliver all such supplements and amendments
hereto and all such writings of further assurance and other writings, and will
take such other action necessary or advisable to:


 


(a)  more effectively make a Grant over all or any
portion of the Collateral;


 


(b)  maintain or preserve the Lien (and the
priority thereof) of this Indenture or carry out more effectively the purposes
hereof;


 


14





















 


(c)  perfect, publish notice of or protect the
validity of any Grant made or to be made by this Indenture and perfect the Lien
contemplated hereby in favor of Indenture Trustee;


 


(d)  enforce or cause Servicer to enforce any of
the Collateral; or


 


(e)  preserve and defend against the claims of all
Persons and parties, (i) title to the Collateral (including the right to
receive all payments due or to become due with respect to the Transferred
Receivables) and the interests in the property included in the Collateral and
(ii) the rights of Indenture Trustee and the Noteholders with respect to such
Collateral (including the right to receive all payments due or to become due
with respect to the Transferred Receivables) and interests with respect to the
property included in the Collateral.


 


Issuer hereby designates Indenture Trustee as its
agent and attorney-in-fact to file and/or execute any financing statement,
continuation statement, writing of further assurance or other writing required
to be executed and/or filed to accomplish the foregoing; provided,
however, that nothing in this paragraph
shall obligate Indenture Trustee to file or execute any financing statement or
continuation statement or to take any other action hereunder.


 


SECTION 3.6.  Opinion as to the Collateral.  On the Closing Date relating to the first
Series of Notes, Issuer shall furnish to Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording and filing of this Indenture, any
indentures supplemental hereto and any other requisite documents, and with
respect to the execution and filing of any financing statements and
continuation statements, as are necessary to perfect and make effective the
Lien created by this Indenture and reciting the details of such action, or
stating that, in the opinion of such counsel, no such action is necessary to
perfect and make effective such Lien.


 


SECTION 3.7.  Performance of Obligations; Servicing of
Transferred Receivables.  (a)
  Issuer will not take any action and
will use commercially reasonable efforts not to permit any action to be taken
by others that would release any Person from any 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 this Indenture, any
applicable Indenture Supplement, the Sale Agreement, the Transfer and Servicing
Agreement or such other instrument or agreement.


 


(b)  Issuer will punctually perform and observe
all of its obligations and agreements contained in this Indenture, any
applicable Indenture Supplement, the other Transaction Documents and in the
instruments and agreements included in the Collateral, including filing or
causing to be filed all UCC financing statements and continuation statements
required to be filed by this Indenture, any applicable Indenture Supplement,
the Sale Agreement, and the Transfer and Servicing Agreement in accordance with
and within the time periods provided for herein and therein.


 


15





















 


(c)  Issuer hereby covenants and agrees that it
will enforce the obligations of Servicer under the Transfer and Servicing
Agreement and if a Servicer Default shall arise from the failure of Servicer to
perform any of its duties or obligations under the Transfer and Servicing
Agreement with respect to the Transferred Receivables, Issuer shall take all
reasonable actions available to it to remedy such failure.


 


SECTION 3.8.  Taxes.  Issuer shall contest or pay all taxes when
due and payable or levied against its assets, properties or income, including
any property that is part of the Collateral.


 


SECTION 3.9.  Annual Statement as to Compliance.  Issuer will deliver to Indenture Trustee,
prior to the date that is one-hundred five (105) days after the end of each
calendar year of Issuer (commencing with the calendar year 2004), an Officers’
Certificate, substantially in the form of Exhibit A, stating that:


 


(i)  a review of the activities of Issuer during
such year and of performance under this Indenture has been made under such
Authorized Officers’ supervision; and


 


(ii)  to the best of such Authorized Officers’
knowledge, based on such review, 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 Officers and the nature and status
thereof.


 


SECTION 3.10.  Negative Covenants.  So long as any Notes are Outstanding, Issuer
shall not:


 


(a)  sell, transfer, exchange or otherwise dispose
of any of the properties or assets of Issuer, including those included in the
Collateral, except as expressly permitted by this Indenture and any Indenture
Supplement and Section 9.2(b) of the Transfer
and Servicing Agreement;


 


(b)  claim any credit on, or make any deduction
from the principal or interest payable in respect of, the Notes (other than amounts
properly withheld from such payments under the Code or applicable State law) or
assert any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Collateral;


 


(c)  engage in any business or activity other than
in connection with, or relating to the financing, purchasing, owning, selling
and servicing of, the Transferred Receivables and the interests in the property
constituting the Collateral, the issuance of the Notes, and the specific
transactions contemplated by Issuer’s limited liability company agreement and
the Transaction Documents and activities incidental thereto;


 


(d)  issue, incur, assume, or allow to remain
outstanding any indebtedness, or guaranty any indebtedness or otherwise become
liable, directly or indirectly for any 


 


16





















 


indebtedness of any
Person, other than the Notes, except as contemplated by this Indenture and the
other Transaction Documents;


 


(e)  (A) seek dissolution or liquidation or
wind-up its affairs, in whole or in part, or reorganize its business or affairs
or (B) amend its limited liability company agreement, as adopted by its initial
member on the date hereof, in any material respect;


 


(f)  (A) permit the validity or effectiveness of
this Indenture to be impaired, or permit the Lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or permit any
Person to be released from any covenants or obligations with respect to the
Notes under this Indenture except as may be expressly permitted hereby, (B)
permit any Adverse Claim 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 or (C) permit the Lien of this Indenture not to constitute a
valid first priority (other than with respect to any tax lien, mechanics’ lien
or other lien not considered a Lien) “security interest” (as such term is
defined in Section 1-201 of Article 1 of the UCC) in the Collateral;


 


(g)  make any loan or advance to any Affiliate of
Issuer or to any other Person;


 


(h)  make any expenditure (by long-term or
operating lease or otherwise) for capital assets (either realty or personalty);


 


(i)  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, with respect to any
ownership or equity interest or security in or of Issuer, (ii) redeem,
purchase, retire or otherwise acquire for value any such ownership or equity
interest or security, (iii) set aside or otherwise segregate any amounts for
any such purpose or (iv) make payments to or from the Collection Account, in
each case, except in accordance with this Indenture and the Transaction
Documents;


 


(j)  consolidate or merge with or into any other
Person or convey or transfer any of its properties or assets, including those
included in the Collateral, to any Person unless:


 


(i)  such Person shall be a United States citizen
or a Person organized and existing under the laws of the United States of
America or any State,


 


(ii)  such Person shall expressly assume, by an
indenture supplemental hereto, executed and delivered to Indenture Trustee, in
form satisfactory to 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 on the part of Issuer to be
performed or observed, all as provided herein,


 


(iii)  immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing;


 


17





















 


(iv)  if there are any Rated Notes Outstanding, the
Rating Agency Condition shall have been satisfied with respect to such
transaction;


 


(v)  Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to Indenture Trustee) to the
effect that such transaction will not have any material adverse tax consequence
to Issuer or any Noteholder;


 


(vi)  any action that is necessary to maintain the
Lien created by this Indenture and the priority thereof shall have been taken;
and


 


(vii)  Issuer shall have delivered to Indenture
Trustee an Officers’ Certificate and an Opinion of Counsel each stating that
such consolidation or merger or such conveyance or transfer, as the case may
be, and such supplemental indenture comply with this Section
3.10(j) and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any filing, if
any, required by the Securities Exchange Act).


 


SECTION 3.11.  Successor or Transferee.  (a)  Upon any consolidation or merger of Issuer in
accordance with Section 3.10(j),
the Person formed by or surviving such consolidation or merger (if other than
Issuer) shall succeed to, and be substituted for, and may exercise every right
and power of and have every obligation of, Issuer under this Indenture with the
same effect as if such Person had been named as the original Issuer.


 


(b)  Upon a conveyance or transfer of all the
assets and properties of Issuer pursuant to Section
3.10(j), Issuer will be released from every covenant and agreement
of this Indenture to be observed or performed on the part of Issuer with
respect to the Notes immediately upon the delivery of written notice to
Indenture Trustee stating that Issuer is to be so released.


 


SECTION 3.12.  Notice of Pay Out Events and Events of
Default.  (a)  Issuer shall give Indenture Trustee and, if
any Rated Notes are Outstanding, the Rating Agencies, prompt written notice of
each Issuer Pay Out Event and Event of Default hereunder and each Servicer
Default (and, in the case of an Servicer Default, shall specify in such notice
the action, if any, Issuer is taking with respect to such Servicer Default).


 


(b)  Issuer shall deliver to Indenture Trustee,
within five days after Issuer obtains actual knowledge thereof, written notice
in the form of an Officers’ Certificate of any event that, with the giving of
notice or the lapse of time or both, would become a Issuer Pay Out Event or an
Event of Default under Article V,
its status and what action Issuer is taking or proposes to take with respect
thereto.


 


SECTION 3.13.  Further Instruments and Acts.  Upon request of Indenture Trustee, Issuer
will execute and deliver such further instruments and do such further acts as
may be reasonably necessary to carry out more effectively the provisions of
this Indenture.


 


18





















 


ARTICLE IV

[RESERVED]


 


ARTICLE V

ISSUER PAY OUT EVENTS, EVENTS OF DEFAULTS AND REMEDIES


 


SECTION 5.1.  Issuer Pay Out Events.  If any one of the following events (each, a “Issuer Pay Out Event”)
shall occur:


 


(a)  the occurrence of an Insolvency Event
relating to any Seller, Transferor or Issuer, or Transferor or any Seller shall
become unable for any reason to sell Receivables to Transferor or Issuer, as
applicable, in accordance with the provisions of the Sale Agreement or the
Transfer and Servicing Agreement, as applicable;


 


(b)  Transferor or Issuer shall become subject to
regulation by the Commission as an “investment company” within the meaning of
the Investment Company Act; or


 


(c)  failure on the part of Transferor or Issuer
to preserve and maintain its corporate or limited liability company existence,
rights, franchises and privileges in the jurisdiction of its incorporation and
to qualify and remain qualified in good standing as a foreign corporation in
each jurisdiction where the failure to preserve and maintain such existence
would, if not remedied, materially adversely affect the interests of the
Noteholders in the Transferred Receivables, or the ability of Transferor,
Issuer or Servicer to perform its obligations under this Indenture or any other
Transaction Document to which it is a party, if such failure is not remedied
within 60 days of receipt of notice of such failure by Indenture Trustee,
Issuer or Transferor; which failure continues unremedied for 30 days after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to Transferor, Issuer or Servicer by Indenture
Trustee, or to Transferor and Indenture Trustee by the Holders of Notes holding
Outstanding Principal Balances aggregating more than 50% of the Collateral
Amount of any Series;


 


then, a Issuer Pay Out Event shall occur without any
notice or other action on the part of Indenture Trustee or any Noteholder
immediately upon the occurrence of such event.


 


Upon the occurrence of a Issuer Pay Out Event, payment
on the Notes of each Series will be made in accordance with the terms of the
related Indenture Supplement.


 


SECTION 5.2.  Events of Default.  “Event of Default,” wherever used
herein, means, with respect to any Series, 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):


 


(a)  default in the payment of any interest on any
Note of that Series when the same becomes due and payable, and such default
shall continue for a period of 3 Business Days;


 


19





















 


(b)  default in the payment of the principal of
any Note of that Series, if and to the extent not previously paid, when the
same becomes due and payable on its Legal Final Maturity; or


 


(c)  default in the observance or performance in
any material respect of any covenant or agreement of Issuer made in this
Indenture in respect of the Notes of such Series (other than a covenant or
agreement a default in the observance or performance of which is elsewhere in
this Section 5.2 specifically dealt with)
(all such covenants and agreements in the Indenture which are not expressly
stated to be for the benefit of a particular Series being deemed to be in
respect of the Notes of all Series for this purpose), or any representation or
warranty of Issuer in respect of the Notes of such Series made in this
Indenture or any Indenture Supplement or in any certificate or other writing
delivered pursuant hereto or thereto 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 60
days (or for such longer period, not in excess of 90 days, as may be reasonably
necessary to remedy such default if Issuer delivers an Officer’s Certificate to
Indenture Trustee to the effect that Issuer has commenced, or will promptly
commence and diligently pursue, all reasonable efforts to remedy such default
and such default can be remedied in 90 days or less) after there shall have
been given, by registered or certified mail, to Issuer by Indenture Trustee or
to Issuer and Indenture Trustee by the Noteholders of more than 50% of the
Outstanding Principal Balance of the Notes of such Series, 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; or


 


(d)  the occurrence of an Insolvency Event
relating to Issuer.


 


SECTION 5.3.  Remedies.  (a)   If an Event of Default should occur and be
continuing with respect to a Series, Indenture Trustee may, and at the written
direction of the Noteholders of such Series, pursuant to Section 5.9 or, in the case of clause
(vii) below, at the written
direction of the Noteholders of not less than 66 2/3% of the Outstanding
Principal Balance of the Notes of such Series, Indenture Trustee shall, do one or
more of the following:


 


(i)  declare all the Notes of such Series to be
immediately due and payable, by a notice in writing to Issuer, and upon any
such declaration the Outstanding Principal Balance of such Notes, together with
accrued and unpaid interest thereon through the date of acceleration, shall
become immediately due and payable;


 


(ii)  in the case of an Event of Default described
in Section 5.2(a) or (b),
demand Issuer to pay, as specified in the Indenture Supplement for such Series,
to Indenture Trustee, for the benefit of the Noteholders of such Series, the
whole amount then due and payable on the Notes of such Series for principal and
interest, with interest upon the overdue principal at the applicable interest
rate, and, to the extent payment at such rate of interest shall be legally
enforceable, 


 


20





















 


upon overdue installments
of interest, at the applicable interest rate, and in addition thereto such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of Indenture Trustee and its agents and counsel;


 


(iii)  institute Proceedings in its own name and as
trustee of an express trust for the collection of all amounts then payable on
the Notes of such Series or under this Indenture and the Indenture Supplement
with respect thereto, whether by declaration or otherwise, enforce any judgment
obtained, and collect from Issuer amounts adjudged due;


 


(iv)  exercise any remedies of a secured party
under the UCC as in effect in the State of New York and take any other
appropriate action to protect and enforce the rights and remedies of Indenture
Trustee and the Noteholders of such Series;


 


(v)  sell the Collateral, or any portion thereof
or rights or interest therein, in an amount up to the lesser of (a) 110% of the
Collateral Amount of such Series and (b) the Series Allocation Percentage of
the Aggregate Receivables Balance, at one or more public or private sales
called and conducted in any manner permitted by law, in accordance with Section 5.15;


 


(vi)  make demand upon Issuer, by written notice,
that Issuer deliver to Indenture Trustee all Records (in which event Issuer
covenants to make demand upon Servicer to so deliver such Records); and


 


(vii)  exercise all rights, remedies, powers,
privileges and claims of Issuer against Servicer or Transferor under or in
connection with the Transfer and Servicing Agreement, including the right or
power to terminate or to take any action to compel or secure performance or
observance by Servicer or Transferor of each of their obligations to Issuer
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Transfer and Servicing Agreement, and any right
of Issuer to take such action shall be suspended;


 


provided, however,
that Indenture Trustee may not sell or otherwise liquidate Collateral following
an Event of Default, other than an Event of Default described in Section 5.2(a) or (b), unless: (A) the Noteholders of the
Outstanding Principal Balance of all the Notes of the affected Series consent
thereto, (B) the proceeds of such sale or liquidation distributable to the
Noteholders of the affected Series are sufficient to discharge in full all
amounts then due and unpaid upon such Notes for principal and interest or (C)
Indenture Trustee determines that such Collateral will not continue to provide
sufficient funds for the payment of principal of and interest on such Notes as they
would have become due if such Notes had not been declared due and payable, and
Indenture Trustee obtains the consent of the Noteholders of 66-2/3% of the
Outstanding Principal Balance of the affected Series.  In determining whether to sell or hold Collateral,
Indenture Trustee may, but need not, obtain, at the expense of the Servicer,
and rely upon an opinion of an independent investment banking or accounting
firm of national reputation as to the feasibility of such proposed action and
as to the sufficiency of such Collateral to 


 


21





















 


discharge in full all amounts then due and unpaid upon
the Notes of the affected Series for principal and interest.


 


(b)  At any time after a declaration of
acceleration of maturity of an affected Series has been made and before a
judgment or decree for payment of the amount due has been obtained by Indenture
Trustee as hereinafter in this Article V
provided, the Noteholders of Notes representing not less than a majority of the
Outstanding Principal Balance of such Series, by written notice to Issuer and
Indenture Trustee, may rescind and annul such declaration and its consequences
if:


 


(i)  Issuer has paid or deposited with Indenture
Trustee a sum sufficient to pay:


 


(A)  all payments of principal of and interest on
all Notes of such Series and all other amounts that would then be due hereunder
or upon such Notes if the Event of Default giving rise to such acceleration had
not occurred; and


 


(B)  all sums paid or advanced by Indenture
Trustee hereunder and the reasonable compensation, expenses, disbursements and
advances of Indenture Trustee and its agents and counsel, and all other amounts
due to Indenture Trustee pursuant to Section
6.7; and


 


(ii)  all Events of Default, other than the
nonpayment of the principal of the Notes that have become due solely by such
acceleration, have been cured or waived as provided in Section 5.10.


 


No such rescission shall affect any subsequent Event
of Default or impair any right consequent thereto.


 


(c)  Notwithstanding Sections 5.13 and 8.6,
if Indenture Trustee collects any money or property pursuant to this Article V following the acceleration of
the Notes of the affected Series pursuant to this Section 5.2
(so long as such a declaration shall not have been rescinded or annulled), it
shall pay out the money or property in the following order:


 


FIRST:                                           to
Indenture Trustee for amounts due pursuant to Section
6.7; and


 


SECOND:                            for application and payment
in accordance with the related Indenture Supplement and other fees and expenses
payable in connection therewith under the applicable Indenture Supplement,
including the amounts payable under any Series Enhancements with respect to
such Series.


 


(d)  In case (i) there shall be pending, relative
to Issuer or any Person having or claiming an ownership interest in the
Collateral, Proceedings under Title 11 of the United States Code or any other
applicable Federal or State bankruptcy, insolvency or other similar law, or
(ii) a receiver, assignee, trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of Issuer or its property or such other Person, or (iii) of any
other comparable judicial Proceedings relative to Issuer, or to the creditors
or property of Issuer, then Indenture Trustee (irrespective of whether the
principal of any Notes 


 


22





















 


shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether Indenture Trustee shall
have made any demand pursuant to this Section 5.2),
shall be entitled and empowered to, and at the written direction of the
requisite Noteholders pursuant to Section 5.9 shall, by
intervention in such Proceedings or otherwise:


 


(A)  file and prove a claim or claims for the
whole amount of principal and interest owing and unpaid in respect of the Notes
of such Series and to file such other papers or documents as may be necessary
or advisable in order to have the claims of Indenture Trustee (including any
claim for reasonable compensation to Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances made,
by Indenture Trustee and each predecessor Indenture Trustee, except as a result
of negligence, willful misconduct or bad faith, and all other amounts due to
Indenture Trustee pursuant to Section 6.7)
and of the Noteholders of such Series allowed in such Proceedings;


 


(B)  unless prohibited by applicable law or
regulations, vote on behalf of the Noteholders of such Series in any election
of a trustee, a standby trustee or any Person performing similar functions in
any such Proceedings;


 


(C)  collect and receive any amounts or other
property payable or deliverable on any such claims and to distribute all
amounts received with respect to the claims of the Noteholders of such Series
and of Indenture Trustee on their behalf; and


 


(D)  file such proofs of claim and other papers or
documents and take such other action (including sitting on a committee of
creditors) as may be necessary or advisable in order to have the claims of
Indenture Trustee or the Noteholders of such Series allowed in any judicial
Proceedings relative to Issuer, its creditors and its property;


 


and any trustee, receiver, liquidator, assignee,
custodian, sequestrator or other similar official in any such Proceeding is
hereby authorized by each of such Noteholders to make payments to Indenture
Trustee, and, in the event that Indenture Trustee shall consent to the making
of payments directly to such Noteholders, to pay to Indenture Trustee such
amounts as shall be sufficient to cover reasonable compensation to Indenture
Trustee, each predecessor Indenture Trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by Indenture Trustee and each predecessor Indenture Trustee
except as a result of negligence, willful misconduct or bad faith, and all
other amounts due to Indenture Trustee pursuant to Section 6.7.


 


(e)  Nothing herein contained shall be deemed to
authorize Indenture Trustee to authorize or consent to or vote for or accept or
adopt on behalf of any Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Noteholder
thereof or to authorize Indenture Trustee to vote in respect of the claim of
any Noteholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.


 


23





















 


(f)  All rights of action and of asserting claims
under this Indenture, or under any of the Notes, may be enforced by Indenture
Trustee without the possession of any of the Notes or the production thereof in
any trial or other Proceedings relative thereto, and any such action or
Proceedings instituted by Indenture Trustee shall be brought in its own name
and as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Noteholders of the affected
Series as provided herein.


 


(g)  In any Proceedings brought by Indenture
Trustee (and also any Proceedings to which Indenture Trustee is a party
involving the interpretation of any provision of this Indenture), Indenture
Trustee shall be held to represent all the Noteholders of the affected Series,
and it shall not be necessary to make any such Noteholder a party to any such
Proceedings.


 


SECTION 5.4.  Limitation of Suits.  No Noteholder shall have any right to
institute any Proceeding, with respect to this Indenture or any Indenture
Supplement, or for the appointment of a receiver or trustee, or for any other
remedy hereunder or thereunder, unless:


 


(i)  such Noteholder has previously given written
notice to Indenture Trustee of a continuing Event of Default;


 


(ii)  the Noteholder(s) of not less than 66-2/3% of
the Outstanding Principal Balance of the Notes of each affected Series have
made written request to Indenture Trustee to institute such Proceeding in
respect of such Event of Default in its own name as Indenture Trustee
hereunder;


 


(iii)  such Noteholder(s) have offered to Indenture
Trustee reasonable indemnity against the costs, expenses and liabilities to be
incurred in complying with such request;


 


(iv)  Indenture Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has failed to institute
such Proceeding;


 


(v)  so long as any of the Notes of such Series
remain Outstanding, no direction by other Noteholders inconsistent with such
written request has been given to Indenture Trustee during such 60-day period
by the Noteholders of 66-2/3% of the Outstanding Principal Balance of the Notes
of such Series; and


 


(vi)  with respect to any bankruptcy
reorganization, arrangement, insolvency or liquidation proceedings, or similar
proceedings under any United States Federal or State bankruptcy or similar law,
the Noteholders representing not less than 66 2/3% of the Outstanding Principal
Balance of each Class of Notes of each Series that remains Outstanding has
consented thereto in writing; provided that
the foregoing shall not in anyway limit the Noteholder’s rights to pursue any
other creditor rights or remedies that the Noteholders may have for claims
against Issuer;


 


24





















 


it being understood and intended that no one or more
Noteholder(s) of the affected Series shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Noteholder of such Series
or to obtain or to seek to obtain priority or preference over any other
Noteholder(s) of such Series or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all the other Noteholders of the same Series. 
Nothing in this Section
shall be construed as limiting the rights of otherwise qualified Noteholders to
petition a court for the removal of an Indenture Trustee pursuant to Section 6.8.


 


In the event Indenture Trustee shall receive
conflicting or inconsistent requests and indemnity from two or more groups of
Noteholders of an affected Series, each representing less than a majority of
the Outstanding Principal Balance of the Notes of such Series, Indenture
Trustee in its sole discretion may determine what action, if any, shall be
taken, notwithstanding any other provisions of this Indenture.


 


SECTION 5.5.  Unconditional Rights of Noteholders to
Receive Principal and Interest. 
Notwithstanding any other provisions in this Indenture or any Indenture
Supplement, each Noteholder shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any, on
such Note on or after the respective due dates thereof expressed in such Note
or in the applicable Indenture Supplement (or, in the case of redemption, on or
after the applicable Redemption Date) and to institute suit for the enforcement
of any such payment, and such right shall not be impaired without the consent
of such Noteholder.


 


SECTION 5.6.  Restoration of Rights and Remedies.  If Indenture Trustee or any Noteholder has
instituted any Proceeding to enforce any right or remedy under this Indenture
and such Proceeding has been discontinued or abandoned for any reason or has
been determined adversely to Indenture Trustee or to such Noteholder, then and
in every such case Issuer, Indenture Trustee and the Noteholders shall, subject
to any determination in such Proceeding, be restored severally and respectively
to their former positions hereunder, and thereafter all rights and remedies of
Indenture Trustee and the Noteholders shall continue as though no such
Proceeding had been instituted.


 


SECTION 5.7.  Rights and Remedies Cumulative.  Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost, or stolen Notes in Section 2.5(d), no right or remedy herein conferred upon or
reserved to Indenture Trustee or to the Noteholders is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.


 


SECTION 5.8.  Delay or Omission Not a Waiver.  No delay or omission of Indenture Trustee or
any Noteholder to exercise any right or remedy accruing upon any Default or
Event of Default shall impair any such right or remedy or constitute a waiver
of any such Default or Event of Default or an acquiescence therein. Every right
and remedy given by this Article
or by law to Indenture Trustee or to the Noteholders may be exercised from time
to time, and as often as may be deemed expedient, by Indenture Trustee or by
the Noteholders, as the case may be.


 


25





















 


SECTION 5.9.  Control by
Noteholders.  Except as
otherwise expressly provided in this Indenture or any Indenture Supplement, the
Noteholders of not less than a majority of the Outstanding Principal Balance of
the Notes of any affected Series shall have the right to:  (i) direct the time, method and place of
conducting any Proceeding for any remedy available to Indenture Trustee with
respect to such Series or (ii) exercise any trust or power conferred on
Indenture Trustee with respect to such Series; provided,
that such direction shall not be in conflict with any rule of law or with this
Indenture; provided, further,
that, subject to Section 6.1,
Indenture Trustee need not take any action that it determines might subject it
to liability for which it is not indemnified to its satisfaction or might
materially adversely affect the rights of any Noteholder(s) of an affected
Series not consenting to such action. 
Indenture Trustee may take any other action deemed proper by Indenture
Trustee that is not inconsistent with such direction.


 


SECTION 5.10.  Waiver of
Past Defaults.  Subject to
Section 5.3(b), the
Noteholders of not less than a majority of the Outstanding Principal Balance of
the Notes of the affected Series (or with respect to any Series with two or
more Classes, each Class) may waive any past Default or Event of Default and
its consequences except a Default: (a) in payment of principal of or interest
on any of the Notes of such Series or (b) in respect of a covenant or provision
hereof that cannot be modified or amended without the consent of each
Noteholder of such Series. In the case of any such waiver, Issuer, Indenture
Trustee and the Noteholders of the affected Series shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.


 


Upon any such waiver,
such Default shall cease to exist and be deemed to have been cured and not to
have occurred, and any Event of Default arising therefrom with respect to such
Series shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.


 


SECTION 5.11.  Undertaking
for Costs.  All parties to
this Indenture agree (and each Noteholder by such Noteholder’s acceptance
thereof shall be deemed to have agreed) that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against Indenture Trustee for any action taken,
suffered or omitted by it as Indenture Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorney’s fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 5.11
shall not apply to: (a) any suit instituted by Indenture Trustee, (b) any suit
instituted by any Noteholder(s) holding in the aggregate more than 10% of the
Outstanding Principal Balance of the Notes of the affected Series or (c) any suit
instituted by any Noteholder for the enforcement of the payment of principal of
or interest on any Note on or after the respective due dates expressed in such
Notes and the related Indenture Supplement (or, in the case of redemption, on
or after the applicable Redemption Date).


 


SECTION 5.12.  Waiver of
Stay or Extension Laws. 
Issuer covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead or in any manner 


 


26





















 


whatsoever,
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, that may adversely affect the
covenants or the performance of this Indenture; and Issuer (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to Indenture Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.


 


SECTION 5.13.  Action on
Notes.  Indenture Trustee’s
right to seek and recover judgment on the Notes or under this Indenture shall
not be affected by the seeking, obtaining or application of any other relief
under or with respect to this Indenture. Neither the Lien of this Indenture nor
any rights or remedies of Indenture Trustee or the Noteholders shall be
impaired by the recovery of any judgment by Indenture Trustee against Issuer or
by the levy of any execution under such judgment upon any portion of the
Collateral. Any funds or other property collected by Indenture Trustee shall be
applied in accordance with Section 8.6 or,
following acceleration of the Notes, Section 5.3(c),
as applicable.


 


SECTION 5.14.  Performance
and Enforcement of Certain Obligations.  Promptly following a request from Indenture
Trustee to do so and at Issuer’s expense, Issuer shall take all such lawful
action to compel or secure the performance and observance by Servicer of its obligations
to Issuer under or in connection with the Transfer and Servicing Agreement or
by Transferor of its obligations to Issuer under or in connection with the
Transfer and Servicing Agreement in accordance with the terms thereof, and to
exercise any and all rights, remedies, powers and privileges lawfully available
to Issuer under or in connection with the Transfer and Servicing Agreement, in
each case to the extent and in the manner directed by Indenture Trustee,
including the transmission of notices of default on the part of Servicer or
Transferor thereunder and the institution of legal or administrative actions or
proceedings to compel or secure performance by Servicer or Transferor of each
of their obligations under the Transfer and Servicing Agreement.


 


SECTION 5.15.  Sale of Collateral.  (a)   The power to effect any sale of any portion
of the Collateral described pursuant to Section 5.3 shall
not be exhausted by any one or more sales as to any portion of the Collateral
remaining unsold, but shall continue unimpaired until Collateral in an amount
up to the Collateral Amount of the affected Series shall have been sold or all
amounts due to the Noteholders of the affected Series under this Indenture and
the applicable Indenture Supplement have been paid in full.  Indenture Trustee may from time to time, upon
directions in accordance with Section 5.9, postpone
any public sale by public announcement made at the time and place of such sale.
For any public sale of Collateral, Indenture Trustee shall have provided each
Noteholder of the affected Series with notice of such sale at least two weeks
in advance of such sale, which notice shall specify the date, time and location
of such sale.


 


(b)  To the extent permitted by
applicable law, Indenture Trustee shall not sell Collateral, or any portion
thereof, to a third party in any private sale unless,


 


(i)  the Noteholders of not less than 66-2/3% of
the then Outstanding Principal Balance of the Notes of the affected Series
consent to or direct Indenture Trustee in writing to make such sale; or


 


27





















 


(ii)  the net proceeds of such sale would be not
less than the sum of all amounts due to the Noteholders of the affected Series
under this Indenture and the Indenture Supplement related to such Series.


 


The foregoing provisions
shall not preclude or limit the ability of Indenture Trustee to purchase all or
any portion of the Collateral at a private sale.


 


(c)  In connection with a sale of
all or any portion of the Collateral:


 


(i)  any one or more Noteholders (other than
Transferor and its Affiliates) may bid for and purchase the property offered
for sale, and upon compliance with the terms of sale may hold, retain, and
possess and dispose of such property, without further accountability, and any
Noteholder of the affected Series may, in paying the purchase price therefor,
deliver in lieu of cash any Outstanding Notes of such Series or claims for
interest thereon for credit in the amount that shall, upon distribution of the
net proceeds of such sale, be payable thereon, and the Notes of the affected
Series, in case the amounts so payable thereon shall be less than the amount
due thereon, shall be returned to the Noteholders of such Series after being
appropriately stamped to show such partial payment;


 


(ii)  Indenture Trustee is hereby irrevocably
appointed the agent and attorney-in-fact of Issuer to transfer and convey any
portion of the Collateral in connection with a sale thereof, and to take all
action necessary to effect such sale;


 


(iii)  Indenture Trustee shall execute and deliver
an appropriate instrument of conveyance transferring, without representation,
warranty or recourse, any portion of the Collateral in connection with a sale
thereof; and


 


(iv)  no purchaser or transferee at such a sale
shall be bound to ascertain Indenture Trustee’s authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
funds.


 


(d)  The method, manner, time,
place and terms of any sale of all or any portion of the Collateral shall be
commercially reasonable.


 


(e)  The provisions of this Section 5.15 shall not be construed
to restrict the ability of Indenture Trustee to exercise any rights and powers
against Issuer or all or a portion of the Collateral that are vested in
Indenture Trustee by this Indenture, including the power of Indenture Trustee
to proceed against the Collateral subject to the Lien of this Indenture and to
institute judicial proceedings for the collection of any deficiency remaining thereafter.


 


(f)  The purchase price received
by Indenture Trustee in respect of any sale made in accordance with this Section 5.15 shall be deemed
conclusive and binding on the parties hereto and the Noteholders and the
proceeds of such sale shall be applied in accordance with Section 8.6.


 


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ARTICLE VI

INDENTURE TRUSTEE AND THE PAYING AGENT


 


SECTION 6.1.  Duties of
Indenture Trustee.  (a)   If an Event of Default has occurred and is
continuing, Indenture Trustee shall exercise the rights and powers vested in it
by this Indenture and use the same degree of care and skill in their exercise
of such rights and powers as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.


 


(b)  Except during the
continuance of an Event of Default actually known to a Responsible Officer:


 


(i)  Indenture Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture against
Indenture Trustee; and


 


(ii)  in the absence of bad faith or negligence on
its part, Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to Indenture Trustee and conforming to the
requirements of this Indenture; provided,
however, in the case of any such certificates or opinions that are
specifically required to be furnished to Indenture Trustee pursuant to any
provision of this Indenture or any Indenture Supplement, Indenture Trustee
shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture or the applicable Indenture
Supplement.


 


(c)  If any Rated Notes are
Outstanding, Indenture Trustee shall promptly notify each Rating Agency after
the occurrence thereof, of any Event of Default, Series Pay Out Event for such
Rated Notes or Issuer Pay Out Event of which a Responsible Officer has actual
knowledge.


 


(d)  No provision of this
Indenture shall be construed to relieve Indenture Trustee from liability for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:


 


(i)  this clause
(d) does not limit the effect of clause
(b) of this Section;


 


(ii)  Indenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer unless it is
proved that Indenture Trustee was negligent in ascertaining the pertinent
facts;


 


(iii)  Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to this Indenture;


 


(iv)  Indenture Trustee shall not be charged with
knowledge of a Default, an Event of Default, Series Pay Out Event, Issuer Pay
Out Event or Servicer Default or any other matter the occurrence of which would
require it to take 


 


29





















 


action (or omit to
take action hereunder) unless a Responsible Officer receives written notice of,
or obtains actual knowledge of, such event; and


 


(v)  Indenture Trustee shall have no duty to
monitor the performance of Issuer or its agents, including the Servicer, nor
shall it have any liability in connection with malfeasance or nonfeasance by
Issuer or its agents, including the Servicer. 
Indenture Trustee shall have no liability in connection with compliance
of Issuer or its agents with statutory or regulatory requirements related to
the Receivables. Indenture Trustee shall not make or be deemed to have made any
representations or warranties with respect to the Receivables or the validity
or sufficiency of any assignment of the Receivables to the Collateral or
Indenture Trustee.


 


(e)  Indenture Trustee shall not
be liable for interest on any amounts received by it, except as Indenture
Trustee may agree in writing with Issuer.


 


(f)  No provision of this
Indenture shall require Indenture Trustee to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers if it reasonably
believes that repayments of such funds or adequate indemnity satisfactory to it
against any loss, liability or expense is not reasonably assured to it.  Anything in this Agreement to the contrary
notwithstanding, in no event shall the Indenture Trustee be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including but not
limited to lost profits); even if the Indenture Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.


 


(g)  Whether or not therein
expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to Indenture
Trustee shall be subject to this Section and
the TIA.


 


(h)  Indenture Trustee:


 


(i)  shall at all times be a “participant” (as
such term is defined in the Federal Book-Entry Regulations) in the Federal
Reserve System;


 


(ii)  shall, to the extent that any of the Trust
Accounts is a Securities Account, comply with all of the obligations of a
Securities Intermediary under Article 8 of the UCC with respect thereto;


 


(iii)  agrees that each item of investment property
including cash received by it for deposit in or credit to a Trust Account, and
each investment made by it pursuant to Section 8.5
shall constitute and be treated by it as a Financial Asset; and


 


(iv)  shall not, except with respect to Indenture
Trustee as provided herein, consent to or permit anyone to have “control” (as
such term is defined in Section 8-106 of Article 8 of the UCC and Section 9-401
of Article 9 of the UCC) of any of the Trust Accounts.


 


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SECTION 6.2.  Rights of Indenture Trustee.  (a)  Subject to the provisions of Section 6.1:


 


(i)  Indenture Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, note, debenture, other evidence of
indebtedness or other paper or document reasonably believed by it to be genuine
and to have been signed or presented by the proper party or parties;


 


(ii)  any request or direction or action of Issuer
mentioned herein shall be sufficiently evidenced by an Issuer Order;


 


(iii)  whenever in the administration of this
Indenture Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder,
Indenture Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, conclusively rely upon an
Officers’ Certificate;


 


(iv)  Indenture Trustee may consult with counsel as
to legal matters and the advice or opinion of any such counsel selected by
Indenture Trustee with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;


 


(v)  Indenture Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Noteholders or any other
party pursuant to this Indenture, unless such Noteholders or such party, as
applicable, shall have offered to Indenture Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;


 


(vi)  Indenture Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, note, debenture, other evidence of indebtedness, or
other paper or document, but Indenture Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see
fit, and, if Indenture Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of Issuer, personally or by agent or attorney;


 


(vii)  Indenture Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or
by or through agents, attorneys, custodians or nominees and Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent, attorney, custodian or nominee appointed with due care by it hereunder
with the consent of the Issuer;


 


(viii)  Indenture Trustee shall not be required to
give any bond or surety in respect of the performance of its powers and duties
hereunder;


 


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(ix)  Indenture Trustee shall not be bound to
ascertain or inquire as to the performance or observance of any covenants,
conditions or agreements on the part of Issuer;


 


(x)  the permissive rights of Indenture Trustee to
do things enumerated in this Indenture shall not be construed as a duty and
Indenture Trustee shall not be answerable for other than its gross negligence
or willful default;


 


(xi)  in the event that Indenture Trustee is also
acting as Paying Agent or Note Registrar hereunder, the rights and protections
afforded to Indenture Trustee pursuant to this Article VI
shall also be afforded to such Paying Agent or Note Registrar; and


 


(xii)  Indenture Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity or
enforceability of any Collateral or any arrangement or agreement between Issuer
and any Person with respect thereto, or the perfection of any security interest
created in any of the Collateral or the maintenance of any such perfection and
priority, or for or with respect to the sufficiency of the Collateral following
an Event of Default.


 


Nothing herein shall be
construed to impose an obligation on the part of the Indenture Trustee to
recalculate, evaluate or verify any report, certificate or information received
by it from the Issuer or Servicer.


 


(b)  The recitals contained in
the Agreement and in the Notes, except Indenture Trustee’s certificates of
authentication, shall be taken as the statements of Issuer, and Indenture
Trustee assumes no responsibility for their correctness. Indenture Trustee
makes no representations as to the validity or sufficiency of the Agreement or
the Notes, except to the extent provided by Indenture Trustee’s certificate of
authentication on the Notes.  Indenture
Trustee shall not be accountable for the use or application by Issuer of the
proceeds of the Notes.


 


SECTION 6.3.  Individual
Rights of Indenture Trustee. 
Indenture Trustee shall not, in its individual capacity, but may in a
fiduciary capacity, become the owner of Notes or otherwise extend credit to
Issuer. Indenture Trustee may otherwise deal with Issuer or its Affiliates with
the same rights it would have if it were not Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent may do the same with
like rights. However, Indenture Trustee must comply with Sections 6.11 and 6.13.


 


SECTION 6.4.  Funds Held
in Trust.  Funds and
investments and other property held by Indenture Trustee shall be held in trust
in one or more Trust Accounts hereunder, but need not be segregated from other
funds except to the extent required by law.


 


SECTION 6.5.  Notice of
Pay Out Events or Defaults. 
If a Default, Series Pay Out Event or Issuer Pay Out Event occurs and is
continuing and is known to a Responsible Officer, Indenture Trustee shall mail
to the affected Noteholders or all Noteholders, as applicable, notice of such
Default, Series Pay Out Event or Issuer Pay Out Event within 45 days after it
occurs.  Except in the case of a Default,
Series Pay Out Event or Issuer Pay Out Event relating to the failure to pay
principal or interest on any Note (including payments pursuant to the mandatory



 


32





















 


redemption
provisions of such Note), Indenture Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Noteholders.  If the Servicer fails to deliver to the
Indenture Trustee a report required to be delivered pursuant to Section 5.5
of the Transfer and Servicing Agreement within ten Business Days of the date on
which such report is required to be delivered, the Indenture Trustee will
promptly notify the Noteholders and the Rating Agencies of such failure.


 


SECTION 6.6.  Reports by
Indenture Trustee to the Noteholders.  The Indenture Trustee shall deliver to each
Noteholder such information in its possession with respect to the Notes as may
be required to enable such Noteholder to prepare its Federal, State and other
income tax returns. To the extent required in the Indenture Supplement for any
Series, on or before the date prescribed by applicable law, Indenture Trustee
shall mail to each Noteholder of a Note in such Series a brief report as of
such date that complies with TIA § 313(a) (if required by said section).


 


SECTION 6.7.  Compensation
and Indemnity.  Servicer
shall pay to Indenture Trustee from time to time reasonable compensation for
its services hereunder as Servicer and Indenture Trustee may agree in writing
(which compensation shall not be limited by any law on compensation of a
trustee of an express trust).  Servicer
shall reimburse Indenture Trustee upon its request, for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection,
in addition to the compensation for its services. Such expenses shall include
the reasonable compensation and expenses, disbursements and advances of
Indenture Trustee’s agents, counsel, accountants and experts.  Servicer shall indemnify Indenture Trustee
and its officers, directors, employees and agents against any and all loss,
liability or expense (including attorneys’ fees) incurred by them to the extent
related to or arising out of the administration of this Indenture and any
Indenture Supplement and the performance of its duties hereunder and
thereunder.  Indenture Trustee shall
notify Servicer promptly of any claim for which it may seek indemnity. Failure
by Indenture Trustee to so notify Servicer shall not relieve Servicer of its
obligations hereunder. Servicer shall defend the claim and Indenture Trustee
may have separate counsel and Servicer shall pay the fees and expenses of such
counsel. Servicer need not reimburse any expense or indemnify against any loss,
liability or expense incurred by Indenture Trustee through Indenture Trustee’s
own willful misconduct, negligence or bad faith.


 


Servicer’s payment
obligations to Indenture Trustee pursuant to this Section shall survive the discharge of this Indenture,
the resignation or removal of the Indenture Trustee and payment in full of the
Notes.  When Indenture Trustee incurs
expenses after the occurrence of a Default specified in Section 5.2(d), the expenses are
intended to constitute expenses of administration under Title 11 of the
United States Code or any other applicable Federal or State bankruptcy,
insolvency or similar law.


 


SECTION 6.8.  Resignation
and Removal; Appointment of Successor.  No resignation or removal of Indenture
Trustee and no appointment of a successor Indenture Trustee shall become
effective until the acceptance of appointment by the successor Indenture
Trustee pursuant to this Section.  Indenture
Trustee may resign at any time by giving 30 days written notice to Issuer and
if any Rated Notes are Outstanding, the Rating Agencies.  The Noteholders of not less than 66-2/3% of
the Outstanding Principal Balance of the Notes may remove Indenture Trustee by
so notifying Indenture Trustee in writing and may appoint a successor Indenture
Trustee. Issuer shall remove Indenture Trustee if:


 


33





















 


(i)  Indenture Trustee fails to comply with Section 6.11;


 


(ii)  Indenture Trustee is adjudged a bankrupt or
insolvent;


 


(iii)  a receiver or other public officer takes
charge of Indenture Trustee or its property; or


 


(iv)  Indenture Trustee otherwise becomes incapable
of acting.


 


If Indenture Trustee
resigns or is removed or if a vacancy exists in the office of Indenture Trustee
for any reason (Indenture Trustee in such event being referred to herein as the
retiring Indenture Trustee), Issuer shall promptly appoint a successor
Indenture Trustee.


 


A successor Indenture
Trustee shall deliver a written acceptance of its appointment to the retiring
Indenture Trustee and to Issuer. Thereupon the resignation or removal of the
retiring Indenture Trustee shall become effective, and the successor Indenture
Trustee shall have all the rights, powers and duties of Indenture Trustee under
this Indenture. The successor Indenture Trustee shall mail a notice of its
succession to Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as Indenture Trustee to the successor
Indenture Trustee.


 


If a successor Indenture
Trustee does not take office within 60 days after the retiring Indenture
Trustee resigns or is removed, the retiring Indenture Trustee, Issuer or the
Noteholders of not less than a majority of the Outstanding Principal Balance of
the Notes may petition any court of competent jurisdiction for the appointment
of a successor Indenture Trustee.


 


If Indenture Trustee
fails to comply with Section 6.11,
any Noteholder may petition any court of competent jurisdiction for the removal
of Indenture Trustee and the appointment of a successor Indenture Trustee.


 


Notwithstanding the
replacement of Indenture Trustee pursuant to this Section, Issuer’s obligations
under Section 6.7 shall
continue for the benefit of the retiring Indenture Trustee. The retiring
Indenture Trustee shall have no liability for any act or omission by any
successor Indenture Trustee.


 


SECTION 6.9.  Successor
Indenture Trustee by Merger. 
If Indenture Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or
transferee corporation without any further act shall be the successor Indenture
Trustee. Indenture Trustee shall provide Issuer and, to the extent that any
Rated Notes are Outstanding, the Rating Agencies prior written notice of any
such transaction; provided, that
such corporation or banking association shall be otherwise qualified and
eligible under Section 6.11.


 


In case at the time such
successor(s) by merger, conversion or consolidation to Indenture Trustee shall
succeed to the trusts created by this Indenture any of the Notes shall have
been authenticated but not delivered, any such successor to Indenture Trustee
may adopt the certificate of authentication of any predecessor trustee, and
deliver such Notes so authenticated; and in case at that time any of the Notes
shall not have been authenticated, any successor to Indenture Trustee may
authenticate such Notes either in the name of any predecessor trustee hereunder
or 


 


34





















 


in the name of the
successor to Indenture Trustee; and in all such cases such certificates of
authentication shall have the full force and effect to the same extent given to
the certificate of authentication of Indenture Trustee anywhere in the Notes or
in this Indenture.


 


SECTION 6.10.  Appointment
of Co-Trustee or Separate Trustee.  (a)   Notwithstanding any other provisions of this
Indenture, at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Collateral may at the time be located,
Indenture Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Person(s) to act as co-trustee(s), or
separate trustee(s) for the benefit of the Noteholders, and to vest in such
Person(s), in such capacity, all rights hereunder with respect to the
Collateral, or any part thereof, and, subject to the other provisions of this Section,
such powers, duties, obligations, rights and trusts as Indenture Trustee may
consider necessary or desirable. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 6.11 and no notice
to Noteholders of the appointment of any co-trustee or separate trustee shall
be required under Section 6.8.


 


(b)  Every separate trustee and
co-trustee shall, to the extent permitted by law, be appointed and act subject
to the following provisions and conditions:


 


(i)  all rights, powers, duties and obligations
conferred or imposed upon Indenture Trustee shall be conferred or imposed upon
and exercised or performed by Indenture Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without Indenture Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act(s) are to be performed, Indenture
Trustee shall be incompetent or unqualified to perform such act(s), in which
event such rights, powers, duties and obligations (including the holding of
rights with respect to the Collateral or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of Indenture Trustee;


 


(ii)  no trustee hereunder shall be personally
liable by reason of any act or omission of any other trustee hereunder; and


 


(iii)  Indenture Trustee may at any time accept the
resignation of or remove, in its sole discretion, any separate trustee or
co-trustee.


 


(c)  Any notice, request or other
writing given to Indenture Trustee shall be deemed to have been given to each
of the then separate trustees and co-trustees, as effectively as if given to
each of them. Every instrument appointing any separate trustee or co-trustee
shall refer to this Indenture and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the liability
of, or affording protection to, Indenture Trustee. Every such instrument shall
be filed with Indenture Trustee.


 


35





















 


(d)  Any separate trustee or
co-trustee may at any time constitute Indenture Trustee as its agent or
attorney-in-fact with full power and authority, to the extent not prohibited by
law, to do any lawful act under or in respect of this Indenture on its behalf
and in its name. If any separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by Indenture
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.


 


(e)  Indenture Trustee shall have
no obligation to determine whether a co-trustee or separate trustee is legally
required in any jurisdiction in which any part of the Collateral may be
located.


 


SECTION 6.11.  Eligibility;
Disqualification.  There
shall at all times be an Indenture Trustee hereunder which shall (a) be a
corporation organized and doing business under the laws of the United States of
America, any state thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers; (b) have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition;  (c) be
subject to supervision or examination by federal or state authority; and (d) at
the time of appointment, shall have a long term senior, unsecured debt rating
of “Baa3” or better by Moody’s (or, if not rated by Moody’s, a comparable
rating by another statistical rating agency).


 


If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.  If at any time Indenture
Trustee shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.


 


If a default occurs under
this Indenture or any Indenture Supplement, and Indenture Trustee is deemed to
have a conflicting interest as a result of acting as trustee for more than one
Series or Class of Notes, a successor Indenture Trustee shall be appointed for
one or more of such Classes or Series, so that Indenture Trustee for any one of
the affected Classes or Series is different from Indenture Trustees for the
other affected Classes or Series.  No
such event shall alter the voting rights of the Noteholders of such Classes or
Series under this Indenture, any Indenture Supplement or any other Transaction
Document.  However, so long as any
amounts remain unpaid with respect to any Class of Notes, only Indenture Trustee
for the Noteholders of such Class will have the right to exercise remedies
under this Indenture or the applicable Indenture Supplement (but subject to the
express provisions of Section 5.3 and
to the right of the Noteholders of any subordinate Class within the same Series
to receive their share of any proceeds of enforcement.  Upon repayment of the Class of Notes with the
higher payment priority in full, all rights to exercise remedies under this
Indenture will transfer to Indenture Trustee for the next subordinate Class of
Notes within the same Series.


 


In the case of the
appointment hereunder of a successor Indenture Trustee with respect to any
Series or Class of Notes, Issuer, the retiring Indenture Trustee and the
successor Indenture Trustee with respect to such Series or Class of Notes shall
execute and deliver an indenture supplemental hereto wherein the successor
Indenture Trustee shall accept such appointment and which (i) shall contain
such provisions as shall be necessary or desirable to transfer and confirm 


 


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to, and to vest
in, the successor Indenture Trustee all the rights, powers, trusts and duties
of the retiring Indenture Trustee with respect to the Notes of the Series or
Class to which the appointment of such successor Indenture Trustee relates,
(ii) if the retiring Indenture Trustee is not retiring with respect to all
Series or Classes of Notes, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Indenture Trustee with respect to the Notes of each
Series or Class as to which the retiring Indenture Trustee is not retiring
shall continue to be vested in the retiring Indenture Trustee, and (iii) shall
add to or change any of the provisions of this Indenture and the applicable
Indenture Supplement as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Indenture Trustee, it
being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that each
such Indenture Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other such
Indenture Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Indenture Trustee shall
become effective to the extent provided therein.


 


SECTION 6.12.  Acceptance by Trustee.  Indenture Trustee hereby acknowledges the
grant of a Lien on the Collateral and the receipt of a Lien on the assets
constituting the Collateral granted by Issuer hereunder and declares that
Indenture Trustee, through a custodian, will hold such Lien on the Collateral
in trust, for itself and for the use and benefit of all Noteholders subject to
the terms and provisions hereof.


 


SECTION 6.13.  Preferential
Collection of Claims Against Issuer.  Indenture Trustee shall comply with TIA § 311(a),
excluding any creditor relationship listed in TIA § 311(b). An Indenture
Trustee who has resigned or been removed shall be subject to TIA § 311(a)
to the extent indicated.


 


SECTION 6.14.  Reports by Indenture Trustee
to Noteholders.  To the
extent required by the TIA, on or before the date prescribed by applicable law,
Indenture Trustee shall mail to the Noteholders a brief report dated as of such
reporting date that complies with TIA Section 313(a), if such a report is
required pursuant to TIA Section 313(a). 
Indenture Trustee also shall comply with TIA Section 313(b).  Indenture Trustee shall also transmit by mail
all reports as required by TIA Section 313(c).


 


A copy of each such
report required under TIA Section 313 shall, at the time of such
transmission to Noteholders be filed with the Commission and with each stock
exchange or other market system on which the Notes are listed.  Issuer shall notify Indenture Trustee in
writing if the Notes become listed on any stock exchange or market trading
system.


 


SECTION 6.15.  Representations
and Warranties.  Indenture
Trustee hereby represents that:


 


(a)  Indenture Trustee is duly organized and
validly existing as a New York banking corporation in good standing under the
laws of the State of New York with power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is presently conducted;


 


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(b)  Indenture Trustee has the power and authority
to execute and deliver this Indenture and to carry out its terms; and the
execution, delivery and performance of this Indenture have been duly authorized
by Indenture Trustee by all necessary corporate action;


 


(c)  each of this Indenture and the other
Transaction Documents to which it is a party has been duly executed and
delivered by Indenture Trustee and constitutes its legal, valid and binding
obligation in accordance with its terms;


 


(d)  the consummation of the transactions
contemplated by this Indenture and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under the
articles of organization or bylaws of Indenture Trustee; and


 


(e)  to the best of Indenture Trustee’s knowledge,
there are no proceedings or investigations pending or threatened before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over Indenture Trustee or its properties:
(i) asserting the invalidity of this Indenture, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Indenture or (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by Indenture Trustee of its obligations under, or the validity
or enforceability of, this Indenture.


 


SECTION 6.16.  The Paying Agent.  Issuer hereby appoints Indenture Trustee as
the initial Paying Agent.  All payments
of amounts due and payable with respect to any Notes that are to be made from
amounts withdrawn from any Trust Account pursuant to Section 8.6
and the applicable Indenture Supplement shall be made on behalf of Issuer by
the Paying Agent.


 


The Paying Agent hereby
agrees that subject to the provisions of this Section, it shall:


 


(i)  hold any 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 Indenture Trustee prompt notice of any
default by Issuer of which it has actual knowledge in the making of any payment
required to be made with respect to the Notes;


 


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


 


(iv)  immediately resign as a Paying Agent and
forthwith pay to Indenture Trustee any sums held by it in trust for the payment
of Notes if at any time it ceases to meet the standards required to be met by a
Paying Agent; and


 


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(v)  comply with all requirements of the Code and
any applicable State law 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.


 


Issuer shall at any time
when necessary or required, by Issuer Order, cause any Paying Agent other than
Indenture Trustee to pay to Indenture Trustee any sums held in trust by such
Paying Agent with respect to the Notes, such sums to be held by 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 Indenture Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.


 


Subject to applicable
laws with respect to escheat of funds, any amounts held by 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 be paid to Issuer on Issuer
Request; and the related Noteholder shall thereafter, as an unsecured general
creditor, look only to Issuer for payment thereof (but only to the extent of
the amounts so paid to Issuer), and all liability of Indenture Trustee or such
Paying Agent with respect to such trust funds shall thereupon cease; provided, however, that Indenture Trustee
or such Paying Agent, before being required to make any such repayment, shall
at the expense and direction of 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 funds remain 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 funds then remaining will be repaid to Issuer. Indenture
Trustee shall also adopt and employ, at the expense of Issuer, any other
reasonable means of notification of such repayment (including mailing notice of
such repayment to Noteholders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in amounts due and
payable but not claimed is determinable from the records of Indenture Trustee
or of any Paying Agent, at the last address of record for each such
Noteholder).


 


Each Paying Agent (other
than the initial Paying Agent) shall be appointed by Issuer Order with written
notice thereof to Indenture Trustee.  Any
Paying Agent appointed by Issuer shall be a Person who would be eligible to be
Indenture Trustee hereunder as provided in Section 6.11.  Issuer shall not appoint any Paying Agent
(other than Indenture Trustee) which is not, at the time of such appointment, a
depository institution or trust company, including Indenture Trustee, that (a)
is incorporated under the laws of the United States of America or any State
thereof, (b) is subject to supervision and examination by federal or state
banking authorities and (c) has outstanding unsecured commercial paper or other
short-term unsecured debt obligations that are rated “A-1+” by S&P or “Prime-1”
by Moody’s (or its equivalent).


 


ARTICLE VII

NOTEHOLDERS LISTS AND REPORTS


 


SECTION 7.1.  Note
Registrar to Furnish Indenture Trustee Names and Addresses of Noteholders.  The Note Registrar shall furnish to Indenture
Trustee: (a) not more than five 


 


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Business
Days after the earlier of: (i) each Record Date and (ii) three months after the
last Record Date, a list, in such form as Indenture Trustee may reasonably
require, of the names and addresses of the Noteholders as of such Record Date,
and (b) at such other times as Indenture Trustee may request in writing, within
30 days after receipt by Issuer of any such request, a list of similar form and
content as of a date not more than 10 days prior to the time such list is
furnished; provided, however,
that so long as Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.


 


SECTION 7.2.  Preservation
of Information; Communications to Noteholders.  (a)   Indenture Trustee shall preserve, in as
current a form as is reasonably practicable, the names and addresses of the
Noteholders contained in the most recent list furnished to Indenture Trustee as
provided in Section 7.1 and
the names and addresses of Noteholders received by Indenture Trustee in its
capacity as Note Registrar. Indenture Trustee may destroy any list furnished to
it as provided in Section 7.1
upon receipt of a new list so furnished.


 


(b)  Three or more Noteholders,
or one or more Noteholder(s) evidencing at least 25% of the Outstanding
Principal Balance of the Notes of any Series, may communicate pursuant to TIA § 312(b)
with other Noteholders of such Series with respect to their rights under this
Indenture or under the Notes of such Series.


 


(c)  Issuer, Indenture Trustee
and the Note Registrar shall have the protection of TIA § 312(c).


 


SECTION 7.3.  Reports by
Issuer.  Payments shall be
made to, and reports shall be provided to, Noteholders as set forth in the
applicable Indenture Supplement.  Unless
Issuer otherwise determines, the fiscal year of Issuer shall end on December 31
of each year.  Issuer shall notify
Indenture Trustee in writing of any change in its fiscal year.


 


ARTICLE VIII

ACCOUNTS, DISBURSEMENTS AND RELEASES


 


SECTION 8.1.  Collection
of Amounts Due.  Except as
otherwise expressly provided herein and in the related Indenture Supplement,
Indenture Trustee may demand payment or delivery of, and shall receive,
directly and without intervention or assistance of any fiscal agent or other
intermediary, all sums and other property payable to or receivable by Indenture
Trustee pursuant to this Indenture. Indenture Trustee shall apply all such
amounts received by it as provided in this Indenture.


 


SECTION 8.2.  Trust
Accounts.  (a)   On or prior to the Closing Date for the first
Series (in respect of clauses (i)
and (ii) below) or the Closing
Date for the applicable Series (in respect to of clause (iii) below), Issuer covenants to have established
and shall thereafter maintain the following accounts (the “Trust Accounts”),
which accounts shall be Eligible Deposit Accounts:


 


(i)  Collection Account;


 


(ii)  Excess Funding Account; and


 


(iii)  one or more Series Accounts for the
applicable Series of Notes.


 


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(b)  (i)   If, at any time, any of the Trust Accounts
ceases to be an Eligible Deposit Account, Issuer shall within 10 Business Days
(or such longer period, not to exceed 30 calendar days, as to which, if any
Rated Notes are Outstanding, each Rating Agency may consent) establish a new
Trust Account as an Eligible Deposit Account and shall transfer any cash and/or
any investments held in the no-longer Eligible Deposit Account to such new
Trust Account.  The Issuer shall notify
the Indenture Trustee and each Rating Agency of the account number applicable
to any new Trust Account prior to transfer of any cash and/or investments to
such new Trust Account.


 


(ii)  With respect to the Trust Account Property,
Issuer and Indenture Trustee, with respect to any Trust Account maintained by
it, agree, as security for Issuer’s obligations under this Indenture, that:


 


(A)  any Trust Account Property that is held in
deposit accounts shall be held solely in an Eligible Deposit Account, subject
to Section 8.2(b)(i);


 


(B)  any Trust Account Property that constitutes a
Certificated Security, Chattel Paper, an Instrument or other investment
evidenced in tangible form shall be delivered to Indenture Trustee in
accordance with clause
(i) of the definition of “Delivery” and shall be held, solely by
Indenture Trustee or a Securities Intermediary acting solely for Indenture
Trustee;


 


(C)  any Trust Account Property that is a Security
Entitlement to a Federal Book-Entry Security shall be maintained by Indenture
Trustee, pending maturity or disposition, through continued book-entry
registration of such Trust Account Property by the crediting to a Securities
Account maintained for Indenture Trustee with a Federal Reserve Bank of a
Security Entitlement to such Federal Book-Entry Security in accordance with the
definition of “Control” contained in this Indenture; and


 


(D)  any Trust Account Property that is an
Uncertificated Security shall be delivered to Indenture Trustee in accordance
with clause
(ii) of the definition of “Delivery” and shall be maintained by
Indenture Trustee, pending maturity or disposition, through satisfaction of the
requirements for obtaining “control” pursuant to Section 8-106(c)(2) of Article 8
of the UCC.


 


SECTION 8.3.  General Provisions Regarding Accounts.  (a)   Funds on deposit in the Trust Accounts shall
be invested or reinvested by Servicer, as agent of Issuer in Permitted
Investments selected by Issuer.  Initially,
all such funds shall be invested in DB Institutional Cash Management Fund
541.  All investment instructions
relating to the Trust Accounts shall be sent by the Servicer to both the
applicable deposit institution and the Indenture Trustee and the Indenture
Trustee shall review such instructions to verify that the investments selected
by the Servicer are Permitted Investments. 
All Investment Earnings on funds on deposit in the Trust Accounts (other
than any Series Collection Subaccount) shall be deemed to constitute a portion
of the Trust Available Funds.  Funds on
deposit in the Collection Account (other than Investment Earnings) shall be
invested in Permitted Investments that will mature so that such funds will be
available prior to the Payment Date following such investment.  Funds on deposit in the other 


 


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Trust
Accounts shall be invested in Permitted Investments that will mature at such
times provided in the related Indenture Supplement, or if not so specified, so
that such funds will be available at the close of business on the Business Day
preceding the following Payment Date. 
Funds deposited in a Trust Account on the Business Day that precedes a
Payment Date upon the maturity of any Permitted Investments are not required to
be invested overnight.  For purposes of
determining the availability of funds or the balances in the Collection Account
or Excess Funding Account for any reason under this Agreement or any
Transaction Document, all investment earnings, net of investment expenses and
losses on such funds shall be deemed not to be available or on deposit.


 


(b)  Issuer
shall ensure that, in connection with any investment of any funds or any sale
of any investment held in any of the Trust Accounts, the Lien granted to
Indenture Trustee and perfected in such Trust Account will continue to be
perfected in such investment or the proceeds of such sale, in either case
without any further action by any Person, and, in connection with any direction
to Indenture Trustee to make any such investment or sale, if requested by
Indenture Trustee, Issuer shall deliver or cause to be delivered to Indenture
Trustee an Opinion of Counsel to such effect.


 


(c)  Indenture
Trustee shall not in any way be held liable by reason of any insufficiency in
any of the Trust Accounts resulting from any loss on any Permitted Investment
included therein, except for losses attributable to Indenture Trustee’s failure
to make payments on such Permitted Investments issued by Indenture Trustee, in
its commercial capacity as principal obligor and not as trustee, in accordance
with their terms.  Indenture Trustee
shall have no liability in respect of losses incurred as a result of the
liquidation of any Permitted Investment prior to its stated maturity.


 


(d)  (i)
Unless provided for otherwise in the applicable Indenture Supplement, if a
Default or Event of Default has occurred and is continuing with respect to any
Series of Notes but such Notes shall not have been declared due and payable
pursuant to Section 5.3, or, (ii) if any Series of
Notes shall have been declared due and payable following an Event of Default,
but amounts collected or received from the Collateral are being applied in
accordance with Section 5.3(c)
as if there had not been such a declaration; then Issuer shall, to the fullest
extent practicable, invest and reinvest funds in the Trust Accounts in the
Permitted Investments identified in clause (d)
of the definition of “Permitted Investments.”


 


SECTION 8.4.  Rights of Noteholders.  The Collateral shall secure the rights of the
Noteholders of each Series to receive the portion of Trust Available Funds allocable
to the Noteholders of such Series pursuant to this Indenture and the related
Indenture Supplement, funds and other property credited to the Collection
Account (or any subaccount thereof) allocable to the Noteholders of such Series
pursuant to this Indenture and such Indenture Supplement, funds and other
property credited to any related Series Account and funds available pursuant to
any related Series Enhancement, it being understood that, except as
specifically set forth in the Indenture Supplement with respect thereto, the
Notes of any Series or Class shall not be secured by any interest in any Series
Account or Series Enhancement pledged for the benefit of any other Series or
Class that is Outstanding.


 


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SECTION 8.5.  Statements to Noteholders.  On each Determination
Date, Servicer shall provide to Indenture Trustee (with a copy to the Rating
Agencies), for Indenture Trustee to forward to each Noteholder of record, a
statement setting forth the information with respect to the Transferred
Receivables and such Noteholder’s Class and Series of Notes as is provided in
the applicable Indenture Supplement.


 


SECTION 8.6.  Collections and
Allocations.


 


(a)  Deposit of Collections.  Issuer shall, and shall cause Servicer to,
deposit Collections processed on any Business Day into the Collection Account
in immediately available funds on such Business Day.


 


(b)  Allocation of Trust
Available Funds.  On each Business Day, Issuer shall cause
Servicer, on behalf of Issuer, to determine the amount of Trust Available Funds
deposited in the Collection Account since the preceding Business Day and shall
allocate to each outstanding Series a share of such Trust Available Funds equal
to the product of (a) the applicable Allocation Percentage for such Series and
(b) the aggregate amount of such Trust Available Funds.  The portion of such funds so allocated to any
Series shall be further allocated and otherwise dealt with in accordance with
the terms of the Indenture Supplement for such Series.  Amounts so allocated to any Series will not,
except as specified in the related Indenture Supplement, be available to the
Noteholders of any other Series.  All
Trust Available Funds not so allocated to any Series of Notes shall be
allocated and paid to the holder of the Transferor Interest, except as
otherwise provided in Section 8.6(e)
(provided that Servicer
shall retain from such amounts to be paid to the holder of the Transferor
Interest on each Business Day an amount equal to the Transferor Percentage
multiplied by the Servicing Fee accrued to such Business Day and not previously
paid to or retained by Servicer).


 


(c)  Allocation of
Write-Off Amounts and Dilution Amounts.  On each Determination Date with respect to
any Series that is in an Amortization Period, Issuer shall cause Servicer, on
behalf of Issuer, to calculate the Write-Off Amount for the preceding OC
Measuring Period (net of the amount of any Recoveries for such OC Measuring
Period) and the aggregate Dilution Payment Amounts required to be made as a
result of Dilutive Credits granted during such OC Measuring Period and as to
which no payment has been made pursuant to Section 2.3
of the Transfer and Servicing Agreement and to allocate
to such Series a portion of such amount equal to the product of (a) such amount
and (b) the related Loss Allocation Percentage.


 


(d)  Misdirected Payments.  In the event that Servicer notifies Indenture
Trustee in writing that Indenture Trustee or any Lock-Box Account, the
Collection Account, the Excess Funding Account or any other account maintained
for the benefit of Noteholders has received amounts in respect of payments made
by any Person on an account receivable or other obligation which has not been
transferred to Issuer, Indenture Trustee shall, as soon as practicable and as
instructed in the most recently delivered Daily Report or Monthly Report,
forward such amounts, in the manner specified in writing by Servicer, to
Servicer or such other Person as Servicer designates and, pending the
forwarding of such amounts, hold such amounts in trust for Servicer or such
other Person designated by Servicer. 
Indenture Trustee will, if requested in writing by Servicer, acknowledge
and confirm the foregoing to any Person designated by Servicer.  In the 


 


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absence of such instructions, all such payments shall
be deemed to relate to, and be received with respect to, Transferred
Receivables.


 


(e)  Unallocated Trust Available Funds.  (i)  On each Business Day, Trust Available Funds
allocable to the Transferor Interest in an aggregate amount equal to the Excess
Funding Account Deposit Amount, if any, shall be deposited into the Excess
Funding Account and applied on such day in accordance with the terms hereof and
the Indenture Supplements.  Any remaining
Trust Available Funds allocated to the Transferor Interest may be applied, at
the option of the holder of the Transferor Interest, to reduce any Variable
Interest if permitted in accordance with the related Indenture Supplement.


 


(ii)  Pursuant
to the authority granted to Servicer pursuant to the Transfer and Servicing
Agreement, Servicer shall have the power revocable by Indenture Trustee to
instruct Indenture Trustee to make withdrawals and payments from the Excess
Funding Account for the purposes of carrying out Servicer’s duties
thereunder.  None of Transferor, Issuer
or Servicer, or any Person claiming by, through or under Issuer, Transferor or
Servicer, shall have any right, title or interest in, or any right to withdraw
any amount from, the Excess Funding Account except to the extent provided in
this Indenture.  In the event that a
Series has entered into its Amortization Period (or the terms of the related
Indenture Supplement otherwise provide for a repayment of principal prior to
commencement of the actual Amortization Period), a pro rata amount of the
balance on deposit in the Excess Funding Account, based on the Allocation
Percentage of such Series on the commencement date of such Amortization Period
relating to such Series adjusted for any Series that has already received its
pro rata portion, shall be deposited in the related Series Principal Collection
Sub-subaccount to be distributed as Trust Available Funds allocated in respect
of such Series in amortization or with respect to which such other repayment of
principal is occurring, in each case as provided in the related Supplement.  On any Payment Date on which the Transferor
Amount exceeds the Minimum Transferor Amount the amount on deposit in the
Excess Funding Account (after any deposits and withdrawals on such date) (as
indicated in the most recent Daily Report) up to the amount of such excess
shall be paid to Transferor.


 


(f)  Special Record Date. Indenture Trustee may
fix a special record date and special Payment Date for any payment to
Noteholders of any Series pursuant to this Section 8.6.  At least 15 days
before such special record date, Issuer shall mail to each Noteholder of such
Series and Indenture Trustee a notice that states the special record date, the
special Payment Date and the amount to be paid.


 


(g)  Withdrawals from Trust Accounts.  The Indenture Trustee shall not make any
withdrawal from any Trust Account at the direction of the Servicer, except in
accordance with the instructions contained in a Daily Report or Monthly Report
delivered to the Indenture Trustee


 


SECTION 8.7.  Release of
Collateral.  (a)   Subject
to the payment of its fees and expenses pursuant to Section 6.7,
Indenture Trustee may, and when required by this Indenture shall, execute
instruments to release property from the Lien of this Indenture, or convey 


 


44





















 


Indenture Trustee’s interest in the same, in a manner
and under circumstances that are not inconsistent with this Indenture.  No party relying upon an instrument executed
by Indenture Trustee as provided in this Article shall
be bound to ascertain Indenture Trustee’s authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
funds.


 


(b)  Indenture
Trustee shall, at such time as no Notes are Outstanding and all sums due to
Indenture Trustee pursuant to Section 6.7 have
been paid, release any remaining portion of the Collateral that secured the
Notes from the Lien of this Indenture.


 


(c)  Indenture
Trustee shall release property from the Lien of this Indenture pursuant to this
Section only upon receipt of an
Issuer Request requesting such release accompanied by an Officers’ Certificate
and an Opinion of Counsel and (if required by the TIA and the applicable
Indenture Supplement) Independent Certificates in accordance with TIA §§ 314(c)
and 314(d)(1) meeting the applicable requirements of Section
10.1.


 


SECTION 8.8.  Opinion of Counsel.  Indenture Trustee
shall receive at least seven days’ notice when requested by Issuer to take any
action pursuant to Section 8.7(a),
accompanied by copies of any instruments involved, and Indenture Trustee shall
also require, as a condition to such action, an Opinion of Counsel stating the
legal effect of any such action, outlining the steps required to complete the
same, and concluding that all conditions precedent to the taking of such action
have been complied with and such action will not materially and adversely
impair the security for the Notes or the rights of the Noteholders in
contravention of this Indenture; provided, however, that such Opinion of Counsel shall not be required to
express an opinion as to the fair value of the Collateral.  Counsel rendering any such opinion may rely,
without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to Indenture Trustee in connection
with any such action.


 


ARTICLE IX

SUPPLEMENTAL INDENTURES


 


SECTION 9.1.  Supplemental
Indentures Without Consent of Noteholders.  (a)  Without the consent of the Noteholders but
with prior written notice to each Rating Agency with respect to the Notes of
all Series rated by such Rating Agency, if any, Issuer and Indenture Trustee,
when authorized by an Issuer Order, at any time and from time to time, may
enter into one or more indentures supplemental hereto or to any Indenture
Supplement (which shall conform to the TIA as in force at the date of the
execution thereof), in form satisfactory to Indenture Trustee, for any of the
following purposes:


 


(i)  to correct or amplify the description of any
property at any time subject to the Lien of this Indenture, or better to Grant
unto Indenture Trustee a Lien on any property subject or required to be
subjected to the Lien of this Indenture, or to subject to the Lien of this
Indenture additional property;


 


(ii)  to evidence the succession, in compliance
with the applicable provisions hereof, of another Person to Issuer, and the
assumption by any such successor of the covenants of Issuer herein and in the
Notes;


 


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(iii)  to add to the covenants of Issuer, for the
benefit of the Noteholders, or to surrender any right or power herein conferred
upon Issuer;


 


(iv)  to convey, transfer, assign, mortgage or
pledge any property to or with Indenture Trustee;


 


(v)  to cure any ambiguity, to correct or
supplement any provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any supplemental indenture
or to make any other provisions with respect to matters or questions arising
under this Indenture or in any supplemental indenture; provided, that such action shall not
adversely affect the interests of the Noteholders;


 


(vi)  to evidence and provide for the acceptance of
the appointment hereunder by a successor or additional trustee with respect to
the Notes or any class thereof and to add to or change any of the provisions of
this Indenture as shall be necessary to facilitate the administration of the
trusts hereunder by more than one trustee, pursuant to the requirements of Article VI;


 


(vii)  to modify, eliminate or add to the provisions
of this Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar Federal
statute hereafter enacted and to add to this Indenture such other provisions as
may be expressly required by the TIA;


 


(viii)  to provide for the issuance of one or more
new Series of Notes, in accordance with the provisions of Section 2.8; or


 


(ix)  to provide for the termination of any
interest rate swap agreement or other form of credit enhancement or maturity
guarantee agreement in accordance with the provisions of the related Indenture
Supplement.


 


Indenture Trustee is
hereby authorized to join in the execution of any such supplemental indenture
and to make any further appropriate agreements and stipulations that may be
therein contained.


 


(b)  Issuer and Indenture Trustee
may, also without the consent of any Noteholders of any Series then Outstanding
but upon satisfaction of the Rating Agency Condition with respect to all Rated
Notes, enter into an indenture or indentures supplemental hereto or to any
Indenture Supplement for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of, this Indenture or to any
Indenture Supplement or modifying in any manner the rights of the Noteholders
under this Indenture or under any Indenture Supplement; provided, however that Issuer shall have delivered to
Indenture Trustee an Officer’s Certificate, dated the date of any such action,
stating that all requirements for such amendments contained in the Agreement
have been met and Issuer reasonably believes that such action will not cause an
Adverse Effect.


 


SECTION 9.2.  Supplemental
Indentures with Consent of Noteholders.  Issuer and Indenture Trustee, when authorized
by an Issuer Order, may, if any Rated Notes are Outstanding, 


 


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with
prior written notice to the Rating Agencies, and with the consent of the
Noteholders evidencing not less than a majority of the Outstanding Principal
Balance of the Outstanding Notes of each adversely affected Series, by Act of
such Noteholders delivered to Issuer and Indenture Trustee, enter into an
indenture or indentures supplemental hereto or to any Indenture Supplement for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture and the Indenture
Supplement related to such affected Series or of modifying in any manner the
rights of such Noteholders under this Indenture and such Indenture Supplement; provided, however, that no such
supplemental indenture shall, without the consent of the Noteholder of each
Outstanding Note affected thereby:


 


(a)  change the date of payment of any installment
of principal of or interest on any Note, or reduce the principal amount
thereof, the interest rate thereon or the Redemption Price with respect
thereto, change the provisions of this Indenture relating to the application of
collections on, or the proceeds of the sale of, the Collateral to the payment
of principal of or interest on the Notes, or change any place of payment where,
or the coin or currency in which, any Note or the interest thereon is payable,
or impair the right to institute suit for the enforcement of the provisions of
this Indenture requiring the application of funds available therefor, as
provided in Article V, to
the payment of any such amount due on or after the respective due dates thereof
(or, in the case of redemption, on or after the Redemption Date);


 


(b)  reduce the percentage of the Outstanding
Principal Balance of Notes of any Series, the consent of the Noteholders of
which is required for any such supplemental indenture, or the consent of the
Noteholders of which is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture;


 


(c)  modify or alter the provisions of the proviso
to the definition of “Outstanding”;


 


(d)  reduce the percentage of the Outstanding
Principal Balance of Notes of any Series, the consent of the Noteholders of
which is required to direct Indenture Trustee to direct Issuer to sell the
Collateral or any portion thereof if the proceeds of such sale would be
insufficient to pay the principal amount and accrued but unpaid interest on the
Outstanding Notes of such Series;


 


(e)  modify any provision of this Section except
to increase any percentage specified herein or to provide that certain
additional provisions of this Indenture or the Transaction Documents cannot be
modified or waived without the consent of the Noteholder of each Outstanding
Note affected thereby;


 


(f)  modify any of the provisions of this
Indenture in such manner as to affect the rights of the Noteholders of any Series
to the benefit of any provisions for the mandatory redemption of the Notes of
such Series contained herein; or


 


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(g)  permit the creation of any Adverse Claim
ranking prior to or on a parity with the Lien of this Indenture with respect to
any part of the Collateral or, except as otherwise permitted or contemplated
herein, terminate the Lien of this Indenture on any property at any time
subject hereto or deprive any Noteholder of the security provided by the Lien
of this Indenture.


 


It shall not be necessary
for any Act of the Noteholders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof. The manner
of obtaining such consents (and any other consents of Noteholders provided for
in this Indenture or in any other Transaction Document) and of evidencing the
authorization of the execution thereof by Noteholders shall be subject to such
reasonable requirements as Indenture Trustee may provide.


 


Promptly after the
execution by Issuer and Indenture Trustee of any supplemental indenture
pursuant to this Section,
Indenture Trustee shall mail to the Noteholders to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of Indenture Trustee to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture.


 


SECTION 9.3.  Execution
of Supplemental Indentures. 
In executing, or permitting the additional trusts created by, any
supplemental indenture permitted by this Article IX
or the modifications thereby of the trusts created by this Indenture, Indenture
Trustee shall be entitled to receive, and, subject to Sections 6.1 and 6.2, shall be fully protected in relying
upon, in addition to the documents required by Section 10.1,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects
Indenture Trustee’s own rights, duties, liabilities or immunities under this
Indenture or otherwise.


 


SECTION 9.4.  Effect of
Supplemental Indenture. 
Upon the execution of any supplemental indenture pursuant to the
provisions hereof, this Indenture shall be and be deemed to be modified and
amended in accordance therewith, and such supplemental indenture shall form a
part of the terms and conditions of this Indenture for any and all purposes and
every Noteholder, theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.  This Section 9.4 does not apply to
Indenture Supplements.


 


SECTION 9.5.  Reference
in Notes to Supplemental Indentures.  Notes authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may,
and if required by Indenture Trustee shall, bear a notation in form approved by
Indenture Trustee as to any matter provided for in such supplemental indenture.
If Issuer or Indenture Trustee shall so determine, new Notes so modified as to
conform, in the opinion of Indenture Trustee and Issuer, to any such
supplemental indenture may be prepared and executed by Issuer and authenticated
and delivered by Indenture Trustee in exchange for Outstanding Notes.


 


SECTION 9.6.  Conformity
with Trust Indenture Act. 
If this Indenture is qualified under the TIA, every amendment of this
Indenture and every supplemental indenture executed pursuant 


 


48





















 


to
this Article IX shall
conform to the requirements of the TIA as then in effect so long as this
Indenture shall then be qualified under the TIA.


 


ARTICLE X

MISCELLANEOUS


 


SECTION 10.1.  Compliance
Certificates and Opinions, etc. 
(a)   Upon any written application
or request (or oral application with prompt written or facsimiled confirmation)
by Issuer to Indenture Trustee to take any action under this Indenture, other
than any request that (i) Indenture Trustee authenticate the Notes specified in
such request, or (ii) Indenture Trustee pay amounts due and payable to Issuer
hereunder to Issuer’s assignee specified in such request, Issuer shall furnish
to Indenture Trustee:  (A) an Officer’s
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, (B) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with and (C) if required by
the TIA and the applicable Indenture Supplement, an Independent Certificate
from a firm of certified public accountants meeting the applicable requirements
of this Section, except that, in the case of any
such application or request as to which the furnishing of such documents is
specifically required by this Indenture, no additional certificate or opinion
need be furnished.


 


Every certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture shall include:


 


(1) a statement that each
signatory of such certificate or opinion has read or has caused to be read such
covenant or condition and the definitions herein relating thereto;


 


(2) a brief statement as to
the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based;


 


(3) a statement that, in the
opinion of each such signatory, such signatory has made (or has caused to be
made) such examination or investigation as is necessary to enable such
signatory to express an informed opinion as to whether or not such covenant or
condition has been complied with; and


 


(4) a statement as to whether,
in the opinion of each such signatory, such condition or covenant has been
complied with.


 


(b)  (i)   Prior to the deposit of any Collateral or
other property or securities with Indenture Trustee that is to be made the
basis for the release of any property or securities subject to the Lien of this
Indenture, Issuer shall, in addition to any obligation imposed in Section 10.1(a) or elsewhere in this
Indenture, furnish to Indenture Trustee an Officers’ Certificate certifying or
stating the opinion of each person signing such certificate as to the fair
value (within 90 days of such deposit) to Issuer of such Collateral or other
property or securities to be so deposited.


 


(ii)  Whenever Issuer is required to furnish to
Indenture Trustee an Officers’ Certificate described in clause (i),
Issuer shall also deliver to Indenture Trustee an Independent Certificate as to
the same matters if the fair value to Issuer 


 


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of such Collateral
or other property or securities to be so deposited and of all other Collateral
or other property or securities released from the Lien of this Indenture since
the commencement of the then-current fiscal year of Issuer, as set forth in the
certificates required by clause (i)
and this clause (ii), equals 10%
or more of the Outstanding Principal Balance of the Notes, but such certificate
need not be furnished with respect to any Collateral or other property or
securities so deposited if the fair value thereof to Issuer as set forth in the
related Officers’ Certificate is less than $1,000,000 or less than one percent
of the then Outstanding Principal Balance of the Notes.


 


(iii)  Other than with respect to property as
contemplated by clause (v),
whenever any Collateral or other property or securities are to be released from
the Lien of this Indenture, Issuer shall also furnish to Indenture Trustee an
Officers’ Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within 90 days of such release) of such
Collateral or other property or securities proposed to be released and stating
that in the opinion of such person the proposed release will not impair the
security under this Indenture in contravention of the provisions hereof.


 


(iv)  Whenever Issuer is required to furnish to
Indenture Trustee an Officers’ Certificate described in clause (iii), Issuer shall also deliver to
Indenture Trustee an Independent Certificate as to the same matters if the fair
value to Issuer of the Collateral or other property or securities and of all
other such Collateral or other property, other than property as contemplated by
clause (v), or securities
released from the Lien of this Indenture since the commencement of the
then-current fiscal year of Issuer, as set forth in the certificates required
by clause (iii) and this clause (iv), equals 10% or more of the
Outstanding Principal Balance of the Notes, but such certificate need not be
furnished in the case of any release of Collateral or other property or securities
if the fair value thereof to Issuer as set forth in the related Officers’
Certificate is less than $1,000,000 or less than one percent of the then
Outstanding Principal Balance of the Notes.


 


SECTION 10.2.  Form of
Documents Delivered to Indenture Trustee.  In any case where several matters are
required to be certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.


 


Any certificate or
opinion of an Authorized Officer of Issuer may be based, insofar as it relates
to legal matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate, opinion or representations with respect to
the matters upon which his certificate or opinion is based is/are erroneous.
Any such certificate of an Authorized Officer or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of any Seller, Servicer,
Transferor, Issuer, stating that 


 


50





















 


the information
with respect to such factual matters is in the possession of any Seller,
Servicer, Transferor, Issuer, as applicable, unless such Authorized Officer or
counsel knows, or in the exercise of reasonable care should know, that the
certificate, opinion or representations with respect to such matters is/are
erroneous.  Any Opinion of Counsel may be
based on the written opinion of other counsel, in which event such Opinion of
Counsel shall be accompanied by a copy of such other counsel’s opinion and
shall include a statement to the effect that such counsel believes that such
counsel and Indenture Trustee may reasonably rely upon the opinion of such
other counsel.


 


Where any Person is
required or permitted to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.


 


Whenever in this
Indenture, in connection with any application, certificate or report to
Indenture Trustee, it is provided that Issuer shall deliver any document as a
condition of the granting of such application, or as evidence of Issuer’s
compliance with any term hereof, it is intended that the truth and accuracy, at
the time of the granting of such application or at the effective date of such
certificate or report (as the case may be), of the facts and opinions stated in
such document shall in such case be conditions precedent to the right of Issuer
to have such application granted or to the sufficiency of such certificate or
report. The foregoing shall not, however, be construed to affect Indenture
Trustee’s right to rely upon the truth and accuracy of any statement or opinion
contained in any such document as provided in Article VI.


 


SECTION 10.3.  Acts of
Noteholders.  (a)   Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Noteholders may be embodied in and evidenced by one or
more instrument(s) of substantially similar tenor signed by such Noteholders in
person or by agents duly appointed in writing; and except as herein otherwise
expressly provided, such action shall become effective when such instrument(s)
are delivered to Indenture Trustee, and, where it is hereby expressly required,
to Issuer. Such instrument(s) (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the
Noteholders signing such instrument(s). Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of Indenture Trustee and Issuer, if made in the manner
provided in this Section 10.3.  At any time the Notes of any Class are
maintained on Book-Entry Notes, any reference in this Indenture to an Act of
Noteholders or a Noteholder or Noteholders representing a specified portion of
the Outstanding Principal Balance of the Notes or such Class of Notes shall be
deemed to refer to an Act of Note Owners or a Note Owner or Note Owners holding
such specified portion of the Outstanding Principal Balance of the Notes or
Class, as the case may be.


 


(b)  The fact and date of the
execution by any Person of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of 


 


51





















 


the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which Indenture
Trustee deems sufficient.


 


(c)  The ownership of Notes shall
be proved by the Note Register.


 


(d)  Any request, demand,
authorization, direction, notice, consent, waiver or Act by the Noteholder
shall bind every Noteholder issued upon the registration of the related Note,
in exchange therefor or in lieu thereof, in respect of anything done, omitted
or suffered to be done by Indenture Trustee or Issuer in reliance thereon,
whether or not notation of such action is made upon such Note.


 


(e)  By accepting the Notes
issued pursuant to this Indenture, each Noteholder irrevocably appoints
Indenture Trustee hereunder as the special attorney-in-fact for such Noteholder
vested with full power on behalf of such Noteholder to effect and enforce the
rights of such Noteholder and the revisions pursuant hereto for the benefit of
such Noteholder; provided that nothing contained
in this Section shall be deemed to confer upon
Indenture Trustee any duty or power to vote on behalf of the Noteholders with
respect to any matter on which the Noteholders have a right to vote pursuant to
the terms of this Indenture.


 


SECTION 10.4.  Notices,
etc., to Indenture Trustee, Issuer and Rating Agencies.  Any request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders, or other documents
provided or permitted by this Indenture, shall be in writing and, if such
request, demand, authorization, direction, notice, consent, waiver or Act of
Noteholders is to be made upon, given or furnished to or filed with:


 


(a)  Indenture Trustee by any Noteholder or by
Issuer, shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with Indenture Trustee at its Corporate
Trust Office, or


 


(b)  Issuer by Indenture Trustee or by any
Noteholder, shall be sufficient for every purpose hereunder if in writing and
mailed, first-class, postage prepaid, to Issuer addressed to: 8182 Maryland
Avenue, Clayton, Missouri 63105, or at any other address previously furnished
in writing to Indenture Trustee by Issuer. Issuer shall promptly transmit any
notice received by it from the Noteholders to Indenture Trustee.


 


Notices, if any, required
to be given to the Rating Agencies by Issuer, Indenture Trustee or the Trustee
shall be in writing, personally delivered or mailed by certified mail, return
receipt requested, to their respective addresses set forth in the applicable
Indenture Supplement.


 


SECTION 10.5.  Notices to
Noteholders; Waiver. 
Where this Indenture provides for notice to Noteholders of any event or
the mailing of any report to Noteholders, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class, postage prepaid or certified mail return receipt requested, or
sent by private courier or confirmed telecopy to each Noteholder affected by
such event or to whom such report is required to be mailed, at its address as
it appears on the Note Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice or the
mailing of such report. In any case where notice or report to Noteholders is
given by mail, neither the failure to mail such notice or report nor any defect
in any notice or report so mailed to any particular 


 


52





















 


Noteholder
shall affect the sufficiency of such notice or report with respect to other
Noteholders, and any notice that is mailed in the manner herein provided shall
conclusively be presumed to have been duly given.


 


Where this Indenture
provides for notice in any manner, such notice may be waived in writing by any Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Noteholders
shall be filed with Indenture Trustee but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such a waiver.


 


In case by reason of the
suspension of regular mail service or by reason of any other cause it shall be
impracticable to mail or send notice to Noteholders, in accordance with Section 10.5, of any event or any report to Noteholders when
such notice or report is required to be delivered pursuant to any provision of
this Indenture, then such notification or delivery as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.


 


Where this Indenture
provides for notice to the Rating Agencies, failure to give such notice shall
not affect any other rights or obligations created hereunder, and shall not
under any circumstance constitute a Default or Event of Default.


 


SECTION 10.6.  Alternate
Payment and Notice Provisions. 
Notwithstanding any provision of this Indenture or any of the Notes to
the contrary, Issuer will, upon reasonable request of any Noteholder, enter
into any agreement with such Noteholder providing for a method of payment, or
notice by Indenture Trustee or any Paying Agent to such Noteholder, that is
different from the methods provided for in this Indenture or the Notes for such
payments or notices, unless such agreement or the effects thereof could cause
economic or administrative burden on Issuer or is unlawful; provided, however,
that any such agreement that imposes any duties or obligations on Indenture
Trustee (including in its capacity as Paying Agent) shall be subject to the
prior written consent of Indenture Trustee. Issuer will furnish to Indenture
Trustee a copy of each such agreement and Indenture Trustee will cause payments
to be made and notices to be given in accordance with such agreements.


 


SECTION 10.7.  Successors
and Assigns.  All
covenants and agreements in this Indenture and the Notes by Issuer shall bind
its successors and assigns, whether so expressed or not. All agreements of
Indenture Trustee in this Indenture shall bind its successors, co-trustees and agents
of Indenture Trustee, whether so expressed or not.


 


SECTION 10.8.  Severability.  Any provision of this Indenture or the Notes
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or of the
Notes, as applicable, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


 


SECTION 10.9.  Benefits
of Indenture.  Nothing in
this Indenture or in the Notes, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, the Noteholders,
any other party secured hereunder and any other Person with an ownership 


 


53





















 


interest
in any part of the Collateral, any benefit or any legal or equitable right,
remedy or claim under this Indenture.


 


SECTION 10.10.  Legal
Holidays.  In any case
where the date on which any payment is due shall not be a Business Day, then
(notwithstanding any other provision of the Notes or this Indenture) payment
need not be made on such date, but may be made on the next Business Day with
the same force and effect as if made on the date on which nominally due, and no
interest shall accrue with respect to such payment for the period from and
after any such nominal date.


 


SECTION 10.11.  Governing
Law.  (a)   THIS AGREEMENT AND THE OBLIGATIONS ARISING
HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401(1)
OF THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW
PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. TO
THE EXTENT PROVIDED IN ANY APPLICABLE INDENTURE SUPPLEMENT, THIS INDENTURE IS
SUBJECT TO THE TRUST INDENTURE ACT OF 1939, AS AMENDED, AND SHALL BE GOVERNED
THEREBY AND CONSTRUED IN ACCORDANCE THEREWITH.


 


(b) 
EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE
STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY
SHALL HAVE NON-EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR
DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT
OF OR RELATING TO THIS AGREEMENT; PROVIDED, THAT
EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO
BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK
CITY; PROVIDED, FURTHER, THAT NOTHING IN THIS
AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE INDENTURE TRUSTEE FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE
ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE NOTES, OR TO ENFORCE A JUDGMENT
OR OTHER COURT ORDER IN FAVOR OF INDENTURE TRUSTEE.  EACH PARTY HERETO SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE
BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS
TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY
SUCH COURT.  EACH PARTY HERETO HEREBY
WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN
ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND
OTHER PROCESS MAY BE MADE BY REGISTERED OR 


 


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CERTIFIED MAIL ADDRESSED
TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 10.4 AND THAT SERVICE SO MADE
SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY’S ACTUAL RECEIPT
THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE
PREPAID.  NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY
PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.


 


(c)  BECAUSE DISPUTES ARISING IN CONNECTION WITH
COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.  THEREFORE, TO ACHIEVE THE BEST COMBINATION OF
THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO
WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO
RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS INDENTURE OR THE TRANSACTIONS
CONTEMPLATED HEREBY.


 


SECTION 10.12.  Counterparts.  This Indenture may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.  Executed counterparts
may be delivered electronically.


 


SECTION 10.13.  Recording
of Indenture.  If this
Indenture is subject to recording in any public recording offices, such
recording is to be effected by Issuer and, at its expense, accompanied by an
Opinion of Counsel (which may be counsel to Indenture Trustee or any other
counsel reasonably acceptable to Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Noteholders or any
other Person secured hereunder or for the enforcement of any right or remedy granted
to Indenture Trustee under this Indenture.


 


SECTION 10.14.  Issuer
Obligation.  No recourse
may be taken, directly or indirectly, with respect to the obligations of Issuer
or Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against: (i)
Indenture Trustee in its individual capacity, (ii) any owner of a beneficial
interest in Issuer or (iii) any partner, owner, beneficiary, officer, director,
employee or agent of: (a) Indenture Trustee in its individual capacity,
(b) any owner of a beneficial interest in Issuer or Indenture Trustee or (c) of
any successor or assign of Indenture Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that
Indenture Trustee has no such obligations in its individual capacity) and
except that any such partner, owner or beneficiary 


 


55





















 


shall
be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.


 


SECTION 10.15.  Communication by Noteholders
with Other Noteholders. 
Subject to Section 7.2(b),
Noteholders may communicate, pursuant to TIA Section 312(b), with other
Noteholders with respect to their rights under this Indenture or the
Notes.  Issuer, Indenture Trustee, the
Note Registrar and all other parties shall have the protection of TIA Section 312(c).


 


SECTION 10.16.  Agents of Issuer.  Indenture Trustee hereby acknowledges that it
has been advised that any agent of Issuer may act on behalf of Issuer hereunder
for purposes of all consents, amendments, waivers and other actions permitted
or required to be taken, delivered or performed by Issuer, and Indenture
Trustee agrees that any such action taken by an agent on behalf of Issuer shall
satisfy Issuer’s obligations hereunder.


 


SECTION 10.17.  Survival of Representations
and Warranties.  The
representations, warranties and certifications of Issuer made in this Indenture
or in any certificate or other writing delivered by Issuer pursuant hereto
shall survive the authentication and delivery of the Notes hereunder.


 


SECTION 10.18.  No
Petition.  Each of
Indenture Trustee, by entering into this Indenture, and each Noteholder, by
accepting a Note, hereby covenants and agrees that, prior to the date which is
one year and one day after payment in full of all outstanding Notes and all
obligations of Issuer under the Transaction Documents, it will not institute
against Issuer or SRC, or solicit or join or cooperate with or encourage any
institution against Issuer or SRC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, this Indenture or any of the Transaction
Documents.  The foregoing shall not limit
the rights of Indenture Trustee to file any claim in or otherwise take any
action with respect to any insolvency proceeding that was instituted against
Issuer by any Person other than Indenture Trustee.  The provisions of this Section 10.18
shall survive the termination of this Agreement.


 


[Signatures
Follow]


 


56





















 


IN
WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective officers duly authorized as
of the day and year first above written.


 


 


	
   

  	
  SSCE FUNDING, LLC, as Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard P. Marra

  
	
   

  	
   

  	
  Name: Richard P. Marra

  
	
   

  	
   

  	
  Title: Assistant Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK TRUST COMPANY AMERICAS,
  not in its individual capacity but solely as Indenture Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eileen M. Hughes

  
	
   

  	
   

  	
  Name: Eileen M. Hughes

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ACKNOWLEDGED AND ACCEPTED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  STONE RECEIVABLES CORPORATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Richard P. Marra

  	
   

  	
   

  	
   

  
	
   

  	
  Name: Richard P. Marra

  	
   

  	
   

  
	
   

  	
  Title: Assistant Treasurer

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SMURFIT-STONE CONTAINER ENTERPRISES, INC., as Servicer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Richard P. Marra

  	
   

  	
   

  	
   

  
	
   

  	
  Name: Richard P. Marra

  	
   

  	
   

  
	
   

  	
  Title: Assistant Treasurer

  	
   

  	
   

  



 


S-1










 















EXHIBIT
A
to Indenture


 


FORM
OF SECTION 3.9 OFFICERS’ CERTIFICATE


 


                           ,
        


 


[Name of Trustee]

[Address]


 


Pursuant to Section 3.9 of the Indenture, dated
as of November 23, 2004 (the “Indenture”),
between SSCE Funding, LLC (the “Issuer”)
and Deutsche Bank Trust Company Americas, as Indenture Trustee, the undersigned
hereby certify that:


 


(a)  a review of the
activities of Issuer during the previous fiscal year and of performance under
the Indenture has been made under the supervision of the undersigned; and


 


(b)  to the best
knowledge of the undersigned, based on such review, Issuer has complied with
all conditions and covenants under the Indenture throughout such year. [or, if there has been a default in the compliance of any such
condition or covenant, this certificate is to specify each such default known
to the undersigned and the nature and status thereof]


 


 


	
   

  	
  SSCE FUNDING, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
							



 


A-1





















 


SCHEDULE 1


 


Perfection
Representations and Warranties


 


I.              Representations, Warranties and Agreements Relating
to the Security Interest.  Issuer
hereby makes the following representations, warranties and agreements with
respect to the Collateral:


 


(a)  Collateral.


 


(i)  Creation.  This Indenture creates a valid and continuing
security interest (as defined in the applicable UCC) in the Collateral in favor
of Indenture Trustee (for the benefit of the Noteholders and Indenture
Trustee), which security interest is prior to all other Adverse Claims, and is
enforceable as such as against creditors of and purchasers from Issuer.


 


(b)  Transferred Receivables.


 


(i)  Nature of
Transferred Receivables.  The
Transferred Receivables constitute “accounts,” “payment intangibles,” or
“general intangibles” within the meaning of the applicable UCC.


 


(ii)  Ownership of Transferred Receivables.  Issuer owns and has good and marketable title
to the Transferred Receivables and Related Security with respect thereto free
and clear of any Adverse Claim.


 


(iii)  Perfection and Related Security.  Issuer has caused (and will cause each Seller
and the Transferor, as applicable, to cause), within ten days after the Closing
Date relating to the first Series of Notes, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under
applicable law in order to perfect the sale of and security interest in the
Transferred Receivables and Related Security related thereto from each such
Seller to Transferor pursuant to the Sale Agreement, the sale or contribution,
as applicable, thereof and security interest therein from Transferor to Issuer
pursuant to the Transfer and Servicing Agreement, and the security interest
therein from Issuer to Indenture Trustee under this Indenture, to the extent
that such collateral constitutes “accounts,” “payment intangibles,” or “general
intangibles.”


 


(c)  The
Trust Accounts.


 


(i)  Nature of
Account.  Each Trust Account
constitutes a “deposit account” within the meaning of the applicable UCC.


 


(ii)  Ownership.  Issuer owns and has good and marketable title
to each Trust Account within the meaning of the applicable UCC.


 


1





















 


(iii)  Perfection.  Issuer has taken all steps necessary to cause
the Indenture Trustee to have a security interest in the Trust Accounts that
has been perfected by “control” (within the meaning of Articles 8 and 9 of the
UCC).


 


(d)  Rights under Sale
Agreement and Transfer and Servicing Agreement.


 


(i)  Nature of Collateral.                     The
Collateral described in clauses (b) and (c) of the Granting Clause of this
Indenture constitutes “payment intangibles” or “general intangibles” within the
meaning of the applicable UCC.


 


(ii)  Ownership.               Issuer owns and has good and marketable
title to the Collateral described in clauses (b) and (c) free and clear of any
Adverse Claim.  Other than the security
interest granted to Indenture Trustee pursuant to this Indenture, Issuer has
not pledged, assigned, sold, granted a security interest in, or otherwise
conveyed the Collateral described in clauses (b) and (c) of the Granting Clause
of this Indenture.


 


(e)  Priority.


 


(i)  Other than the transfer of the Transferred
Receivables to Transferor, Issuer and Indenture Trustee under the Sale
Agreement, the Transfer and Servicing Agreement, and this Indenture,
respectively, and/or the security interest granted to the Transferor, Issuer
and Indenture Trustee pursuant to the Sale Agreement, the Transfer and
Servicing Agreement and this Indenture, respectively, none of any Seller,
Transferor or Issuer has pledged, assigned, sold granted a security interest
in, or otherwise conveyed any of the Transferred Receivables, any Trust Account
or any subaccount thereof, except for any such pledge, grant or other
conveyance which has been released or terminated.  None of any Seller, Transferor or Issuer has
authorized the filing of or is aware of any financing statements against any
Seller, Transferor or Issuer that include a description of Transferred
Receivables, each Trust Account or any subaccount thereof, other than any
financing statement (A) relating to the sale thereof by such Seller to
Transferor under the Sale Agreement, (B) relating to the sale or
contribution, as applicable, thereof by Transferor to Issuer under the Transfer
and Servicing Agreement, (C) relating to the security interest granted to
Indenture Trustee under this Indenture, or (D) that has been terminated.


 


(ii)  Issuer is not aware of any judgment, ERISA or
tax lien filings against any Seller, Transferor or Issuer.


 


(iii)  The Trust Accounts are not in the name of any
person other than Issuer or Indenture Trustee. 
Issuer has not consented to any bank maintaining such account to comply
with instructions of any Person other than itself or Indenture Trustee.


 


(f)  Survival
of Supplemental Representations. 
Notwithstanding any other provision of this Indenture or any other
Transaction Document, the representations contained in this Schedule 


 


2





















 


shall
be continuing, and remain in full force and effect until such time as the Notes
and all other obligations under this Indenture have been finally and fully paid
and performed.


 


(g)  No Waiver. 
To the extent required pursuant to any Indenture Supplement, the parties
to this Indenture shall not: (i) waive any of the representations set forth in
this Schedule; or (ii) waive a
breach of any of the representations set forth in this Schedule.


 


(h)  Issuer to Maintain Perfection and Priority.  In order to evidence the interests of
Indenture Trustee under this Indenture, Issuer shall, from time to time take
such action, or execute and deliver such instruments as may be necessary or
advisable (including such actions as are reasonably requested by Indenture
Trustee) to maintain and perfect, as a first-priority interest, Indenture
Trustee’s security interest in the Collateral for the benefit of the
Noteholders.  Issuer shall, from time to
time and within the time limits established by law, prepare and present to
Indenture Trustee for Indenture Trustee’s authorization and approval, all
financing statements, amendments, continuations or initial financing statements
in lieu of a continuation statement, or other filings necessary to continue,
maintain and perfect Indenture Trustee’s security interest as a first-priority
interest.  Indenture Trustee’s approval
of such filing shall authorize Issuer to file such financing statements under
the UCC without the signature of any Seller, Transferor, Issuer or Indenture
Trustee, as applicable, where allowed by applicable law.  Notwithstanding anything else in the
Transaction Documents to the contrary, Issuer shall not have any authority to
file a termination, partial termination, release, partial release, or any
amendment that deletes the name of a debtor or excludes collateral of any such
financing statements, without the prior written consent of Indenture Trustee.


 


II.            Reaffirmation of Representations and Warranties.  On the date of each sale or contribution of
Transferred Receivables to Issuer and on the date each Monthly Report is
delivered, Issuer, by accepting the Transferred Receivables subject to such
sale or contribution and/or the provision of such information or report shall
be deemed to have certified that (a) all representations and warranties of
Issuer, described in this Schedule are
correct on and as of such day as though made on and as of such day and (b) no
event has occurred or is continuing, or would result from any such transfers
which constitutes Default or an Event of Default.


 


3





















 


ANNEX A


 


“Accounting Changes” means, with respect to any Person, an
adoption of GAAP different from such principles previously used for reporting
purposes by such Person as defined in the Accounting Principles Board Opinion
Number 20.


 


“Act” is
defined in Section 10.3.


 


“Additional Amounts” is defined, with
respect to any Series, in the related Indenture Supplement.


 


“Additional
Seller Supplement” is defined in Section 8.1(b)
of the Transfer and Servicing Agreement.


 


“Adjusted Collateral Amount” is defined,
with respect to any Series or any Class of a Series (if applicable to that
Series), in the related Indenture Supplement, or if no meaning for such term is
specified in such Supplement, shall mean the Collateral Amount for such Series.


 


“Adverse
Claim” means any claim of ownership or any Lien, other than any
ownership interest or Lien created under the Sale Agreement, or the Transfer
and Servicing Agreement, the Lien of this Indenture or any Permitted
Encumbrances.


 


“Adverse
Effect” means, with respect to any action, that such action will (a)
result in the occurrence of a Pay Out Event or an
Event of Default or (b) materially and adversely affect the amount or timing of
distributions to be made to the Noteholders of any Series or Class pursuant to
the Indenture.


 


“Affiliate”
means, with respect to any Person, (a) each Person that, directly or indirectly,
owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary,
five percent (5%) or more of the stock having ordinary voting power in the
election of directors of such Person, (b) each Person that controls, is
controlled by, or is under common control with such Person, or (c) each of such
Person’s officers, directors, joint venturers and partners.  For the purposes of this definition,
“control” of a Person means the possession, directly or indirectly, of the
power to direct or cause the direction of its management or policies, whether
through the ownership of voting securities, by contract or otherwise.


 


“Agreement” is defined in
the preamble.


 


“Agreement
Termination Date” is defined in Section 7.4
of the Sale Agreement.


 


“Aggregate Adjusted Collateral Amount”
means, as of any date of determination, the sum of the Adjusted Collateral
Amounts of all Series issued and Outstanding on such date of determination.


 


“Aggregate Allocation Percentage”
means, as of any date of determination, the sum of the Allocation Percentages
of all Series issued and Outstanding on such date of determination; provided, however, that the Aggregate
Allocation Percentage shall not exceed 100%.


 


A-1





















 


“Aggregate Eligible Receivables”  means, for any Business Day, the aggregate Unpaid Balances of
the Transferred Receivables included as Collateral that were Eligible  Receivables at the end of the prior Business Day.


 


“Aggregate Receivables Balance” means, as
of any date of determination, the aggregate Unpaid Balances of all Transferred
Receivables included as Collateral at such date.


 


“Aggregate
Required Overcollateralization Amount” means, as of any date of
determination, the sum of the Required Overcollateralization Amounts for all
Series issued and Outstanding as of such date of determination.


 


“Aggregate
Target Receivables Amount” means sum of the Target Receivables
Amounts for all Series.


 


“Allocation Percentage” is defined, for any
Series, in the related Indenture Supplement.


 


“Amortization
Period” is defined, for any Series, in the related Indenture
Supplement.


 


“Authorized Officer”
means, with respect to any corporation or limited liability company, as appropriate, the
Chairman or Vice-Chairman of the Board, the President, any Vice President, the
Secretary, the Treasurer, any Assistant Secretary, any Assistant Treasurer, the
managing member, any manager and each other officer, employee or member of such
corporation or limited liability company, as appropriate, specifically or
similar governing body of such limited liability company to sign agreements,
instruments or other documents on behalf of such corporation authorized in
resolutions of the Board of Directors of such corporation or similar governing
body of such limited liability company, as appropriate.


 


“Available Overcollateralization” is
defined, for any Series, in the related Indenture Supplement.


 


“Bankruptcy Code”
means the provisions of Title 11 of the United States Code, 11 U.S.C. §§ 101
et seq.


 


“Bankruptcy
Event” means, with respect to any Person, any event which causes
such Person to (a) be bankrupt or insolvent, (b) be unable to make payment on
its obligations when due, (c) become a debtor in a voluntary or involuntary
bankruptcy proceeding, or (d) be the subject of a comparable receivership or
insolvency proceeding.


 


“Billed Amount” means,
with respect to any Receivable, the amount billed on the Billing Date to the
Obligor thereunder.


 


“Billing Date” means,
with respect to any Receivable, the date on which the Contract with respect
thereto was generated.


 


“Book-Entry Notes”
means a beneficial interest in the Notes of a particular Class, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 2.10.


 


A-2





















 


“Business Day”
means any day that is not (a) a Saturday, a Sunday or a day on which banks are
required or permitted to be closed in the State of New York, (b) a day on which
the Servicer is closed for business in accordance with its calendar of
scheduled holidays (a copy of which, for any calendar year, shall be provided
by the Servicer to the Indenture Trustee as soon as practicable after such schedule has
been announced) or (c) with respect to any Series, any additional city
specified by the related Indenture Supplement.


 


“Certificated Security”
has the meaning assigned to such term in Section 8-102 of Article 8
of the UCC.


 


 “Class” means any class of Notes
of any Series.


 


“Clearing Agency”
means an organization registered as a “clearing agency” pursuant to Section 17A
of the Securities Exchange Act that has been designated as the “Clearing
Agency” for purposes of this Indenture.


 


“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”
means, with respect to any Series, the closing date specified in the Indenture
Supplement for such Series.


 


“Code”
means the Internal Revenue Code of 1986, as amended from time to time, and
Treasury Regulations promulgated thereunder.


 


“Collateral”
is defined in the Granting
Clause of this Indenture.


 


“Collateral Amount” is defined, with
respect to any Series, in the related Indenture Supplement for such Series.


 


“Collection Account”
means the account designated as such, established and owned by Issuer and
maintained in accordance with Section 8.2.


 


“Collections”
means, with respect to any Business Day, the aggregate amount of collections on
or with respect to the Transferred Receivables received by Servicer (or any
Seller, Transferor or Issuer) or paid to or deposited in any Lock-Box Account
since the prior Business Day, whether in the form of cash, checks, drafts, or
other instruments, received in payment of, or applied to, any amount owed by an
Obligor on account of such Transferred Receivables, including all amounts
received on account of such Transferred Receivables (including interest) and
all other fees and charges and all proceeds from the sale or other disposition
of such Transferred Receivables and Related Security (other than the sale to
Transferor under the Sale Agreement and the sale to Issuer under the Transfer
and Servicing Agreement).


 


“Commission”
means the Securities and Exchange Commission.


 


“Concentration
Percentage” means, for any Eligible Obligor, the applicable
percentage set forth below:


 


A-3





















 


(a)                                  10.0% for any Tier-1 Obligor,


 


(b)                                 5.00% for any Tier-2 Obligor,


 


(c)                                  3.25% for any Tier-3 Obligor, and


 


(d)                                 2.00% for any Tier-4 Obligor.


 


All Eligible Obligors
that are known to Issuer as being Affiliates of each other shall be deemed to
be a single Eligible Obligor for purposes of calculating the related
Concentration Percentage and the Excess Concentration Balances.


 


“Contract”
means any
agreement (including any invoice) pursuant to, or under which, an Obligor shall
be obligated to make payments with respect to any Receivable. A
“related” Contract or a Contract “with respect to” any Receivable, means, as
the context requires, a contract under which such Receivable arises or which is
relevant to the collection or enforcement of such Receivable.


 


“Control”
with respect to any Federal Book-Entry Security, means that:


 


(i)  Indenture Trustee is a “participant” (as such
term is defined in the Federal Book-Entry Regulations) in the book-entry system
maintained by the Federal Reserve Bank that is acting as fiscal agent for the
issuer of such Federal Book-Entry Security, and such Federal Reserve Bank has
indicated by book-entry that Security Entitlement to such Federal Book-Entry
Security has been credited to Indenture Trustee’s Securities Account maintained
by such Federal Reserve Bank in such book-entry system; or


 


(ii) (a) Indenture Trustee
(1) is registered on the records of a Securities Intermediary as the Person
having a Securities Entitlement in respect of such Federal Book-Entry Security
against such Securities Intermediary; or (2) has obtained the agreement, in
writing, of the Securities Intermediary for such Securities Entitlement that
such Securities Intermediary will comply with Entitlement Orders of Indenture
Trustee without further consent of any other Person; (b) the Securities
Intermediary is a “participant” (as such term is defined in the Federal
Book-Entry Regulations) in the book-entry system maintained by the Federal
Reserve Bank that is acting as fiscal agent for the issuer of such Federal
Book-Entry Security; and (c) such Federal Reserve Bank has indicated by
book-entry that a Security Entitlement to such Federal Book-Entry Security has
been credited to the Securities Intermediary’s Securities Account maintained by
such Federal Reserve Bank in such book-entry system.


 


“Corporate Trust
Office” means, with respect to Indenture Trustee, the principal
office of Indenture Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of this Indenture is
located at (i) for purposes of the surrender of Notes for transfer, exchange or
payment, DTCC, c/o Transfer Agent Drop Services, 55 Water Street, 1st
floor, Jeanette Park Entrance, New York, New York 10041, and for all other
purposes (ii) 60 Wall Street, 26th Floor, MS NYC60-2612, N.Y., N.Y.
10005, Attention: Structured Finance Services (facsimile no. (212) 797-8606; or
at such other address as Indenture 


 


A-4





















 


Trustee may
designate from time to time by notice to the Noteholders and 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 Issuer).


 


“Credit and Collection
Policies” or “Credit and Collection Policy” means with respect to any
Receivable, the credit, collection, customer relations and servicing policies
of the applicable Seller in effect on the date hereof, as the same may from
time to time be amended, supplemented or otherwise modified in accordance with
the Transfer and Servicing Agreement.


 


“Daily Report”
is defined, for any Series, in the related Indenture Supplement.


 


“Days Sales
Outstanding” means, as of any Determination Date and continuing
until the next Determination Date, a number of days equal to the product of (a)
30 multiplied by (b) the amount obtained by dividing (i) the aggregate Unpaid
Balances of Transferred Receivables as of the last day of the Settlement Period
immediately preceding such earlier Determination Date, by (ii) the Unpaid
Balances of Transferred Receivables originated by the Sellers during the most
recently ended Settlement Period immediately preceding such earlier
Determination Date.


 


“Default”
means any occurrence that is, or with notice or the lapse of time or both would
become, an Event of Default.


 


“Defaulted Receivable”
means, any Transferred Receivable (a) with respect to which any payment, or
part thereof, remains unpaid for 120 or more days after its Due Date, (b) with
respect to which the Obligor thereunder has suffered a Bankruptcy Event or (c)
that otherwise is determined to be uncollectible and is, or should be, written
off in accordance with the Credit and Collection Policies, in each case, which
shall not have been repurchased pursuant to Section 9.2(b) of
the Transfer and Servicing Agreement.


 


“Definitive Notes”
is defined in Section 2.10.


 


“Delinquent
Receivable” means a Transferred Receivable (other than a Defaulted
Receivable) as to which any payment, or part thereof, remains unpaid for more
than 60 days after the Due Date for such Transferred Receivable.


 


“Delivery”
means, when used with respect to Trust Account Property:


 


(i) with respect to any such
Trust Account Property that constitutes a Certificated Security, transfer of
possession of such Certificated Security to Indenture Trustee or its nominee or
custodian by physical delivery to Indenture Trustee or its nominee or
custodian, endorsed to, or registered in the name of, Indenture Trustee or its
nominee or custodian or endorsed in blank (and, in the case of delivery to any
nominee of or custodian for Indenture Trustee, such nominee or custodian shall
have acknowledged in writing that it is holding possession thereof on behalf of
and for Indenture Trustee); and


 


(ii) with respect to any
such Trust Account Property that constitutes an Uncertificated Security
(including any investments in money market mutual funds, but excluding any
Federal Book-Entry Security), satisfaction of the requirements for obtaining
“control” pursuant to Section 8-106(c)(2) of Article 8 of the UCC.


 


A-5





















 


“Determination Date”
means, unless otherwise defined for a specific Series or Class in the
applicable Indenture Supplement, the Business Day preceding each Payment Date.


 


“Dilution Adjustment” is defined in Section 2.4 of the Sale Agreement.


 


“Dilution
Payment Amount” is defined in Section 2.3
of the Transfer and Servicing Agreement.


 


“Dilutive Credit”
means, with respect to any Receivable, any non-cash reduction of such
Receivable, including any reduction effected on any date of determination in
the Unpaid Balances of any Receivables attributable to any defective, rejected
or returned goods, merchandise or services, any other non-cash discount, or any
adjustment or dispute granted with respect thereto by Servicer, any reduction
effected on such date in the Unpaid Balances of any Receivables resulting from
any setoff in respect of any claim by any Obligor thereunder against the
applicable Seller of the Receivable (whether or not such claim is related to
the transaction giving rise to the related Receivable), but not to the extent
that any Receivable so reduced would, on the date of such Dilutive Credit,
constitute a Defaulted Receivable, and all offsets, non-cash discounts, other
non-cash charges and any volume rebate amounts to any Receivable resulting from
sales and marketing activities of any Seller and the Obligor, including coupon
collection, display allowances or cooperative advertising.  The amount of any Dilutive Credit shall be
set forth on the first Daily Report prepared after the date the Dilutive Credit
is first recorded in the computer records of Servicer, which for purposes of Section 2.4 of the Sale Agreement shall constitute the
date of “grant” thereof.


 


“Disputed
Item” means a Transferred Receivable with respect to which the
deposit of the payment received for such Transferred Receivable might adversely
affect the right to collect the full Unpaid Balance of such Transferred
Receivable.


 


“Distribution
Shortfall” is defined, for any Series, in the related Indenture
Supplement.


 


“Documents”
is defined in Section 2.1(d) of the Sale
Agreement.


 


“Dollars”
or “$” means lawful currency of the United
States of America.


 


“Due Date” means, with respect to any
Receivable, the last day of the stated term allowed to the related Obligor for
payment thereof.


 


“Early Amortization
Period” is defined, with respect
to any Series, in the related Indenture Supplement.


 


“Eligible Deposit
Account” means: (a) a segregated deposit account maintained with a depository institution or trust
company whose short-term unsecured debt obligations are rated at least A-1+ by
S&P and P-1 by Moody’s, (b) a segregated account which is maintained in the
corporate trust department of Indenture Trustee, or (c) a segregated trust
account or similar account maintained with a federally or state chartered
depository institution whose long term unsecured debt obligations are rated at
least BBB- by S&P and Baa3 by Moody’s subject to regulations regarding
fiduciary funds on deposit substantially similar to 12 C.F.R. §9.10(b) in
effect on the date hereof.


 


A-6





















 


“Eligible
Obligor” shall mean, as of any date of determination, each Obligor
in respect of an Receivable that satisfies the
following eligibility criteria:


 


(a)                                  it is “located” (within the meaning of Article 9
of the UCC) in the United States;


 


(b)                                 it is not the subject of any voluntary or
involuntary bankruptcy proceeding;


 


(c)                                  it is not an Affiliate of any of Sellers or
Servicer; and


 


(d)                                 is not the United States federal government or
any United States state or local governmental entity.


 


“Eligible
Receivable” means, as of any date of determination, a Transferred
Receivable that which satisfies the following eligibility criteria:


 


(i)                                     it was created in the ordinary course of business from the
sale of goods, merchandise or services by a Seller;


 


(ii)                                  the
Obligor’s obligation to pay is evidenced by a Contract which provides for full
payment of the amount thereof in accordance with the Credit and Collection
Policy (subject to any applicable advertising allowance, sales and marketing
discount and customary return policy), and, if the delivery of the goods or
merchandise or the rendering of the services giving rise to such Receivable has
been completed, such goods or merchandise or such services have not been
rejected by the Obligor;


 


(iii)                               it
is not a Delinquent Receivable or a Defaulted Receivable;


 


(iv)                              it
was created in compliance, in all material respects, with the Credit and
Collection Policy and all Requirements of Law applicable to the Seller and pursuant
to a Contract that complied, in all material respects, with the Credit and
Collection Policy and all Requirements of Law applicable to the Seller and its
terms have not been extended or modified prior to the date such Receivable is
transferred pursuant to the terms of the Sale Agreement or Transfer and
Servicing Agreement, as applicable, except in accordance with the Credit and
Collection Policy;


 


(v)                                 all
consents, licenses, approvals or authorizations of, or registrations or
declarations with, any Governmental Authority required to be obtained, effected
or given by the Seller in connection with the creation of such Receivable or
the execution, delivery and performance by the Seller of the related Contract,
have been duly obtained, effected or given and are in full force and effect as
of such date of creation;


 


(vi)                              at the time of the creation and sale to SRC or the Issuer,
as applicable, of such Receivable, the applicable Seller or SRC, as applicable,
had good and marketable title thereto free and clear of all Liens and Adverse
Claims 


 


A-7





















 


except
as contemplated by the Sale Agreement or Transfer and Servicing Agreement, as
applicable;


 


(vii)                           it arises under a Contract
which has been duly authorized and which, together with such Receivable, is in
full force and effect and such Contract, together with such Receivable,
constitutes the legal, valid and binding payment obligation of the Obligor with
respect thereto, enforceable against such Obligor in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws, now or hereafter
in effect, affecting the enforcement of creditors’ rights in general and except
as such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity);


 


(viii)                        at the date of its creation or
at any time thereafter, it is not, and does not arise under a Contract which is
or becomes subject to any dispute, offset, defense, recision, set-off,
recoupment or counterclaim (other than the applicable Seller’s or Servicer’s
advertising allowances, sales and marketing discount and customary return
policy) which has been communicated to the Seller or about which the Seller has
knowledge;


 


(ix)                                it is an account receivable representing all or part of the
sales price of merchandise, insurance or services (within the meaning of Section 3(c)(5)
of the 1940 Act);


 


(x)                                   it is denominated and payable only in Dollars of the United
States;


 


(xi)                                it is owing by an Eligible Obligor in existence as of such
date of determination;


 


(xii)                             it
constitutes an “account” or a “general intangible” under and as defined in Section 9-102
of the UCC;


 


(xiii)                          it
arises out of any business or related business in which the applicable Seller
is engaged, the products or services of which are distributed through
substantially the same distribution channels as those used with respect to
products of such businesses;


 


(ix)                                it is not a Receivable purchased by the applicable Seller
from any Person;


 


(x)                                   it is not an Excluded Receivable; and


 


(xi)                                it does not arise out of a consumer transaction.


 


“Eligible
Servicer” means Smurfit-Stone or an entity which, at the time of its
appointment as Servicer, (i) is legally qualified and has the capacity to
service the Transferred Receivables, (ii) has demonstrated the ability to
service professionally and completely a portfolio of similar accounts in
accordance with high standards of skill and care, and (iii) is qualified and, 


 


A-8





















 


if required,
licensed to use the software that Servicer is then currently using to service
the Transferred Receivables or obtains the right to use or has software which
is adequate to perform its duties hereunder (including pursuant to a license
from or other agreement with Smurfit Stone or any of its Affiliates) and (iv)
is not a direct competitor of Smurfit Stone in the paper or packaging business.


 


“Enhancement Agreement”
means any agreement, instrument or document governing the terms of any Series
Enhancement or pursuant to which any Series Enhancement is issued.


 


“Entitlement Order”
has the meaning assigned thereto in Section 8-102(a) of Article 8 of the
UCC.


 


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


 


“ERISA
Affiliate” means, with respect to any Seller, a corporation, trade
or business that is, along with such Seller, a member of a controlled group of
corporations or a controlled group of trades or businesses, as described in section 414
of the Internal Revenue Code of 1986, as amended, or section 4001 of
ERISA.


 


“ERISA Event”
means a notice of Lien shall have been filed by the PBGC against a Seller or
one of its ERISA Affiliates under Section 412(n) of the Code or Section 302(f)
of ERISA for failure to make a required installment or other payment to a plan
to which Section 412(n) of the Code or Section 302(f) of ERISA
applies unless there shall have been delivered to the Indenture Trustee proof
of release of such Lien.


 


“Event of Default”
is defined in Section 5.2.


 


“Excess Concentration
Balances” means, on any day with respect to any Obligor, the excess,
if any, of (a) the aggregate Unpaid Balances of Eligible Receivables it owes as
of such day, over
(b) the product of (i) the aggregate Unpaid Balances of Eligible Receivables on
such day, and (ii) the Concentration Percentage for such Obligor on such day.


 


“Excess
Funding Account” means the account designated as such, established
and owned by Issuer and maintained in accordance with Section 8.2.


 


“Excess
Funding Account Deposit Amount” means, with reference to any day on
which the Transferor Amount is, or would be, less than the Minimum Transferor
Amount, an amount equal to the difference between the Minimum Transferor Amount
and the Transferor Amount.


 


“Exchange
Partner Arrangement” means an agreement between Smurfit-Stone and a
third party manufacturer of paperboard products, entered into primarily for the
purpose of reducing freight costs, but at times also to meet the purchaser’s
needs for certain product, whereby each of such parties purchases goods from
the other’s manufacturing facilities, and in the case of freight-related
arrangements, from facilities located in proximity and for delivery to such
purchaser or such purchaser’s customers, in each instance in exchange for a
reciprocal purchase commitment by such seller.


 


A-9





















 


“Excluded
Receivable” means (a) any Receivable, the related Obligor of which
is subject to an Exchange Partner Arrangement, (b) any interplant Receivable,
(c) any Receivable, the related Obligor of which remits payments to a lock-box
located in Canada and (d) any Receivable originated by the Containerboard
Marketing division of Smurfit-Stone; provided that
Receivables described in the preceding clause (d) will
cease to be Excluded Receivables upon satisfaction of the Rating Agency
Condition.


 


“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; with respect to any limited liability company, any controlling
member or authorized manager thereof; and with respect to any partnership, any
general partner thereof.


 


“FDIC”
means the Federal Deposit Insurance Corporation.


 


“Federal Assignment of Claims
Act” means the provisions of the United States Code, 31
U.S.C. §3727 and 41 U.S.C. §15.


 


“Federal Book-Entry
Regulations” means (a) the Federal regulations listed on Appendix A
to Operating Circular No. 7 issued by the Federal Reserve Banks and (b) the
Federal regulations published at 25 C.F.R. Part 350.


 


“Federal Book-Entry
Security” means a marketable security (a) issued in electronic form
by (i) the United States Government, (ii) the Federal Home Loan Mortgage
Corporation, the Federal National Mortgage Association or the Government
National Mortgage Association or (iii) any direct obligation of any other
agency or instrumentality of the United States Government that is fully
guaranteed as to timely payment or principal and interest by the United States
of America and (b) that the Federal Reserve Banks have determined is eligible
to be held in an account at a Federal Reserve Bank containing securities of
such type pursuant to the Federal Book-Entry Regulations.


 


“Financial Asset”
has the meaning assigned thereto in Section 8-102 of Article 8 of the UCC.


 


“Funding LLC”
means, SSCE Funding, LLC, a Delaware limited liability company.


 


“Funding LLC Limited Liability
Company Agreement” means the Limited Liability Company
Agreement, dated as of November 18, 2004, of Funding LLC.


 


“GAAP” means
generally accepted accounting principles in the United States of America as in
effect from time to time.


 


“Governmental Authority”
means any nation or government, any state, county, city, town, district, board,
bureau, office, commission, any other municipality or other political
subdivision thereof (including any educational facility, utility or other
Person operated thereby), and any agency, department or other entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.


 


A-10





















 


“Grant”
means to create and grant a Lien pursuant to this Indenture, and other forms of
the verb “to Grant” shall have correlative meanings. A Grant with respect to
the Collateral or any other agreement or instrument shall include a grant of a
Lien upon all rights, powers and options (but none of the obligations) of the
Granting party thereunder, including the right, upon the occurrence of a
Default and declaration thereof by the party to whom such Grant is made, to
claim for, collect, receive and give receipt for principal and interest
payments in respect of the Collateral and all other amounts 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.


 


“Group” means, with respect to any Series,
the group of Series, if any, in which the related Indenture Supplement
specifies such Series is to be included.


 


“Indemnified
Liabilities” is defined in Section 6.2
of the Sale Agreement.


 


“Indenture”
means this Master Indenture, dated as of November 23, 2004, between Issuer
and Indenture Trustee.


 


“Indenture Supplement” means, with respect
to any Series, a supplement to this Indenture, executed and delivered in
connection with the original issuance of the Notes of such Series pursuant to Section 2.8.


 


“Indenture Trustee”
means Deutsche Bank Trust Company Americas, not in its individual capacity but
solely as Indenture Trustee under this Indenture, or any successor Indenture
Trustee under this Indenture.


 


“Independent”
means, with respect to any specified Person, any such Person who (a) does not
have any direct financial interest, or any material indirect financial interest
in any Seller, Servicer, Transferor, Issuer, or any Affiliate of any thereof
and (b) is not connected with any Seller, Servicer, Transferor, Issuer, or any
Affiliate of any thereof, as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions; provided, however,
that a Person shall not fail to be Independent of any Seller, Servicer, Transferor,
Issuer, or any Affiliate of any thereof merely because such Person is the
beneficial owner of 1% or less of any class of securities issued by any Seller,
Servicer, or any Affiliate thereof (other than Issuer or Transferor), as the
case may be.


 


“Independent
Certificate” means a certificate or opinion to be delivered to
Indenture Trustee under the circumstances described in, and otherwise complying
with, the applicable requirements of Section 10.1, made
by an Independent appraiser or other expert appointed by an Issuer Order, 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.


 


“Independent
Director” shall mean a member of the board of directors of SRC who
is not, and never was, (A) a stockholder, director, officer, employee,
affiliate, associate, customer or supplier of, or any person that has received
any benefit (excluding, however, any compensation received by such director, in
such person’s capacity as a director for SRC) in any 


 


A-11





















 


form whatever
from, or any person that has provided any service (excluding however, any
service provided by such director, in such person’s capacity as a director for
SRC) in any form whatever to, SRC or any of its affiliates or associates, or
(B) any person owning beneficially, directly or indirectly, any outstanding
shares of common stock of SRC, or a stockholder, director, officer, employee,
affiliate, associate, customer or supplier of, or any person that has received
any benefit (excluding, however, any compensation received by such director, in
such person’s capacity as a director for SRC) in any form whatever from, or any
person that has provided any service (excluding, however, any service provided
by such director, in such person’s capacity as a director for SRC) in any form
whatever to, such beneficial owner or any of such beneficial owner’s affiliates
or associates.  An “Independent Director”
cannot be a trustee in bankruptcy for Smurfit-Stone or any Affiliate of
Smurfit-Stone.  Notwithstanding the
foregoing, an individual shall not be deemed ineligible to be an Independent
Director solely because such individual (i) owns 1% or less of the outstanding
stock of an affiliate of Funding LLC that is a publicly-traded company or (ii)
serves or has served in the capacity of an “independent trustee”, “independent
manager” or “independent director” or a similar capacity for other “special
purpose entities” formed by an affiliate of Funding LLC.


 


“Insolvency Event”
means, with respect to a specified Person: (a) the entry by a court having
jurisdiction in the premises of (i) a decree or order for relief in respect of
such Person in an involuntary case or proceeding under any applicable federal
or state bankruptcy, insolvency, reorganization, or other similar law or (ii) a
decree or order adjudging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment, or
composition of or in respect of such Person under any applicable Federal or
State law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator, or other similar official of such Person or of any substantial
part of its property, or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the commencement by such Person of a voluntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization, or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of such Person in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization, or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator, or similar official of such Person or of any substantial part of
its property, or the making by it of an assignment for the benefit of
creditors, or such Person’s failure to pay its debts generally as they become
due, or the taking of corporate action by such Person in furtherance of any
such action.


 


“Instruments”
has the meaning assigned thereto in Section 9-102 of Article 9 of the UCC.


 


“Interest Rate”
means, as of any date of determination and with respect to any Series or Class,
the interest rate in effect on such date for such Series or Class specified in
the related Indenture Supplement.


 


“Investment Company Act” means the
Investment Company Act of 1940.


 


A-12





















 


“Investment Earnings”
means, with respect to any Payment Date, the interest and other investment
earnings (net of losses and investment expenses) on amounts on deposit in the
Trust Accounts (other than any Series Collection Subaccount) to be included as
part of Trust Available Funds pursuant to Section 8.3.


 


“Investment Property”
has the meaning assigned thereto in Section 9-102 of Article 9 of the UCC.


 


“Issuer”
means SSCE Funding, LLC, a Delaware limited liability company, until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained in this Indenture and required by the TIA, each other
obligor on the Notes.


 


“Issuer Order”
and “Issuer Request” means a
written order or request, respectively, signed in the name of Issuer by any one
of its Authorized Officers and delivered to Indenture Trustee.


 


“Issuer Pay Out Event” is defined in Section 5.1.


 


“Legal Final
Maturity” means, with respect to any Series, the maturity date for
such Series specified in the related Indenture Supplement.


 


“Lien”
means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, lien, charge, claim, security interest, easement or encumbrance,
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever (including any conditional sale, any lease or
title retention agreement, or any financing lease having substantially the same
economic effect as any of the foregoing).


 


“Lock-Box
Account” means a bank account in the name of Issuer and pledged to
Indenture Trustee, on behalf of the Noteholders, maintained with a Lock-Box
Bank.


 


“Lock-Box
Agreements” means the collective reference to each agreement among
the Servicer, the Indenture Trustee, the Issuer and a Lock-Box Bank.


 


“Lock-Box
Banks” means any of the banks listed in Schedule 5.3(m)
to the Transfer and Servicing Agreement (including their successors) and any
other bank which becomes a Lock-Box Bank pursuant to Section 5.3(m)
of the Transfer and Servicing Agreement and which is a party to a Lock-Box
Agreement.


 


“Loss Allocation
Percentage” is defined, with respect to any Series, in the related
Indenture Supplement.


 


“Loss Reserve
Ratio” is defined, for any Series, in each Indenture Supplement.


 


“Material Adverse Effect”
means, as to any Person and/or to any event or circumstance and at any time, a
material adverse effect on (a) the ability of such Person to perform its
obligations under any Transaction Document to which it is a party or (b) the
validity, enforceability, or collectibility of the Collateral.


 


A-13





















 


“Minimum Aggregate Receivables Balance”
means, on any date of determination, the greater of (a) the sum of (i) the
Aggregate Adjusted Collateral Amount, and (ii) the Minimum Transferor Amount,
in each case as of such date and (b) the sum of the numerators used to
determine the Allocation Percentages for Trust Available Funds of all Series
outstanding on such date.


 


“Minimum Transferor Amount” means zero.


 


“Minimum Transferor Percentage” is defined,
for any Series, in the Indenture Supplement for such Series.


 


“Monthly
Report” is defined in Section 5.4(c)
of the Transfer and Servicing Agreement.


 


“Moody’s”
means Moody’s Investors Service, Inc.


 


“Net Eligible
Receivables” means, for any Business Day an amount equal to (a) the
Aggregate Eligible Receivables at the end of the prior Business Day, minus (b)
the then aggregate amount of all Excess Concentration Balances with respect to
all Obligors at the end of such prior Business Day minus (c) Unapplied Cash, minus (d) Potential Early Pay Discounts minus
(e) the B&H Reserve.


 


“Net Worth”
means, the Aggregate Receivables Balance minus the sum of (i) the aggregate
outstanding principal balance of all loans evidenced by each Short-Term Note
and (ii) the aggregate outstanding principal amount of the Notes.


 


“New Issuance” is defined in Section 2.8.


 


“Note Balance”
means, with respect to any Series or Class, the aggregate Outstanding Principal
Balance of such Series or Class of Notes from time to time.


 


“Note Depository
Agreement” means the agreement among Issuer, Indenture Trustee and
The Depository Trust Company, as the initial Clearing Agency, dated as of November 23,
2004.


 


“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 the Clearing Agency (directly as
a Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of the Clearing Agency).


 


“Note Register”
and “Note Registrar” have the respective
meanings specified in Section 2.4.


 


“Noteholder”
means the Person in whose name a Note is registered on the Note Register or
such other Person deemed to be a “Noteholder” in any Indenture Supplement.


 


“Notes”
means all Series of Notes issued by Issuer pursuant to this Indenture and the
Indenture Supplements.


 


A-14





















 


“Obligor”
means, as to each Receivable, any Person who owes payments under the
Receivable.


 


“OC Measuring Period”
means with respect to each Determination Date and each Settlement Period
falling in the Amortization Period for any Series, the Settlement Period most
recently ended prior to such Determination Date (or the portion of such
Settlement Period falling after the day before the commencement of such
Amortization Period, in the case of the first Determination Date falling in
such Amortization Period).


 


“Officers’ Certificate”
means, as to any Person, a certificate signed by an Authorized Officer of such
Person.  One of the officers signing an
Officer’s Certificate given pursuant to Section 3.9
shall be the principal executive, financial or accounting officer of Issuer.


 


“Opinion of Counsel”
means a written opinion of counsel (who may, except as otherwise expressly
provided in this Agreement, be an employee of or counsel to Issuer or an
Affiliate of Issuer), which counsel and opinion shall be acceptable to
Indenture Trustee, or the Rating Agencies, as applicable.


 


“Outstanding”
means, as of the date of determination, all Notes theretofore authenticated and
delivered under this Indenture except:


 


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


 


(ii) Notes or portions
thereof the payment for which funds in the necessary amount have been
theretofore deposited with Indenture Trustee or any Paying Agent in trust for
the Noteholders (provided,
however, that if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture); and


 


(iii) Notes in exchange for
or in lieu of other Notes that have been authenticated and delivered pursuant
to this Indenture unless proof satisfactory to Indenture Trustee is presented
that any such Notes are held by a protected purchaser; provided,
that in determining whether the Noteholders of the requisite Outstanding
Principal Balance of the Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any Transaction
Document, Notes owned by Transferor or any Affiliate thereof shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether Indenture Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Notes that a
Responsible Officer of Indenture Trustee actually 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
Indenture Trustee the pledgee’s right so to act with respect to such Notes and
that the pledgee is not Transferor or any Affiliate thereof.


 


“Outstanding Principal
Balance” means the aggregate principal amount of any Series of
Notes, any Class of Notes or all of the Notes, as applicable, Outstanding at the date of determination.


 


A-15





















 


“Paired Series” means (i) each Series
which has been paired with another Series (which Series may be prefunded or
partially prefunded), such that the reduction of the Collateral Amount or
Adjusted Collateral Amount of such Series results in the increase of the Collateral
Amount of such other Series, as described in the related Indenture Supplements,
and (ii) such other Series.


 


“Paying Agent”
means with respect to the Notes, initially Indenture Trustee or any other
Person that meets the eligibility standards for Indenture Trustee specified in Section 6.11 and is authorized by Issuer to make the
payments from the Series Accounts, including payment of principal of or
interest on the Notes on behalf of Issuer; provided
that if the Indenture Supplement for a Series so provides, a separate or
additional Paying Agent may be appointed with respect to such Series.


 


“Payment Date,”
unless otherwise specified in the Indenture Supplement for a Series, is the 15th
day of each month (or if such day is not a Business Day, the next succeeding
Business Day).


 


“Pay Out
Event” means, with respect to any Series, an Issuer Pay Out Event or a Series Payout Event for such Series.


 


“PBGC”
means the Pension Benefit Guaranty Corporation as established under the
provisions of Section 4002 of ERISA.


 


“Permitted Encumbrances”
means the following encumbrances: (a) Liens for taxes or assessments or other
charges of any Governmental Authority not yet due and payable; (b) pledges
or deposits securing obligations under workmen’s compensation, unemployment insurance,
social security or public liability laws or similar legislation; (c) pledges or
deposits securing bids, tenders, contracts (other than contracts for the
payment of money) or leases to which a Seller or any Affiliate thereof is a
party as lessee made in the ordinary course of business; (d) deposits
securing statutory obligations of a Seller or any Affiliate thereof;
(e) inchoate and unperfected workers’, mechanics’, suppliers’ or similar
Liens arising in the ordinary course of business; (f) carriers’, warehousemen’s
or other similar possessory Liens arising in the ordinary course of business
and securing liabilities in an outstanding aggregate amount not in excess of
$100,000 at any one time; (g) deposits securing, or in lieu of, surety,
appeal or customs bonds in proceedings to which a Seller or any Affiliate
thereof is a party; (h) any attachment or judgment Lien not constituting a
Series Pay Out Event with respect to any Series or an Event of Default; and
(i) presently existing or hereafter created Liens in favor of any Seller,
Transferor, Issuer or Indenture Trustee.


 


“Permitted Investments”
means one or more of the following:


 


(a) obligations of, or
guaranteed as to the full and timely payment of principal and interest by, the
United States or obligations of any agency or instrumentality thereof, when
such obligations are backed by the full faith and credit of the United States;


 


(b) commercial paper (having
original maturities of not more than 30 days) which on the date of acquisition
are rated at least A-1+ by S&P and P-1 by Moody’s;


 


A-16





















 


(c) securities of money
market funds rated on the date of acquisition in the highest rating category of
S&P and P-1 by Moody’s; and


 


(d) any other investment permitted
by each of the Rating Agencies as set forth in writing delivered to Indenture
Trustee; provided, that
investments described in this clause (d) shall
be made only if there shall have been delivered to the Indenture Trustee an
Opinion of Counsel to the effect that making such investments will not require
Issuer to register as an investment company under the Investment Company Act.


 


All investment instructions
relating to the Trust Accounts shall be sent by the Servicer to both the
applicable deposit institution and the Indenture Trustee and the Indenture
Trustee shall review such instructions to verify that the investments selected
by the Servicer are Permitted Investments.


 


“Person”
means any individual, sole proprietorship, partnership, joint venture,
unincorporated organization, trust, association, corporation (including a
business trust), limited liability company, institution, public benefit
corporation, joint stock company, or Government Authority or any other entity
of whatever nature.


 


“Potential
Early Pay Discounts” means, collectively, the discounts as reflected
on the applicable Daily Report which have been assumed by such Seller on each
Business Day to be applicable to certain Eligible Obligors. Such Seller will
assume that a discount is applicable if a Contract provides for a discount by
its terms.


 


“Predecessor Note”
means, with respect to any particular Note in a Series, every previous Note in
such Series 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 in a
Series authenticated and delivered under Section 2.5 in
lieu of a mutilated, lost, destroyed or stolen Note in such Series shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Note.


 


“Principal Terms” means, with respect to
any Series, the following information related thereto:  (a) the name or designation and Closing Date
for such Series; (b) the initial principal amount (or method for calculating
such amount), the Available Overcollateralization (or method for calculating
such amount), the Collateral Amount and the Transferor Amount; (c) the Interest
Rate for each Class of Notes of such Series (or method for the determination
thereof); (d) the payment date or dates and the date or dates from which
interest shall accrue (which may be the Payment Date and the Settlement Period,
as applicable); (e) the method for allocating Trust Available Funds to
Noteholders; (f) the designation of any Series Accounts and the terms governing
the operation of any such Series Accounts; (g) the Servicing Fee; (h) the terms
of any form of Series Enhancements with respect thereto; (i) the terms, if any,
on which the Notes of such Series may be exchanged for Notes of another Series,
repurchased by Issuer or remarketed to other investors; (j) the Legal Final
Maturity; (k) the number of Classes of Notes of such Series and, if more than
one Class, the rights and priorities of each such Class; (l) the priority of
such Series with respect to any other Series; (m) whether such Series will be
part of a Group; (n) the legal final maturity date on which the rights of the
Noteholders of such Series to receive payments from Issuer will terminate; and
(o) whether such Series will, or subject to the requirements of an
Indenture Supplement may, be a Paired Series and the Series with which it will
be paired, if applicable.


 


A-17





















 


“Proceeding”
means any suit in equity, action at law or other judicial or administrative
proceeding.


 


“Processing
Date” shall mean, with respect to any transaction by a Seller which
generates a Receivable, the date that such transaction has been or should have
been first recorded in the computer master file of Receivables maintained by
such Seller or Servicer (without regard to the effective date of such
recordation).


 


“Purchase Price” is defined in Section 2.2(a) of the Sale Agreement.


 


“Purchase Price Percentage” means a
percentage agreed upon from time to time (but no less frequently than once each
calendar quarter) by each Seller and SRC, which percentage shall reflect a fair
market discounted net present value of the Unpaid Balance of Receivables
transferred to SRC by such Seller hereunder, expressed as a percentage of such
Unpaid Balance; provided that (i) such percentage
may be greater or less than 100% and (ii) the calculation of such discounted
net present value shall take into account: (a) the expected yield on the
Receivables reduced by costs to SRC of financing the Receivables and paying the
Servicing Fee; (b) the expected losses on the Receivables (based upon
historical losses on the Receivables and such other factors as shall be agreed
between SRC and each Seller), net of the expected benefits to SRC generated as
a result of each Seller’s obligation to pay Dilution Adjustments and Repurchase
Amounts to SRC pursuant to Sections 2.4
and 7.2(b); (c) a reasonable expected rate
of return on capital of SRC from its purchase of Receivables; and (d) such
other factors as may be mutually agreed between SRC and each Seller and as are
customarily reflected in arm’s-length purchases and sales of comparable
Receivables.  The Purchase Price
Percentage shall be calculated prospectively with respect to Receivables
transferred on and after the date of such calculation.  In no event shall the Purchase Price
Percentage (i) be adjusted retroactively to account for the actual performance
of previously purchased Receivables or for SRC’s actual rate of return on previously
purchased Receivables or (ii) be increased from and after the occurrence of,
and during the continuation of, any SA Transfer Termination Event or any event
which would, upon the giving of notice or the passage of time or both,
constitute an SA Transfer Termination Event.


 


“Purchase
Termination Event” means, with respect to any Seller, the occurrence
of any of the following events: (a) an Insolvency Event with respect to such
Seller, (b) a federal tax notice of Lien shall have been filed against such
Seller unless there shall have been delivered to Indenture Trustee proof of
release of such Lien or (c) an ERISA Event shall have occurred with respect to
such Seller.


 


“Rated Notes”
means any Series or Class of Notes that is rated by one or more Rating
Agencies.


 


“Rating Agency”
means, with respect to any outstanding Series or Class, each rating agency, if
any, as specified in the applicable Indenture Supplement, selected by
Transferor to rate the Notes of such Series or Class.


 


“Rating Agency
Condition” means, subject to the requirements of an Indenture
Supplement, with respect to any action, that each Rating Agency shall have been
given prior 


 


A-18





















 


notice
thereof and that each of the Rating Agencies shall have notified Issuer and
Indenture Trustee in writing that such action will not result in a reduction or
withdrawal of the then current rating of any Rated Notes.


 


“Receivable”
means, each account receivable or general intangible that is owing upon
creation to a Seller by an Obligor under a Contract arising from the sale of
goods, merchandise or services rendered by a Seller in connection with its
businesses, including all obligations of such Obligor with respect thereto,
including, without limitation, all proceeds of the forgoing.  A Receivable shall be deemed to have been
created at the end of the day on the Processing Date of such Receivable.


 


“Record Date”
means, with respect to a Payment Date or Redemption Date, unless otherwise
specified for a Series in the Indenture Supplement for such Series, the close
of business on the last day of the Settlement Period prior to such Payment Date
or Redemption Date, or, if Definitive Notes are issued, the close of business
on the last day of the Settlement Period preceding the month of such Payment
Date, whether or not such day is a Business Day, or if Definitive Notes were
not outstanding on such date, the date of issuance of the Definitive Notes.


 


“Records”
means all Contracts and other documents, books, records and other information
(including computer programs, tapes, disks, data processing software and
related property and rights) prepared and maintained by any Seller, Servicer or
any sub-servicer with respect to the Receivables and the Obligors thereunder,
and the Related Security with respect thereto.


 


“Recoveries”
means all Collections received by the Indenture
Trustee in respect of Defaulted Receivables.


 


“Redemption Date”
is defined, for any Series, in the Indenture Supplement for such Series.


 


“Redemption Price”
is defined, for any Series, in the Indenture Supplement for such Series.


 


“Related Security”
means with respect to any Transferred Receivable: (a) any interest (including
security interests), if any, in the merchandise sold to originate such
Transferred Receivable; (b) all guarantees, insurance or other agreements or
arrangements of any kind from time to time supporting or securing payment of
such Transferred Receivable whether pursuant to the Contract related to such
Transferred Receivable or otherwise (including rights (if any) to receive proceeds
on insurance policies covering the Obligors); and (c) all Records relating to
such Transferred Receivable.


 


“Repurchase
Amount” is defined in Section 9.2(b)
of the Transfer and Servicing Agreement.


 


“Repurchase
Event” is defined in Section 9.2(b) of
the Transfer and Servicing Agreement.


 


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“Required
Capital Amount” means at any time, the highest of the following
amount calculated for each Series: the sum of (a) the product of (i) the Loss
Reserve Ratio (as defined in the related Indenture Supplement), times (ii) the
Net Eligible Receivables (as defined in the related Indenture Supplement), (b)
the Excess Concentration Balances (as defined in the related Indenture
Supplement) for the Top 3 Obligors (as defined in the related Indenture
Supplement) and (c) the aggregate Unpaid Balances of all Transferred
Receivables more than 120 days past due.


 


“Required
Overcollaterization Amount” is defined, for any Series, in the
Indenture Supplement for such Series.


 


“Requirements
of Law” means, for any Person, the certificate of incorporation or
articles of association and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether federal, state or local (including, without limitation, usury laws, the
Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of
Governors of the Federal Reserve).


 


“Responsible Officer”
means, with respect to Indenture Trustee, (a) any officer within the Corporate
Trust Office of Indenture Trustee, including any Vice President, Assistant Vice
President, Secretary or Assistant Secretary, or any other officer of Indenture
Trustee customarily performing functions similar to those performed by any of
the above designated officers, and (b) any other officer within the Corporate
Trust Office with direct responsibility for the administration of this
Indenture or to whom any corporate trust matter is referred at Indenture
Trustee’s Corporate Trust Office because of such officer’s knowledge of and
familiarity with the particular subject.


 


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


 


“SA Receivable”
means a Receivable sold or contributed to SRC or in which SRC has otherwise
acquired an interest, in each case, pursuant to Section 2.1
of the Sale Agreement.


 


“SA
Repurchase Amount” is defined in Section 7.2(b) of the
Sale Agreement.


 


“SA
Repurchase Event” is defined in Section 7.2(b) of the
Sale Agreement


 


“SA
Transfer” means each sale pursuant to Section 2.1(a) or (b) of the Sale
Agreement.


 


“SA Transfer Date”
means a date on which SRC acquires Receivables from a Seller pursuant to the
Sale Agreement as more fully described in Section 2.1(a)
and (b) of the Sale Agreement.


 


“SA Transferred Assets” means:


 


(i)                                     all SA Receivables;


 


(ii)                                  all Related Security in respect of such SA Receivables;


 


A-20





















 


(iii)                               all Collections in respect of such SA Receivables;


 


(iv)                              all rights (including rescission, replevin or reclamation,
but none of the obligations) relating to such Receivables or arising therefrom;
and


 


(v)                                 all proceeds of or payments in respect of any and all of the
assets identified in the foregoing clauses.


 


“S&P”
means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc.


 


“Sale Agreement” means the Sale Agreement,
dated as of November 23, 2004, among the Sellers and Transferor.


 


“Secretary of State”
means the Secretary of State of the State of Delaware.


 


“Securities Account”
has the meaning assigned thereto in Section 8-501(a) of Article 8 of the
UCC.


 


“Securities Act”
means the provisions of the Securities Act of 1933, 15 U.S.C. Sections 77a et  seq., and
any regulations promulgated thereunder.


 


“Securities
Entitlement” has the meaning assigned thereto in Section 8-102 of Article 8
of the UCC.


 


“Securities Exchange
Act” means the provisions of the Securities Exchange Act of 1934 15
U.S.C. Sections 78a et  seq., and any regulations promulgated thereunder.


 


“Securities
Intermediary” is defined in Section 8-102 of
Article 8 of the UCC.


 


“Seller” and “Sellers” are each defined in the preamble to the Sale
Agreement.


 


“Seller
Addition Date” is defined in Section 8.1(b)
of the Sale Agreement.


 


“Seller
Repurchase Payment” is defined in Section 7.2(b)
of the Sale Agreement.


 


“Series” means any series of Notes, which
may include within any such Series a Class or Classes of Notes subordinate to
another such Class or Classes of Notes.


 


“Series Account” means, with respect to any
Series, any of the accounts established and designated as such pursuant to the
related Indenture Supplement.


 


“Series
Collection Subaccount” is defined, for any Series, in the related
Indenture Supplement.


 


“Series Enhancement” means the rights and
benefits provided to Issuer or the Noteholders of any Series or Class pursuant
to any letter of credit, surety bond, cash collateral account, collateral
interest, spread account, reserve account, cash collateral guaranty, insurance
policy, tax protection agreement, interest rate swap agreement, interest rate
cap agreement, cross 


 


A-21





















 


support
feature or other similar arrangement. The subordination of any Series or Class
to another Series or Class shall be deemed to be a Series Enhancement.


 


“Series Enhancer” means the Person or
Persons providing any Series Enhancement, other than (except to the extent
otherwise provided with respect to any Series in the Indenture Supplement for
such Series) any account or deposits therein or the Noteholders of any Series
or Class which is subordinated to another Series or Class.


 


“Series Pay Out Event” is defined, for any
Series, in the related Indenture Supplement.


 


“Series
Principal Collection Sub-subaccount” is defined, for any Series, in
the related Indenture Supplement.


 


“Service
Transfer” is defined in Section 7.1(b)
of the Transfer and Servicing Agreement.


 


“Servicer”
means Smurfit-Stone, as Servicer of the Transferred Receivables, and each
successor to Smurfit-Stone (in the same capacity) pursuant to Section 7.2 of the Transfer and Servicing Agreement.


 


“Servicer
Default” is defined in Section 7.1(a)
of the Transfer and Servicing Agreement.


 


“Servicer
Transfer Costs” is defined in Section 7.1(b)
of the Transfer and Servicing Agreement.


 


“Servicing Fee”
is defined in Section 5.2 of the Transfer
and Servicing Agreement.


 


Settlement Period”
unless otherwise specified in the Indenture Supplement for a Series, each
monthly period from and including the first day of each calendar month to and
including the last day of such calendar month; provided that in the case of the
initial Settlement Period, “Settlement Period” shall mean the period from and
including the Closing Date to and including the last day of the calendar month
in which the Closing Date occurs.


 


“Short-Term
Note” means a promissory note from SRC to a Seller, substantially in
the form of Exhibit A to the Sale Agreement.


 


“Smurfit-Stone”
means Smurfit-Stone Container Enterprises, Inc., a Delaware corporation.


 


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


 


“Stock”
means all shares, options, warrants, membership interests in a limited
liability company, general or limited partnership interests or other
equivalents (regardless of how designated) of or in a corporation, partnership
or equivalent entity whether voting or nonvoting, including common stock, preferred
stock or any other “equity security” (as such term is defined in Rule 3a11-1 of
the General Rules and Regulations promulgated by the Securities and Exchange
Commission under the Securities Exchange Act).


 


A-22





















 


“Stockholder” means,
with respect to any Person, each holder of Stock of such Person.


 


“SRC”
means Stone Receivables Corporation, a Delaware corporation.


 


“SRC Indemnified Person”
is defined in Section 6.2.


 


“SRC
Certificate of Incorporation” means the Amended and Restated
Certificate of Incorporation of SRC filed November 23, 2004.


 


“Subsidiary” means,
with respect to any Person, any corporation or other Person (a) of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other Persons performing similar
functions are at the time directly or indirectly owned by such Person or
(b) that is directly or indirectly controlled by such Person within the
meaning of control under Section 15 of the Securities Act.


 


“Successor Servicer”
is defined in Section 7.2 of the Transfer
and Servicing Agreement.


 


“Target
Receivables Amount” is defined, for any Series, in the Indenture
Supplement for such Series.


 


“Termination
Notice” has the meaning assigned to such term in Section 7.1(b) of the Transfer and Servicing Agreement.


 


“Tier-1 Obligor”
means, subject to the second paragraph of the definition of
“Tier-4 Obligor”, any Obligor that (a) has a short-term unsecured debt
rating from each Rating Agency of at least “A-1”/”P-1” or the equivalent
thereof, if such Obligor’s short-term unsecured debt is rated by such Rating
Agency, or (b) (i) has no short-term unsecured debt rating from any
Rating Agency and (ii) has a long-term unsecured debt rating from each
Rating Agency of at least “A+”/”A1” or the equivalent thereof.


 


“Tier-2 Obligor”
means, subject to the second paragraph of the definition of
“Tier-4 Obligor”, any Obligor, other than a Tier-1 Obligor, that
(a) has a short-term unsecured debt rating from each Rating Agency of at
least “A-2”/”P-2” or the equivalent thereof, if such Obligor’s short-term
unsecured debt is rated by such Rating Agency, or (b) (i) has no short-term
unsecured debt rating from any Rating Agency and (ii) has a long-term unsecured
debt rating from each Rating Agency of at least “BBB+”/”Baa1” or the equivalent
thereof.


 


“Tier-3 Obligor”
means, subject to the second paragraph of the definition of
“Tier-4 Obligor”, any Obligor, other than a Tier-1 Obligor or Tier-2
Obligor, that (a) has a short-term unsecured debt rating from each Rating
Agency of at least “A-3”/”P-3” or the equivalent thereof, if such Obligor’s
short-term unsecured debt is rated by such Rating Agency, or (b) (i) has no
short-term unsecured debt rating from any Rating Agency and (ii) has a
long-term unsecured debt rating from each Rating Agency of at least
“BBB-”/”Baa3” or the equivalent thereof.


 


“Tier-4 Obligor” means, subject to the
following paragraph, any Obligor other than a Tier-1 Obligor, Tier-2 Obligor or
Tier-3 Obligor.


 


A-23





















 


With respect to the
definitions of Tier-1 Obligor, Tier-2 Obligor, Tier-3 Obligor and Tier-4
Obligor, if an Obligor has no short-term or long-term unsecured debt rating
from S&P, and such Obligor does have a short-term or long-term unsecured
debt rating from Moody’s, then:  (A)
Moody’s shall be deemed to be a Rating Agency with respect to such Obligor for
purposes of the short-term and long-term unsecured debt ratings set forth in
such definitions and (B) (1) if the short-term unsecured indebtedness of such
Obligor is rated “P-1” by Moody’s and the long-term unsecured indebtedness of
such Obligor is rated at least “Aa3” by Moody’s, then the short-term unsecured
debt rating relating to S&P set forth in such definition shall be deemed to
be not less than “A-1” by S&P, and (2) except as provided in clause (1), any short-term or long-term
unsecured debt rating category relating to S&P set forth in such
definitions shall be deemed to be a corresponding rating from Moody’s which is
one subcategory below the applicable short-term or long-term unsecured rating
category relating to S&P, if the ratings with respect to any Obligor are
split, the lower of such rating will control whether such Obligor is a Tier-1
Obligor, a Tier-2 Obligor, a Tier-3 Obligor or a Tier-4 Obligor.


 


“Top 3 Obligors”
means the three Obligors as of the last day of any Settlement Period (a) that
are parties to long-term written contracts with a Seller, which contracts do
not contain explicit waiver of set off language and (b) that owe, by dollar
amounts, the largest of the Unpaid Balances of Eligible Receivables.  All Obligors that are known to Servicer as
being Affiliates of each other shall be deemed to be a single Obligor for purposes
of this definition.  For purposes of this
definition, a long-term contract is a contract that has a stated termination
date that is more than twelve (12) months after the date of such contract.


 


“TIA” or
the “Trust
Indenture Act” means the Trust Indenture Act of 1939, as in force on
the date of this Indenture unless otherwise specifically provided, provided
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, “TIA” or “Trust Indenture Act” means to the extent required by such
an amendment, the Trust Indenture Act of 1939 as so amended.


 


“Transaction Documents”
means the Sale Agreement, the Transfer and Servicing Agreement, the Indenture,
each Indenture Supplement, each Lock-box Agreement and all other agreements,
instruments, and documents, including all other pledges, powers of attorney,
consents, assignments, contracts, notices and fee letters, delivered in
connection with any of the foregoing. 
Any reference in the foregoing documents to a Transaction Document shall
include all Annexes, Exhibits and Schedules thereto.


 


“Transfer and Servicing Agreement” means
the Transfer and Servicing Agreement, dated as of November 23, 2004, among
Transferor, Servicer and Issuer.


 


“Transfer
Termination Event” means the occurrence of any of the following
events: (a) an Insolvency Event with respect to SRC, (b) a federal tax notice
of Lien shall have been filed against SRC unless there shall have been
delivered to Indenture Trustee proof of release of such Lien or (c) an ERISA
Event shall have occurred with respect to SRC.


 


“Transferor”
means Stone Receivables Corporation, a Delaware corporation.


 


A-24





















 


“Transferor Amount” means, on any
Determination Date, the Net Eligible Receivables at the end of the day
immediately prior to such Determination Date, minus
the Aggregate Target Receivables Amount at the end of such day (it being
understood that the Transferor Amount may be less than zero).


 


“Transferor Interest” means the interest of Transferor
or its assigns in the Collateral, which entitles Transferor or its assigns to
receive the various amounts specified in the Transaction Documents to be paid
or transferred to the holder(s) of the Transferor Interest.


 


“Transferor Percentage” means, on any date
of determination, the percentage equivalent of a fraction equal to 100%, minus the Aggregate Allocation Percentage;
provided, however, that the
Transferor Percentage shall never be less than zero.


 


“Transferred
Receivable” means a Receivable purchased by Issuer or in which
Issuer has otherwise acquired an interest, in each case, pursuant to Section 2.1 of the Transfer and Servicing Agreement.


 


“Treasury Regulations”
means regulations, including proposed or temporary regulations, promulgated
under the Code. References to specific provisions of proposed or temporary
regulations shall include analogous provisions of final Treasury Regulations or
other successor Treasury Regulations.


 


“Trust Account
Property” means the Trust Accounts, all amounts, Financial Assets,
Investment Property and other investments or other property held from time to
time in or credited to any Trust Account and all Proceeds of the foregoing.


 


“Trust Accounts”
has the meaning assigned thereto in Section 8.2(a).


 


“Trust Available Funds”
means, with respect to any Business Day, the sum, without duplication, of the
following amounts, to the extent received by Servicer (or any Seller,
Transferor or Issuer) or paid to or deposited in any Lock-Box Account or the
Collection Account since the prior Business Day: (a) Collections, (b)
Recoveries, (c) payments by any Seller with respect to Transferred Receivables
for or on account of any Dilutive Credits that have been, or deemed to have
been, collected by Servicer, (d) payments allocable to Transferred Receivables
for the breach of any representation, warranty or covenant with respect to such
Transferred Receivables and (e) Investment Earnings.


 


“TSA Assets” is
defined in Section 2.1(a) of the Transfer and
Servicing Agreement.


 


“TSA Termination
Date” is defined in Section 9.4
of the Transfer and Servicing Agreement.


 


“TSA Transfer”
is defined in Section 2.1(a) of
the Transfer and Servicing Agreement.


 


“TSA Transfer Date”
means a date on which Funding LLC acquires Transferred Receivables from SRC
pursuant to this Agreement, as more fully described in Section 2.1(a)
of the Transfer and Servicing Agreement.


 


A-25





















 


“UCC”
means, unless the context otherwise requires, the Uniform Commercial Code as in
effect in the relevant jurisdiction.


 


“Unapplied Cash”
means, on any Business Day, available funds received in the Collection Account
and reflected in the Daily Report for that Business Day that have not been
applied as Collections on a particular Receivable on or prior to the time as of
which that Daily Report is prepared.


 


“Uncertificated
Security” has the meaning assigned thereto in Section 8-102 of Article 8
of the UCC.


 


“Unpaid
Balance” means with respect to any Receivable and as
of any date of determination, the amount (which amount shall not be less than
zero) equal to (a) the Billed Amount thereof, minus (b)
the sum of (i) all Collections received thereunder and (ii) all Dilutive
Credits with respect thereto; provided, that
if such Receivable is determined to be uncollectible by the Servicer or is
written off in accordance with the Credit and Collection Policies, the Unpaid
Balance shall be zero.


 


“Variable
Interest” means any Note that is designated as a variable funding
note in the related Indenture Supplement.


 


“Write-Off
Amount” means, for any OC Measuring Period, the aggregate of the
Unpaid Balances of all Transferred Receivables that are determined to be
uncollectible and are written off in accordance with the Credit and Collection
Policies during such OC Measuring Period.


 


A-26