EXHIBIT 4.1
===============================================================================
INDENTURE
dated as of [ ], 2000
between
CITIBANK CREDIT CARD ISSUANCE TRUST,
as Issuer,
and
BANKERS TRUST COMPANY,
as Trustee
===============================================================================
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 101. Definitions..................................................3
SECTION 102. Compliance Certificates and Opinions........................25
SECTION 103. Form of Documents Delivered to Trustee......................26
SECTION 104. Acts of Noteholders.........................................26
SECTION 105. Notices, etc., to Trustee and Issuer........................27
SECTION 106. Notices to Noteholders; Waiver..............................28
SECTION 107. Conflict with Trust Indenture Act...........................28
SECTION 108. Effect of Headings and Table of Contents....................29
SECTION 109. Successors and Assigns......................................29
SECTION 110. Separability Clause.........................................29
SECTION 111. Benefits of Indenture.......................................29
SECTION 112. Governing Law...............................................29
SECTION 113. Counterparts................................................29
SECTION 114. Interest Period Convention..................................29
SECTION 115. Indenture Referred to in the Trust Agreement................29
ARTICLE II
Note Forms
SECTION 201. Forms Generally.............................................29
SECTION 202. Forms of Notes..............................................30
SECTION 203. Form of Trustee's Certificate of Authentication.............30
SECTION 204. Notes Issuable in the Form of a Global Note.................30
SECTION 205. Temporary Global Notes and Permanent Global Notes...........32
SECTION 206. Beneficial Ownership of Global Notes........................34
SECTION 207. Notices to Depository.......................................34
ARTICLE III
The Notes
-i-
Page
SECTION 301. General Title; General Limitations; Issuable in Series;
Terms of a Series, Class or Tranche.........................35
SECTION 302. Denominations...............................................38
SECTION 304. Temporary Notes.............................................39
SECTION 305. Registration, Transfer and Exchange.........................39
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes.................41
SECTION 307. Payment of Interest; Interest Rights Preserved..............42
SECTION 308. Persons Deemed Owners.......................................42
SECTION 309. Cancellation................................................42
SECTION 310. Computation of Interest.....................................43
SECTION 311. New Issuances of Notes......................................43
SECTION 312. Specification of Required Subordinated Amount and
other Terms with Respect to each Tranche of a Multiple
Issuance Series.............................................45
SECTION 313. Required Subordinated Amount Conditions to Issuance of
a Tranche of a Senior Class of a Multiple Issuance Series.. 45
ARTICLE IV
Accounts and Investments
SECTION 401. Collections.................................................47
SECTION 402. Accounts....................................................48
SECTION 403. Investment of Funds in the Accounts.........................48
SECTION 404. Excess Funds in the Interest Funding sub-Accounts or
Principal Funding sub-Accounts..............................50
ARTICLE V
Allocations, Deposits and Payments
SECTION 501. Allocations of Finance Charge Collections...................50
SECTION 502. Allocations of Principal Collections........................51
SECTION 503. Targeted Deposits of Finance Charge Collections to the
Interest Funding Account....................................52
SECTION 504. Payments Received from Derivative Counterparties for
Interest; Other Deposits to the Interest Funding Account....54
SECTION 505. Allocation of Deposits to Interest Funding sub-Accounts.....55
-ii-
Page
SECTION 506. Deposit of Principal Funding sub-Account Earnings in
Interest Funding sub-Accounts; Principal Funding sub-
Account Earnings Shortfall..................................55
SECTION 507. Withdrawals from Interest Funding Account...................56
SECTION 508. Targeted Deposits of Principal Collections to the
Principal Funding Account...................................58
SECTION 509. Payments Received from Derivative Counterparties for
Principal; Other Deposits to Principal Funding Accounts.....60
SECTION 510. Reallocations among Principal Funding sub-Accounts..........60
SECTION 511. Withdrawals from Principal Funding Account..................62
SECTION 512. Limit on Reallocations of Principal Collections and
Receivables Sales Proceeds Deposit Amounts Taken to
Benefit Senior Classes of Single Issuance Series............64
SECTION 513. Limit on Reallocations of Principal Collections and
Receivables Sales Proceeds Deposit Amounts Taken to
Benefit Senior Classes of Multiple Issuance Series..........65
SECTION 514. Computation of Amount of Reallocations of Principal
Collections and Receivables Sales Proceeds Deposit
Amounts Taken from Subordinated Classes; Allocations
of Reductions to the Nominal Liquidation Amount of
Subordinated Classes from Reallocations of Principal
Collections and Receivables Sales Proceeds Deposit
Amounts.....................................................69
SECTION 515. Limit on Repayments of Subordinated Classes of Single
Issuance Series.............................................70
SECTION 516. Limit on Repayments of Subordinated Classes of Multiple
Issuance Series.............................................71
SECTION 517. Limit on Repayments of all Tranches.........................74
SECTION 518. Targeted Deposits to the Class C Reserve Account............74
SECTION 519. Withdrawals from the Class C Reserve Account................74
SECTION 520. Reinvestment in the Collateral Certificate..................75
SECTION 521. Final Payment...............................................75
SECTION 522. Timing of Deposits..........................................76
SECTION 523. Sale of Receivables.........................................76
SECTION 524. Netting of Deposits and Payments............................79
SECTION 525. Pro Rata Payments within a Tranche..........................79
SECTION 526. Allocations of Reductions from Investor Charge-Offs to
the Nominal Liquidation Amount or Receivables Sales
Proceeds Amount of Subordinated Classes.....................79
-iii-
Page
SECTION 527. Allocations of Reimbursements of Reductions in the
Nominal Liquidation Amount or Receivables Sales
Proceeds Deposit Deficits...................................81
SECTION 528. Order of Giving Effect to Reductions and
Reimbursements of Nominal Liquidation Amount................84
ARTICLE VI
Satisfaction and Discharge
SECTION 601. Satisfaction and Discharge of Indenture.....................84
SECTION 602. Application of Trust Money..................................85
SECTION 603. Cancellation of Notes Held by the Issuer or the Banks.......85
ARTICLE VII
Remedies
SECTION 701. Events of Default...........................................85
SECTION 702. Acceleration of Maturity; Rescission and Annulment..........86
SECTION 703. Collection of Indebtedness and Suits for Enforcement by
Trustee.....................................................88
SECTION 704. Trustee May File Proofs of Claim............................89
SECTION 705. Trustee May Enforce Claims Without Possession of Notes......89
SECTION 706. Application of Money Collected..............................90
SECTION 707. Trustee May Elect to Hold the Collateral Certificate........90
SECTION 708. Sale of Receivables for Accelerated Notes...................90
SECTION 709. Noteholders Have the Right to Direct the Time, Method
and Place of Conducting Any Proceeding for Any
Remedy Available to the Trustee.............................90
SECTION 710. Limitation on Suits.........................................90
SECTION 711. Unconditional Right of Noteholders to Receive Principal
and Interest; Limited Recourse..............................91
SECTION 712. Restoration of Rights and Remedies..........................91
SECTION 713. Rights and Remedies Cumulative..............................91
SECTION 714. Delay or Omission Not Waiver................................92
SECTION 715. Control by Noteholders......................................92
SECTION 716. Waiver of Past Defaults.....................................92
SECTION 717. Undertaking for Costs.......................................92
SECTION 718. Waiver of Stay or Extension Laws............................93
-iv-
Page
ARTICLE VIII
The Trustee
SECTION 801. Certain Duties and Responsibilities.........................93
SECTION 802. Notice of Defaults..........................................94
SECTION 803. Certain Rights of Trustee...................................95
SECTION 804. Not Responsible for Recitals or Issuance of Notes...........96
SECTION 805. May Hold Notes..............................................96
SECTION 806. Money Held in Trust.........................................96
SECTION 807. Compensation and Reimbursement, Limit on
Compensation, Reimbursement and Indemnity...................96
SECTION 808. Disqualification; Conflicting Interests.....................97
SECTION 809. Corporate Trustee Required; Eligibility.....................97
SECTION 810. Resignation and Removal; Appointment of Successor...........97
SECTION 811. Acceptance of Appointment by Successor......................99
SECTION 812. Merger, Conversion, Consolidation or Succession to
Business...................................................100
SECTION 813. Preferential Collection of Claims Against Issuer...........100
SECTION 814. Appointment of Authenticating Agent........................100
ARTICLE IX
Noteholders' Meetings, Lists, Reports by Trustee,
Issuer and Managing Beneficiary
SECTION 901. Issuer To Furnish Trustee Names and Addresses of
Noteholders................................................102
SECTION 902. Preservation of Information; Communications to
Noteholders................................................102
SECTION 903. Reports by Trustee.........................................103
SECTION 904. Meetings of Noteholders; Amendments and Waivers............104
SECTION 905. Reports by Issuer..........................................105
SECTION 906. Reports by Trustee.........................................105
SECTION 907. Issuer's Report............................................105
SECTION 908. Payment Request to Master Trust............................106
SECTION 909. Monthly Computation Statement..............................106
-v-
Page
ARTICLE X
Supplemental Indentures; Amendments to the Pooling and
Servicing Agreement and Amendments to the Trust Agreement
SECTION 1001. Supplemental Indentures Without Consent of
Noteholders................................................106
SECTION 1002. Supplemental Indentures with Consent of
Noteholders................................................108
SECTION 1003. Execution of Supplemental Indentures.......................109
SECTION 1004. Effect of Supplemental Indentures..........................109
SECTION 1005. Conformity with Trust Indenture Act........................109
SECTION 1006. Reference in Notes to Supplemental Indentures..............109
SECTION 1007. Amendments to the Pooling and Servicing
Agreement..................................................110
SECTION 1008. Amendments to the Trust Agreement..........................110
SECTION 1009. Notice.....................................................110
ARTICLE XI
Representations, Warranties and Covenants of Issuer
SECTION 1101. Payment of Principal and Interest.........................111
SECTION 1102. Maintenance of Office or Agency...........................111
SECTION 1103. Money for Note Payments to be Held in Trust...............111
SECTION 1104. Statement as to Compliance................................113
SECTION 1105. Legal Existence...........................................113
SECTION 1106. Further Instruments and Acts..............................113
SECTION 1107. Compliance with Laws......................................114
SECTION 1108. Notice of Events of Default...............................114
SECTION 1109. Certain Negative Covenants................................114
SECTION 1110. No Other Business.........................................114
SECTION 1111. No Borrowing..............................................114
SECTION 1112. Excluded Series...........................................114
SECTION 1113. Rule 144A Information.....................................114
ARTICLE XII
Early Redemption of Notes
-vi-
Page
SECTION 1201. Applicability of Article.................................. 115
SECTION 1202. Optional Repurchase. ..................................... 116
SECTION 1203. Notice................................................... .117
ARTICLE XIII
Collateral
SECTION 1301. Recording, Etc.............................................117
SECTION 1302. Trust Indenture Act Requirements...........................118
SECTION 1303. Suits To Protect the Collateral............................118
SECTION 1304. Purchaser Protected........................................119
SECTION 1305. Powers Exercisable by Receiver or Trustee..................119
SECTION 1306. Determinations Relating to Collateral......................119
SECTION 1307. Release of Collateral......................................119
SECTION 1308. Certain Actions by Trustee.................................120
SECTION 1309. Opinions as to Collateral..................................120
SECTION 1310. Delegation of Duties.......................................121
ARTICLE XIV
Miscellaneous
SECTION 1401. No Petition................................................121
SECTION 1402. Trust Obligations..........................................121
SECTION 1403. Limitations on Liability...................................121
SECTION 1404. Notes Treated as Debt......................................122
SECTION 1405. Actions Taken by the Issuer................................122
Annex I Threshold Conditions
Exhibit A Form of Payment Request
Exhibit B Form of Monthly Computation Statement
Exhibit C Form of Issuer's Report
Exhibit D Form of Investment Letter
Exhibit E-1 Form of Certificate of Foreign Clearing Agency
Exhibit E-2 Form of Alternate Certificate to be Delivered to Foreign
Clearing Agency
Exhibit E-3 Form of Certificate to be Delivered to Foreign Clearing Agency
-vii-
THIS INDENTURE between CITIBANK CREDIT
CARD ISSUANCE TRUST, a statutory business trust
organized under the laws of the State of Delaware
(the "Issuer"), having its principal office at
[address], [State] [ZIP], and BANKERS TRUST
COMPANY, a New York banking corporation ( the
"Trustee"), is made and entered into as of [ ],
2000.
RECITALS OF THE ISSUER
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its notes to be issued in one or more
fully registered or bearer series, classes or tranches.
All things necessary to make this Indenture a valid agreement of the
Issuer, in accordance with its terms, have been done.
GRANTING CLAUSE
To secure the Issuer's obligations under the Notes, the Issuer hereby
grants to (a) the Trustee, for the benefit and security of the Noteholders,
(b) each counterparty to a Derivative Agreement entered into in connection
with the issuance of a tranche of Notes that expressly states it is entitled
to the benefit of the Collateral, subject to Section 1303, and (c) the
Trustee, in its individual capacity (collectively, the "Secured Parties"), a
security interest in all of its right, title and interest, whether now owned
or hereafter acquired, in and to:
(i) the Collateral Certificate;
(ii) the Collection Account;
(iii) the Principal Funding Account;
(iv) the Interest Funding Account;
(v) the Class C Reserve Account;
(vi) any Supplemental Account;
(vii) all sub-accounts in the Principal Funding Account, the Interest
Funding Account, the Class C Reserve Account and any Supplemental
Account;
1
(viii) all securities, securities entitlements, investments, money
and other property held in or through the Collection Account, the
Principal Funding Account, the Interest Funding Account, the
Class C Reserve Account, any Supplemental Account or any
sub-account thereof;
(ix) all rights, benefits and powers under any Derivative Agreement
relating to any tranche of Notes;
(x) all interest, principal, payments or distributions of any nature
or type on any of the above;
(xi) all rights of enforcement against any of the representations and
warranties made by the Beneficiaries pursuant to Section 3.02 of
the Trust Agreement; and
(xii) all present and future claims, demands, causes of and choses in
action in respect of any or all of the foregoing and all payments
on or under and all proceeds of every kind and nature whatsoever
in respect of any or all of the foregoing.
The collateral described above is referred to as the "Collateral".
The security interest in the Collateral is granted to secure the Notes (and,
to the extent specified in the applicable terms document, the obligations
under any applicable Derivative Agreements) equally and ratably without
prejudice, priority or distinction, except as otherwise expressly provided in
this Indenture, or in the Issuer Certificate or supplemental indenture which
establishes any tranche of Notes, between any Note and any other Note by
reason of difference in time of issuance or otherwise, and to secure (i) the
payment of all amounts due on such Notes (and, to the extent so specified, the
obligations under any Derivative Agreements) in accordance with their terms,
(ii) the payment of all other sums payable under this Indenture and (iii)
compliance with the provisions of this Indenture, all as provided in this
Indenture.
The Trustee acknowledges the grant of such security interest, and
accepts the Collateral in trust hereunder in accordance with the provisions
hereof and agrees to perform the duties herein to the end that the interests
of the Noteholders may be adequately and effectively protected.
Particular Notes and Derivative Agreements will benefit from the
Security Interest to the extent (and only to the extent) proceeds and
distributions on the Collateral are allocated for their benefit pursuant to
this Indenture and the applicable terms document.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms and
conditions upon which the Notes are and are to be authenticated, issued and
delivered, and in consideration of the premises and the purchase of Notes by
the Holders thereof, it is mutually covenanted and agreed as follows, for the
equal and proportionate benefit of all Holders of the Notes or of a series,
class or tranche thereof, as the case may be:
2
LIMITED RECOURSE
The obligation of the Issuer to make payments of principal, interest
and other amounts on the Notes and to make payments on Derivative Agreements
is limited in recourse as set forth in Section 711.
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 101. Definitions. For all purposes of this Indenture and of
any supplemental indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act or by Commission rule under the Trust Indenture
Act or in the Series 2000 Supplement, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder means such
accounting principles as are generally accepted in the United States
of America at the date of such computation;
(4) all references in this Indenture to designated
"Articles", "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Indenture as
originally executed. The words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision; and
(5) "including" and words of similar import will be deemed
to be followed by "without limitation".
"Accounts" means, collectively, the Collection Account, the Interest
Funding Account, the Principal Funding Account, the Class C Reserve Account,
and any Supplemental Account.
"Act", when used with respect to any Noteholder, is defined in
Section 104(a).
"action", when used with respect to any Noteholder, is defined in
Section 104(a).
3
"Adjusted Outstanding Dollar Principal Amount" means at any time with
respect to any tranche of Notes, the Outstanding Dollar Principal Amount of
all Outstanding Notes of such tranche at such time, less any funds on deposit
in the Principal Funding sub-Account for such tranche at such time and not yet
paid to the Holders of the Notes of such tranche.
"Adjustment Ratio" means, with respect to any tranche of Notes as of
any date, the ratio, expressed as a decimal, of the Adjusted Outstanding
Dollar Principal Amount of such tranche as of such date, to the Outstanding
Dollar Principal Amount of such tranche as of such date.
"Adverse Effect" means, whenever used in this Indenture with respect
to any tranche of Notes with respect to any action, that such action will (a)
at the time of its occurrence or at any future date result in the occurrence
of an Early Redemption Event or Event of Default, (b) adversely affect the
amount of funds available to be distributed to the Noteholders of any series
pursuant to this Indenture or the timing of such distributions, or (c)
adversely affect the security interest of the Trustee in the Collateral.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Allocable Miscellaneous Payments" is defined in the Series 2000
Supplement.
"Amortizing Undivided Interest" is defined in Section 523(d).
"applicable investment category" means with respect to any investment
for an Account relating to a tranche of Class A Notes, Class B Notes or Class
C Notes, the following ratings:
Standard & Poor's Moody's Fitch
Class A Notes A-1+ or AAA P-1 or Aaa F-1+ or AAA
Class B Notes A or higher A2 or higher A or higher
Class C Notes BBB or higher Baa2 or higher BBB or higher
Notwithstanding the foregoing, if funds on deposit in an Account are for the
benefit of more than one class of Notes, the rating required for any
investment of those funds will be the rating applicable to the most senior
class.
"Authenticating Agent" means any Person authorized by the Trustee to
authenticate Notes under Section 814.
4
"Authorized Newspaper" means with respect to any tranche of Notes, in
the newspaper of record specified in the applicable terms document for that
tranche, or if and so long as Notes of that tranche are listed on any
securities exchange and that exchange so requires, in the newspaper of record
required by the applicable securities exchange, printed in any language
specified in the applicable terms document or satisfying the requirements of
such exchange.
"Banks" means Citibank (South Dakota) and Citibank (Nevada) and
includes any Person that becomes both a Seller and a Beneficiary after the
date of this Indenture.
"Bearer Note" means a Note in bearer form.
"Beneficiaries" is defined in the Trust Agreement.
"Business Day" unless otherwise specified in the terms document for
any tranche of Notes, means any day other than (a) a Saturday or Sunday or (b)
any other day on which national banking associations or state banking
institutions in New York, New York, South Dakota, or Las Vegas, Nevada, or any
other state in which the principal executive offices of any Additional Seller
(as defined in the Pooling and Servicing Agreement) are located, are
authorized or obligated by law, executive order or governmental decree to be
closed.
"Citibank" means Citibank, N.A.
"Citibank (Nevada)" means Citibank (Nevada), National Association.
"Citibank (South Dakota)" means Citibank (South Dakota), N.A.
"class" means, with respect to any Note, the class specified in the
applicable terms document. Notes of a single class of a series will rank
equally with respect to payment of principal and interest, but, in the case of
a Multiple Issuance Series, may differ with respect to interest rates,
maturity or other terms.
"Class A Notes" means a Note specified in the applicable terms
document as belonging to Class A.
"Class A Required Subordinated Amount" means, with respect to any
tranche of Class A Notes of a Multiple Issuance Series, a Dollar amount of
Class B Notes or Class C Notes, as the case may be, as specified in Section
312(a) or in the applicable terms document for such tranche of Class A Notes,
or as changed from time to time pursuant to Section 312(b).
"Class A Usage of Class B Required Subordinated Amount" is defined in
Section 513(b).
"Class A Usage of Class C Required Subordinated Amount" is defined in
Section 513(a).
5
"Class B Notes" means a Note specified in the applicable terms
document as belonging to Class B.
"Class B Required Subordinated Amount" means, with respect to any
tranche of Class B Notes of a Multiple Issuance Series, a Dollar amount of
Class C Notes as specified in Section 312(a) or in the applicable terms
document for such tranche of Class B Notes, or as changed from time to time
pursuant to Section 312(b).
"Class B Usage of Class C Required Subordinated Amount" is defined in
Section 513(c).
"Class C Notes" means a Note specified in the applicable terms
document as belonging to Class C.
"Class C Reserve Account" means the trust account designated as such
and established pursuant to Section 402(a).
"Collateral" is defined in the Granting Clause.
"Collateral Certificate" means the Series 2000 Certificate, issued
pursuant to the Pooling and Servicing Agreement and the Series 2000
Supplement, as amended, supplemented, restated or otherwise modified from time
to time.
"Collection Account" is defined in Section 402(a).
"Collections" is defined in Section 401.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act, or, if at
any time after the execution of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties on such date.
"Controlled Accumulation Amount" means, with respect to any tranche
of Notes, the amount specified in the applicable terms document for computing
the deposits targeted by Section 508(b)..
"Conversion Date" is defined in Section 523(d).
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York at which at any particular time its corporate trust
business will be principally administered, which office at the date hereof is
located at 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust and Agency Services, except that with respect to the presentation of
Notes to the Trustee for payment or for registration of transfer and exchange,
such term means the office or the agency of the Trustee in said city at which
at any particular time its corporate
6
agency business will be conducted, which office at the date hereof is located at
0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Depository" means a U.S. Depository or a Foreign Depository, as the
case may be.
"Derivative Agreement" means any currency, interest rate or other
swap, cap, collar, guaranteed investment contract or other derivative
agreement.
"Derivative Counterparty" means any party to any Derivative Agreement
other than the Issuer or the Trustee.
"Discount Note" means a Note that provides for an amount less than
the stated principal amount thereof to be due and payable upon the occurrence
of an Early Redemption Event or other optional or mandatory redemption or the
occurrence of an Event of Default and the acceleration of such Note, in each
case before the Expected Principal Payment Date of the applicable Note.
"Dollar" means (a) United States dollars, or (b) denominated in
United States dollars.
"Due Period" is defined in the Pooling and Servicing Agreement.
"Early Redemption Event" is defined in Section 1201.
"Effective Date" means the date on which this Indenture is executed
and delivered by the parties hereto.
"Eligible Deposit Account" means either (a) a segregated account with
an Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution organized under the laws of the
United States of America or any one of the states thereof, including the
District of Columbia (or any domestic branch of a foreign bank), and acting as
a trustee for funds deposited in such account, so long as any of the
securities of such depository institution will have a credit rating from each
Rating Agency in one of its generic credit rating categories which signifies
investment grade.
"Eligible Institution" means a depository institution organized under
the laws of the United States of America or any one of the states thereof,
including the District of Columbia (or any domestic branch of a foreign bank),
which at all times has (a)(i) a long-term unsecured debt rating of A2 or
better by Moody's and (ii) a certificate of deposit rating of P-1 by Moody's
and (b)(i) in the case of the Collection Account, if such depository
institution is an Affiliate of Citigroup Inc., a certificate of deposit rating
of A-1 or better by Standard & Poor's or (ii) for any other depository
institution (or for any Affiliate of Citigroup Inc., in the case of any
Account
7
other than the Collection Account), either (x) a long-term unsecured
debt rating of AAA by Standard & Poor's or (y) a certificate of deposit rating
of A-1+ by Standard & Poor's. If so qualified, the Trustee or the Managing
Beneficiary may be considered an Eligible Institution for the purposes of this
definition.
"Eligible Investments" means book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(a) direct obligations of, and obligations fully guaranteed as
to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit
(having original maturities of no more than 365 days) of depository
institutions or trust companies incorporated under the laws of the
United States of America or any state thereof (or domestic branches
of foreign banks) and subject to supervision and examination by
federal or state banking or depository institution authorities;
provided that at the time of the Issuer's investment or contractual
commitment to invest therein, the short-term debt rating of such
depository institution or trust company will be in the applicable
investment category of each Rating Agency;
(c) commercial paper (having remaining maturities of no more
than 30 days) having, at the time of the Issuer's investment or
contractual commitment to invest therein, a rating from each Rating
Agency in its applicable investment category;
(d) investments in money market funds rated in the applicable
investment category by each Rating Agency or otherwise approved in
writing by each Rating Agency;
(e) demand deposits, time deposits and certificates of deposit
which are fully insured by the FDIC;
(f) notes or bankers' acceptances (having original maturities
of no more than 365 days) issued by any depository institution or
trust company referred to in (b) above;
(g) time deposits (having maturities of no more than 30 days),
other than as referred to in clause (e) above, with a Person the
commercial paper of which has a credit rating from each Rating
Agency in its applicable investment category or notes which are
payable on demand issued by Citigroup Inc. or its Affiliates;
provided that such notes will constitute Eligible Investments only
for so long as the commercial paper of Citigroup Inc. or such
Affiliate, as the case may be, has a credit rating from each Rating
Agency in its applicable investment category; or
(h) any other investments approved in writing by each Rating
Agency.
8
The Issuer may, but is not required to, purchase Eligible Investments
from a registered broker-dealer which is an Affiliate of the Trustee, Citibank
(South Dakota), Citibank (Nevada) and/or Citigroup Inc.
"Entity" means any Person other than an individual or government
(including any agency or political subdivision thereof).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default" is defined in Section 701.
"Exchange Date" means, with respect to any tranche of Notes, the
latest of:
(a) in the case of exchanges of beneficial interests in
Temporary Global Notes for beneficial interests in Permanent Global
Notes in registered form, any date that is after the related issuance
date;
(b) in the case of exchanges of beneficial interests in
Temporary Global Notes for beneficial interests in Permanent Global
Notes in bearer form, the date of presentation of certification of
non-United States beneficial ownership (as described in Section
205); and
(c) the earliest date on which such an exchange of a beneficial
interest in a Temporary Global Note for a beneficial interest in a
Permanent Global Note is permitted by applicable law.
"Excluded Master Trust Series" means any series or portion of a
series of Investor Certificates under the Pooling and Servicing Agreement
which is by its terms an Excluded Series or the excluded portion of a series
that is partially an Excluded Series.
"Expected Principal Payment Date" means, with respect to any tranche
of Notes, the date specified as such in the applicable terms document.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"Federal Bankruptcy Code" means Title 11 of the United States Code,
as amended from time to time.
"Finance Charge Collections" means the amount of Investor Finance
Charge Collections (as defined in the Series 2000 Supplement) which are
payable to the Issuer pursuant to Sections 4.02(a)(ii)(B) and (a)(iii) of the
Series 2000 Supplement.
"Finance Charge Receivables" is defined in the Pooling and Servicing
Agreement.
9
"Fitch" means Fitch, Inc., or any successor thereto.
"foreign currency" means (a) a currency other than Dollars, or (b)
denominated in a currency other than Dollars.
"Foreign Depository" means the Person specified in the applicable
terms document, in its capacity as depository for the accounts of any clearing
agencies located outside the United States.
"Global Note" means Notes issued pursuant to Section 204.
"group" means any one or more series of Notes which are specified as
belonging to a common group in the applicable terms document.
"Holder", when used with respect to any Note, means a Noteholder.
"Indenture" or "this Indenture" means this Indenture as originally
executed or as amended, supplemented, restated or otherwise modified from time
to time by one or more indentures supplemental hereto entered into pursuant to
the applicable provisions hereof and will include the terms of particular
series, classes or tranches of Notes created as contemplated by Section 301.
"Initial Dollar Principal Amount" means (a) unless otherwise
specified in the applicable terms document, with respect to tranches of Dollar
Interest-bearing Notes, the aggregate initial principal amount of the
Outstanding Notes of such tranche, and (b) with respect to tranches of
Discount Notes and foreign currency Notes, the amount specified in the
applicable terms document as the Initial Dollar Principal Amount thereof.
"Interest-bearing Note" means a Note that bears interest at a stated
or computed rate on the principal amount thereof. A Note may be both an
Interest-bearing Note and a Discount Note.
"Interest Deposit Date" means the respective dates specified for
deposits into the Interest Funding sub-Accounts in Section 503.
"Interest Funding Account" means the trust account designated as such
and established pursuant to Section 402(a).
"Interest Payment Date" means, with respect to any tranche of Notes,
the Scheduled Interest Payment Date or upon the acceleration of a tranche of
Notes following an Event of Default or upon the occurrence of an Early
Redemption Event, or other optional or mandatory redemption of that tranche of
Notes, each Monthly Principal Date (or if any such day is not a Business Day,
the next following Business Day).
10
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Invested Amount" means (a) with respect to the Collateral
Certificate, the Series 2000 Invested Amount as defined in the Series 2000
Supplement, and (b) with respect to any other Investor Certificate, as defined
in the supplement to the Pooling and Servicing Agreement creating such
Investor Certificate.
"Invested Amount Deficit" means the Series 2000 Invested Amount
Deficit, as defined in the Series 2000 Supplement.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time.
"Investor Certificate" is defined in the Pooling and Servicing
Agreement.
"Investor Charge-Offs" is defined in the Series 2000 Supplement.
"Investor Finance Charge Collections" is defined in the Series 2000
Supplement.
"Issuer" is defined in the first paragraph of this Indenture.
"Issuer Authorized Officer" means (a) an authorized signatory of the
Issuer Trustee, or (b) the chairman or vice-chairman of the board of
directors, chairman or vice-chairman of the executive committee of the board
of directors, the president, any vice-president, the secretary, any assistant
secretary, the treasurer, or any assistant treasurer, in each case of the
Managing Beneficiary, or any other officer or employee of the Managing
Beneficiary who is authorized to act on behalf of the Issuer.
"Issuer Certificate" means a written request, order, consent or
certificate signed in the name of an Issuer Authorized Officer, or the Issuer
by an Issuer Authorized Officer and, in each case, delivered to the Trustee.
Wherever this Indenture requires that an Issuer Certificate be signed also by
an accountant or other expert, such accountant or other expert (except as
otherwise expressly provided in this Indenture) may be in the employ of the
Managing Beneficiary.
"Issuer's Report" means a request substantially in the form of
Exhibit C.
"Issuer Tax Opinion" means, with respect to any action, an Opinion of
Counsel to the effect that for Federal and Delaware income and franchise tax
purposes (a) such action will not adversely affect the characterization of any
Outstanding series, class or tranche of Notes as debt, (b) such action will
not cause a taxable event to Holders of any such Notes, (c) the Issuer will
not be an association (or publicly traded partnership) taxable as a
corporation following such action, and (d) where such action is the issuance
of a series, class or tranche of
11
Notes, following such action such series, class or tranche of Notes will be
properly characterized as debt.
"Issuer Trustee" means The Bank of New York (Delaware) not in its
individual capacity, but solely in its capacity as trustee of the Issuer, and
each of its successors and assigns.
"Legal Maturity Date", with respect to a tranche of Notes, means the
date specified in the terms document for such tranche of Notes as the fixed
date on which the principal of such tranche of Notes is due and payable.
"Majority Holders" means with respect to any group, series, class or
tranche of Notes or all Outstanding Notes, the Holders of a majority in
Outstanding Dollar Principal Amount of the Outstanding Notes of that group,
series, class or tranche or of all Outstanding Notes, as the case may be.
"Manager" means the lead manager, manager or co-manager or person
performing a similar function with respect to an offering of Permanent Global
Notes.
"Managing Beneficiary" is defined in the Trust Agreement.
"Master Trust" means Citibank Credit Card Master Trust I, established
pursuant to the Pooling and Servicing Agreement.
"Master Trust Tax Opinion" means, with respect to any action, an
Opinion of Counsel to the effect that, for Federal and South Dakota (and any
other state where substantial servicing activities in respect of credit card
accounts are conducted by any Additional Seller, as defined in the Pooling and
Servicing Agreement, or the Banks, if there is a substantial change from
present servicing activities) income and franchise tax purposes, (a) such
action will not adversely affect the characterization as debt of the Investor
Certificates, as defined in the Pooling and Servicing Agreement, of any
outstanding series or class under the Master Trust, other than the Collateral
Certificate, (b) such action will not cause a taxable event to any Investor
Certificateholder and (c) following such action the Master Trust will not be
treated as an association (or publicly traded partnership) taxable as a
corporation.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor
thereto.
"Monthly Computation Statement" means a statement substantially in
the form of Exhibit B.
"Monthly Interest Date" means, with respect to any tranche of Notes:
(a) for any month in which a Scheduled Interest Payment Date
for such tranche occurs, the Business Day before the corresponding
Interest Payment Date, or as otherwise specified in the applicable
terms document for such tranche of Notes, and
12
(b) for any month in which no Scheduled Interest Payment Date
for such tranche occurs, the date in such month corresponding
numerically to the next Scheduled Interest Payment Date for such
tranche of Notes, or as otherwise specified in the applicable terms
document for such tranche of Notes; provided, however, that
(i) if there is no numerically corresponding day in such
month, then the Monthly Interest Date will be the last Business
Day of such month, and
(ii) if such numerically corresponding day is not a
Business Day, the Monthly Interest Date will be the next
following Business Day (unless such Business Day would fall in
the following month in which case the Monthly Interest Date
will be the last Business Day of such earlier month).
"monthly period" is defined in Section 506.
"Monthly Principal Date" means respect to any tranche of Notes:
(a) for any month in which the Expected Principal Payment Date
for such tranche occurs, the Expected Principal Payment Date (or if
such day is not a Business Day, the next following Business Day), or
as otherwise specified in the applicable terms document for such
tranche of Notes, and
(b) for any month in which no Expected Principal Payment Date
for such tranche occurs, the date in such month corresponding
numerically to the Expected Principal Payment Date for such tranche
of Notes, or as otherwise specified in the applicable terms document
for such tranche of Notes; provided, however, that
(i) if there is no numerically corresponding day in such
month, then the Monthly Principal Date will be the last
Business Day of such month, and
(ii) if such numerically corresponding day is not a
Business Day, the Monthly Principal Date will be the next
following Business Day (unless such Business Day would fall in
the following month in which case the Monthly Principal Date
will be the last Business Day of such earlier month).
"Multiple Issuance Series" means any series of Notes other than a
Single Issuance Series.
"Nominal Liquidation Amount" means, with respect to any tranche of
Notes, an amount determined as follows:
(a) As of the date of issuance of such tranche of Notes, the
Nominal Liquidation Amount will be the Initial Dollar Principal
Amount of such tranche of Notes.
(b) As of each subsequent date of determination, the Nominal
Liquidation Amount will be the sum of:
13
(i) the Nominal Liquidation Amount of such tranche
immediately after the prior date of determination;
plus
(ii) with respect to any tranche of Discount Notes, the
amount of any accretions of principal on that tranche paid to
the Master Trust for investment in the Invested Amount of the
Collateral Certificate pursuant to Section 520(a) since the
prior date of determination;
plus
(iii) such tranche's allocable share of Principal
Collections allocated to such tranche pursuant to Section
502(c) for investment in the Invested Amount of the Collateral
Certificate pursuant to Section 520(c) since the prior date of
determination;
plus
(iv) such tranche's allocable share of all reimbursements
of Invested Amount Deficits or its Nominal Liquidation Amount
Deficit since the prior date of determination which are
retained by the Master Trust pursuant to Section 527(e)(i) or
paid to the Master Trust pursuant to Section 520(b) or
527(f)(i), in each case for investment in the Invested Amount
of the Collateral Certificate;
minus
(v) such tranche's allocable share of all reallocations of
Principal Collections pursuant to Section 502(a) since the
prior date of determination, determined as set forth in Section
514;
minus
(vi) such tranche's allocable share of all reductions in
the Invested Amount of the Collateral Certificate resulting
from an allocation of Investor
14
Charge-Offs since the prior date of determination, determined as
set forth in Section 526;
minus
(vii) the amount on deposit in the applicable Principal
Funding sub- Account for such tranche (after giving effect to
any deposits, allocations, reallocations or withdrawals to be
made on that day);
minus
(viii) the aggregate amount withdrawn from the applicable
Principal Funding sub-Account for such tranche pursuant to
Section 511(a), (b) or (c) since the prior date of
determination;
provided; however, that (1) the Nominal Liquidation Amount of a
tranche of Notes may never be less than zero, (2) the Nominal
Liquidation Amount of any tranche of Notes may never be greater than
the Adjusted Outstanding Dollar Principal Amount of such tranche and
(3) the Nominal Liquidation Amount of any tranche of RSP Notes will
be zero.
It is the intention of the Issuer that the sum of the Nominal
Liquidation Amounts of all tranches of Notes will at all times be equal to the
Invested Amount of the Collateral Certificate.
The Nominal Liquidation Amount for a series of Notes will be the sum
of the Nominal Liquidation Amounts of all of the tranches of Notes of that
series.
"Nominal Liquidation Amount Deficit" means, (a) with respect to any
tranche of Notes (other than any RSP Notes), the excess of the Adjusted
Outstanding Dollar Principal Amount of that tranche over the Nominal
Liquidation Amount of that tranche, and (b) with respect to any tranche of RSP
Notes, zero.
"non-Performing", with respect to a Derivative Agreement, means not
Performing.
"Note" or "Notes" means any note or notes, of any series, class or
tranche authenticated and delivered from time to time under this Indenture.
"Note Owner" means the beneficial owner of an interest in a Global
Note.
"Note Register" is defined in Section 305.
"Note Registrar" means the Person who keeps the Note Register
specified in Section 305.
"Noteholder" means a Person in whose name a Note is registered in the
Note Register or the bearer of any Bearer Note (including a Global Note in
bearer form) as the case may be.
15
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of
or counsel to the Issuer, the Managing Beneficiary or any of their Affiliates.
"Outstanding", when used with respect to a Note or with respect to
Notes of any group, series, class or tranche means, as of the date of
determination, all such Notes theretofore authenticated and delivered under
this Indenture, except:
(a) any Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation, or canceled by the Issuer, the Banks or any
Affiliate thereof pursuant to Section 309;
(b) any Notes for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Notes; provided that, if such
Notes are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(c) any Notes which are deemed to have been paid in full pursuant to
Section 521; and
(d) any such Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture, or
which will have been paid pursuant to the terms of Section 306 (except
with respect to any such Note as to which proof satisfactory to the
Trustee is presented that such Note is held by a person in whose hands
such Note is a legal, valid and binding obligation of the Issuer).
For purposes of determining the amounts of deposits, allocations,
reallocations or payments to be made, unless the context clearly requires
otherwise, references to "Notes" will be deemed to be references to
"Outstanding Notes". In determining whether the Holders of the requisite
principal amount of such Notes Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, and for
purposes of Section 904, Notes beneficially owned by the Issuer, the Banks or
any other obligor upon the Notes or any Affiliate of the Issuer, the Banks or
such other obligor will be disregarded and deemed not to be Outstanding. In
determining whether the Trustee will be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Notes which the Trustee knows to be owned by the Issuer, the Banks or any
other obligor upon the Notes or any Affiliate of the Issuer, the Banks or such
other obligor will be so disregarded. Notes so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee creates to the
satisfaction of the Trustee the pledgee's right to act as owner with respect
to such Notes and that the pledgee is not the Issuer, the Banks or any other
obligor upon the Notes or any Affiliate of the Issuer, the Banks or such other
obligor.
"Outstanding Dollar Principal Amount" means at any time,
16
(a) with respect to any tranche of non-Discount Notes, the
aggregate Initial Dollar Principal Amount of the Outstanding Notes
of such tranche at such time, less the amount of any withdrawals
from the Principal Funding sub-Account for such tranche of Notes for
payment to the Holders of such tranche or the applicable Derivative
Counterparty pursuant to Section 511(a), (b) or (c), and
(b) with respect to any tranche of Discount Notes, an amount of
the Outstanding Notes of such tranche calculated by reference to the
applicable formula set forth in the applicable terms document,
taking into account the amount and timing of payments made to the
Holders of such tranche or to the applicable Derivative Counterparty
pursuant to Section 511(a), (b) or (c).
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of or interest on any Notes on behalf of the Issuer.
"Payment Date" means, with respect to any tranche of Notes, the
applicable Principal Payment Date or Interest Payment Date.
"Payment Request" means a request substantially in the form of
Exhibit A, or such other form as the Issuer may determine.
"Performing" means, with respect to any Derivative Agreement, no
payment default or repudiation of performance by a Derivative Counterparty has
occurred, and such Derivative Agreement has not been terminated.
"Permanent Global Note" is defined in Section 205.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means with respect to any tranche of Notes issued
hereunder the city or political subdivision so designated with respect to such
tranche of Notes in accordance with the provisions of Section 301.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement, dated as of May 29, 1991, among Citibank (South Dakota) as Seller
and Servicer, Citibank (Nevada) as Seller, and Bankers Trust Company as
Trustee, as amended, supplemented, restated or otherwise modified from time to
time.
"Predecessor Notes" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in lieu of a lost, destroyed or
stolen Note will be deemed to evidence the same debt as the lost, destroyed or
stolen Note.
17
"Prefunding Excess Amount" means, with respect to any senior class of
Notes of a series for any Due Period, after giving effect to all issuances,
allocations, deposits and payments with respect to that Due Period, the
aggregate amounts on deposit in the Principal Funding sub- Accounts of the
Notes of that class of that series that are in excess of the aggregate amount
targeted to be on deposit is those Principal Funding sub-Accounts pursuant to
Section 508.
"Prefunding Target Amount" with respect to all tranches of Class A
Notes of a series means the greater of the amount computed under clause (a) or
(b) for the applicable Due Period, and with respect to all tranches of Class B
Notes of a series means the amount computed under clause (c):
(a) The Prefunding Target Amount for tranches of Class A Notes of a
series with respect to Class B Notes of that series as of the end of any
Due Period is equal to the following amount (but not less than zero):
the sum of the amounts
(the aggregate in clauses (i) through (iii) the aggregate amount
Outstanding of this clause (a)/the on deposit in the
Dollar Principal aggregate amount of the Principal Funding
Amount of Class A x (1 - Class A Required Subordinated - sub-Accounts for all
Notes of that Amount of Class B Notes for Outstanding tranches
series as of the all tranches of Class A Notes of Class A Notes of
end of that Due of that series which are that series as of the
Period Outstanding as of the end of end of that Due Period
that Due Period))
(i) the aggregate Nominal Liquidation Amount of all tranches of
Outstanding Class B Notes of that series, other than tranches which
have (A) had Early Redemption Events or other mandatory or optional
redemption events in which such tranches are to be redeemed in full,
(B) had Events of Default, or (C) reached their Expected Principal
Payment Date, in each case, in or with respect to that Due Period or
earlier Due Periods;
plus
(ii) the aggregate amount on deposit in the Principal Funding
sub-Accounts for all Outstanding tranches of Class B Notes of that
series;
plus
18
(iii) the aggregate amount of all Class A Usage of Class B
Required Subordinated Amount by any Outstanding tranche of Class A
Notes of that series.
(b) The Prefunding Target Amount for tranches of Class A Notes of a
series with respect to Class C Notes of that series as of the end of any
Due Period is equal to the following amount (but not less than zero):
the sum of the amounts
(the aggregate in clauses (i) through (iii) the aggregate amount
Outstanding of this clause (b)/the on deposit in the
Dollar Principal aggregate amount of the Principal Funding
Amount of Class A x (1 - Class A Required Subordinated - sub-Accounts for all
Notes of that Amount of Class C Notes for Outstanding tranches
series as of the all tranches of Class A Notes of Class A Notes of
end of that Due of that series which are that series as of the
Period Outstanding as of the end end of that Due Period
of that Due Period))
(i) the aggregate Nominal Liquidation Amount of all tranches of
Outstanding Class C Notes of that series, other than tranches which
have (A) had Early Redemption Events or other mandatory or optional
redemption events in which such tranches are to be redeemed in full,
(B) had Events of Default, or (C) reached their Expected Principal
Payment Date, in each case, in or with respect to that Due Period or
earlier Due Periods;
plus
(ii) the aggregate amount on deposit in the Principal Funding
sub-Accounts for all Outstanding tranches of Class C Notes of that
series;
plus
(iii) the aggregate amount of all Class A Usage of Class C
Required Subordinated Amount by any Outstanding tranche of Class A
Notes of that series.
(c) The Prefunding Target Amount for tranches of Class B Notes of
a series with respect to Class C Notes of that series as of the end of
any Due Period is equal to the following amount (but not less than
zero):
19
the sum of the amounts
(the aggregate in clauses (i) through (iii) the aggregate amount
Outstanding of this clause (c)/the on deposit in the
Dollar Principal aggregate amount of the Principal Funding
Amount of Class B x(1 - Class B Required Subordinated - sub-Accounts for all
Notes of that Amount of Class C Notes for Outstanding tranches
series as of the all tranches of Class B Notes of Class B Notes of
end of that Due of that series which are that series as of the
Period Outstanding as of the end end of that Due Period
of that Due Period))
(i) the aggregate Nominal Liquidation Amount of all tranches of
Outstanding Class C Notes of that series, other than tranches which
have (A) had Early Redemption Events or other mandatory or optional
redemption events in which such tranches are to be redeemed in full,
(B) had Events of Default, or (C) reached their Expected Principal
Payment Date, in each case, in or with respect to that Due Period or
earlier Due Periods;
plus
(ii) the aggregate amount on deposit in the Principal Funding
sub-Accounts for all Outstanding tranches of Class C Notes of that
series;
plus
(iii) the aggregate amount of all Class B Usage of Class C
Required Subordinated Amount by any Outstanding tranche of Class B
Notes of that series.
"Principal Collections" means the amount of Available Investor
Principal Collections (as defined in the Series 2000 Supplement) which are
payable to the Issuer pursuant to Section 4.02 (b)(ii) or Section 4.02(c)(ii)
of the Series 2000 Supplement. "Principal Collections" does not include
Receivables Sales Proceeds.
"Principal Deposit Date" means the respective dates specified for
deposits into the Principal Funding sub-Accounts in Section 508.
"Principal Funding Account" means the trust account designated as
such and established pursuant to Section 402(a).
"Principal Funding sub-Account Earnings" means, with respect to any
Principal Funding sub-Account for any period, the net amount of income and
other earnings on the amounts on
20
deposit in the Principal Funding sub-Account earned by the funds on deposit in
such Principal Funding sub-Account for such period.
"Principal Funding sub-Account Earnings Shortfall" means, for any
period,
(a) the Principal Funding sub-Account Earnings Target for such
period
minus
(b) the Principal Funding sub-Account Earnings for such period.
"Principal Funding sub-Account Earnings Target" means, for any period,
with respect to any amount on deposit in a Principal Funding sub-Account for a
tranche of Notes (other than a tranche of RSP Notes), the Dollar amount of
interest that would have accrued on such deposit if it had borne interest at
the following rates:
(a) in the case of a tranche of Dollar Interest-bearing Notes
with no Derivative Agreement for interest (or any Derivative
Agreement, such as an interest rate cap, that by its terms only
covers a portion of the interest on such tranche of Notes) or a non-
Performing Derivative Agreement for interest, at the rate of
interest applicable to that tranche including, if the Derivative
Agreement is an interest rate cap, the uncapped portion of the rate
of interest applicable to that tranche;
(b) in the case of a tranche of Discount Notes, at the rate of
accretion (converted to an accrual rate) of that tranche;
(c) in the case of a tranche of Notes with a Performing
Derivative Agreement for interest, at the rate of interest payable
by the Issuer to the applicable Derivative Counterparty; and
(d) in the case of a tranche of foreign currency Notes with a
non-Performing Derivative Agreement, at the rate of interest that
would have been payable by the Issuer to the applicable Derivative
Counterparty if such Derivative Agreement had been Performing.
"Principal Payment Date" means, with respect to any tranche of Notes,
the Expected Principal Payment Date, or upon the acceleration of a tranche of
Notes following an Event of Default or upon the occurrence of an Early
Redemption Event, or other optional or mandatory redemption of that tranche of
Notes, each Monthly Principal Date (or if any such day is not a Business Day,
the next following Business Day).
"Principal Receivables" is defined in the Pooling and Servicing
Agreement.
"Rating Agency" means, with respect to any Outstanding series, class
or tranche of Notes, each statistical rating agency selected by the Issuer to
rate such Notes.
21
"Ratings Effect" means a reduction, qualification or withdrawal of
any then current rating of the Notes.
"Receivables" is defined in the Pooling and Servicing Agreement..
"Receivables Sales Proceeds" means, with respect to any tranche of
Notes, the proceeds of the sale of Receivables with respect to such tranche
pursuant to Section 523. "Receivables Sales Proceeds" do not constitute
Principal Collections.
"Receivables Sales Proceeds Deposit Deficit" means, on any date with
respect to any Outstanding tranche of RSP Notes, the amount by which the
amount of Receivables Sales Proceeds of that tranche exceeds the sum of (a)
the Receivables Sales Proceeds Deposit Amount for that tranche plus (b) the
aggregate amount of any withdrawals of Receivables Sales Proceeds made
pursuant to Section 511(a), (b) or (c).
"Receivables Sales Proceeds Deposit Amount" means, with respect to
any tranche of Notes that has received Receivables Sales Proceeds, the amount
of Receivables Sales Proceeds on deposit in the Principal Funding sub-Account
for such tranche.
"Record Date" for the interest or principal payable on any Note on
any applicable Payment Date means the last day of the month before the related
Payment Date, unless otherwise specified in the applicable terms document.
"Registered Note" means a Note issued in registered form.
"Required Subordinated Amount" means, with respect to any tranche of
a senior class of Notes of a Multiple Issuance Series, a Dollar amount of a
subordinated class of the same series, as specified in the applicable terms
document for such tranche of the senior class, or as changed from time to time
pursuant to Section 312(b).
"Required Surplus Finance Charge Amount" means, with respect to any
Due Period, an amount equal to one twelfth of the product of (a) the Invested
Amount of the Collateral Certificate as of the last day of the immediately
preceding Due Period, and (b) a decimal number to be set by the Issuer, which
will initially equal zero (and which will never be less than zero); provided,
however, that for purposes of the definition of "Adverse Effect", such decimal
number will at all times be deemed to be the decimal number as set by the
Issuer plus one-hundredth (0.01). The Issuer may, from time to time, change
the decimal number to be set for purposes of clause (b) upon written notice to
the Trustee and each Rating Agency, and, if such decimal number is to be
increased, upon delivery by the Issuer to the Trustee of an Issuer Certificate
to the effect that the Issuer reasonably believes that such increase will not
have an Adverse Effect and is not reasonably expected to have an Adverse
Effect at any time in the future.
"Revolving Undivided Interest" is defined in Section 523(d).
22
"RSP Notes" means any Note that is part of a tranche of Notes that
has caused a sale of Receivables pursuant to Sections 523 and 708.
"Scheduled Interest Payment Date" means, with respect to any tranche
of Notes, the scheduled due date of any payment of interest on such Notes, as
specified in such Notes, without regard to whether or not such day is a
Business Day.
"Secured Parties" is defined in the Granting Clause.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time.
"Security Interest" means the security interest granted pursuant to
the Granting Clause.
"Segregated Sellers' Interest" means, on any date, a portion of the
Sellers' Interest equal to the aggregate amount on deposit in the Principal
Funding Account for each tranche of Notes other than any tranche of RSP Notes.
"Sellers" means Citibank (Nevada) and Citibank (South Dakota) in
their capacities as Sellers under the Pooling and Servicing Agreement and any
Additional Sellers as defined in the Pooling and Servicing Agreement.
"senior class" means (a) with respect to Class B Notes of a series,
Class A Notes of that series and (b) with respect to Class C Notes of a
series, Class A Notes or Class B Notes of that series.
"series" means, with respect to any Note, the series specified in the
applicable terms document.
"Series 2000 Supplement" means the Series 2000 Supplement to the
Pooling and Servicing Agreement, dated as of [ ], 2000, as amended,
supplemented, restated or otherwise modified from time to time.
"Single Issuance Series" means any series of Notes that by the terms
of the applicable terms document does not permit the issuance of more than one
tranche of Notes in each class of Notes in such series.
"Spot Exchange Rate" means, on any day, with respect to any currency
other than Dollars, the spot rate at which Dollars are offered on such day by
Citibank in New York, London, or other city that is a money center for
transactions in Dollars and such currency (determined by the Issuer in its
reasonable discretion), as prevailing on a local business day for transactions
in such currency at approximately 11:00 a.m. (local time).
23
"Standard & Poor's" means Standard & Poor's Ratings Services, or any
successor thereto.
"sub-Accounts" means each of the sub-Accounts referred to in Section
402(a).
"subordinated class" means (a) with respect to Class A Notes of a
series, Class B Notes or Class C Notes of that series, and (b) with respect to
Class B Notes of a series, Class C Notes of that series.
"subordinated Notes" means Notes of a subordinated class of a series.
"Supplemental Account" means the trust account or accounts designated
as such and established pursuant to Section 402(a).
"Supplemental indenture" means an indenture supplemental to this
Indenture executed and delivered pursuant to Article X.
"Surplus Finance Charge Collections" means with respect to any Due
Period, the amount of
(a) (i) Finance Charge Collections received pursuant to 4.02(a)(ii)(B)
and (a)(iii) of the Series 2000 Supplement, and (ii) net earnings and other
gain on amounts on deposit in the Accounts (other than the Principal
Funding Account) received pursuant to Section 403(e),
minus
(b) the sum of the amounts, without duplication, determined pursuant
to Sections 501(a) and (b) for such Due Period.
"Temporary Global Note" is defined in Section 205.
"terms document" means, with respect to any series, class or tranche
of Notes, the Issuer Certificate or supplemental indenture that establishes
such series, class or tranche.
"Threshold Conditions" means the conditions set forth in Annex I.
"tranche" means, with respect to any class of Notes, Notes of such
class which have identical terms, conditions and tranche designation.
"Trust Agreement" means the Trust Agreement, dated as of [ ], 2000,
among Citibank (Nevada) and Citibank (South Dakota), as Beneficiaries, and The
Bank of New York (Delaware), as Issuer Trustee, as amended, supplemented,
restated or otherwise modified from time to time.
24
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, as in force at the date
as of which this Indenture was executed except as provided in Section 1005.
"Trustee" means the Person named as the Trustee in the first
paragraph of this Indenture until a successor Trustee will have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" means and includes each Person who is then a Trustee hereunder. If
at any time there is more than one such Person, "Trustee" as used with respect
to the Notes of any series, class or tranche means the Trustee with respect to
Notes of that series, class or tranche.
"Trustee Authorized Officer", when used with respect to the Trustee,
means the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer or trust officer, the controller and any assistant
controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"U.S. Depository" means, unless otherwise specified by the Issuer
pursuant to either Section 204, 206 or 301, with respect to Notes of any
tranche issuable or issued as a Global Note within the United States, The
Depository Trust Company, New York, New York, or any successor thereto
registered as a clearing agency under the Securities Exchange Act, or other
applicable statute or regulation..
"Undivided Interest" is defined in Section 523(c)(ii).
"Weighted Average Interest Rates" means, with respect to any
Outstanding Notes of a group, series, class or tranche (other than any tranche
of RSP Notes), or of all of the Outstanding Notes (other than any tranche of
RSP Notes), on any date, the weighted average of the following rates of
interest:
(a) in the case of a tranche of Dollar Interest-bearing Notes with
no Derivative Agreement for interest (or a Derivative Agreement, such as
an interest rate cap, that by its terms covers only a portion of the
interest on such tranche of Notes) or a non-Performing Derivative
Agreement for interest, the rate of interest applicable to that tranche
on that date including, if the Derivative Agreement is an interest rate
cap, the uncapped portion of the rate of interest applicable to that
tranche on that date;
(b) in the case of a tranche of Discount Notes, the rate of
accretion (converted to an accrual rate) of that tranche on that date;
25
(c) in the case of a tranche of Notes with a Performing Derivative
Agreement for interest, the rate of interest payable by the Issuer to the
applicable Derivative Counterparty on that date; and
(d) in the case of a tranche of Foreign Currency Notes with a
non-Performing Derivative Agreement, the rate of interest that would have
been payable by the Issuer to the applicable Derivative Counterparty if
that Derivative Agreement had been Performing on that date.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Issuer to the Trustee to take any action
under any provision of this Indenture, the Issuer will furnish to the
Trustee an Issuer Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Notwithstanding the provisions of Section 311 and of the
preceding paragraph, if all Notes of a tranche are not to be originally
issued at one time, it will not be necessary to deliver the Issuer
Certificate otherwise required pursuant to Section 311 or the Issuer
Certificate and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or before the time of authentication of each Note of
such tranche if such documents are delivered at or prior to the
authentication upon original issuance of the first Note of such tranche to
be issued.
With respect to Notes of a tranche offered in a Multiple Issuance
Series, the Trustee may rely, as to the authorization by the Issuer of any
of such Notes, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and
the other documents delivered pursuant to Section 311 and this Section, as
applicable, in connection with the first authentication of Notes of such
tranche.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for the
written statement required by Section 1104) will include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) 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;
26
(c) a statement that such individual has made such examination or
investigation as is necessary to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an
opinion of, one or more specified Persons, one such Person may certify or
give an opinion with respect to some matters and one or more other such
Persons as to the 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 the Issuer may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless the Issuer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate
or opinion of, or representations by the Issuer stating that the
information with respect to such factual matters is in the possession of
the Issuer, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action
(collectively, "action") provided by this Indenture to be given or taken by
Noteholders of any series, class or tranche may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed
by such Noteholders in person or by an agent duly appointed in writing;
and, except as herein or therein otherwise expressly provided, such action
will become effective when such instrument or instruments are delivered to
the Trustee, and, where it is hereby expressly required, to the Issuer.
Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent will be
sufficient for any purpose of this Indenture and (subject to Section 801)
conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any 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 an officer of a corporation
or a member of a partnership, on behalf of such corporation or partnership,
such certificate or affidavit will also constitute sufficient proof of his
27
authority. The fact and date of 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 the Trustee deems sufficient.
(c) (i) The ownership of Registered Notes will be proved by the
Note Register. (ii) The ownership of Bearer Notes or coupons will be proved
by the production of such Bearer Notes or coupons or by a certificate,
satisfactory to the Issuer, executed by any bank, trust company or
recognized securities dealer, wherever situated, satisfactory to the
Issuer. Each such certificate will be dated and will state that on the date
thereof a Bearer Note or coupon bearing a specified serial number was
deposited with or exhibited to such bank, trust company or recognized
securities dealer by the Person named in such certificate. Any such
certificate may be issued in respect of one or more Bearer Notes or coupons
specified therein. The holding by the Person named in any such certificate
of any Bearer Note specified therein will be presumed to continue for a
period of one year from the date of such certificate unless at the time of
any determination of such holding (A) another certificate bearing a later
date issued in respect of the same Bearer Note or coupon produced, (B) the
Bearer Note or coupon specified in such certificate is produced by some
other Person or (C) the Bearer Note or coupon specified in such certificate
has ceased to be Outstanding.
(d) If the Issuer will solicit from the Holders any action, the
Issuer may, at its option, by an Issuer Certificate, fix in advance a record
date for the determination of Holders entitled to give such action, but the
Issuer will have no obligation to do so. If the Issuer does not so fix a
record date, such record date will be the later of 30 days before the first
solicitation of such action or the date of the most recent list of Noteholders
furnished to the Trustee pursuant to Section 901 before such solicitation.
Such action may be given before or after the record date, but only the Holders
of record at the close of business on the record date will be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Notes Outstanding have authorized or agreed or consented to such
action, and for that purpose the Notes Outstanding will be computed as of the
record date; provided that no such authorization, agreement or consent by the
Holders on the record date will be deemed effective unless it will become
effective pursuant to the provisions of this Indenture not later than six
months after the record date.
(e) Any action by the Holder of any Note will bind the Holder of
every Note issued upon the transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done or suffered to be done by the
Trustee or the Issuer in reliance thereon whether or not notation of such
action is made upon such Note.
SECTION 105. Notices, etc., to Trustee and Issuer. Any action of
Noteholders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(a) the Trustee by any Noteholder or by the Issuer will be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
28
(b) the Issuer by the Trustee or by any Noteholder will be
sufficient for every purpose hereunder (except as provided in Section
701(c) or, in the case of a request for repayment, as specified in the
Note carrying the right to repayment) if in writing and mailed,
first-class postage prepaid, to the Issuer addressed to it at the
address of its principal office specified in the first paragraph of
this Indenture or at any other address previously furnished in writing
to the Trustee by the Issuer.
SECTION 106. Notices to Noteholders; Waiver. (a) Where this Indenture
or any Registered Note provides for notice to Holders of Registered Notes of
any event, such notice will be sufficiently given (unless otherwise herein or
in such Registered Note expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder of a Registered Note affected by
such event, at his address as it appears in the Note Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders of Registered Notes
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Noteholders will affect the
sufficiency of such notice with respect to other Noteholders. Where this
Indenture or any Registered Note provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver will be the equivalent of
such notice. Waivers of notice by Holders of Registered Notes will be filed
with the Trustee, but such filing will not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
(b) In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or otherwise, it will be impractical
to mail notice of any event to any Holder of a Registered Note when such
notice is required to be given pursuant to any provision of this Indenture,
then any method of notification as will be satisfactory to the Trustee and
the Issuer will be deemed to be a sufficient giving of such notice.
(c) No notice will be mailed to a Holder of Bearer Notes or
coupons in bearer form. In the case of any tranche with respect to which
any Bearer Notes are Outstanding, any notice required or permitted to be
given to Holders of such Bearer Notes will be published in an Authorized
Newspaper within the time period prescribed in this Indenture or the
applicable terms document.
(d) With respect to any tranche of Notes, the applicable terms
document may specify different or additional means of giving notice to the
Holders of the Notes of such tranche.
SECTION 107. Conflict with Trust Indenture Act. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318, inclusive, of
the Trust Indenture Act, such imposed duties or incorporated provision will
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision will be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
29
SECTION 108. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and will not affect the construction hereof.
SECTION 109. Successors and Assigns. All covenants and agreements
in this Indenture by the Issuer will bind its successors and assigns,
whether so expressed or not.
SECTION 110. Separability Clause. In case any provision in this
Indenture or in the Notes will be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions will not
in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture. Nothing in this Indenture or
in any Notes, express or implied, will give to any Person, other than the
parties hereto and their successors hereunder, any Authenticating Agent or
Paying Agent, the Note Registrar, Derivative Counterparties (to the extent
specified in the applicable Derivative Agreement) and the Holders of Notes
(or such of them as may be affected thereby), any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law. This Indenture will be construed in
accordance with and governed by the laws of the State of New York.
SECTION 113. Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed will be deemed to be an
original, but all such counterparts will together constitute but one and
the same instrument.
SECTION 114. Interest Period Convention. Unless otherwise
specified in the applicable terms document, interest for any period will be
calculated from and including the first day of such period, to but
excluding the last day of such period.
SECTION 115. Indenture Referred to in the Trust Agreement. This
is the Indenture referred to in the Trust Agreement.
ARTICLE II
Note Forms
SECTION 201. Forms Generally. The Notes will have such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon, as may be required to comply with applicable laws or
regulations or with the rules of any securities exchange, or as may,
consistently herewith, be determined by the Issuer, as evidenced by the
Issuer's 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.
30
The definitive Notes will be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or
may be produced in any other manner, all as determined by the Issuer, as
evidenced by the Issuer's execution of such Notes, subject, with respect to
the Notes of any series, class or tranche, to the rules of any securities
exchange on which such Notes are listed.
SECTION 202. Forms of Notes. Each Note will be in one of the
forms approved from time to time by or pursuant to an Issuer Certificate,
or established in one or more indentures supplemental hereto. Before the
delivery of a Note to the Trustee for authentication in any form approved
by or pursuant to an Issuer Certificate, the Issuer will deliver to the
Trustee the Issuer Certificate by or pursuant to which such form of Note
has been approved, which Issuer Certificate will have attached thereto a
true and correct copy of the form of Note which has been approved thereby
or, if an Issuer Certificate authorizes a specific officer or officers of
the Managing Beneficiary to approve a form of Note, a certificate of such
officer or officers approving the form of Note attached thereto. Any form
of Note approved by or pursuant to an Issuer Certificate must be acceptable
as to form to the Trustee, such acceptance to be evidenced by the Trustee's
authentication of Notes in that form or a certificate signed by a Trustee
Authorized Officer and delivered to the Issuer.
SECTION 203. Form of Trustee's Certificate of Authentication. The
form of Trustee's Certificate of Authentication for any Note issued
pursuant to this Indenture will be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series, class or tranche
designated therein referred to in the within-mentioned
Indenture.
[INDENTURE TRUSTEE NAME],
as Trustee,
By:___________________________
Authorized Signatory
SECTION 204. Notes Issuable in the Form of a Global Note. (a) If
the Issuer establishes pursuant to Sections 202 and 301 that the Notes of a
particular series, class or tranche are to be issued in whole or in part in
the form of one or more Global Notes, then the Issuer will execute and the
Trustee or its agent will, in accordance with Section 303 and the Issuer
Certificate delivered to the Trustee or its agent thereunder, authenticate
and deliver, such Global Note or Notes, which, unless otherwise provided in
the applicable terms document (i) will represent, and will be denominated
in an amount equal to the aggregate stated principal amount (or in the case
of Discount Notes, the aggregate stated principal amount at the Expected
31
Principal Payment Date of such Notes) of, the Outstanding Notes of such
series, class or tranche to be represented by such Global Note or Notes, or
such portion thereof as the Issuer will specify in an Issuer Certificate,
(ii) in the case of Registered Notes, will be registered in the name of the
Depository for such Global Note or Notes or its nominee, (iii) will be
delivered by the Trustee or its agent to the Depository or pursuant to the
Depository's instruction, (iv) if applicable, will bear a legend
substantially to the following effect: "Unless this Note is presented by an
authorized representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Issuer or its agent for registration of
transfer, exchange or payment, and any note issued is registered in the
name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC), any
transfer, pledge or other use hereof for value or otherwise by or to any
person is wrongful inasmuch as the registered owner hereof, Cede & Co., has
an interest herein" and (v) may bear such other legend as the Issuer, upon
advice of counsel, deems to be applicable.
(b) Notwithstanding any other provisions of this Section 204 or
of Section 305, and subject to the provisions of clause (c) below, unless
the terms of a Global Note or the applicable terms document expressly
permit such Global Note to be exchanged in whole or in part for individual
Notes, a Global Note may be transferred, in whole but not in part and in
the manner provided in Section 305, only to a nominee of the Depository for
such Global Note, or to the Depository, or a successor Depository for such
Global Note selected or approved by the Issuer, or to a nominee of such
successor Depository.
(c) With respect to Notes issued within the United States, unless
otherwise specified in the applicable terms document, or with respect to
Notes issued outside the United States, if specified in the applicable
terms document:
(i) If at any time the Depository for a Global Note notifies the
Issuer that it is unwilling or unable to continue as Depository for
such Global Note or if at any time the Depository for the Notes for
such series, class or tranche ceases to be a clearing agency
registered under the Securities Exchange Act, or other applicable
statute or regulation, the Issuer will appoint a successor Depository
with respect to such Global Note. If a successor Depository for such
Global Note is not appointed by the Issuer within 90 days after the
Issuer receives such notice or becomes aware of such ineligibility,
the Issuer will execute, and the Trustee or its agent, upon receipt of
an Issuer Certificate requesting the authentication and delivery of
individual Notes of such series, class or tranche in exchange for such
Global Note, will authenticate and deliver, individual Notes of such
series, class or tranche of like tenor and terms in an aggregate
stated principal amount equal to the stated principal amount of the
Global Note in exchange for such Global Note.
(ii) The Issuer may at any time and in its sole discretion
determine that the Notes of any series, class or tranche or portion
thereof issued or issuable in the form of one or
32
more Global Notes will no longer be represented by such Global Note or
Notes. In such event the Issuer will execute, and the Trustee, upon
receipt of an Issuer Certificate requesting the authentication and
delivery of individual Notes of such series, class or tranche in
exchange in whole or in part for such Global Note, will authenticate
and deliver individual Notes of such series, class or tranche of like
tenor and terms in definitive form in an aggregate principal stated
amount equal to the stated principal amount of such Global Note or
Notes representing such series, class or tranche or portion thereof in
exchange for such Global Note or Notes.
(iii) If specified by the Issuer pursuant to Sections 202 and 301
with respect to Notes issued or issuable in the form of a Global Note,
the Depository for such Global Note may surrender such Global Note in
exchange in whole or in part for individual Notes of such series,
class or tranche of like tenor and terms in definitive form on such
terms as are acceptable to the Issuer and such Depository. Thereupon
the Issuer will execute, and the Trustee or its agent will
authenticate and deliver, without service charge, (A) to each Person
specified by such Depository a new Note or Notes of the same series,
class or tranche of like tenor and terms and of any authorized
denomination as requested by such Person in aggregate stated principal
amount equal to and in exchange for such Person's beneficial interest
in the Global Note; and (B) to such Depository a new Global Note of
like tenor and terms and in an authorized denomination equal to the
difference, if any, between the stated principal amount of the
surrendered Global Note and the aggregate stated principal amount of
Notes delivered to the Holders thereof. If any Event of Default has
occurred with respect to such Global Notes, and Holders of Notes
evidencing not less than 50% of the unpaid Outstanding Dollar
Principal Amount of the Global Notes of that tranche advise the
Trustee and the Depository that a Global Note is no longer in the best
interest of the Noteholders, the Holders of Global Notes may exchange
such Notes for individual Notes.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Issuer will execute and the Trustee or its agent will
authenticate and deliver individual Notes in definitive registered
form in authorized denominations. Upon the exchange of the entire
stated principal amount of a Global Note for individual Notes, such
Global Note will be canceled by the Trustee or its agent. Except as
provided in the preceding paragraph, Notes issued in exchange for a
Global Note pursuant to this Section will be registered in such names
and in such authorized denominations as the Depository for such Global
Note, pursuant to instructions from its direct or indirect
participants or otherwise, will instruct the Trustee or the Note
Registrar. The Trustee or the Note Registrar will deliver such Notes
to the Persons in whose names such Notes are so registered.
SECTION 205. Temporary Global Notes and Permanent Global Notes.
(a) If specified in the applicable terms document for any tranche, all or
any portion of a Global Note may initially be issued in the form of a
single temporary Global Bearer Note or Registered Note (the "Temporary
Global Note"), without interest coupons, in the denomination of the entire
aggregate principal amount of such tranche and substantially in
33
the form set forth in the exhibit with respect thereto attached to the
applicable terms document. The Temporary Global Note will be authenticated
by the Trustee upon the same conditions, in substantially the same manner
and with the same effect as the Notes in definitive form. The Temporary
Global Note may be exchanged as described below or in the applicable terms
document for permanent global Bearer Notes or Registered Notes (the
"Permanent Global Notes").
(b) Unless otherwise provided in the applicable terms document,
exchanges of beneficial interests in Temporary Global Notes for beneficial
interests in Permanent Global Notes will be made as provided in this clause.
The Manager will, upon its determination of the date of completion of the
distribution of the Notes of such tranche, so advise the Trustee, the Issuer,
the Foreign Depository, and each foreign clearing agency forthwith. Without
unnecessary delay, but in any event not prior to the Exchange Date, the Issuer
will execute and deliver to the Trustee at its London office or its designated
agent outside the United States Permanent Global Notes in bearer or registered
form (as specified in the applicable terms document) in an aggregate principal
amount equal to the entire aggregate principal amount of such tranche. Bearer
Notes so issued and delivered may have coupons attached. The Temporary Global
Note may be exchanged for an equal aggregate principal amount of Permanent
Global Notes only on or after the Exchange Date. A United States Person may
exchange the portion of the Temporary Global Note beneficially owned by it
only for an equal aggregate principal amount of Permanent Global Notes in
registered form bearing the applicable legend set forth in the form of
Registered Note attached to the applicable terms document and having a minimum
denomination of $500,000, which may be in temporary form if the Issuer so
elects. The Issuer may waive the $500,000 minimum denomination requirement if
it so elects. Upon any demand for exchange for Permanent Global Notes in
accordance with this clause, the Issuer will cause the Trustee to authenticate
and deliver the Permanent Global Notes to the Holder (x) outside the United
States, in the case of Bearer Notes and (y) according to the instructions of
the Holder, in the case of Registered Notes but in either case only upon
presentation to the Trustee of a written statement substantially in the form
of Exhibit E-1 (or such other form as the Issuer may determine) with respect
to the Temporary Global Note or portion thereof being exchanged signed by a
foreign clearing agency and dated on the Exchange Date or a subsequent date,
to the effect that it has received in writing or by tested telex a
certification substantially in the form of (i) in the case of beneficial
ownership of the Temporary Global Note or a portion thereof being exchanged by
a United States institutional investor pursuant to this clause, the
certificate in the form of Exhibit E-2 (or such other form as the Issuer may
determine) signed by the Manager which sold the relevant Notes or (ii) in all
other cases, the certificate in the form of Exhibit E-3 (or such other form as
the Issuer may determine), the certificate referred to in this clause (ii)
being dated on the earlier of the first payment of interest in respect of such
Note and the date of the delivery of such Note in definitive form. Upon
receipt of such certification, the Trustee will cause the Temporary Global
Note to be endorsed in accordance with clause (d). Any exchange as provided in
this Section will be made free of charge to the Holders and the beneficial
owners of the Temporary Global Note and to the beneficial owners of the
Permanent Global Note issued in exchange, except that a person receiving the
Permanent Global Note must bear the cost
34
of insurance, postage, transportation and the like in the event that such
Person does not receive such Permanent Global Note in person at the offices
of a foreign clearing agency.
(c) The delivery to the Trustee by a foreign clearing agency of
any written statement referred to above may be relied upon by the Issuer
and the Trustee as conclusive evidence that a corresponding certification
or certifications has or have been delivered to such foreign clearing
agency pursuant to the terms of this Indenture.
(d) Upon any such exchange of all or a portion of the Temporary
Global Note for a Permanent Global Note or Notes, such Temporary Global
Note will be endorsed by or on behalf of the Trustee to reflect the
reduction of its principal amount by an amount equal to the aggregate
principal amount of such Permanent Global Note or Notes. Until so exchanged
in full, such Temporary Global Note will in all respects be entitled to the
same benefits under this Indenture as Permanent Global Notes authenticated
and delivered hereunder except that the beneficial owners of such Temporary
Global Note will not be entitled to receive payments of interest on the
Notes until they have exchanged their beneficial interests in such
Temporary Global Note for Permanent Global Notes.
SECTION 206. Beneficial Ownership of Global Notes. Until
definitive Notes have been issued to the applicable Noteholders pursuant to
Section 204 or as otherwise specified in any applicable terms document:
(a) the Issuer and the Trustee may deal with the applicable
clearing agency and the clearing agency's participants for all
purposes (including the making of distributions) as the authorized
representatives of the respective Note Owners; and
(b) the rights of the respective Note Owners will be exercised
only through the applicable clearing agency and the clearing agency's
participants and will be limited to those established by law and
agreements between such Note Owners and the clearing agency and/or the
clearing agency's participants. Pursuant to the operating rules of the
applicable clearing agency, unless and until Notes in definitive form
are issued pursuant to Section 204, the clearing agency will make
book-entry transfers among the clearing agency's participants and
receive and transmit distributions of principal and interest on the
related Notes to such clearing agency's participants.
For purposes of any provision of this Indenture requiring or
permitting actions with the consent of, or at the direction of, Noteholders
evidencing a specified percentage of the aggregate unpaid principal amount
of Outstanding Notes, such direction or consent may be given by Note Owners
(acting through the clearing agency and the clearing agency's participants)
owning interests in Notes evidencing the requisite percentage of principal
amount of Notes.
SECTION 207. Notices to Depository. Whenever any notice or other
communication is required to be given to Noteholders with respect to which
book-entry
35
Notes have been issued, unless and until Notes in definitive form will have
been issued to the related Note Owners, the Trustee will give all such
notices and communications to the applicable Depository.
ARTICLE III
The Notes
SECTION 301. General Title; General Limitations; Issuable in
Series; Terms of a Series, Class or Tranche. (a) The aggregate stated
principal amount of Notes which may be authenticated and delivered and
Outstanding under this Indenture is not limited.
(b) The Notes may be issued in one or more series, classes or
tranches up to an aggregate stated principal amount of Notes as from time
to time may be authorized by the Issuer. All Notes of each series, class or
tranche under this Indenture will in all respects be equally and ratably
entitled to the benefits hereof with respect to such series, class or
tranche without preference, priority or distinction on account of the
actual time of the authentication and delivery or Expected Principal
Payment Date or Legal Maturity Date of the Notes of such series, class or
tranche, except as specified in the applicable terms document for such
series, class or tranche.
(c) Each Note issued must be assigned to a group of Notes for
purposes of allocations pursuant to Article V. On the date of this
Indenture, a single group of Notes identified as "Group 1" has been
established for allocation purposes in Article V. Additional groups may be
established from time to time pursuant to supplemental indentures.
(d) Each Note issued must be part of a series, class and tranche
of Notes for purposes of allocations pursuant to Article V. A series, class
or tranche of Notes is created pursuant to an Issuer Certificate or a
supplemental indenture.
(e) Each series of Notes may, but need not be, subdivided into
multiple classes. This Indenture provides for up to three classes of Notes:
Class A, Class B and Class C. As specified in Article V, Notes belonging to
Class A in any series are entitled to specified payment priorities over
Class B and Class C Notes in that series. Notes belonging to Class B in any
series are entitled to specified payment priorities over Class C Notes in
that series. Class C Notes have the benefit of the Class C Reserve Account.
The applicable terms document may provide for more or different classes of
Notes.
(f) Notes of a single series that belong to separate classes in
that series belong to separate tranches on the basis of the difference in
class membership.
(g) Each class of Notes may consist of a single tranche or may be
subdivided into multiple tranches. Notes of a single class of a series will
belong to different tranches if they have different terms and conditions.
With respect to any class of Notes, Notes which have identical terms,
conditions and tranche designation will be deemed to be part of a single
tranche.
36
(h) Each series, class or tranche of Notes will be created either
by or pursuant to an Issuer Certificate or a supplemental indenture. The
Notes of each such series, class or tranche may have such Expected
Principal Payment Date or Dates or Legal Maturity Date or Dates, be
issuable at such premium over or discount from their face value, bear
interest at such rate or rates (which may be fixed or floating), from such
date or dates, payable in such installments and on such dates and at such
place or places to the Holders of Notes registered as such on such Record
Dates, or may bear no interest, and have such terms, all as will be
provided for in or pursuant to the applicable terms document. There may
also be established in or pursuant to an Issuer Certificate or a
supplemental indenture before the issuance of Notes of each such series,
class or tranche, provision for:
(i) the series designation and, if such series will be part of a
group of series for purposes of allocations and reallocations of
Principal Collections and/or Finance Charge Collections, the manner
and extent to which each series in the group will be subject to
allocations and reallocations;
(ii) the stated principal amount of the Notes and whether they
are Class A Notes, Class B Notes or Class C Notes or a tranche of any
of these classes;
(iii) the Required Subordinated Amount (if any) for such class or
tranche of Notes;
(iv) the currency or currencies in which the Notes of such
series, class or tranche will be denominated and in which payments of
principal of, and interest on, such Notes will or may be payable;
(v) if the principal of or interest, if any, on the Notes of such
series, class or tranche are to be payable, at the election of the
Issuer or a Holder thereof, in a currency or currencies other than
that in which the Notes are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made;
(vi) if the amount of payments of principal of or interest, if
any, on the Notes of such series, class or tranche may be determined
with reference to an index based on (A) a currency or currencies other
than that in which the Notes are stated to be payable, (B) changes in
the prices of one or more other securities or groups or indexes of
securities or (C) changes in the prices of one or more commodities or
groups or indexes of commodities, or any combination of the foregoing,
the manner in which such amounts will be determined;
(vii) the price or prices at which the Notes of such series,
class or tranche will be issued;
(viii) the Expected Principal Payment Date (which will not be
later than two years before the Termination Date (as defined in the
Series 2000 Supplement) of the Collateral Certificate) and Legal
Maturity Date (which will not be later than the
37
Termination Date (as defined in the Series 2000 Supplement) of the
Collateral Certificate) of the Notes of such series, class or tranche;
(ix) the times at which the Notes of such series, class or
tranche may, pursuant to any optional or mandatory redemption
provisions, be redeemed, and the other terms and provisions of any
such redemption provisions;
(x) the rate per annum at which the Notes of such series, class
or tranche will bear interest, if any, or the formula or index on
which such rate will be determined, including all relevant
definitions, and the date from which interest will accrue;
(xi) the Interest Payment Dates, if any, for such Notes;
(xii) if such Notes are to be Discount Notes or foreign currency
Notes, the Initial Dollar Principal Amount of such Notes, and the
means for calculating the Outstanding Dollar Principal Amount of such
Notes;
(xiii) whether or not application will be made to list such Notes
of such series, class or tranche on any securities exchange;
(xiv) any Event of Default or Early Redemption Event with respect
to the Notes of such series, class or tranche, if not set forth herein
and any additions, deletions or other changes to the Events of Default
or Early Redemption Events set forth herein that will be applicable to
the Notes of such series, class or tranche (including a provision
making any Event of Default or Early Redemption Event set forth herein
inapplicable to the Notes of that series, class or tranche);
(xv) the appointment by the Trustee of an Authenticating Agent in
one or more places other than the location of the office of the
Trustee with power to act on behalf of the Trustee and subject to its
direction in the authentication and delivery of the Notes of such
series, class or tranche in connection with such transactions as will
be specified in the provisions of this Indenture or in or pursuant to
the applicable terms document creating such series, class or tranche;
(xvi) if the Notes of such series, class or tranche will be
issued in whole or in part in the form of a Global Note or Global
Notes, the terms and conditions, if any, upon which such Global Note
or Global Notes may be exchanged in whole or in part for other
individual Notes; and the Depository for such Global Note or Global
Notes (if other than the Depository specified in Section 101);
(xvii) the subordination of the Notes of such series, class or
tranche to any other indebtedness of the Issuer, including without
limitation, the Notes of any other series, class or tranche;
38
(xviii) if the Notes of such series, class or tranche are to have
the benefit of any Derivative Agreement, the terms and provisions of
such agreement;
(xix) the Record Date for any Payment Date of the Notes of such
series, class or tranche, if different from the last day of the month
before the related Payment Date;
(xx) the Controlled Accumulation Amount (if any) of such class or
tranche;
(xxi) whether or not the Nominal Liquidation Amount of such
series, class or tranche belongs to the portion of the Collateral
Certificate constituting an Excluded Series under the Series 2000
Supplement; and
(xxii) any other terms of such series, class or tranche, which
will not be inconsistent with the provisions of this Indenture;
all upon such terms as may be determined in or pursuant to an Issuer
Certificate or a supplemental indenture with respect to such series, class
or tranche.
(i) The form of the Notes of each series, class or tranche will
be established pursuant to the provisions of this Indenture in or pursuant
to an Issuer Certificate or a supplemental indenture creating such series,
class or tranche. The Notes of each series, class or tranche will be
distinguished from the Notes of each other series, class or tranche in such
manner, reasonably satisfactory to the Trustee, as the Issuer may
determine.
(j) The Notes of any series, class or tranche will be issued as
Registered Notes, without coupons, or as Bearer Notes, with or without
coupons.
(k) Any terms or provisions in respect of the Notes of any
series, class or tranche issued under this Indenture may be determined
pursuant to this Section by providing in the applicable terms document for
the method by which such terms or provisions will be determined.
SECTION 302. Denominations. The Notes of each tranche will be
issuable in such denominations and currency as will be provided in the
provisions of this Indenture or in or pursuant to the applicable terms
document. In the absence of any such provisions with respect to the
Registered Notes of any tranche, the Registered Notes of that tranche will
be issued in denominations of $1,000 and multiples thereof. In the absence
of any such provisions with respect to the Bearer Notes of any tranche, the
Bearer Notes of that tranche will be issued in denominations of 1,000,
5,000, 50,000 and 100,000 units of the applicable currency.
SECTION 303. Execution, Authentication and Delivery and Dating.
(a) The Notes will be executed on behalf of the Issuer by an Issuer
Authorized Officer. The signature of any officer of the Managing
Beneficiary or the Issuer Trustee on the Notes may be manual or facsimile.
39
(b) Notes bearing the manual or facsimile signatures of
individuals who were at any time an Issuer Authorized Officer will bind the
Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices before the authentication and delivery of such Notes or
did not hold such offices at the date of such Notes.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Notes executed by the
Issuer to the Trustee for authentication; and the Trustee will, upon
request by an Issuer Certificate, authenticate and deliver such Notes as in
this Indenture provided and not otherwise.
(d) Before any such authentication and delivery, the Trustee will
be entitled to receive, in addition to any Issuer Certificate and Opinion
of Counsel required to be furnished to the Trustee pursuant to Section 102,
the Issuer Certificate and any other opinion or certificate relating to the
issuance of the tranche of Notes required to be furnished pursuant to
Section 202 or Section 311.
(e) The Trustee will not be required to authenticate such Notes
if the issue thereof will adversely affect the Trustee's own rights, duties
or immunities under the Notes and this Indenture.
(f) Unless otherwise provided in the form of Note for any
tranche, all Notes will be dated the date of their authentication.
(g) No Note will be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note
a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Note will be conclusive evidence,
and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
SECTION 304. Temporary Notes. (a) Pending the preparation of
definitive Notes of any tranche, the Issuer may execute, and, upon receipt
of the documents required by Section 303, together with an Issuer
Certificate, the Trustee will authenticate and deliver, temporary Notes
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the Issuer may
determine, as evidenced by the Issuer's execution of such Notes.
(b) If temporary Notes of any tranche are issued, the Issuer will
cause definitive Notes of such tranche to be prepared without unreasonable
delay. After the preparation of definitive Notes, the temporary Notes of such
tranche will be exchangeable for definitive Notes of such tranche upon
surrender of the temporary Notes of such tranche at the office or agency of
the Issuer in a Place of Payment, without charge to the Holder; and upon
surrender for cancellation of any one or more temporary Notes the Issuer will
execute and the Trustee will authenticate and deliver in exchange therefor a
like stated principal amount of definitive Notes of such tranche of authorized
denominations and of like tenor and terms. Until so exchanged
40
the temporary Notes of such tranche will in all respects be entitled to the
same benefits under this Indenture as definitive Notes of such tranche.
SECTION 305. Registration, Transfer and Exchange. (a) The Issuer
will keep or cause to be kept a register (herein sometimes referred to as
the "Note Register") in which, subject to such reasonable regulations as it
may prescribe, the Issuer will provide for the registration of Registered
Notes, or of Registered Notes of a particular tranche, and for transfers of
Registered Notes or of Registered Notes of such tranche. Any such register
will be in written form or in any other form capable of being converted
into written form within a reasonable time. At all reasonable times the
information contained in such register or registers will be available for
inspection by the Trustee at the office or agency to be maintained by the
Issuer as provided in Section 1102.
(b) Subject to Section 204, upon surrender for transfer of any
Registered Note of any tranche at the office or agency of the Issuer in a
Place of Payment, the Issuer will execute, and the Trustee will
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Notes of such tranche of any
authorized denominations, of a like aggregate stated principal amount,
Expected Principal Payment Date and Legal Maturity Date and of like terms.
(c) Subject to Section 204, at the option of the Holder, Notes of
any tranche may be exchanged for other Notes of such tranche of any
authorized denominations, of a like aggregate stated principal amount,
Expected Principal Payment Date and Legal Maturity Date and of like terms,
upon surrender of the Notes to be exchanged at such office or agency.
Registered Notes, including Registered Notes received in exchange for
Bearer Notes, may not be exchanged for Bearer Notes. At the option of the
Holder of a Bearer Note, subject to applicable laws and regulations, Bearer
Notes may be exchanged for other Bearer Notes or Registered Notes (of the
same class and tranche) of authorized denominations of like aggregate
fractional undivided interests in the Noteholders' interest, upon surrender
of the Bearer Notes to be exchanged at an office or agency of the Note
Registrar located outside the United States. Each Bearer Note surrendered
pursuant to this Section will have attached thereto all unmatured coupons;
provided, however, that any Bearer Note, so surrendered after the close of
business on the last day of the month preceding the relevant Payment Date
need not have attached the coupon relating to such Payment Date. Whenever
any Notes are so surrendered for exchange, the Issuer will execute, and the
Trustee will authenticate and deliver (in the case of Bearer Notes, outside
the United Sates), the Notes which the Noteholders making the exchange is
entitled to receive.
(d) All Notes issued upon any transfer or exchange of Notes will
be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes
surrendered upon such transfer or exchange.
(e) Every Note presented or surrendered for transfer or exchange
will (if so required by the Issuer or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer
41
in form satisfactory to the Issuer and the Note Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
(f) Unless otherwise provided in the Note to be transferred or
exchanged, no service charge will be made on any Noteholder for any
transfer or exchange of Notes, but the Issuer may (unless otherwise
provided in such Note) require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
transfer or exchange of Notes, other than exchanges pursuant to Section 304
or 1006 not involving any transfer.
(g) None of the Issuer, the Trustee, any agent of the Trustee,
any Paying Agent or the Note Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Global Note or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
(h) The Issuer initially appoints Citibank, N.A., to act as Note
Registrar for the Registered Notes on its behalf. The Issuer may at any
time and from time to time authorize any Person to act as Note Registrar in
place of the Trustee with respect to any tranche of Notes issued under this
Indenture.
(i) Registration of transfer of Notes containing the following
legend or to which the following legend is applicable:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS NOTE NOR
ANY PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE
WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY
APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION
PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN
CONDITIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN."
will be effected only if such transfer is made pursuant to an effective
registration statement under the Securities Act, or is exempt from the
registration requirements under the Securities Act. In the event that
registration of a transfer is to be made in reliance upon an exemption from
the registration requirements under the Securities Act, the transferor or
the transferee will deliver, at its expense, to the Issuer and the Trustee,
an investment letter from the transferee, substantially in the form of the
investment letter attached hereto as Exhibit D, and no registration of
transfer will be made until such letter is so delivered.
Notes issued upon registration or transfer of, or Notes issued in
exchange for, Notes bearing the legend referred to above will also bear
such legend unless the Issuer, the Trustee and the Note Registrar receive
an Opinion of Counsel, satisfactory to each of them, to the effect that
such legend may be removed.
42
Whenever a Note containing the legend referred to above is
presented to the Note Registrar for registration of transfer, the Note
Registrar will promptly seek instructions from the Issuer regarding such
transfer and will be entitled to receive an Issuer's Certificate prior to
registering any such transfer. The Issuer hereby agrees to indemnify the
Note Registrar and the Trustee and to hold each of them harmless against
any loss, liability or expense incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by
them in relation to any such instructions furnished pursuant to this
clause.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes. (a) If
(i) any mutilated Note (together, in the case of Bearer Notes, with all
unmatured coupons (if any) appertaining thereto) is surrendered to the
Trustee, or the Issuer and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Note, and (ii) there
is delivered to the Issuer and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence
of notice to the Issuer or the Trustee that such Note has been acquired by
a bona fide purchaser, the Issuer will execute and upon its request the
Trustee will authenticate and deliver (in the case of Bearer Notes, outside
the United Sates), in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a new Note of like tenor, series, class or
tranche, Expected Principal Payment Date, Legal Maturity Date and stated
principal amount, bearing a number not contemporaneously Outstanding.
(b) In case any such mutilated, destroyed, lost or stolen Note
has become or is about to become due and payable, the Issuer in its
discretion may, instead of issuing a new Note, pay such Note.
(c) Upon the issuance of any new Note under this Section, the
Issuer may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
(d) Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note will constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Note will be at any time enforceable by anyone, and will be entitled
to all the benefits of this Indenture equally and proportionately with any
and all other Notes of the same series, class or tranche duly issued
hereunder.
(e) The provisions of this Section are exclusive and will
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 307. Payment of Interest; Interest Rights Preserved. (a)
Unless otherwise provided with respect to such Note pursuant to Section 301
interest payable on any Registered Note will be paid to the Person in whose
name that Note (or one or more Predecessor Notes) is registered at the close
of business on the most recent Record Date and interest payable on any Bearer
Note will be paid to the bearer of that Note (or the applicable coupon).
43
(b) Subject to clause (a), each Note delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Note
will carry the rights to interest accrued or principal accreted and unpaid,
and to accrue or accrete, which were carried by such other Note.
SECTION 308. Persons Deemed Owners. The Issuer, the Trustee, the
Beneficiaries and any agent of the Issuer, the Trustee or the Beneficiaries
may treat the Person who is proved to be the owner of such Note pursuant to
Section 104(c) as the owner of such Note for the purpose of receiving
payment of principal of and (subject to Section 307) interest on such Note
and for all other purposes whatsoever, whether or not such Note be overdue,
and neither the Issuer, the Trustee nor any agent of the Issuer, the
Trustee or the Beneficiaries will be affected by notice to the contrary.
SECTION 309. Cancellation. All Notes surrendered for payment,
redemption, transfer or exchange will, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and, if not already canceled,
will be promptly canceled by it. The Issuer may at any time deliver to the
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Issuer may have acquired in any manner whatsoever, and
all Notes so delivered will be promptly canceled by the Trustee. No Note
will be authenticated in lieu of or in exchange for any Notes canceled as
provided in this Section, except as expressly permitted by this Indenture.
The Trustee will dispose of all canceled Notes in accordance with its
customary procedures and will deliver a certificate of such disposition to
the Issuer.
SECTION 310. Computation of Interest. Unless otherwise provided
as contemplated in Section 301, (a) interest on the Notes computed at a
fixed rate will be calculated on the basis of a 360-day year of twelve
30-day months and (b) interest on Notes computed on the basis of a floating
or periodic rate will be calculated on the basis of a 360-day year for the
actual number of days elapsed.
SECTION 311. New Issuances of Notes. (a) The Issuer may issue new
series, classes or tranches of Notes, so long as the following conditions
precedent are satisfied:
(i) on or before the fourth Business Day before the date that the
new issuance is to occur, the Issuer gives the Trustee and the Rating
Agencies written notice of the issuance;
(ii) the Issuer delivers to the Trustee an Issuer Certificate to
the effect that:
(A) the Issuer reasonably believes that the new issuance
will not at the time of its occurrence or at a future date cause
an Adverse Effect on any Outstanding Notes;
(B) all instruments furnished to the Trustee conform to
the requirements of this Indenture and constitute sufficient
authority hereunder for the Trustee to authenticate and
deliver such Notes;
44
(C) the form and terms of such Notes have been
established in conformity with the provisions of this
Indenture;
(D) all laws and requirements with respect to the
execution and delivery by the Issuer of such Notes have been
complied with, the Issuer has the corporate power to issue
such Notes and such Notes have been duly authorized and
delivered by the Issuer and, assuming due authentication and
delivery by the Trustee, constitute legal, valid and binding
obligations of the Issuer enforceable in accordance with
their terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency,
moratorium or other laws and legal principles affecting
creditors' rights generally from time to time in effect and
to general equitable principles, whether applied in an
action at law or in equity) and entitled to the benefits of
this Indenture, equally and ratably with all other Notes, if
any, of such series, class or tranche Outstanding, subject
to the terms of this Indenture and each terms document; and
(E) such other matters as the Trustee may reasonably
request;
(iii) the Issuer will have delivered to the Trustee and the
Rating Agencies a Master Trust Tax Opinion and an Issuer Tax
Opinion with respect to such issuance; provided, however, that if
the Threshold Conditions are satisfied, the Issuer at its option,
will not be required to deliver such opinions;
(iv) as of the date of the new issuance and after giving
effect to the new issuance, the Weighted Average Interest Rate
with respect to all tranches of Outstanding Notes of that Group
will not be greater than [14]% per annum ; provided, however that
the Issuer may change this percentage if it has received written
confirmation from the applicable Rating Agencies that such change
will not have a Ratings Effect on any Outstanding Notes;
(v) at the time of the new issuance, the Notes of the new
issuance will be rated no lower than the following ratings
categories by at least one nationally recognized Rating Agency:
45
Note Rating
------------------------ -----------------------------------------
Class A AAA or its equivalent for long-
term Notes, or A-1+/P-1 or its
equivalent for commercial paper Notes
Class B A or its equivalent
Class C BBB or its equivalent
(vi) no Amortization Event as defined in the Pooling and
Servicing Agreement with respect to the Collateral Certificate
will have occurred and be continuing as of the date of the new
issuance;
(vii) in the case of a new issuance of a tranche of foreign
currency Notes or floating rate Notes with an interest rate based
on an index other than the London interbank offered rate, the
prime or base rate of a Bank or another major money center bank,
the federal funds rate or the Treasury xxxx rate, the Issuer will
have obtained written confirmation from the applicable Rating
Agencies that such new issuance will not have a Ratings Effect on
any Outstanding Notes;
(viii) in the case of foreign currency Notes, the Issuer
will have appointed one or more Paying Agents in the appropriate
countries;
(ix) in the case of the issuance of a tranche of Notes of a
Multiple Issuance Series, the conditions specified in Sections
312 and 313, as applicable, are satisfied; and
(x) any other conditions specified in the applicable terms
document;
provided, however, in the case of the conditions provided in clauses (iv)
and (v), such conditions need not be satisfied with respect to the issuance
of any Notes if the Issuer has obtained written confirmation from each
Rating Agency that there will be no Ratings Effect with respect to any
Outstanding Notes as a result of the issuance of those Notes.
(b) The Issuer and the Trustee will not be required to obtain the
consent of any Noteholder of any Outstanding series, class or tranche to
issue any additional Notes of any series, class or tranche.
46
SECTION 312. Specification of Required Subordinated Amount and
other Terms with Respect to each Tranche of a Multiple Issuance Series. (a)
With respect to senior classes of non-Discount Notes of a Multiple Issuance
Series, and subject to clause (b):
(i) the Class A Required Subordinated Amount of Class B Notes
will be an amount equal to [ ]% of the Initial Dollar Principal Amount
of that tranche of Class A Notes;
(ii) the Class A Required Subordinated Amount of Class C Notes
will be an amount equal to [ ]% of the Initial Dollar Principal Amount
of that tranche of Class A Notes; and
(iii) the Class B Required Subordinated Amount of Class C Notes
will be an amount equal to [ ]% of the Initial Dollar Principal Amount
of that tranche of Class B Notes.
With respect to senior classes of Discount Notes, the Required Subordinated
Amount will be stated in the applicable terms document, subject to clause
(b).
(b) The Issuer may change the Required Subordinated Amounts of a
Multiple Issuance Series at any time without the consent of any Noteholder
so long as the Issuer has (i) received written confirmation from each
Rating Agency that has rated any Outstanding Notes of that series that the
change in the Required Subordinated Amount will not result in a Ratings
Effect with respect to any Outstanding Notes in that series and (ii)
delivered to the Trustee and the Rating Agencies a Master Trust Tax Opinion
and an Issuer Tax Opinion.
SECTION 313. Required Subordinated Amount Conditions to Issuance
of a Tranche of a Senior Class of a Multiple Issuance Series. (a) Class A
Required Subordinated Amount of Class B Notes. On the issuance date of a
tranche of Class A Notes of a Multiple Issuance Series, immediately after
giving effect to such issuance, the available subordinated amount of Class
B Notes of that series must be at least equal to the Class A Required
Subordinated Amount of Class B Notes for that series. For purposes of this
Section, the available subordinated amount of Class B Notes of a series as
of any date means the sum of the following, after giving effect to any
issuances, deposits, allocations or payments to be made on that date:
(i) the aggregate Nominal Liquidation Amount of all Outstanding
tranches of Class B Notes of that series on that day;
plus
47
(ii) the aggregate amount on deposit in the Principal Funding
sub-Accounts for all Outstanding tranches of Class B Notes of that
series (other than any Receivables Sales Proceeds Deposit Amount of
tranches of Class B Notes of that series);
minus
(iii) the aggregate amount of the Class A Required Subordinated
Amount of Class B Notes for all other tranches of Class A Notes of
that series which are Outstanding on that date;
plus
(iv) the aggregate amount of all Class A Usage of Class B
Required Subordinated Amount by any Outstanding tranche of Class A
Notes of that series.
(b) Class A Required Subordinated Amount of Class C Notes. On the
issuance date of a tranche of Class A Notes of a Multiple Issuance Series,
immediately after giving effect to such issuance, the available
subordinated amount of Class C Notes of that series must be at least equal
to the Class A Required Subordinated Amount of Class C Notes for that
series. For purposes of this clause, the available subordinated amount of
Class C Notes of a series as of any date means the sum of the following,
after giving effect to any issuances, deposits, allocations or payments to
be made on that date:
(i) the aggregate Nominal Liquidation Amount of all Outstanding
tranches of Class C Notes of that series on that day;
plus
(ii) the aggregate amount on deposit in the Principal Funding
sub-Accounts for all Outstanding tranches of Class C Notes of that
series (other than any Receivables Sales Proceeds Deposit Amount of
tranches of Class C Notes of that series);
48
minus
(iii) the aggregate amount of the Class A Required Subordinated
Amount of Class C Notes for all other tranches of Class A Notes of
that series which are Outstanding on that date;
plus
(iv) the aggregate amount of all Class A Usage of Class C
Required Subordinated Amount by any Outstanding tranche of Class A
Notes of that series.
(c) Class B Required Subordinated Amount of Class C Notes. On the
issuance date of a tranche of Class B Notes of a Multiple Issuance Series,
immediately after giving effect to such issuance, the available
subordinated amount of Class C Notes of that series must be at least equal
to the Class B Required Subordinated Amount of Class C Notes for that
series. For purposes of this clause, the available subordinated amount of
Class C Notes of a series as of any date means the sum of the following,
after giving effect to any issuances, deposits, allocations or payments to
be made on that date:
(i) the aggregate Nominal Liquidation Amount of all Outstanding
tranches of Class C Notes of that series on that day;
plus
(ii) the aggregate amount on deposit in the Principal Funding
sub-Accounts for all Outstanding tranches of Class C Notes of that
series (other than any Receivables Sales Proceeds Deposit Amount of
tranches of Class C Notes of that series);
minus
(iii) the aggregate amount of the Class B Required Subordinated
Amount of Class C Notes for all other tranches of Class B Notes of
that series which are Outstanding on that date;
plus
(iv) the aggregate amount of all Class B Usage of Class C
Required Subordinated Amount by any Outstanding tranche of Class B
Notes of that series.
49
ARTICLE IV
Accounts and Investments
SECTION 401. Collections. Except as otherwise expressly provided
herein, the Trustee may demand payment or delivery of, and will receive and
collect, directly and without intervention or assistance from any fiscal
agent or other intermediary, all money and other property payable to or
receivable by the Trustee pursuant to this Indenture including, without
limitation, all funds and other property payable to the Trustee pursuant to
the Collateral (collectively, the "Collections"). The Trustee will hold all
such money and property received by it as part of the Collateral and will
apply it as provided in this Indenture.
SECTION 402. Accounts. (a) Accounts; Deposits to and
Distributions from Accounts. On or before the Effective Date, the Issuer
will open and will thereafter cause to be maintained, at an Eligible
Institution (initially Citibank, N.A.), one or more segregated deposit
accounts (collectively, the "Collection Account"). The Issuer will require
that all collections received from the Master Trust pursuant to Section
4.02 of the Series 2000 Supplement be deposited into the Collection
Account. On or before the Effective Date, the Trustee will cause to be
established and maintained at an Eligible Institution (initially Citibank,
N.A.), three segregated trust accounts denominated as follows: the
"Interest Funding Account", the "Principal Funding Account" and the "Class
C Reserve Account", and from time to time in connection with the issuance
of a series, class or tranche of Notes, the Trustee may establish one or
more segregated trust accounts denominated as "Supplemental Accounts". If,
at any time, either the Collection Account, Interest Funding Account,
Principal Funding Account or Class C Reserve Account ceases to be an
Eligible Deposit Account, the Issuer will within 10 Business Days (or such
longer period, not to exceed 30 calendar days, as to which each Rating
Agency may consent in writing) establish a new Collection Account, Interest
Funding Account, Principal Funding Account or Class C Reserve Account, as
the case may be, which is an Eligible Deposit Account, transfer any cash
and/or investments to such new Collection Account, Interest Funding
Account, Principal Funding Account or Class C Reserve Account and from the
date such new Collection Account, Interest Funding Account, Principal
Funding Account or Class C Reserve Account is established, it will be the
"Collection Account", "Interest Funding Account", "Principal Funding
Account" or "Class C Reserve Account", as the case may be. Each tranche of
Notes will have its own sub-Account within the Interest Funding Account and
the Principal Funding Account. Each tranche of Class C Notes will have its
own sub-Account within the Class C Reserve Account. Supplemental Accounts
will be created as specified in the applicable terms document. The
Collection Account, the Interest Funding Account, the Principal Funding
Account, the Class C Reserve Account and the Supplemental Accounts will
receive deposits pursuant to Article V. Any Supplemental Account will
receive deposits as set forth in a supplemental indenture amending Article
V.
(b) All payments to be made from time to time by the Trustee to
Noteholders out of funds in the Accounts pursuant to this Indenture will be
made by the Trustee to the Paying Agent not later than 12:00 noon on the
applicable Payment Date or as otherwise provided in Article V but only to
the extent of available funds in the applicable sub-Account.
50
SECTION 403. Investment of Funds in the Accounts. (a) Funds on
deposit in the Accounts will be invested and reinvested by the Trustee at
the direction of the Issuer in one or more Eligible Investments. The Issuer
may authorize the Trustee to make specific investments pursuant to written,
telegraphic or telephonic (subsequently confirmed in writing) instructions,
in such amounts as the Issuer will specify. Notwithstanding the foregoing,
funds held by the Trustee in any of the Accounts will be invested in
Eligible Investments that will mature in each case no later than the date
on which such funds in the Accounts are scheduled to be transferred or
distributed by the Trustee pursuant to this Indenture (or as much earlier
as necessary to provide for timely payment of principal or interest on the
applicable Principal Payment Date or Interest Payment Date).
(b) All funds deposited from time to time in the Accounts
pursuant to this Indenture and all investments made with such funds will be
held by the Trustee in the Accounts as part of the Collateral as herein
provided, subject to withdrawal by the Trustee for the purposes set forth
herein. The Issuer will not direct the Trustee to make any investment of
any funds or to sell any investment held in the Accounts unless the
security interest granted and perfected in such Accounts will continue to
be perfected in such investment or the proceeds of such sale, in either
case without any further action by the Issuer or the Trustee.
(c) Funds and other property in any of the Accounts will not be
commingled with any other funds or property of the Issuer. Notwithstanding
the foregoing, the Trustee may hold any funds or other property received or
held by it as part of the Accounts in collecting accounts maintained by it
in the normal course of its business and containing funds held by it for
other Persons (which may include the Issuer or an Affiliate thereof),
provided that such accounts are under the sole control of the Trustee and
the Trustee maintains adequate records indicating the ownership of all such
funds or property and the portions thereof held for credit to the
applicable Accounts.
(d) The Issuer will not direct the Trustee to make any investment
of any funds in any of the Accounts or to sell any investment held in such
Accounts except under the following terms and conditions:
(i) each such investment will be made in the name of the Trustee
(in its capacity as such) or in the name of a nominee of the Trustee
under its complete and exclusive dominion and control (or, if, as
indicated by an Opinion of Counsel delivered to the Trustee,
applicable law provides for perfection of pledges of an instrument not
evidenced by a certificate or other instrument through registration of
such pledge on books maintained by or on behalf of the issuer of such
investment, such pledge may be so registered);
(ii) the Trustee will have sole control over such investment, the
income thereon and the proceeds thereof;
51
(iii) other than the investments described in clause (i), any
certificate or other instrument evidencing such investment will be
delivered directly to the Trustee or its agent; and
(iv) the proceeds of each sale of such an investment will be
remitted by the purchaser thereof directly to the Trustee for deposit
in the Account in which such investment was held.
(e) All income or other gain from investments of funds on deposit
in the Accounts (other than the Principal Funding Account) will be treated
as Finance Charge Collections pursuant to Section 501(2). Any loss
resulting from such investments will be charged to the sub-Accounts pro
rata based on the amount on deposit in such sub-Account.
The Issuer may use weighted averaging or any other reasonable
method for allocating losses among such sub-Accounts. Subject to Section
801(c), the Trustee will not in any way be held liable by reason of any
insufficiency in such sub-Accounts resulting from any loss on any Eligible
Investment included therein except for losses attributable to the Trustee's
failure to make payments on such Eligible Investments issued by the
Trustee, in its commercial capacity, in accordance with their terms.
(f) All income or other gain from investments of funds on deposit
in the Principal Funding Account will be applied as set forth in Section
506.
(g) Funds on deposit in the Accounts will be invested and
reinvested by the Trustee to the fullest extent practicable, in such manner
as the Trustee will from time to time determine, but only in one or more
Eligible Investments, upon the occurrence of any of the following events:
(i) the Issuer will have failed to give investment directions to
the Trustee; or
(ii) an Event of Default will have occurred and is continuing but
no Notes have been declared due and payable pursuant to Section 702.
SECTION 404. Excess Funds in the Interest Funding sub-Accounts or
Principal Funding sub-Accounts. (a) With respect to any Due Period, if the
Issuer determines that the amount on deposit in any Interest Funding
sub-Account (after giving effect to all deposits and withdrawals to be made
with respect to such Due Period) is greater than the amount targeted to be
on deposit in such Interest Funding sub-Account with respect to such Due
Period (subject to Section 507(e)), such excess will be withdrawn from such
sub-Account and treated as Finance Charge Collections pursuant to Section
501(2).
(b) With respect to any Due Period, if the Issuer determines that
the amount on deposit in any Principal Funding sub-Account (after giving
effect to all deposits and withdrawals to be made with respect to that Due
Period) is greater than the Outstanding Dollar Principal Amount of a
tranche of Notes less the Nominal Liquidation Amount Deficit of that
tranche, that excess will be treated as Finance Charge Collections pursuant
to Section 501(2).
52
ARTICLE V
Allocations, Deposits and Payments
SECTION 501. Allocations of Finance Charge Collections. With
respect to each Due Period, the Trustee will allocate or cause to be
allocated (1) Finance Charge Collections received by the Issuer pursuant to
Section 4.02(a)(ii)(B) and Section 4.02(a)(iii) of the Series 2000
Supplement, and (2) amounts to be treated as Finance Charge Collections
(including pursuant to Sections 403(e), 404(a) and (b), 506(d), 507(f),
511(f), 519(c), 523(j) and 527(c)) in the following priority:
(a) first, to pay accrued and unpaid fees and expenses of, and
other amounts due to, the Trustee pursuant to Section 807;
(b) second, to make the targeted deposits to the Interest Funding
Account pursuant to Section 503;
(c) third, to make the targeted deposit to the Class C Reserve
Account, if any, pursuant to Section 518(a);
(d) fourth, to increase the Invested Amount of the Collateral
Certificate or reimburse any Receivables Sales Proceeds Deposit
Deficit pursuant to Section 527; and
(e) fifth, to the Issuer.
SECTION 502. Allocations of Principal Collections. With respect
to each Due Period, the Trustee will allocate or cause to be allocated (i)
Principal Collections received from the Collateral Certificate with respect
to that Due Period, and (ii) amounts to be treated as Principal Collections
(including pursuant to Section 511(d)) in the following priority:
(a) first, with respect to each Due Period,
(i) first, if after giving effect to deposits to be made
with respect to such Due Period pursuant to Section 5.01(b), any
tranche of Class A Notes or Class B Notes of a series has not
received the full amount targeted to be deposited pursuant to
Section 503 with respect to that Due Period, then from (A) such
Principal Collections and amounts to be treated as Principal
Collections, to the extent the reallocation thereof under this
clause (a) will result in the reduction of the Nominal
Liquidation Amount of tranches of Class C Notes of that series,
together with (B) Receivables Sales Proceeds Deposit Amounts on
deposit in the Principal Funding sub-Account of
53
tranches of Class C Notes of that as of the last day of that Due
Period, the following amounts will be allocated in the following
priority:
(1) first, in an amount equal to the lesser of the
amount of such funds and the amount of the deficiency in the
targeted amount to be deposited into the Interest Funding
sub-Account of each tranche of Class A Notes of that series,
to be allocated to the Interest Funding sub-Accounts of
Class A Notes of that series pro rata based on the amount of
such deficiencies; and
(2) second, in an amount equal to the lesser of the
amount of such funds (after giving effect to clause (1)) and
the amount of the deficiency in the targeted amount to be
deposited into the Interest Funding sub-Account of each
tranche of Class B Notes of that series, to be allocated to
the Interest Funding sub-Accounts of Class B Notes of that
series pro rata based on the amount of such deficiencies;
provided, however, that such reallocations will be subject to the
limits of Sections 512, 513 and 514.
(ii) second, with respect to each Due Period, if after
giving effect to deposits to be made with respect to such Due
Period pursuant to Section 5.01(b) and clause (a)(i), any tranche
of Class A Notes of a series has not received the full amount
targeted to be deposited pursuant to Section 503, then from (A)
such Principal Collections and amounts to be treated as Principal
Collections, to the extent the reallocation thereof under this
clause (a) will result in the reduction of the Nominal
Liquidation Amount of tranches of Class B Notes of that series,
together with (B) Receivables Sales Proceeds Deposit Amounts on
deposit in the Principal Funding sub-Account of tranches of Class
B Notes of that series as of the last day of that Due Period, an
amount equal to the lesser of the amount of such funds and the
amount of the deficiency in the targeted amount to the Interest
Funding sub-Account of each tranche of Class A Notes of that
series, will be reallocated to the Interest Funding sub-Accounts
of Class A Notes of that Series pro rata based on the amount of
such deficiencies; provided, however, that such reallocations
will be subject to the limits of Sections 512, 513 and 514.
(b) second, together with amounts available pursuant to Sections
523(e), to make the targeted deposits to the Principal Funding Account
pursuant to Section 508; and
54
(c) third, together with any remaining amounts available pursuant
to Sections 523(e), to the Master Trust, to be reinvested in the
Collateral Certificate pursuant to Section 520(c).
SECTION 503. Targeted Deposits of Finance Charge Collections to
the Interest Funding Account. The aggregate amount of Finance Charge
Collections targeted to be deposited into the Interest Funding Account
pursuant to Section 501(b) with respect to each Due Period (other than any
tranche of RSP Notes) is equal to the sum of the following amounts. A
single tranche of Notes may be entitled to more than one of the following
targeted deposits with respect to any Due Period. The targeted deposit with
respect to any Due Period will also include any shortfall in the targeted
deposit with respect to any prior Due Period.
(a) Specified Deposits. If the terms document for a tranche of
Notes (other than any tranche of RSP Notes) specifies a deposit to be
made to the Interest Funding sub- Account for that tranche, the
deposit targeted for that tranche of Notes with respect to that Due
Period is the specified amount. Subject to Section 522, these deposits
will be made on the dates specified in the applicable terms document.
(b) Interest Payments not Covered by a Derivative Agreement. (i)
If a tranche of Outstanding Interest-bearing Notes (other than any
tranche of RSP Notes) provides for payments of interest that are not
covered by a Derivative Agreement, the deposit targeted for that
tranche of Notes with respect to each Due Period will be equal to the
amount of interest accrued on the Adjusted Outstanding Dollar
Principal Amount of that tranche of Notes during the period from the
Monthly Interest Date in that Due Period (or the date of issuance of
that tranche for the determination with respect to the first Monthly
Interest Date) to the first Monthly Interest Date after the end of
that Due Period. (ii) If a tranche of Interest-bearing Notes (other
than any tranche of RSP Notes) has a Derivative Agreement that by its
terms only covers a portion of the interest on such tranche of Notes
(such as an interest rate cap or similar agreement), the deposit
targeted under this clause will be the uncapped portion of the
interest accrued on the Adjusted Outstanding Dollar Principal Amount
of that tranche of Notes during that period. Subject to Section 522,
these deposits referred to in this clause (b) will be made on each
Monthly Interest Date for the applicable tranche.
(c) Notes with Performing Derivative Agreements. (i) If a tranche
of Outstanding Dollar Notes or foreign currency Notes (other than any
tranche of RSP Notes) that has a Performing Derivative Agreement for
interest provides for monthly payments to the applicable Derivative
Counterparty, the deposit targeted for that tranche of Notes with
respect to each Due Period is equal to the amount required to be paid
to the applicable Derivative Counterparty on the next payment date
under that Derivative Agreement following the end of that Due Period ,
multiplied by the Adjustment Ratio for that tranche as of the last day
of such Due Period. Subject to Section 522, these deposits will be
made on the payment date specified in the
55
applicable Derivative Agreement. (ii) If a tranche of Dollar Notes or
foreign currency Notes (other than any tranche of RSP Notes) which has
a Performing Derivative Agreement for interest provides for payments
less frequently than monthly to the applicable Derivative
Counterparty, the deposit targeted for that tranche of Notes with
respect to each Due Period is equal to the amount required to be paid
to the Derivative Counterparty on the payment date under that
Derivative Agreement next following the end of that Due Period, and
allocable to the period from one such Interest Deposit Date (or in the
case of the first Interest Deposit Date, from the date of issuance of
that tranche of Notes) to the next Interest Deposit Date, taking into
account the applicable interest rate and day count convention under
that Derivative Agreement, multiplied by the Adjustment Ratio for that
tranche as of the last day of such Due Period. Subject to Section 522,
these deposits will be made on the payment date specified in the
applicable Derivative Agreement in the month in which payment is
scheduled to be made to the Derivative Counterparty, and on the
Monthly Interest Date in each other month.
(d) Dollar Notes with non-Performing Derivative Agreements. If a
tranche of Outstanding Dollar Interest-bearing Notes (other than any
tranche of RSP Notes) has a non-Performing Derivative Agreement for
interest, the deposit targeted for that tranche of Notes with respect
to each Due Period will be equal to the amount of interest accrued on
the Adjusted Outstanding Dollar Principal Amount of that tranche of
Notes with respect to that Due Period from the Monthly Interest Date
in that Due Period (or the date of issuance of that tranche for the
determination with respect to the first Monthly Interest Date) to the
first Monthly Interest Date after the end of that Due Period to the
extent that such interest would have been covered by that
non-Performing Derivative Agreement. Subject to Section 522, these
deposits will be made on each Monthly Interest Date for the applicable
tranche.
(e) Foreign Currency Notes with non-Performing Derivative
Agreements. If a tranche of Outstanding foreign currency Notes (other
than any tranche of RSP Notes) has a non-Performing Derivative
Agreement for interest, then the calculation of the deposit targeted
is made with reference to the amount of Dollars that would have been
payable to the applicable Derivative Counterparty under the Derivative
Agreement with respect to that Due Period if that Derivative Agreement
were Performing, multiplied by the Adjustment Ratio for that tranche
as of the last day of such Due Period. Subject to Section 522, these
deposits will be made on each Monthly Interest Date for the applicable
tranche.
(f) Discount Notes. In the case of a tranche of Outstanding
Discount Notes (other than any tranche of RSP Notes), the deposit
targeted for that tranche of Notes with respect to any Due Period is
equal to the amount of accretion of principal of that tranche of Notes
from the Monthly Principal Date in that Due Period (or in the case
56
of the first Monthly Principal Date, from the date of issuance of that
tranche) to the first Monthly Principal Date after the end of that Due
Period, multiplied by the Adjustment Ratio for that tranche as of the
last day of such Due Period. Subject to Section 522, these deposits
will be made on each Monthly Principal Date for the applicable
tranche.
(g) Interest on Overdue Interest. Unless otherwise specified in
the applicable terms document, the deposit targeted for any tranche of
Outstanding Notes for any month that has accrued and overdue interest
will be the interest accrued on that overdue interest from and
including the Interest Payment Date in that month to but excluding the
Interest Payment Date next following that month at the rate of
interest applicable to the principal of that tranche during that
period.
SECTION 504. Payments Received from Derivative Counterparties for
Interest; Other Deposits to the Interest Funding Account. The following
deposits and payments will be made to the Interest Funding Account on the
following dates:
(a) Payments Received From Derivative Counterparties for
Interest. Payments received under Derivative Agreements for interest
in Dollars will be deposited into the applicable Interest Funding
sub-Account on the date of receipt. Payments received under Derivative
Agreements for interest in foreign currencies will be made directly to
the applicable Paying Agent for payment to the Holders of the
applicable tranche of Notes, or as otherwise specified in the
applicable Derivative Agreement.
(b) Principal Funding Account Earnings. Amounts received pursuant
to Section 506(c) for any tranche of Notes will be deposited into the
applicable Interest Funding sub- Account on each Monthly Interest
Date, or in months with an Interest Payment Date, on the preceding
Business Day.
(c) Class C Reserve Account. Withdrawals made from any Class C
Reserve sub- Account pursuant to Section 519(a) will be deposited into
the applicable Interest Funding sub-Account on the date specified in
Section 519(a).
(d) Receivables Sales Proceeds. Receivables Sales Proceeds
received by the Issuer pursuant to Section 523(i)(ii) for any tranche
of RSP Notes will be deposited into the applicable Interest Funding
sub-Account on the date of receipt by the Issuer.
SECTION 505. Allocation of Deposits to Interest Funding
sub-Accounts. The aggregate amount of the deposits to be made to the
Interest Funding Account pursuant to Section 503 for each Due Period will
be allocated, and a portion deposited into the Interest Funding sub-
Account for each tranche of Notes (other than any tranche of RSP Notes), as
follows:
(a) Available Amounts Equal to Targeted Amounts. If the amount of
funds available for a Due Period pursuant to Section 501(b) is at
least equal to the aggregate
57
amount of the deposits and payments targeted by Section 503, then the
full amount of each such deposit and payment will be made.
(b) Available Amounts are Less than Targeted Amounts. (i) If the
amount of funds available for a Due Period pursuant to Section 501(b)
is less than the aggregate amount of the deposits and payments
targeted by Section 503, then the amount available will be allocated
to each tranche of Notes pro rata based on the ratio of the Nominal
Liquidation Amount of all Notes of that tranche to the aggregate
Nominal Liquidation Amount of all tranches.
(ii) For all series identified as belonging to "Group 1", the
amounts allocated to the tranches of Notes of those series (other than
any tranche of RSP Notes) pursuant to clause (b) (i) will be
reaggregated into a single pool, and reallocated to each targeted
deposit pro rata based on the amount of the targeted deposits to the
applicable Interest Funding sub- Account pursuant to Section 503.
(iii) For all series identified as belonging to another group,
the reallocation of amounts allocated pursuant to clause (b)(i) will
be based on a rule for that group set forth in the applicable terms
document.
(c) Other Funds not Reallocated. Funds deposited into any
Interest Funding sub- Account pursuant to Sections 502(a), 504, 506
and 523(i)(ii) and funds on deposit from prior Due Periods will not be
reallocated to any other Interest Funding sub-Account.
SECTION 506. Deposit of Principal Funding sub-Account Earnings in
Interest Funding sub-Accounts; Principal Funding sub-Account Earnings
Shortfall. (a) As of the end of each Due Period, the Issuer will calculate
(i) the Principal Funding sub-Account Earnings Target for each
tranche of Notes (other than any tranche of RSP Notes),
(ii) the Principal Funding sub-Account Earnings for each tranche
of Notes (other than any tranche of RSP Notes), and
(iii) the Principal Funding sub-Account Earnings Shortfall (if
any) for the Principal Funding sub-Account for each tranche of Notes
(other than any tranche of RSP Notes)
for the period from the Interest Deposit Date in that Due Period (or with
respect to the first Interest Deposit Date with respect to that tranche,
the date of issuance of that tranche) to the first Interest Deposit Date
after the end of that Due Period (for purposes of this Section, a "monthly
period").
58
(b) If there is any Principal Funding sub-Account Earnings
Shortfall for any Principal Funding sub-Account for that monthly period, or
any unpaid Principal Funding sub-Account Earnings Shortfall for any
Principal Funding sub-Account from any earlier monthly period, in each case
for any tranche of Notes other than a tranche of RSP Notes, the Issuer will
notify the Master Trust pursuant to Section 5.03 of the Series 2000
Supplement of that amount.
(c) On each Interest Deposit Date, the Trustee will deposit or
cause to be deposited into each applicable Interest Funding sub-Account the
following amounts:
(i) the Principal Funding sub-Account Earnings for the related
Principal Funding sub-Account for that monthly period, and
(ii) with respect to any tranche of Notes other than a tranche of
RSP Notes, the amount received by the Issuer pursuant to Section 5.03
of the Series 2000 Supplement with respect to that Principal Funding
sub-Account, if any.
(d) If the amount of Principal Funding sub-Account Earnings for
any tranche of Notes (other than any tranche of RSP Notes) for any Due
Period is greater than the Principal Funding sub-Account Earnings Target
for that Due Period, the amount of the excess will be treated as Finance
Charge Collections pursuant to Section 501(2) or as otherwise provided in
the applicable terms document.
SECTION 507. Withdrawals from Interest Funding Account.
Withdrawals made pursuant to this Section with respect to any tranche of
Notes will be made from the Interest Funding sub-Account established for
that tranche only after all allocations and reallocations have been made
pursuant to Sections 503, 504, 505 and 506, but in no event more than the
amount on deposit in the applicable Interest Funding sub-Account. A single
tranche of Notes may be entitled to more than one of the following
withdrawals in any month.
(a) Withdrawals for Dollar Notes with no Derivative Agreement for
Interest. On each applicable Interest Payment Date (or as much earlier
as specified in the applicable terms document) with respect to each
tranche of Dollar Notes with no Derivative Agreement for interest, an
amount equal to the interest due on the applicable tranche of Notes on
the applicable Interest Payment Date (including any overdue interest
with respect to prior Interest Payment Dates) will be withdrawn from
that Interest Funding sub- Account and remitted to the applicable
Paying Agent or as otherwise provided in the applicable terms
document.
(b) Withdrawals for Discount Notes. On each applicable Monthly
Principal Date, with respect to each tranche of Discount Notes, an
amount equal to the amount of the accretion of principal of that
tranche of Notes from the prior Monthly Principal Date (or in the case
of the first Monthly Principal Date the date of issuance of that
tranche) to the applicable Monthly Principal Date (plus any accretions
of principal
59
from prior Due Periods for which no withdrawal was made) will be
withdrawn from that Interest Funding sub- Account and invested in the
Collateral Certificate pursuant to Section 520(a).
(c) Withdrawals for Notes with Performing Derivative Agreements
for Interest. On each date on which a payment is required under the
applicable Derivative Agreement (or as much earlier as specified in
the applicable terms document) with respect to any tranche of Notes
which has a Performing Derivative Agreement for interest, an amount
equal to the amount of the payment to be made under the applicable
Derivative Agreement (including any overdue payment) will be withdrawn
from that Interest Funding sub- Account and paid to the applicable
Derivative Counterparty or as otherwise provided in the applicable
Derivative Agreement.
(d) Withdrawals for Notes with non-Performing Derivative
Agreements for Interest in Dollars. On each Interest Payment Date (or
as much earlier as specified in the applicable terms document) with
respect to a tranche of Dollar Notes that has a non- Performing
Derivative Agreement for interest, an amount equal to the amount of
interest payable on that Interest Payment Date (including any overdue
interest with respect to prior Interest Payment Dates) will be
withdrawn from that Interest Funding sub-Account and remitted to the
applicable Paying Agent or as otherwise provided in the applicable
Derivative Agreement.
(e) Withdrawals for Notes with non-Performing Derivative
Agreements for Foreign Currency Interest. On each Interest Payment
Date with respect to a tranche of foreign currency Notes that has a
non-Performing Derivative Agreement for interest (or as much earlier
as specified in the applicable terms document), an amount equal to the
lesser of (i) the amount of Dollars necessary to be converted at the
applicable Spot Exchange Rate to pay the foreign currency interest due
(including any overdue interest with respect to prior Interest Payment
Dates) on that tranche of Notes on the applicable Interest Payment
Date and (ii) the amount that would have been payable to the
applicable Derivative Counterparty with respect to that Interest
Payment Date if the applicable Derivative Agreement had been
Performing (including any overdue payments) will be withdrawn from
that sub-Account and converted to the applicable foreign currency at
the Spot Exchange Rate and remitted to the applicable Paying Agent.
Any excess Dollar amount will be retained on deposit in the applicable
Interest Funding sub-Account (subject to clause (f)) to be applied to
make interest payments on later Interest Payment Dates.
(f) Treatment as Finance Charge Collections. After payment in
full of any tranche of Notes, any amount remaining on deposit in the
applicable Interest Funding sub-Account will be treated as Finance
Charge Collections pursuant to Section 501(2).
60
If the aggregate amount available for withdrawal from an Interest
Funding sub-Account for any tranche of Notes is less than all withdrawals
required to be made from that Interest Funding sub-Account for that tranche
in a month, then the amounts on deposit will be withdrawn and, if payable
to more than one Person, applied pro rata based on the amounts of the
withdrawals required to be made.
SECTION 508. Targeted Deposits of Principal Collections to the
Principal Funding Account. The amount of the deposit targeted for any
tranche of Notes (other than any tranche of RSP Notes) with respect to any
Due Period to be deposited into the Principal Funding sub- Account for that
tranche will be the sum of (i) the amount determined pursuant to clause
(a), (b), (c) or (d) with respect to such tranche for such Due Period, as
applicable, or if more than one such clause is applicable, the highest
amount determined pursuant to any one of such clauses, and (ii) any deposit
targeted pursuant to clause (i) with respect to such tranche for any prior
Due Period but for which the full targeted deposit was not made, but in no
case more than the Nominal Liquidation Amount of such tranche (computed
immediately before giving effect to such deposit).
(a) Expected Principal Payment Date. With respect to the Due
Period immediately preceding the Expected Principal Payment Date of a
tranche of Notes, and each Due Period thereafter, the deposit targeted
for that tranche of Notes is equal to the Nominal Liquidation Amount
of that tranche of Notes as of such Expected Principal Payment Date or
the following Monthly Principal Date, as the case may be. Subject to
Section 522, these deposits will be made on the applicable Expected
Principal Payment Date and each following Monthly Principal Date.
(b) Budgeted Deposits. (i) Subject to Section 508(d), with
respect to each Due Period, beginning with the twelfth Due Period
before the Expected Principal Payment Date of a tranche of Class A
Notes but excluding the final Due Period before the Expected Principal
Payment Date of that tranche of Class A Notes, the deposit targeted to
be made into the Principal Funding sub-Account for that tranche will
be the Controlled Amortization Amount for that tranche specified in
the applicable terms document, or if no amount is specified equal to
one-eleventh, in the case of a Single Issuance Series, or one-
twelfth, in the case of a Multiple Issuance Series, of the expected
Outstanding Dollar Principal Amount of that tranche of Notes as of its
Expected Principal Payment Date. Subject to clause (ii) and Section
522, these deposits will be made on the Monthly Principal Date next
following the end of that Due Period.
(ii) Notwithstanding anything to the contrary in clause (i),
but subject to Section 522, the Issuer may postpone the date of
the targeted deposits under clause (i) under the following
circumstances:
(A) Immediately before the twelfth full Due Period
before the Expected Principal Payment Date for every Class A
Note, the Issuer will calculate the minimum monthly
principal expected to be paid to all
61
Investor Certificates (including the Collateral Certificate)
issued by the Master Trust.
(B) This calculation will be made by multiplying the
lowest of the monthly principal payment rates for Principal
Receivables during the twelve months preceding the date of
calculation by the sum of (1) the aggregate Series Adjusted
Invested Amount (as defined in each applicable supplement to
the Pooling and Servicing Agreement) of each series of
Investor Certificates (other than the Collateral Certificate
or any series that by its terms is an "excluded series" as
specified in the applicable supplement to the Pooling and
Servicing Agreement) and (2) the Series 2000 Adjusted
Invested Amount (as defined in the Series 2000 Supplement)
of the Collateral Certificate less the Nominal Liquidation
Amount of any Notes to the extent that such Notes constitute
an Excluded Series pursuant to Section 1112.
(C) Using the minimum monthly principal amount expected
to be paid on Principal Receivables, the Issuer will next
compare that amount to the Invested Amounts of all Investor
Certificates (including the Collateral Certificate, but
excluding any Certificates representing Excluded Master
Trust Series or series that are partially Excluded Master
Trust Series, to the extent of that exclusion) with their
expected maturity dates and the Outstanding Dollar Principal
Amounts of all tranches of Notes with Expected Principal
Payment Dates in the eleven or twelve, as applicable, Due
Periods preceding the Expected Principal Payment Date of the
tranche of Class A Notes for which the calculation is being
performed. If the comparison reveals that the date of the
targeted deposits can be postponed for that tranche of Class
A Notes (with a corresponding increase in the amount of each
deposit targeted) and the Issuer expects to receive
Principal Collections adequate to repay that tranche of
Class A Note in full on its Expected Principal Payment Date,
then the Issuer may designate a later Due Period (and
correspondingly increased Controlled Amortization Amount)
with respect to which deposits to the Principal Funding sub-
Account for that tranche of Class A Notes will begin. The
comparison made will assume that the dates required for
collection of Principal Collections are postponed to the
maximum extent permitted by all Investor Certificates and
tranches of Notes.
(c) Prefunding of the Principal Funding Account of Senior
Classes. If the Issuer determines as of the end of any Due Period with
respect to any Class A Notes or Class B Notes of a series that, after
giving effect to all allocations and payments with respect to that Due
Period, the Prefunding Targeted Amount of that class is greater than
zero, the targeted deposit to the Principal Funding sub-Accounts for
the affected classes of that series will be the Prefunding Targeted
Amount for that Series. Subject to Section 522, these deposits will be
made on the
62
Monthly Principal Date applicable to the Class A Notes or the Class B
Notes, as the case may be, next following the end of that Due Period.
(d) Event of Default, Early Redemption Event, Other Optional or
Mandatory Redemption. If any tranche of Notes has been accelerated
during a Due Period after the occurrence of an Event of Default, or if
an Early Redemption Event with respect to any tranche of Notes occurs
during such Due Period, or with respect to the Due Period immediately
preceding any other date fixed for any other mandatory or optional
redemption of any tranche of Notes, the deposit targeted for that
tranche of Notes with respect to that Due Period and each following
Due Period is equal to Nominal Liquidation Amount of that tranche of
Notes as of the Monthly Principal Date occurring immediately after
that Due Period. Subject to Section 522, these deposits will be made
on the Monthly Principal Date next following the end of that Due
Period.
SECTION 509. Payments Received from Derivative Counterparties for
Principal; Other Deposits to Principal Funding Accounts. The following
additional amounts will be deposited into the Principal Funding Account on
the following dates:
(a) Payments Received from Derivative Counterparties. Payments
received under Derivative Agreements for principal in Dollars for any
tranche of Notes will be deposited into the applicable Principal
Funding sub-Account on the date of receipt. Payments received under
Derivative Agreements for principal in foreign currencies for any
tranche of Notes will be made directly to the applicable Paying Agent
for payment to the Holders of the applicable tranche of Notes, or as
otherwise specified in the applicable Derivative Agreement.
(b) Class C Reserve Account. Withdrawals made from any Class C
Reserve sub- Account pursuant to Section 519(b) will be deposited into
the applicable Principal Funding sub-Account on the date specified in
Section 519(b).
(c) Receivables Sale Proceeds. Receivables Sales Proceeds
received pursuant to Section 523(i)(i) for any tranche of RSP Notes
will be deposited into the applicable Principal Funding sub-Account on
the date of receipt by the Issuer.
(d) Reimbursements of Receivable Sales Proceeds Deposit Deficits.
Any amounts relating to reimbursements of Receivables Sales Proceeds
Deposit Deficits with respect to any tranche of RSP Notes pursuant to
Section 527 hereof and pursuant to Section 4.03 (b) or (c) of the
Series 2000 Supplement will be deposited into the applicable Principal
Funding sub-Account on each Monthly Principal Date, or in months with
a Principal Payment Date, on the preceding Business Day.
SECTION 510. Reallocations among Principal Funding sub-Accounts.
The aggregate amount of the deposits to be made to the Principal Funding
Account for each tranche
63
of Notes (other than any tranche of RSP Notes) pursuant to Section 508 for
each Due Period will be allocated, and a portion deposited in the Principal
Funding sub-Account for each tranche of Notes, as follows:
(a) Principal Collections Equal to Targeted Amount. If the
aggregate deposit of Principal Collections to the Principal Funding
Account is equal to the sum of the deposits of Principal Collections
targeted by each tranche of Notes, then that required amount is
deposited in the Principal Funding sub-Account established for each
tranche.
(b) Principal Collections Are Less Than Targeted Amounts. (i)
Subject to clause (d), if the amount of Principal Collections on
deposit in any Principal Funding sub- Account for a tranche of Class A
Notes of a series is less than the sum of the deposits of Principal
Collections targeted with respect to that tranche (other than amounts
targeted for deposit with respect to an optional redemption of that
tranche, to the extent specified in the applicable terms document)
pursuant to Section 508, then amounts on deposit in Principal Funding
sub-Accounts of Class B Notes and Class C Notes of that series will be
reallocated to the Class A Principal Funding sub-Account for that
tranche of Class A Notes, to be reallocated first from the Class C
Principal Funding sub-Accounts in that series and second from Class B
Principal Funding sub-Accounts in that series. If more than one
tranche of Class A Notes requires a reallocation of amounts on deposit
in the Principal Funding sub-Accounts of the Class B Notes and the
Class C Notes of that series, then the reallocated amounts will be
deposited in the Principal Funding sub-Account for each such tranche
of Class A Notes of that series pro rata based on the ratio of (A) the
Nominal Liquidation Amount of such tranche of Class A Notes, to (B)
the aggregate Nominal Liquidation Amounts of all tranches of Class A
Notes of that series that require such reallocations, in each case
calculated immediately before giving effect to such reallocations (but
not more than the amount of the deposit targeted for such tranche,
with any excess to be reallocated among the other tranches of Class A
Notes of that series that require reallocations pro rata based on the
Nominal Liquidation Amount of those tranches).
(ii) After giving effect to clause (b)(i), and subject to clause
(d), if the amount on deposit in any applicable Principal Funding
sub-Account for a tranche of Class B Notes of a series is less than
the sum of the deposits targeted pursuant to Section 508 with respect
to that tranche (other than amounts targeted for deposit with respect
to an optional redemption of that tranche, to the extent specified in
the applicable terms document), then amounts on deposit in Principal
Funding sub-Accounts of Class C Notes of that series will be
reallocated to the Principal Funding sub-Account for that tranche of
Class B Notes. If more than one tranche of Class B Notes requires a
reallocation of amounts on deposit in the Principal Funding
sub-Account for the Class C Notes of that series, then the reallocated
amounts will be deposited in the Principal Funding sub-Account for
each such tranche of Class B Notes of that series pro rata based on
the ratio of (A) the Nominal Liquidation of such tranche of Class B
Notes, to (B) the aggregate Nominal Liquidation Amounts of all
tranches of Class
64
B Notes of that series that require such reallocations, in each case
as calculated immediately before giving effect to such reallocation
(but not more than the amount of the deposit targeted for such
tranche, with any excess to be reallocated among the other tranches of
Class B Notes of that series that require reallocations pro rata based
on the Nominal Liquidation Amount of those tranches).
(c) Limitations on Reallocations of Principal Collections. (i) If
the Nominal Liquidation Amount of any tranche of Notes of a
subordinated class of a series has been reduced pursuant to clauses
(b)(v) and (b)(vi) of the definition of Nominal Liquidation Amount and
then reimbursed in whole or in part pursuant to clause (b)(iv) of the
definition of Nominal Liquidation Amount, the maximum amount that may
be reallocated from the Principal Funding sub-Account for that tranche
to the Principal Funding sub-Accounts of any senior class of that
series that was Outstanding before the date of such reduction in the
Nominal Liquidation Amount is equal to the Outstanding Dollar
Principal Amount of such tranche of Notes of the subordinated class,
less the cumulative amount of such reductions since the dates that
senior class was issued.
(ii) If amounts on deposit in the Principal Funding sub-Account
for more than one tranche of Notes of a subordinated class of a series
is required to be reallocated pursuant to clauses (b)(i) or (b)(ii),
amounts will be withdrawn from the Principal Funding sub- Account for
each such tranche of subordinated Notes pro rata based on the ratio of
the Nominal Liquidation Amount of that tranche of Notes to the
aggregate Nominal Liquidation Amount of all Notes of that class of
that series; provided, however, that if any Nominal Liquidation Amount
Deficit of that tranche has been reimbursed in whole or in part
pursuant to clause (b)(iv) of the definition of Nominal Liquidation
Amount, for purposes of calculating that ratio for allocating
withdrawals of funds deposited into the Principal Funding sub-Account
for senior classes of Notes of that series that were Outstanding
before the date of such reduction in the Nominal Liquidation Amount,
the Nominal Liquidation Amount as used in that ratio will be
calculated without giving effect to such reimbursements.
(d) Reallocation of Other Funds. (i) Funds deposited into any
Principal Funding sub-Account pursuant to Sections 509(a) and (b) will
not be reallocated to any other Principal Funding sub-Account pursuant
to this Section. (ii) Receivables Sales Proceeds Deposit Amounts may
be reallocated from the Principal Funding sub-Account for a tranche of
a subordinated class of Notes of a series to the Principal Funding
sub-Account for a tranche of a senior class of Notes of that series
only pursuant to, and to the extent permitted by, Section 523.
SECTION 511. Withdrawals from Principal Funding Account.
Withdrawals made pursuant to this Section with respect to any tranche of
Notes will be made from the Principal Funding sub-Accounts established for
that tranche only after all allocations and reallocations have been made
pursuant to Sections 508, 509 and 510, and reallocated on
65
the same basis until those funds are fully applied. In no event will the
amount of the withdrawal be more than the amount on deposit in the
applicable Principal Funding sub- Account. A single tranche may be entitled
to more than one of the following withdrawals with respect to any Due
Period.
(a) Withdrawals for Dollar Notes with no Derivative Agreement for
Principal. On each applicable Principal Payment Date (or as much
earlier as specified in the applicable terms document) with respect to
each tranche of Dollar Notes which has no Derivative Agreement for
principal, an amount equal to the principal due on the applicable
tranche of Notes on the applicable Principal Payment Date will be
withdrawn from that Principal Funding sub-Account and remitted to the
applicable Paying Agent or as otherwise provided by the applicable
terms document.
(b) Withdrawals for Notes with Performing Derivative Agreements
for Principal. On each date on which a payment is to be made under the
applicable Derivative Agreement (or as much earlier as specified in
the applicable terms document) with respect to any tranche of Notes
which has a Performing Derivative Agreement for principal, an amount
equal to the amount of the payment to be made under the applicable
Derivative Agreement will be withdrawn from that Principal Funding
sub-Account and paid to the applicable Derivative Counterparty or as
otherwise provided by the applicable terms document. The Issuer will
direct the applicable Derivative Counterparty to remit its payments
under the applicable Derivative Agreement to the applicable Paying
Agent or as otherwise provided by the applicable terms document.
(c) Withdrawals for tranches of Foreign Currency Notes with
non-Performing Derivative Agreements for Principal. On each Principal
Payment Date with respect to a tranche of foreign currency Notes that
has a non-Performing Derivative Agreement for principal (or as much
earlier as specified in the applicable terms document), an amount
equal to the amount of Dollars necessary to be converted at the
applicable Spot Exchange Rate to pay the foreign currency principal
due on that tranche of Notes on the applicable Principal Payment Date
will be withdrawn from that sub-Account and converted to the
applicable foreign currency at the Spot Exchange Rate and remitted to
the applicable Paying Agent.
(d) Withdrawal of Prefunding Excess Amount. If the Issuer on any
date determines as of the end of any Due Period with respect to any
class of Class A Notes or Class B Notes of a series that, without
giving effect to all allocations and payments with respect to that Due
Period, the Prefunding Excess Amount of that class is greater than
zero, that amount will be withdrawn from the Principal Funding
sub-Account of that class of Notes and treated as Principal
Collections pursuant to Section 502. Such withdrawals will be
allocated among the Principal Funding sub-Account of the tranches of
Notes of that class so that, after giving effect thereto, no such
Principal Funding sub-Account will have an amount on deposit less than
the amount then targeted to be on deposit in such Principal Funding
sub-Account.
66
(e) Withdrawal of Receivables Sales Proceeds Deposit Amounts.
Receivables Sales Proceeds Deposit Amounts reallocated pursuant to
Section 502(a) (subject to Section 514) will be withdrawn from the
applicable Principal Funding sub-Account on the applicable Monthly
Interest Date. Receivables Sales Proceeds Deposit Amounts payable to
the Master Trust pursuant to Section 526(e)(ii) will be withdrawn from
the applicable Principal Funding sub-Account as soon as practicable
after determination of the amount to be withdrawn and paid to the
Master Trust as provided in Section 526.
(f) Treatment as Finance Charge Collections. Upon payment in full
of any tranche of Notes, any remaining amount on deposit in the
applicable Principal Funding sub-Account will be treated as Finance
Charge Collections pursuant to Section 501(2).
SECTION 512. Limit on Reallocations of Principal Collections and
Receivables Sales Proceeds Deposit Amounts Taken to Benefit Senior Classes
of Single Issuance Series. With respect to Single Issuance Series for any
Due Period, the aggregate amount of Principal Collections and Receivables
Sales Proceeds Deposit Amounts reallocated pursuant to Section 502(a) to
make payments or deposits pursuant to Section 501(a) or (b) will be subject
to the following limitations:
(a) With respect to Class A Notes of a Single Issuance Series,
the aggregate amount of:
(i) all reallocations of Principal Collections that were
deposited into the Interest Funding sub-Account of Class A Notes
or Class B Notes of that series pursuant to Section 502(a), to
the extent such reallocation resulted in the reduction of the
Nominal Liquidation Amount of Class C Notes of that series;
(ii) all reallocations of Receivables Sales Proceeds Deposit
Amounts that were deposited into the Interest Funding sub-Account
of Class A Notes or Class B Notes of that series pursuant to
Section 502(a), to the extent such reallocations resulted in the
reduction of the Receivables Sales Proceeds Deposit Amount of
Class C Notes of that series;
(iii) all reductions to the Nominal Liquidation Amount of
the Class C Notes of that series from allocations of Investor
Charge-Offs pursuant to Section 526; and
67
(iv) all reductions to the Receivables Sales Proceeds
Deposit Amount of the Class C Notes of that series from
allocations of Investor Charge-Offs pursuant to Section 526;
may not exceed the Outstanding Dollar Principal Amount of Class C
Notes for that series.
(b) With respect to Class A Notes of a Single Issuance Series,
the aggregate amount of:
(i) all reallocations of Principal Collections that were
deposited into the Interest Funding sub-Account of Class A Notes
of that series pursuant to Section 502(a), to the extent such
reallocation resulted in the reduction of the Nominal Liquidation
Amount of Class B Notes of that series;
(ii) all reallocations of Receivables Sales Proceeds Deposit
Amounts that were deposited into the Interest Funding sub-Account
of Class A Notes of that series pursuant to Section 502(a), to
the extent such reallocations resulted in the reduction of the
Receivables Sales Proceeds Deposit Amount of Class B Notes of
that series;
(iii) all reductions to the Nominal Liquidation Amount of
the Class B Notes of that series from allocations of Investor
Charge-Offs pursuant to Section 526; and
(iv) all reductions to the Receivables Sales Proceeds
Deposit Amount of the Class B Notes of that series from
allocations of Investor Charge-Offs pursuant to Section 526;
may not exceed the Outstanding Dollar Principal Amount of Class B
Notes for that series.
(c) With respect to Class B Notes of a Single Issuance Series,
the aggregate amount of:
(i) all reallocations of Principal Collections that were
deposited into the Interest Funding sub-Account of Class A Notes
or Class B Notes of that series pursuant to Section 502(a), to
the extent such reallocation resulted in the reduction of the
Nominal Liquidation Amount of Class C Notes of that series;
(ii) all reallocations of Receivables Sales Proceeds Deposit
Amounts that were deposited into the Interest Funding sub-Account
of Class A Notes or Class B Notes of that series pursuant to
Section 502(a), to the extent such
68
reallocations resulted in the reduction of the Receivables Sales
Proceeds Deposit Amount of Class C Notes of that series;
(iii) all reductions to the Nominal Liquidation Amount of
the Class C Notes of that series from allocations of Investor
Charge-Offs pursuant to Section 526; and
(iv) all reductions to the Receivables Sales Proceeds
Deposit Amounts of the Class C Notes of that series from
allocations of Investor Charge-Offs pursuant to Section 526;
may not exceed the Outstanding Dollar Principal Amount of Class C
Notes for that series.
SECTION 513. Limit on Reallocations of Principal Collections and
Receivables Sales Proceeds Deposit Amounts Taken to Benefit Senior Classes
of Multiple Issuance Series. With respect to Multiple Issuance Series for
any Due Period, the aggregate amount of the Principal Collections and
Receivables Sales Proceeds Deposit Amounts reallocated pursuant to Section
502(a) to make payments or deposits pursuant to Section 501(a) and (b) will
be subject to the following limitations:
(a) Limit on Reallocations to a tranche of Class A Notes from
Class C Notes. Principal Collections, the reallocation of which
results in the reduction of the Nominal Liquidation Amount of the
Class C Notes of a series pursuant to Section 514, and the Receivables
Sales Proceeds Deposit Amount of any tranche of Class C Notes of that
series, may be reallocated pursuant to Section 502(a) to make deposits
into the Interest Funding sub-Account for a tranche of Class A Notes
of that series only to the extent, after giving effect to those
deposits, that the sum of the following amounts (such sum being the
"Class A Usage of Class C Required Subordinated Amount") is not
greater than the Class A Required Subordinated Amount of Class C Notes
for that tranche of Class A Notes:
(i) the cumulative sum of all Investor Charge-Offs initially
allocated to that tranche of Class A Notes pursuant to Section
526(a), and then reallocated to Class C Notes of that series
pursuant to Section 526(c);
(ii) the cumulative sum of all amounts determined
pursuant to the following formula, computed on each date
while that tranche of Class A Notes is Outstanding and there
is an allocation of Investor Charge-Offs to any tranche of
Class B Notes of that series pursuant to Section 526(a):
69
Class A Required Subordinated
Amount of Class B Notes for amount of Investor Charge-Offs initially
that tranche of Class A Notes allocated to Class B Notes of that series
--------------------------------- x pursuant to Section 526(a), and then
aggregate Outstanding Dollar reallocated to Class C Notes of that series
Principal Amount of all Class B pursuant to Section 526(c) on that date
Notes of that series
(but not more than the amount of such reallocated Investor
Charge-Offs).
(iii) the cumulative sum of all Principal Collections
and all Receivables Sales Proceeds Deposit Amounts
reallocated to the Interest Funding sub-Account for that
tranche of Class A Notes pursuant to Section 502(a) and
deposited with respect to prior Due Periods and that Due
Period that resulted in a reduction of the Nominal
Liquidation Amount or Receivables Sales Proceeds Deposit
Amount of a tranche of Class C Notes of that series; and
(iv) the cumulative sum of all amounts determined
pursuant to the following formula, computed on each date
while that tranche of Class A Notes is Outstanding, and (A)
Principal Collections are reallocated to the Interest
Funding sub-Account for any tranche of Class B Notes of that
series pursuant to Section 502(a), and that reallocation
reduces the Nominal Liquidation Amount of any tranche of
Class C Notes of that series, or (B) any Receivables Sales
Proceeds Deposit Amount that is reallocated from the
Principal Funding sub-Account for any tranche of Class C
Notes of that series to the Interest Funding sub-Account for
any tranche of Class B Notes of that series pursuant to
Section 502(a):
(a) amount of Principal Collections
reallocated to the Interest Funding
sub-Account for any tranche of Class B Notes
Class A Required Subordinated of that series pursuant to Section 502(a) that
Amount of Class B Notes for reduces the Nominal Liquidation Amount of any
that tranche of Class A Notes tranche of Class C Notes of that series, and
----------------------------- x (b) amount of Receivables Sales Proceeds
aggregate Outstanding Dollar Deposit Amount reallocated from the
Principal Amount of all Class B Principal Funding sub-Account for any tranche
Notes of that series of Class C Notes of that series to the Interest
Funding sub-Account for any tranche of Class
B Notes of that series pursuant to Section
502(a)
(but not more than the amount of such reallocated Investor
Charge-Offs).
70
(b) Limit on Reallocations to a tranche of Class A Notes from
Class B Notes. Principal Collections, the reallocation of which
results in the reduction of the Nominal Liquidation Amount of the
Class B Notes of a series pursuant to Section 514, and the Receivables
Sales Proceeds Deposit Amount of any tranche of Class B Notes of that
series, may be reallocated pursuant to Section 502(a) to make deposits
into the Interest Funding sub-Account for a tranche of Class A Notes
of that series only to the extent, after giving effect to those
deposits, that the sum of the following amounts (such sum being the
"Class A Usage of Class B Required Subordinated Amount") is not
greater than the Class A Required Subordinated Amount of Class B Notes
for that tranche of Class A Notes:
(i) the cumulative sum of all Investor Charge-Offs initially
allocated to that tranche of Class A Notes pursuant to Section
526(a), and then reallocated to Class B Notes of that series
pursuant to Section 526(d); and
(ii) the cumulative sum of all Principal Collections and all
Receivables Sales Proceeds Deposit Amounts reallocated to the
Interest Funding sub-Account for that tranche of Class A Notes
pursuant to Section 502(a) and deposited with respect to prior
Due Periods and that Due Period that resulted in a reduction of
the Nominal Liquidation Amount or Receivables Sales Proceeds
Deposit Amount of a tranche of Class B Notes of that series.
(c) Limit on Reallocations to a tranche of Class B Notes from
Class C Notes. Principal Collections, the reallocation of which
results in the reduction of the Nominal Liquidation Amount of the
Class C Notes of a series pursuant to Section 514, and the Receivables
Sales Proceeds Deposit Amount of any tranche of Class C Notes of that
series, may be reallocated pursuant to Section 502(a) to make deposits
into the Interest Funding sub-Account for a tranche of Class B Notes
of that series only to the extent, after giving effect to those
deposits, that the sum of the following amounts (such sum being the
"Class B Usage of Class C Required Subordinated Amount") is not
greater than the Class B Required Subordinated Amount of Class C Notes
for that tranche of Class B Notes pursuant to Section 502(c):
(i) the cumulative sum of all amounts determined pursuant to
the following formula, computed on each date while that tranche
of Class B Notes is Outstanding and there is an allocation of
Investor Charge-Offs to any tranche of Class A Notes of that
series pursuant to Section 526(a):
the Class B Required
Subordinated Amount of
Class C Notes for that amount of Investor Charge Offs initially
tranche of Class B Notes allocated to Class A Notes of that series
-------------------------- x pursuant to Section 526(a), and then
aggregate Outstanding Dollar reallocated to Class C Notes of that series
Principal Amount of all Class C pursuant to Section 526(c) on that date
Notes of that series
71
(but not more than the amount of such reallocated Investor
Charge-Offs).
(ii) the cumulative sum of all Investor Charge-Offs
initially allocated to that tranche of Class B Notes pursuant to
Section 526(a), and then reallocated to Class C Notes of that
series pursuant to Section 526(b);
(iii) the cumulative sum of all Principal Collections and
all Receivables Sales Proceeds Deposit Amounts reallocated to the
Interest Funding sub-Account for that tranche of Class B Notes
pursuant to Section 502(a) and deposited with respect to prior
Due Periods and that Due Period that resulted in a reduction of
the Nominal Liquidation Amount or Receivables Sales Proceeds
Deposit Amount of a tranche of Class C Notes of that series; and
(iv) the cumulative sum of all amounts determined pursuant
to the following formula, computed on each date while that
tranche of Class B Notes is Outstanding, and (A) Principal
Collections are reallocated to the Interest Funding sub-Account
for any tranche of Class A Notes of that series pursuant to
Section 502(a), and that reallocation reduces the Nominal
Liquidation Amount of any tranche of Class C Notes of that
series, or (B) any Receivables Sales Proceeds Deposit Amount that
is reallocated from the Principal Funding sub-Account for any
tranche of Class C Notes of that series to the Interest Funding
sub-Account for any tranche of Class A Notes of that series
pursuant to Section 502(a):
(a) amount of Principal Collections
reallocated to the Interest Funding
the Outstanding Dollar sub-Account for any tranche of Class A Notes
Principal Amount of that of that series pursuant to Section 502(a) that
tranche of Class B Notes reduces the Nominal Liquidation Amount of
---------------------------- x any tranche of Class C Notes of that series, and
the aggregate Outstanding Dollar (b) amount of Receivables Sales Proceeds
Principal Amount of all Class B Deposit Amount reallocated from the
Notes of that series Principal Funding sub-Account for any
tranche of Class C Notes of that series to the
Interest Funding sub-Account for any tranche
of Class A Notes of that series
72
SECTION 514. Computation of Amount of Reallocations of Principal
Collections and Receivables Sales Proceeds Deposit Amounts Taken from
Subordinated Classes; Allocations of Reductions to the Nominal Liquidation
Amount of Subordinated Classes from Reallocations of Principal Collections
and Receivables Sales Proceeds Deposit Amounts. The aggregate amount of
Principal Collections and Receivables Sales Proceeds Deposit Amounts that
may be reallocated pursuant to Section 502(a) with respect to any Due
Period with respect to any series of Notes will be equal to the lesser of
(1) the largest amount that will not result in a violation of Section 512
or 513, as the case may be, and (2) the largest amount that may be
reallocated to result in the reduction of the Nominal Liquidation Amount or
Receivables Sales Proceeds Deposit Amount of the subordinated classes of
Notes of that series that will not result in a violation of this Section.
(a) Each reallocation of Principal Collections and Receivables
Sales Proceeds Deposit Amounts deposited to the Interest Funding
sub-Account of a senior class of a series pursuant to Section 502(a)
will reduce the Nominal Liquidation Amount or Receivables Sales
Proceeds Deposit Amount of each tranche of Class C Notes of that
series pro rata based on the ratio of (1) the Nominal Liquidation
Amount and Receivables Sales Proceeds Deposit Amount of such tranche
of Class C Notes of that series to (2) the aggregate Nominal
Liquidation Amount or Receivables Sales Proceeds Deposit Amount of all
tranches of Class C Notes of that series; provided, however, that
(i) amounts reallocated to the Interest Funding sub-Account
for Class A Notes and Class B Notes of a series will be treated
pro rata under this clause (a) based on he amounts reallocated;
(ii) in the case of any tranche of Class A Notes or Class B
Notes that was Outstanding before the date of any reimbursement
of a reduction of the Nominal Liquidation Amount or Receivables
Sales Proceeds Deposit Amount of any tranche of Class C Notes of
that series pursuant to Section 527, for purposes of applying
amounts of reallocations of Principal Collections or Receivables
Sales Proceeds Deposit Amounts deposited into the Interest
Funding sub-Account of that tranche of Class A Notes or Class B
Notes, the ratio set forth in clauses (a)(1) and (a)(2) of this
clause will be determined without regard to that reimbursement;
(iii) any allocation of any such reduction that would
otherwise have reduced the Nominal Liquidation Amount or
Receivables Sales Proceeds Deposit Amount of a tranche of Class C
Notes below zero will be reallocated to the remaining tranches of
Class C Notes as set forth in this clause (a), but in no event
will the Nominal Liquidation Amount or Receivables Sales Proceeds
Deposit Amount of any tranche of Class C Notes be reduced below
zero; and
73
(iv) any portion of any reallocation of Principal
Collections or Receivables Sales Proceeds Deposit Amounts
deposited pursuant to Section 502(a) that cannot be allocated to
the Nominal Liquidation Amount or Receivables Sales Proceeds
Deposit Amount of Class C Notes pursuant to this clause (a) will
be allocated to the Nominal Liquidation Amount or Receivables
Sales Proceeds Deposit Amount of Class B Notes of that series
pursuant to clause (b) of this Section to the extent permitted by
clause (b);
(b) Each reallocation of Principal Collections and Receivables
Sales Proceeds Deposit Amounts deposited to the Interest Funding
sub-Accounts of the Class A Notes of a series pursuant to Section
502(a) which does not result in the reduction of the Nominal
Liquidation Amount or Receivables Sales Proceeds Deposit Amount of
Class C Notes of that series will reduce the Nominal Liquidation
Amount or Receivables Sales Proceeds Deposit Amount of each tranche of
Class B Notes of that series pro rata based on the ratio of (1) the
Nominal Liquidation Amount or Receivables Sales Proceeds Deposit
Amount of such tranche of Class B Notes of that series to (2) the
aggregate Nominal Liquidation Amount or Receivables Sales Proceeds
Deposit Amount of all tranches of Class B Notes of that series;
provided, however, that
(i) in the case of any tranche of Class A Notes that was
Outstanding before the date of any reimbursement of any reduction
of the Nominal Liquidation Amount or Receivables Sales Proceeds
Deposit Amount of any tranche of Class B Notes of that series
pursuant to Section 527, for purposes of applying amounts of
reallocations of Principal Collections or Receivables Sales
Proceeds Deposit Amounts deposited into the Interest Funding
sub-Account of that tranche of Class A Notes, the ratio set forth
in clauses (a)(1) and (a)(2) of this clause will be determined
without regard to that reimbursement;
(ii) any allocation of any such reduction that would
otherwise have reduced the Nominal Liquidation Amount or
Receivables Sale Proceeds Deposit Amount of a tranche of Class B
Notes below zero will be reallocated to the remaining tranches of
Class B Notes as set forth in this clause (b), but in no event
will the Nominal Liquidation Amount or Receivables Sale Proceeds
Deposit Amount of any tranche of Class B Notes be reduced below
zero.
SECTION 515. Limit on Repayments of Subordinated Classes of
Single Issuance Series. (a) Subject to clause (b), with respect to Single
Issuance Series,
(i) no funds on deposit in a Principal Funding sub-Account will
be applied to pay principal on any Class B Note or to make a payment
under a Derivative
74
Agreement with respect to principal of any Class B Note (and no Class
B Note will be canceled pursuant to Section 603) unless, immediately
before giving effect to that payment (or cancellation), no Class A
Notes of that series are Outstanding, and
(ii) no funds on deposit in a Principal Funding sub-Account will
be applied to pay principal on any Class C Note or to make a payment
under a Derivative Agreement with respect to principal of any Class C
Note (and no Class C Note will be canceled pursuant to Section 603)
unless, immediately before giving effect to that payment (or
cancellation), no Class A Notes or Class B Notes of that series are
Outstanding.
(b) Notwithstanding anything in this Indenture to the contrary,
funds on deposit in the Principal Funding sub-Account of any tranche of
Notes of a subordinated class of a Single Issuance Series may be applied to
pay principal on that tranche or to make a payment under a Derivative
Agreement with respect to principal of that tranche:
(i) on any Principal Payment Date, if and to the extent that such
funds have been deposited into the applicable Principal Funding
sub-Account pursuant to Section 509(a) or (b);
(ii) on any Principal Payment Date, if the Prefunding Target
Amount for each senior class of Notes of that series is zero;
(iii) on any Principal Payment Date, if and to the extent that
such payment is made from funds deposited into such Principal Funding
sub-Account not consisting of Principal Collections or Receivables
Sales Proceeds, including funds deposited pursuant to Section 509(a)
or (b);
(iv) on the Legal Maturity Date of such tranche, if after giving
effect to any deposits, allocations, reallocations and sales of
Receivables to be made on that date, any amount is on deposit in such
Principal Funding sub-Account; or
(v) to the extent such funds relate to reimbursements of
reductions of the Nominal Liquidation Amount or Receivable Sales
Proceeds Deposit Amount of the applicable tranche of subordinated
Notes pursuant to Section 527.
SECTION 516. Limit on Repayments of Subordinated Classes of
Multiple Issuance Series. (a) With respect to Multiple Issuance Series:
(i) Subject to clause (b), no funds on deposit in a Principal
Funding sub-Account will be applied to pay principal on any Class B
75
Note or to make a payment under a Derivative Agreement with respect to
principal of any Class B Note, and no Class B Note will be canceled
pursuant to Section 603, unless, following that payment or
cancellation, the available subordinated amount of Class B Notes is at
least equal to the Required Subordinated Amount of Class B Notes for
the Outstanding Class A Notes. For this purpose, the available
subordinated amount of Class B Notes is equal to the sum of the
following, after giving effect to any issuances, deposits, allocations
or payments to be made on that date:
(A) the aggregate amount of all Nominal Liquidation Amounts
of all Class B Notes of that series which are Outstanding after
giving effect to the repayment or cancellation of those Class B
Notes (and all other Class B Notes which are to be repaid or
canceled with respect to that Due Period),
plus
(B) the aggregate amount on deposit in the Principal Funding
sub-Account for all Outstanding tranches of Class B Notes of that
series (other than any Receivables Sales Proceeds Deposit Amounts
of tranches of Class B Notes of that series);
plus
(C) the aggregate amount of all Class A Usage of Class B
Required Subordinated Amount by any Outstanding tranche of Class
A Notes of that series.
(ii) Subject to clause (b), no funds on deposit in a Principal
Funding sub-Account will be applied to pay principal on any Class C
Note or to make a payment under a Derivative Agreement with respect to
principal of any Class C Note, and no Class C Note will be canceled
pursuant to Section 603, unless, following that payment or
cancellation, the available subordinated amount of Class C Notes is at
least equal to the Required Subordinated Amount of Class C Notes for
the Outstanding Class A Notes. For this purpose, the available
subordinated amount of Class C Notes is equal to the sum of the
following, after giving effect to any issuances, deposits, allocations
or payments to be made on that date:
(A) the aggregate amount of all Nominal Liquidation Amounts
of all Class C Notes of that series which are Outstanding after
giving effect to the repayment or cancellation of those Class C
Notes (and all other Class C Notes which are to be repaid or
canceled with respect to that Due Period),
plus
76
(B) the aggregate amount on deposit in the Principal Funding
sub-Account for all Outstanding tranches of Class C Notes of that
series (other than any Receivables Sales Proceeds Deposit Amount
of tranches Class C Notes of that series);
plus
(C) the aggregate amount of all Class A Usage of Class C
Required Subordinated Amount by any Outstanding tranche of Class
A Notes of that series.
(iii) Subject to clause (b), no funds on deposit in a Principal
Funding sub-Account will be applied to pay principal on any Class C
Note or to make a payment under a Derivative Agreement with respect to
principal of any Class C Note, and no Class C Note will be canceled
pursuant to Section 603, unless, following that payment or
cancellation, the available subordinated amount of Class C Notes is at
least equal to the Required Subordinated Amount of Class C Notes for
the Outstanding Class B Notes. For this purpose, the available
subordinated amount of Class C Notes is equal to the sum of the
following, after giving effect to any issuances, deposits, allocations
or payments to be made on that date:
(A) the aggregate amount of all Nominal Liquidation Amounts
of all Class C Notes of that series which are Outstanding after
giving effect to the repayment or cancellation of those Class C
Notes (and all other Class C Notes which are to be repaid or
canceled with respect to that Due Period),
plus
(B) the aggregate on deposit in the Principal Funding
sub-Account for all Outstanding tranches of Class C Notes of that
series (other than any Receivables Sales Proceeds Deposit Amount
of Class C Notes of that series);
plus
77
(C) the aggregate amount of all Class B Usage of Class C
Required Subordinated Amount by any Outstanding tranche of Class
B Notes of that series.
(b) Notwithstanding anything in this Indenture to the contrary,
amounts on deposit in the Principal Funding sub-Account of any tranche of
Notes of a subordinated class of a Multiple Issuance Series may be applied
to pay principal of that tranche or to make a payment under a Derivative
Agreement with respect to principal of that tranche:
(i) on any Monthly Principal Date, if and to the extent that such
payment is not contrary to clause (a);
(ii) on any Monthly Principal Date, if the Prefunding Target
Amount for each senior class of Notes of that series is zero;
(iii) on any Monthly Principal Date, if and to the extent that
such payment is made from funds deposited into such Principal Funding
sub-Account not consisting of Principal Collections or Receivables
Sales Proceeds Deposit Amounts, including funds deposited pursuant to
Section 509(a) or (b);
(iv) on the Legal Maturity Date of such tranche, if after giving
effect to any deposits, allocations, reallocations, sales of
Receivables or other payments to be made on that date, any amount is
on deposit in such Principal Funding sub-Account.
SECTION 517. Limit on Repayments of all Tranches. No Principal
Collections on deposit in a Principal Funding sub-Account for any tranche
of Notes will be applied to pay principal of that tranche or to make a
payment under a Derivative Agreement with respect to principal of that
tranche in excess of the highest Outstanding Dollar Principal Amount of
that tranche minus any unreimbursed reductions in the Nominal Liquidation
Amount of that tranche, plus, in the case of tranches of Class C Notes, the
cumulative amount deposited into the applicable Class C Reserve
sub-Account. No Receivables Sales Proceeds Deposit Amount (or reimbursement
of Receivables Sales Proceeds Deposit Deficits) on deposit in a Principal
Funding sub-Account of any tranche of Notes will be applied to pay
principal on that tranche or to make a payment with respect to principal of
that tranche that would result in a payment in excess of the highest
Outstanding Dollar Principal Amount of that tranche.
SECTION 518. Targeted Deposits to the Class C Reserve Account.
(a) The aggregate deposit targeted to be made to the Class C Reserve
Account with respect to each Due Period is an amount equal to the sum of
Class C Reserve Account deposits targeted to be made for each tranche of
Class C Notes. The amount of any such deposit and the circumstances that
require that a deposit to be made will be set forth in the terms document
for that tranche of Class C
78
Notes. Unless another time is specified for making that deposit in the
terms document for a tranche of Class C Notes, these deposits will be made
on each applicable Monthly Interest Date.
(b) If the amount of funds available for a Due Period pursuant to
Section 501(c) is at least equal to the aggregate amount of the deposits
targeted by clause (a), then the full amount of each such deposit will be
made.
(c) (i) If the amount of funds available for a Due Period
pursuant to Section 501(c) is less than the aggregate amount of deposits
targeted by clause (a), then the amount available will be allocated to each
tranche of Class C Notes pro rata based on the ratio of the Nominal
Liquidation Amount of that tranche to the Nominal Liquidation Amount of all
tranches of Class C Notes. (ii) Any amount in excess of the amount targeted
to be deposited to the Principal Funding sub- Account for any tranche of
Notes will be reallocated to tranches of Class C Notes that did not receive
their targeted deposit pursuant to clause (i) pro rata the same basis until
all available funds are applied.
SECTION 519. Withdrawals from the Class C Reserve Account.
Withdrawals made pursuant to this Section with respect to any tranche of
Class C Notes will be made from the Class C Reserve sub-Account established
for that tranche of Class C Notes only after all allocations and
reallocations have been made pursuant to Sections 501, 502, 503, 505, 508
and 510, but in no event more than the amount on deposit in the applicable
Class C Reserve sub-Account.
(a) Interest; Payments with Respect to Derivative Agreements for
Interest, Accretion on Discount Notes. If the amount on deposit in the
Interest Funding sub- Account for any tranche of Class C Notes is
insufficient to pay in full the amounts for which withdrawals are
required under Section 507(a), (b), (c), (d) or (e), on each date
specified in that Section, an amount equal to that deficiency will be
withdrawn from that Class C Reserve sub-Account and deposited into
that Interest Funding sub-Account.
(b) Payments of Principal; Payments with Respect to Derivative
Agreements for Principal. If the amount on deposit in the Principal
Funding sub-Account for any tranche of Class C Notes is insufficient
to pay in full the amounts for which withdrawals are required under
Section 511, an amount equal to the lesser of (i) that deficiency, and
(ii) the amount by which the Nominal Liquidation Amount of that
tranche of Class C Notes is less than the Adjusted Outstanding Dollar
Principal Amount of that tranche of Class C Notes will be withdrawn
from that Class C Reserve sub-Account and deposited into that
Principal Funding sub-Account on the Business Day before the date of
the applicable withdrawal required pursuant to Section 511.
(c) Amounts Treated as Finance Charge Collections. Upon payment
in full of any tranche of Class C Notes, any amount on deposit in the
applicable Class C Reserve
79
sub- Account will be treated as Finance Charge Collections pursuant to
Section 501(2).
SECTION 520. Reinvestment in the Collateral Certificate. (a) The
amount of principal accreted on any tranche of Discount Notes available
pursuant to Section 503(f) will be paid to the Master Trust to increase the
Invested Amount of the Collateral Certificate pursuant to Section 4.03(e)
of the Series 2000 Supplement.
(b) Any Finance Charge Collections available pursuant to Section
501(d) which are allocated pursuant to Section 527(f)(i) to any tranche of
Notes will be paid to the Master Trust to increase the Invested Amount of
the Collateral Certificate pursuant to Section 4.03(d) of the Series 2000
Supplement.
(c) Any amount of Principal Collections available pursuant to
Section 502(c) will be paid to the Master Trust to increase the Invested
Amount of the Collateral Certificate pursuant to Section 403(f) of the
Series 2000 Supplement.
SECTION 521. Final Payment. Each tranche of Notes will be
considered to be paid in full, the Holders of such tranche of Notes will
have no further right or claim, and the Issuer will have no further
obligation or liability with respect to such tranche of Notes, on the
earliest to occur of
(a) the date of the payment in full of the stated principal
amount of and all accrued interest on that tranche of Notes;
(b) the date on which the Outstanding Dollar Principal Amount of
such Notes is reduced to zero, and all accrued interested on such
Notes is paid in full; or
(c) on the Legal Maturity Date of such Notes, after giving effect
to all deposits, allocations, reallocations, sales of Receivables and
payments to be made on such date.
SECTION 522. Timing of Deposits. So long as the Master Trust is
permitted to make payments to the Issuer under Sections 4.02(a), (b) or (c)
of the Series 2000 Supplement on the applicable Interest Deposit Date or
Principal Deposit Date (rather than as provided in Section 4.03(d) of the
Series 2000 Supplement), the amounts received by the Issuer pursuant to
Sections 4.02(a), (b) and (c) of the Series 2000 Supplement will be
allocated to and deposited into each applicable sub-Account for each
tranche of Notes:
(a) in months that do not have an Interest Payment Date or
Principal Payment Date, as the case may be, for the applicable
tranche, on such Interest Payment Date or Principal Payment Date;
80
(b) in months that have an Interest Payment Date or Principal
Payment Date, as the case may be, for the applicable tranche, one
Business Day before such Interest Payment Date or Principal Payment
Date; or
(c) in any case, as provided in the applicable terms document or
as much earlier as necessary to make timely payments to the applicable
Noteholders or Derivative Counterparties.
Otherwise, the funds received by the Issuer pursuant to Section 4.02 of the
Series 2000 Supplement will be allocated to and deposited into each applicable
sub-Account on the last day of the applicable Due Period, or as soon after
receipt of the applicable funds as practicable.
SECTION 523. Sale of Receivables. (a)(i) If a tranche of Notes
has been accelerated pursuant to Section 702 following an Event of Default,
the Trustee may, and at the direction of the Majority Holders of that
tranche of Notes will, cause the Master Trust to sell Principal Receivables
and the related Finance Charge Receivables (or interests therein) as set
forth in this Section.
(ii) Such a sale will be permitted only if at least one of the
following conditions is met:
(A) the Holders of 90% of the aggregate Outstanding Dollar
Principal Amount of the accelerated tranche of Notes consent; or
(B) the net proceeds of such sale would be sufficient to pay
all Outstanding amounts due on the accelerated tranche of Notes;
or
(C) the Trustee determines that the Finance Charge
Collections and Principal Collections allocable to the
accelerated tranche of Notes, payments to be received from any
applicable Derivative Agreement and amounts on deposit in the
applicable sub- Account will likely not be sufficient to make
payments on the accelerated tranche of Notes when due and 66-2/3%
of the Holders of the accelerated tranche of Notes consent to the
sale.
(iii) In the case of an acceleration of a tranche of Notes of a
subordinated class, if (A) Receivables Sales Proceeds would be less
than the Nominal Liquidation Amount of the accelerated tranche of
Notes, and (B) the provisions of Section 515 or Section 516 would
prevent the payment of the accelerated tranche of subordinated Notes,
such sale will be delayed until a level of prefunding of the Principal
Funding sub-Accounts for the senior classes of Notes of that series
has been reached such that the amount of such deficiency in
Receivables Sales Proceeds is no longer required to provide
subordination protection for the senior classes of that series.
(b) If the Nominal Liquidation Amount with respect to any tranche
of Notes is greater than zero on its Legal Maturity Date (after giving
effect to deposits and
81
distributions otherwise to be made on that Legal Maturity Date), the Issuer
will cause the Master Trust to sell on that Legal Maturity Date Principal
Receivables and the related Finance Charge Receivables (or interests
therein).
(c) The amount of Principal Receivables and the related Finance
Charge Receivables (or interests therein) to be sold pursuant to this
Section will be in an amount of up to 110% of the Nominal Liquidation
Amount of the affected tranche, but in no case will that amount of
Principal Receivables and Finance Charge Receivables exceed the following
amount:
the Nominal Liquidation Amount the Series 2000
of the affected tranche of Notes Allocation Percentage (as the amount of
------------------------------ x defined in the Series 2000 x Receivables in
the Nominal Liquidation Supplement) of the Collateral the Master Trust
Amount of all Outstanding Certificate
Notes
The interest to be sold will be
(i) in the case of any affected tranche of Notes that are Class A
Notes, that has reached its Legal Maturity Date by the date of such
sale, or is not prevented from being repaid by virtue of Section 515
or Section 516, a sale of Principal Receivables and Finance Charge
Receivables; and
(ii) in all other cases, an undivided interest in the Receivables
in with a principal amount an undivided interest in the Principal
Receivables and a proportionate interest in the Finance Charge
Receivables (an "Undivided Interest").
(d) From the date of the sale of each Undivided Interest to the
earlier of (i) the Legal Maturity Date of the related tranche of Notes, or
(ii) the first date on which the related tranche of Notes is no longer
prevented from being repaid by virtue of Section 515 or Section 516, the
Undivided Interest will be a "Revolving Undivided Interest" (with respect
to each Undivided Interest, such date being the "Conversion Date").
Thereafter, each Undivided Interest will be an "Amortizing Undivided
Interest".
(e) In the case of each Revolving Undivided Interest, with
respect to each Due Period ending on or before the applicable Conversion
Date, a pro rata amount of Collections relating to Principal Receivables
will be allocated to such Revolving Undivided Interest based on the ratio
of (i) the principal balance (as determined below) of such Revolving
Undivided Interest as of the last day of such Due Period, to (ii) the
aggregate amount of Principal Receivables in the Master Trust as of the
last day of such Due Period. Such allocation of Collections relating to
Principal Receivables for such Due Period will be treated as Principal
Collections pursuant to Sections 502(b) and (c).
(f) In the case of each Amortizing Undivided Interest, with
respect to each Due Period ending after the Conversion Date, a pro rata
amount of Collections relating to
82
Principal Receivables will be allocated to such Amortizing Undivided
Interest based on the ratio of (i) the principal balance (as determined
below) of such Undivided Interest as of the last day of the Due Period
ending on or immediately before the Conversion Date, to (ii) the aggregate
amount of Principal Receivables in the Master Trust as of the last day of
such Due Period ending after the Conversion Date. Such allocation of
Collections relating to Principal Receivables for such Due Period will be
paid to the purchaser of the Amortizing Undivided Interest in an amount
equal to the lesser of (A) the amount of such allocation, and (B) the
amount necessary to reduce the principal amount of such Amortizing
Undivided Interest to zero (after giving effect to any allocations of
Defaulted Amount to such Undivided Interest for such Due Period pursuant to
clause (h)(ii)), and any excess allocation will be treated as Principal
Collections pursuant to Sections 502(b) and (c).
(g) In the case of each Undivided Interest, with respect to each
Due Period, a pro rata amount of Collections relating to Finance Charge
Receivables will be allocated to such Undivided Interest based on the ratio
of (i) the principal balance (as determined below) of such Undivided
Interest as of the last day of such Due Period, to (ii) the aggregate
amount of Principal Receivables in the Master Trust as of the last day of
such Due Period. Such allocation of Collections relating to Finance Charge
Receivables for such Due Period will be paid to the purchaser of the
Revolving Undivided Interest.
(h) The principal balance of each Undivided Interest as of the
end of any Due Period will be equal to:
(i) the initial amount of principal receivables comprising such
Undivided Interest,
less
(ii) the cumulative amount, computed for each Due Period ended
since the sale of such Undivided Interest, of an amount equal to the
product of:
the principal balance of such Undivided Interest
as of the last day
of the immediately preceding Due Period
(or in the case of the
Due Period in which such Undivided Interest
is sold, the initial
the Defaulted Amount for principal balance of such Undivided Interest)
such Due Period x ------------------------------------------------
the aggregate amount of all Principal
Receivables in the Master
Trust as of the last day of such Due Period
less
(iii) the amount of Collections with respect to Principal
Receivables previously paid to the purchaser of such Undivided
Interest pursuant to clause (f).
(i) Sales proceeds received with respect to a tranche of RSP
Notes received pursuant to clause (c) will be allocated in the following
priority:
83
(i) first, to be deposited in the Principal Funding sub-Account
for that tranche of Notes, an amount up to the Adjusted Outstanding
Dollar Principal Amount immediately before giving effect to such
deposit; and
(ii) second, to be deposited in the Interest Funding sub-Account
of that tranche of Notes, the balance of such sales proceeds.
(j) Any amount remaining on deposit in the Interest Funding
sub-Account for a tranche of RSP Notes after final payment thereof pursuant
to Section 521, will be treated as Finance Charge Collections pursuant to
Section 501(2).
SECTION 524. Netting of Deposits and Payments. The Issuer, in its
sole discretion, may make all deposits to Interest Funding sub-Account and
Principal Funding sub-Account pursuant to Sections 503 and 508 with respect
to any Due Period net of, and after giving effect to, (a) all reallocations
to be made pursuant to Sections 502(a), (b) all payments to be made to
Derivative Counterparties pursuant to Sections 507 and 511, and (c) all
reinvestments in the Collateral Certificate to be made pursuant to Section
520(ii).
SECTION 525. Pro Rata Payments within a Tranche. All payments of
principal, interest or other amounts to Holders of the Notes of a single
tranche will be made pro rata based on the stated principal amount of their
Notes.
SECTION 526. Allocations of Reductions from Investor Charge-Offs
to the Nominal Liquidation Amount or Receivables Sales Proceeds Amount of
Subordinated Classes. On each date when there is a computation of Investor
Charge-Offs pursuant to Section 4.03(a) of the Series 2000 Supplement, that
reduction will be allocated (and reallocated) on that date to each tranche
of Notes as set forth in this Section.
(a) Initially, the amount of all such reductions in the Invested
Amount of the Collateral Certificate will be allocated to each tranche
of Outstanding Notes (other than any tranche of RSP Notes) pro rata
based on the Nominal Liquidation Amount of that tranche.
(b) Immediately afterwards, the amount of Investor Charge-Offs
allocated to the Class A Notes and Class B Notes of a series will be
reallocated to the Class C Notes of that series (including RSP Notes)
as set forth in clause (c), and the amount of Investor Charge-Offs
allocated to the Class A Notes and not reallocated to the Class C
Notes of that series will be reallocated to the Class B Notes of that
series (including RSP Notes) as set forth in clause (d), subject in
each case to the limits of clauses (c) and (d). Any amount of Investor
Charge-Offs which cannot be reallocated to a subordinated class as a
result of the limits in clauses (c) and (d) will reduce the Nominal
Liquidation Amount or Receivables Sales Proceeds Deposit Amount of the
tranche of Notes to which it was initially allocated pursuant to
clause (a).
84
(c) (i) The reallocation in clause (b) of Investor Charge-Offs
from any tranche of Class A Notes or Class B Notes of a series to the
Class C Notes of that series is subject to the following limits:
(A) After giving effect to such reallocation from that
tranche of Class A Notes and reallocations from Class B Notes of
the same series, that tranche's Class A Usage of Class C Required
Subordinated Amount will not exceed that tranche's Class A
Required Subordinated Amount of Class C Notes.
(B) After giving effect to such reallocation from that
tranche of Class B Notes and reallocations from Class A Notes of
the same series, that tranche's Class B Usage of Class C Required
Subordinated Amount will not exceed that tranche's Class B
Required Subordinated Amount of Class C Notes.
(ii) The amount permitted to be reallocated to tranches of Class
C Notes pursuant to this clause (c) will be applied to each tranche of
Class C Notes of that series pro rata based on the ratio of (A) the
Nominal Liquidation Amount or Receivables Sales Proceeds Deposit
Amount of that tranche of Class C Notes to (B) the aggregate Nominal
Liquidation Amount or Receivables Sales Proceeds Deposit Amount of all
tranches of Class C Notes of that series (in each case computed after
giving effect to the allocation to the Class C Notes pursuant to
clause (a)). In the case of any tranche of Class A Notes or Class B
Notes that was Outstanding before the date of any reimbursement of any
reduction in the Nominal Liquidation Amount or Receivables Sales
Proceeds Deposit Amount of any tranche of Class C Notes of that series
pursuant to Section 527, for purposes of applying amounts initially
allocated to that tranche of Class A Notes or Class B Notes, the ratio
set forth in clauses (ii)(A) and (ii)(B) of this clause will be
determined without regard to that reimbursement.
(iii) No such reallocation will reduce the Nominal Liquidation
Amount or Receivables Sales Proceeds Deposit Amount of any tranche of
Class C Notes below zero.
(d) (i) The reallocation in clause (b) of Investor Charge-Offs
from any tranche of Class A Notes of a series to the Class B Notes of
that series is subject to the limit that after giving effect to such
reallocation from that tranche of Class A Notes, that tranche's Class
A Usage of Class B Required Subordinated Amount will not exceed that
tranche's Class A Required Subordinated Amount of Class B Notes.
(ii) The amount permitted to be reallocated to tranches of Class
B Notes pursuant to this clause (d) will be applied to each tranche of
Class B Notes of that series pro rata based on the ratio of (A) the
Nominal Liquidation Amount or Receivables Sales Proceeds Deposit
Amount of that tranche of Class B Notes to (B)
85
the aggregate Nominal Liquidation Amount or Receivables Sales Proceeds
Deposit Amount of all tranches of Class B Notes of that series (in
each case computed after giving effect to the allocation to the Class
C Notes and Class B Notes pursuant to clause (a) and the reallocation
pursuant to the Class C Notes pursuant to clause (c)). In the case of
any tranche of Class A Notes that was Outstanding before the date of
any reimbursement of any reduction in the Nominal Liquidation Amount
or Receivables Sales Proceeds Deposit Amount of any tranche of Class B
Notes of that series pursuant to Section 527, for purposes of applying
amounts initially allocated to that tranche of Class A Notes, the
ratio set forth in clauses (ii)(A) and (ii)(B) of this clause will be
determined without regard to that reimbursement.
(iii) No such reallocation will reduce the Nominal Liquidation
Amount or Receivables Sales Proceeds Deposit Amount of any tranche of
Class B Notes below zero.
(e) (i) In the case of each tranche of Notes (other than any
tranche of RSP Notes), the Nominal Liquidation Amount of each such
tranche will be reduced by an amount equal to the Investor Charge-Offs
which are allocated or reallocated to that tranche of Notes, less the
amount of Investor Charge-Offs that are reallocated from that tranche
of Notes to Notes of a subordinated class of Notes of that series.
(ii) In the case of a tranche of RSP Notes, an amount equal to
the Investor Charge-Offs which are reallocated to that tranche of
Notes will be withdrawn from the Principal Funding sub-Account for
that tranche and paid to the Master Trust for application pursuant to
Section 4.03(a)(ii) of the Series 2000 Supplement.
SECTION 527. Allocations of Reimbursements of Reductions in the
Nominal Liquidation Amount or Receivables Sales Proceeds Deposit Deficits.
If, as of the end of any Due Period,
(1) there are Allocable Miscellaneous Payments available pursuant
to Section 4.03(b) of the Series 2000 Supplement or Investor Finance
Charge Collections available pursuant to Sections 4.02(a)(ii)(C) and
4.03(c) of Series 2000 Supplement to reimburse (A) any Invested Amount
Deficit or (B) any Receivables Sales Proceeds Deposit Deficits as of
the last day of that Due Period, or
(2) there are Finance Charge Collections available pursuant to
Section 501(d) to reimburse (A) any Nominal Liquidation Amount
Deficits or (B) any Receivables Sales Proceeds Deposit Deficits as of
the end of that Due Period remaining after giving effect to
reimbursements pursuant to clause (1), such funds will be allocated to
each tranche of Notes as follows:
(a) first, to each tranche of Class A Notes of each series
pro rata based on the ratio of the Nominal Liquidation Amount
Deficit thereof (or in the case of
86
tranches of RSP Notes, the Receivables Sales Proceeds Deposit
Deficit thereof) to the aggregate Nominal Liquidation Amount
Deficits and Receivables Sales Proceeds Deposit Deficits of all
tranches of Class A Notes of that series, but
(i) with respect to tranches of Notes that are not RSP
Notes, in no event will the Nominal Liquidation Amount of
such a tranche of Notes be increased above the Adjusted
Outstanding Dollar Principal Amount of such tranche,
(ii) with respect to tranches of RSP Notes, in no event
will the Receivables Sales Proceeds Deposit Amount of such a
tranche of Notes be increased above the amount of
Receivables Sales Proceeds of that tranche less the
aggregate amount of any withdrawals of Receivables Sales
Proceeds made pursuant to Section 511(a), (b) or (c),
and any allocation that would otherwise so increase the Nominal
Liquidation Amount or Receivables Sales Proceeds Deposit Amount
of such tranche above such amount will be reallocated to the
remaining tranches of Class A Notes of such series to the extent
possible under this clause (a) and then pursuant to clause (b),
(b) second, to each tranche of Class B Notes of each series
pro rata based on the ratio of the Nominal Liquidation Amount
Deficit thereof (or in the case of tranches of RSP Notes, the
Receivables Sales Proceeds Deposit Deficit thereof) to the
aggregate Nominal Liquidation Amount Deficit and Receivables
Sales Proceeds Deposit Deficits of all tranches of Class B Notes
of that series, but
(i) with respect to tranches of Notes that are not RSP
Notes, in no event will the Nominal Liquidation Amount of
such a tranche of Notes be increased above the Adjusted
Outstanding Dollar Principal Amount of such tranche,
(ii) with respect to tranches of RSP Notes, in no event
will the Receivables Sales Proceeds Deposit Amount of such a
tranche of Notes be increased above the initial amount of
Receivables Sales Proceeds of that tranche less the
aggregate amount of any withdrawals of Receivables Sales
Proceeds made pursuant to Section 511(a), (b) or (c),
and any allocation that would otherwise so increase the Nominal
Liquidation Amount or Receivables Sales Proceeds Deposit Amount
of such tranche above such amount will be reallocated to the
remaining tranches of Class B Notes of such series to the extent
possible under this clause (b) and then pursuant to clause (c),
and
(c) third, to each tranche of Class C Notes of each series
pro rata based on the ratio of the Nominal Liquidation Amount
Deficit thereof (or in the case of tranches of RSP Notes, the
Receivables Sales Proceeds Deposit Deficit thereof) to the
87
aggregate Nominal Liquidation Amount Deficit and Receivables
Sales Proceeds Deposit Deficits of all tranches of Class C Notes
of that series, but
(i) with respect to tranches of Notes that are not RSP
Notes, in no event will the Nominal Liquidation Amount of
such a tranche of Notes be increased above the Adjusted
Outstanding Dollar Principal Amount of such tranche,
(ii) with respect to tranches of RSP Notes, in no event
will the Receivables Sales Proceeds Deposit Amount of such a
tranche of Notes be increased above the amount of
Receivables Sales Proceeds of that tranche less the
aggregate amount of any withdrawals of Receivables Sales
Proceeds made pursuant to Section 511(a), (b) or (c),
and any allocation that would otherwise so increase the Nominal
Liquidation Amount or Receivables Sales Proceeds Deposit Amount
of such tranche above such amount will be reallocated to the
remaining tranches of Class C Notes of such series to the extent
possible under this clause (c), and any unallocated amount will
be treated as Finance Charge Collections pursuant to Section
501(2).
(d) Effect will be given to allocations in the following
priority (i) first, to allocations of Allocable Miscellaneous
Payments pursuant to Section 4.03(b) of the Series 2000
Supplement, (ii) second, to allocations of Investor Finance
Charge Collections pursuant to Sections 4.02(a)(ii)(C) and
4.03(c) of the Series 2000 Supplement, and (iii) third, to
allocations of Finance Charge Collections pursuant to Section
501(d).
(e) With respect to allocations of Allocable Miscellaneous
Payments pursuant to Section 4.03(b) of the Series 2000
Supplement and allocations of Investor Finance Charge Collections
pursuant to Sections 4.02(a)(ii)(C) and 4.03(c) of the Series
2000 Supplement,
(i) in the case of tranches of Notes that are not RSP
Notes, the aggregate amount of such funds allocated to those
tranches will be retained by the Master Trust to increase
the Invested Amount of the Collateral Certificate pursuant
to Section 4.03(B)(i) of the Series 2000 Supplement; and
(ii) in the case of tranches of RSP Notes, the
funds allocable to each such tranche will be deposited
into the Principal Funding sub-Account for that
tranche.
(f) With respect to allocations of Finance Charge
Collections pursuant to Section 501(d),
88
(i) in the case of tranches of Notes that are not RSP
Notes, the aggregate amount of such funds allocated to those
tranches will be paid to the Master Trust to increase the
Invested Amount of the Collateral Certificate pursuant to
Section 4.03(d) of the Series 2000 Supplement, and
(ii) in the case of tranches of RSP Notes, the funds
allocable to each such tranche will be deposited into the
Principal Funding sub-Account for that tranche.
SECTION 528. Order of Giving Effect to Reductions and
Reimbursements of Nominal Liquidation Amount. If on any date the Nominal
Liquidation Amount of any tranche of Notes is to be reduced or increased
pursuant to clauses (b)(iv), (b)(v) and/or (b)(vi) of the definition of
Nominal Liquidation Amount, such reductions and reimbursements will be
allocated to the Notes of that tranche in the following order:
(a) first, reductions pursuant to clause (b)(vi) (reductions from
allocations of Investor Charge-Offs pursuant to Section 526);
(b) second, reductions pursuant to clause (b)(v) (reallocations
of Principal Collections pursuant to Section 502(a)); and
(c) third, reimbursements pursuant to clause (b)(iv)
(reimbursements of earlier reductions with Finance Charge
Collections).
ARTICLE VI
Satisfaction and Discharge; Cancellation of Notes Held by the Issuer or
the Banks
SECTION 601. Satisfaction and Discharge of Indenture. This
Indenture will cease to be of further effect with respect to any series,
class or tranche of Notes (except as to any surviving rights of transfer or
exchange of Notes of that series, class or tranche expressly provided for
herein or in the form of Note for that series, class or tranche), and the
Trustee, on demand of and at the expense of the Issuer, will execute proper
instruments acknowledging satisfaction and discharge of this Indenture as
to that series, class or tranche, when:
(a) all Notes of that series, class or tranche theretofore
authenticated and delivered (other than (i) Notes of that series,
class or tranche which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306, and (ii) Notes
of that series, class or tranche for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Issuer and thereafter repaid to the Issuer or discharged from that
trust, as provided in Section 1103) have been delivered to the Trustee
canceled or for cancellation;
89
(b) the Issuer has paid or caused to be paid all other sums
payable hereunder (including payments to the Trustee pursuant to
Section 807) by the Issuer with respect to the Notes of that series,
class or tranche; and
(c) the Issuer has delivered to the Trustee an Issuer Certificate
and an Opinion of Counsel each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture with respect to the Notes of that series, class or tranche
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect
to any series, class or tranche of Notes, the obligations of the Issuer to the
Trustee with respect to that series, class or tranche under Section 807 will
survive and the obligations of the Trustee under Sections 602 and 1103 will
survive.
SECTION 602. Application of Trust Money. All money and
obligations deposited with the Trustee pursuant to Section 601 or Section
603 and all money received by the Trustee in respect of such obligations
will be held in trust and applied by it, in accordance with the provisions
of the series, class or tranche of Notes in respect of which it was
deposited and this Indenture, to the payment, either directly or through
any Paying Agent (including the Issuer acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the
principal and interest for whose payment that money and obligations have
been deposited with or received by the Trustee; but that money and
obligations need not be segregated from other funds except to the extent
required by law.
SECTION 603. Cancellation of Notes Held by the Issuer or the
Banks. If the Issuer, the Banks or any of their Affiliates holds any Notes,
that Holder may, subject to Section 515 and 516, by notice from that Holder
to the Trustee cause the Note to be canceled, whereupon (a) the Note will
no longer be Outstanding, and (b) the Issuer will cause the Invested Amount
of the Collateral Certificate to be reduced by an amount equal to the
Nominal Liquidation Amount of those canceled Notes.
ARTICLE VII
Remedies
SECTION 701. Events of Default. "Event of Default", wherever used
herein, means with respect to any series, class or tranche of Notes any one
of the following events (whatever the reason for such Event of Default and
whether it will 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), unless such
event is either inapplicable to a particular series, class or tranche or it
is specifically deleted or modified in the applicable terms document
creating such series, class or tranche of Notes or in the form of Note for
such series, class or tranche:
90
(a) a default in the payment by the Issuer of any interest upon
any Note of that series, class or tranche when it becomes due and
payable, and continuance of such default for a period of five Business
Days;
(b) a default in the payment by the Issuer of the principal
amount of any Note of that series, class or tranche at its Legal
Maturity Date;
(c) a default in the performance, or breach, of any covenant or
warranty of the Issuer in this Indenture in respect of the Notes of
such series, class or tranche (other than a covenant or warranty in
respect of the Notes of such series, class or tranche a default in the
performance of which or the breach of which is elsewhere in this
Section specifically dealt with), all of such covenants and warranties
in this Indenture which are not expressly stated to be for the benefit
of a particular series, class or tranche of Notes being deemed to be
in respect of the Notes of all series, classes or tranches for this
purpose, and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to
the Issuer by the Trustee or to the Issuer and the Trustee by the
Holders of at least 10% in Outstanding Dollar Principal Amount of the
Outstanding Notes of such series, class or tranche, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(d) the entry of an order for relief against the Issuer under the
Federal Bankruptcy Code by a court having jurisdiction in the premises
or a decree or order by a court having jurisdiction in the premises
adjudging the Issuer a bankrupt or insolvent under any other
applicable Federal or State law, or the entry of a decree or order
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Issuer
under the Federal Bankruptcy Code or any other applicable Federal or
State law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Issuer 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 unstayed and in effect for a period of 60 consecutive days;
(e) the consent by the Issuer to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under the
Federal Bankruptcy Code or any other applicable Federal or State law,
or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Issuer or of any substantial part
of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of action by
the Issuer in furtherance of any such action; or
91
(f) any other Event of Default provided in the terms document
under which such series, class or tranche of Notes is issued or in the
form of Note for such series, class or tranche.
SECTION 702. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default described in clause (a), (b), (c) or (f) (if the
Event of Default under clause (c) or (f) is with respect to less than all
series, classes or tranches of Notes then Outstanding) of Section 701
occurs and is continuing with respect to any series, class or tranche, then
in each such case, unless the principal of all the Notes of such series,
class or tranche will have already become due and payable, either the
Trustee or the Holders of not less than 50% in aggregate Outstanding Dollar
Principal Amount of the Notes of such series, class or tranche then
Outstanding hereunder (each such series, class or tranche acting as a
separate class), by notice in writing to the Issuer (and to the Trustee if
given by Holders), may declare the Outstanding Dollar Principal Amount of
all the Notes of such series, class or tranche then Outstanding and all
interest accrued or principal accreted and unpaid (if any) thereon to be
due and payable immediately, and upon any such declaration the same will
become and will be immediately due and payable, anything in this Indenture
or in the Notes of such series, class or tranche to the contrary
notwithstanding.
(b) If an Event of Default described in clause (c) or (f) (if the
Event of Default under clause (c) or (f) is with respect to all series,
classes or tranches of Notes then Outstanding) of Section 701 occurs and is
continuing, then in each such case, unless the principal of all the Notes
will have already become due and payable, either the Trustee or the Holders
of not less than 50% in aggregate Outstanding Dollar Principal Amount of
all the Notes then Outstanding hereunder (treated as one class), by notice
in writing to the Issuer (and to the Trustee if given by Holders), may
declare the Outstanding Dollar Principal Amount of all the Notes then
Outstanding and all interest accrued or principal accreted and unpaid (if
any) thereon to be due and payable immediately, and upon any such
declaration the same will become and will be immediately due and payable,
notwithstanding anything in this Indenture or in the Notes to the contrary.
(c) If an Event of Default described in clause (d) or (e) of
Section 701 occurs and is continuing, then the Notes will automatically be
and become immediately due and payable by the Issuer, without notice, or
demand to any Person and the Issuer will automatically and immediately be
obligated to pay off the Notes.
At any time after such a declaration of acceleration has been
made with respect to the Notes of any series, class or tranche and before a
judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Majority Holders of
such series, class or tranche, by written notice to the Issuer and the
Trustee, may rescind and annul such declaration and its consequences if:
(a) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay
92
(i) all overdue installments of interest on the Notes of
such series, class or tranche,
(ii) the principal of any Notes of such series, class or
tranche which have become due otherwise than by such declaration
of acceleration, and interest thereon at the rate or rates
prescribed therefor by the terms of the Notes of such series,
class or tranche, to the extent that payment of such interest is
lawful,
(iii) interest upon overdue installments of interest at the
rate or rates prescribed therefor by the terms of the Notes of
such series, class or tranche to the extent that payment of such
interest is lawful, and
(iv) all sums paid by the Trustee hereunder and the
reasonable compensation, expenses, disbursements of the Trustee,
its agents and counsel and all other amounts due the Trustee
under Section 807;
and
(b) all Events of Default with respect to such series, class or
tranche of Notes, other than the nonpayment of the principal of the
Notes of such series, class or tranche which has become due solely by
such acceleration, have been cured or waived as provided in Section
716.
No such rescission will affect any subsequent default or impair any right
consequent thereon.
SECTION 703. Collection of Indebtedness and Suits for Enforcement
by Trustee. The Issuer covenants that if:
(a) the Issuer defaults in the payment of any installment of
interest on any series, class or tranche of Notes when such interest
becomes due and payable, or
(b) the Issuer defaults in the payment of the principal of any
series, class or tranche of Notes at the Legal Maturity Date thereof,
or
(c) with respect to any series, class or tranche of Notes that
benefits from a Derivative Agreement to which the Issuer is a party,
the Issuer defaults in any of its obligations under the applicable
Derivative Agreement,
and any such default continues for any period of grace provided with respect
to such series, class or tranche of Notes, the Issuer will, upon demand of the
Trustee, pay to it, for the benefit of the Holders of any such Notes the whole
amount then due and payable on any such Notes for principal and interest
(subject to Article V), with interest, to the extent that payment of such
interest will be legally enforceable, upon the overdue principal and upon
overdue installments of interest, at such rate or rates as may be prescribed
therefor by the terms of any such Note; and, in addition thereto, such further
amount as will be sufficient to cover the costs and expenses of
93
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and all other amounts
due the Trustee under Section 807.
If the Issuer fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due
and unpaid, and may prosecute such proceeding to judgment or final decree,
and may enforce the same against the Issuer or any other obligor upon the
Notes of such series, class or tranche and collect the money adjudged or
decreed to be payable in the manner provided by law out of the Collateral
or any other obligor upon such Notes, wherever situated.
SECTION 704. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Issuer or any other obligor upon the Notes or
the property of the Issuer or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Notes will then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee will have made any demand on the Issuer
for the payment of overdue principal or interest) will be entitled and
empowered, by intervention in such proceedings or otherwise,
(i) to file and prove a claim for the whole amount of principal
and interest owing and unpaid in respect of the Notes and to file such
other papers or documents as may be necessary and advisable in order
to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee
under Section 807) and of the Noteholders allowed in such judicial
proceeding, and
(ii) to collect and receive any funds or other property payable
or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized by each
Noteholder to make such payment to the Trustee and in the event that the
Trustee will consent to the making of such payments directly to the
Noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 807.
Nothing herein contained will be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Noteholder
any plan or reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Noteholder in any such
proceeding.
SECTION 705. Trustee May Enforce Claims Without Possession of
Notes. All rights of action and claims under this Indenture or the Notes of
any series, class or tranche may be prosecuted and enforced by the Trustee
without the possession of any of the Notes of such series, class or tranche
or the production thereof in any proceeding relating thereto, and any such
94
proceeding instituted by the Trustee will be brought in its own name as
trustee of an express trust, and any recovery of judgment will, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, be for
the ratable benefit of the Holders of the Notes of the series, class or
tranche in respect of which such judgment has been recovered.
SECTION 706. Application of Money Collected. Any money or other
property collected by the Trustee with respect to a series, class or
tranche of Notes pursuant to this Article will be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or interest, upon
presentation of the Notes of such series, class or tranche and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
(a) first, to the payment of all amounts due the Trustee under
Section 807.
(b) second, to the payment of the amounts then due and unpaid
upon the Notes of that series, class or tranche for principal and
interest, in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind (but subject to the allocation provided in Article V), according
to the amounts due and payable on such Notes for principal and
interest, respectively.
SECTION 707. Trustee May Elect to Hold the Collateral
Certificate. Following an acceleration of any tranche of Notes, the Trustee
may elect to continue to hold the Collateral Certificate and apply
distributions on the Collateral Certificate in accordance with the regular
distribution provisions pursuant to Article V of this Indenture, except
that principal will be paid on the accelerated tranche of Notes to the
extent funds are received from the Master Trust and allocated to the
accelerated tranche, and payment is permitted by the subordination
provisions of the accelerated tranche.
SECTION 708. Sale of Receivables for Accelerated Notes. In the
case of a tranche of Notes that has been accelerated following an Event of
Default, the Trustee may, and at the direction of the Majority Holders of
that tranche of Notes will, cause the Master Trust to sell Principal
Receivables and the related Finance Charge Receivables (or interests
therein) as provided in Section 523.
SECTION 709. Noteholders Have the Right to Direct the Time,
Method and Place of Conducting Any Proceeding for Any Remedy Available to
the Trustee. The Majority Holders of any accelerated tranche of Notes have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee. This right may be exercised only if the direction
provided by the Noteholders does not conflict with applicable law or this
Indenture or has a substantial likelihood of involving the Trustee in
personal liability.
95
SECTION 710. Limitation on Suits. No Holder of any Note of any
series, class or tranche will have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to Notes of such
series, class or tranche;
(b) the Holders of not less than 25% in Outstanding Dollar
Principal Amount of the Outstanding Notes of such series, class or
tranche have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Majority Holders
of such series, class or tranche;
it being understood and intended that no one or more Holders of Notes of such
series, class or tranche will have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders of Notes of such series, class or
tranche, or to obtain or to seek to obtain priority or preference over any
other such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and proportionate benefit of all the
Holders of all Notes of such series, class or tranche.
SECTION 711. Unconditional Right of Noteholders to Receive
Principal and Interest; Limited Recourse. Notwithstanding any other
provisions in this Indenture, the Holder of any Note will have the right,
which is absolute and unconditional, to receive payment of the principal of
and interest on such Note on the respective Legal Maturity Dates expressed
in such Note and to institute suit for the enforcement of any such payment,
and such right will not be impaired without the consent of such Holder;
provided, however, that notwithstanding any other provision of this
Indenture to the contrary, the obligation to pay principal of or interest
on the Notes or any other amount payable to any Noteholder will be without
recourse to the Issuer, the Banks, the Trustee or any affiliate, officer,
employee or director of any of them, and the obligation of the Issuer to
pay principal of or interest on the Notes or any other amount payable to
any Noteholder will be subject to Article V.
SECTION 712. Restoration of Rights and Remedies. If the 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, then and in every such case the
96
Issuer, the Trustee and the Noteholders will, subject to any determination
in such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee
and the Noteholders will continue as though no such proceeding had been
instituted.
SECTION 713. Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy will, 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, will not prevent the
concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 714. Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of any Note to exercise any right or remedy
accruing upon any Event of Default will impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the
Trustee or to the Noteholders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Noteholders, as
the case may be.
SECTION 715. Control by Noteholders. The Majority Holders of any
series, class or tranche will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee with respect to
the Notes of such series, class or tranche, provided that:
(a) the Trustee will have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that
the action so directed may not lawfully be taken or would conflict
with this Indenture or if the Trustee in good faith will, by a Trustee
Authorized Officer, determine that the proceedings so directed would
involve it in personal liability or be unjustly prejudicial to the
Holders not taking part in such direction, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 716. Waiver of Past Defaults. The Majority Holders of any
series, class or tranche may on behalf of the Holders of all the Notes of
such series, class or tranche waive any past default hereunder with respect
to such series, class or tranche and its consequences, except a default not
theretofore cured:
(a) in the payment of the principal of or interest on any Note of
such series, class or tranche, or
97
(b) in respect of a covenant or provision hereof which under
Article X cannot be modified or amended without the consent of the
Holder of each Outstanding Note of such series, class or tranche.
Upon any such waiver, such default will cease to exist, and any
Event of Default arising therefrom will be deemed to have been cured, for
every purpose of this Indenture; but no such waiver will extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 717. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by his acceptance thereof will be deemed
to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of
this Section will not apply to any suit instituted by the Trustee, to any
suit instituted by any Noteholder or group of Noteholders, holding in the
aggregate more than 10% in Outstanding Dollar Principal Amount of the
Outstanding Notes of any series, class or tranche to which the suit
relates, or to any suit instituted by any Noteholders for the enforcement
of the payment of the principal of or interest on any Note on or after the
applicable Legal Maturity Date expressed in such Note.
SECTION 718. Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Issuer (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE VIII
The Trustee
SECTION 801. Certain Duties and Responsibilities. (a) The Trustee
undertakes to perform any duties and only such duties as are specifically
set forth in this Indenture with respect to the Notes of any series, class
or tranche of Notes, and no implied covenants or obligations will be read
into this Indenture against the Trustee.
(b) In the absence of bad faith on its part, the Trustee may,
with respect to Notes of any series, class or tranche, conclusively rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the
98
Trustee and conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee will be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture.
(c) In case an Event of Default with respect to any series, class
or tranche of Notes has occurred and is continuing, the Trustee will
exercise with respect to the Notes of such series, class or tranche such of
the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a fiduciary would exercise
or use under the circumstances in the conduct of such person's own affairs.
(d) No provision of this Indenture will be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) this clause will not be construed to limit the effect of
clause (a) of this Section;
(ii) the Trustee will not be liable for any error of judgment
made in good faith by a Trustee Authorized Officer, unless it will be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Trustee will not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Majority Holders of any series, class or tranche
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with respect to
the Notes of such series, class or tranche; and
(iv) no provision of this Indenture will require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it will have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(e) 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 the Trustee will be subject to the provisions of
this Section.
SECTION 802. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to Notes of any series,
class or tranche,
99
(a) the Trustee will transmit by mail all Holders of Registered
Notes of such series, class or tranche, as their names and addresses
appear in the Note Register, notice of such default hereunder known to
the Trustee,
(b) the Trustee will notify all Holders of Bearer Notes of such
series, class or tranche, by publication of notice of such default in
an Authorized Newspaper, or as otherwise provided in the applicable
terms document, and
(c) the Trustee will give prompt written notification thereof to
the Rating Agencies,
unless such default will have been cured or waived; provided, however,
that, except in the case of a default in the payment of the principal of or
interest on any Note of such series, class or tranche, the Trustee will be
protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Trustee Authorized Officers in good faith determine that the withholding of
such notice is in the interests of the Noteholders of such series, class or
tranche; and provided, further, that in the case of any default of the
character specified in Section 701(c) with respect to Notes of such series,
class or tranche no such notice to Noteholders of such series, class or
tranche will be given until at least 90 days after the occurrence thereof.
For the purpose of this Section, the term "default", with respect to Notes
of any series, class or tranche, means any event which is, or after notice
or lapse of time or both would become, an Event of Default with respect to
Notes of such series, class or tranche.
SECTION 803. Certain Rights of Trustee. Except as otherwise
provided in Section 801:
(a) the Trustee may rely and will be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein will
be sufficiently evidenced by an Issuer Certificate;
(c) whenever in the administration of this Indenture the Trustee
will deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Issuer Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel will be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee will 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 pursuant to this
100
Indenture, unless such Noteholders will have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(f) the Trustee will 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,
bond, debenture or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee will determine to make
such further inquiry or investigation, it will be entitled to examine the
books, records and premises of the Issuer, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee will not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee will not be responsible for filing any financing
statements or continuation statements in connection with the Notes, but
will cooperate with the Issuer in connection with the filing of such
financing statements or continuation statements.
SECTION 804. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the certificates of
authentication, will be taken as the statements of the Issuer, and the
Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Indenture or
of the Notes. The Trustee will not be accountable for the use or
application by the Issuer of Notes or the proceeds thereof.
SECTION 805. May Hold Notes. The Trustee, any Paying Agent, the
Note Registrar or any other agent of the Issuer, in its individual or any
other capacity, may become the owner or pledgee of Notes and, subject to
Sections 808 and 813, may otherwise deal with the Issuer with the same
rights it would have if it were not Trustee, Paying Agent, Note Registrar
or such other agent.
SECTION 806. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the
extent required by law. The Trustee will be under no liability for interest
on any money received by it hereunder except as otherwise agreed with the
Issuer.
SECTION 807. Compensation and Reimbursement, Limit on
Compensation, Reimbursement and Indemnity. (a) The Issuer agrees, with
funds available pursuant to Section 501(a),
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation will not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
101
(ii) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(iii) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Issuer under this
Section, the Issuer and the Noteholders agree that the Trustee will have a
lien prior to the Notes upon all property and funds held or collected by
the Trustee as such pursuant to Section 501 or 502, except funds held in
the Accounts.
(b) The aggregate amount that the Issuer will be liable for with
respect to any of the amounts payable to or for the benefit of the Trustee
pursuant to this Section or otherwise will in no event be greater than the
lesser of (i) $[ ] per month, and (ii) 0.05% of the aggregate Nominal
Liquidation Amounts of the Outstanding Notes as of the end of the preceding
Due Period. The Trustee will have no recourse to any asset of the Issuer
other than funds available pursuant to Section 501(a) or to any Person
other than the Issuer.
(c) This Section will survive the termination of this Indenture
and the resignation or replacement of the Trustee under Section 810.
SECTION 808. Disqualification; Conflicting Interests. If the
Trustee has or will acquire a conflicting interest within the meaning of
the Trust Indenture Act, the Trustee will, if so required by the Trust
Indenture Act, either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. Nothing herein will prevent the Trustee
from filing with the Commission the application referred to in the second
to last paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 809. Corporate Trustee Required; Eligibility. There will
at all times be a Trustee hereunder with respect to each series, class or
tranche of Notes, which will be a corporation organized and doing business
under the laws of the United States of America or of any State, authorized
under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal or State authority, and having a rating of at least
BBB- by Standard & Poor's. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation will be
deemed to be its combined
102
capital and surplus as set forth in its most recent report of condition so
published. The Issuer may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Issuer, serve
as Trustee. If at any time the Trustee with respect to any series, class or
tranche of Notes will cease to be eligible in accordance with the
provisions of this Section, it will resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 810. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article will become effective until the
acceptance of appointment by the successor Trustee under Section 811.
(b) The Trustee may resign with respect to any series, class or
tranche of Notes at any time by giving written notice thereof to the
Issuer. If an instrument of acceptance by a successor Trustee will not have
been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any series, class
or tranche of Notes at any time by Act of the Majority Holders of that
series, class or tranche, delivered to the Trustee and to the Issuer.
(d) If at any time:
(i) the Trustee fails to comply with Section 310(b) of the Trust
Indenture Act with respect to any series, class or tranche of Notes
after written request therefor by the Issuer or by any Noteholder who
has been a bona fide Holder of a Note of that series, class or tranche
for at least 6 months, or
(ii) the Trustee ceases to be eligible under Section 809 with
respect to any series, class or tranche of Notes and fails to resign
after written request therefor by the Issuer or by any such
Noteholder, or
(iii) the Trustee becomes incapable of acting with respect to any
series, class or tranche of Notes, or
(iv) the Trustee is adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property is appointed or any public
officer takes charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Issuer may remove the Trustee, with respect to
the series, class or tranche, or in the case of clause (iv), with respect to
all series, classes or tranches, or (B) subject to Section 717, any Noteholder
who has been a bona fide Holder of a Note of such series, class or tranche for
at least 6 months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of
103
a successor Trustee with respect to the series, class or tranche, or, in
the case of clause (iv), with respect to all series, classes or tranches.
(e) If the Trustee resigns, is removed or becomes incapable of
acting with respect to any series, class or tranche of Notes, or if a
vacancy will occur in the office of the Trustee with respect to any series,
class or tranche of Notes for any cause, the Issuer will promptly appoint a
successor Trustee for that series, class or tranche of Notes. If, within
one year after such resignation, removal or incapacity, or the occurrence
of such vacancy, a successor Trustee with respect to such series, class or
tranche of Notes is appointed by Act of the Majority Holders of such
series, class or tranche delivered to the Issuer and the retiring Trustee,
the successor Trustee so appointed will, forthwith upon its acceptance of
such appointment, become the successor Trustee with respect to such series,
class or tranche and supersede the successor Trustee appointed by the
Issuer with respect to such series, class or tranche. If no successor
Trustee with respect to such series, class or tranche will have been so
appointed by the Issuer or the Noteholders of such series, class or tranche
and accepted appointment in the manner hereinafter provided, any Noteholder
who has been a bona fide Holder of a Note of that series, class or tranche
for at least 6 months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to such series, class or tranche.
(f) The Issuer will give notice of each resignation and each
removal of the Trustee with respect to any series, class or tranche and
each appointment of a successor Trustee with respect to any series, class
or tranche by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of Notes of that series, class or tranche
as their names and addresses appear in the Note Register. Each notice will
include the name of the successor Trustee and the address of its principal
Corporate Trust Office.
SECTION 811. Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder will execute, acknowledge and deliver
to the Issuer and to the predecessor Trustee an instrument accepting such
appointment, with a copy to the Rating Agencies, and thereupon the
resignation or removal of the predecessor Trustee will become effective
with respect to any series, class or tranche as to which it is resigning or
being removed as Trustee, and such successor Trustee, without any further
act, deed or conveyance, will become vested with all the rights, powers,
trusts and duties of the predecessor Trustee with respect to any such
series, class or tranche; but, on request of the Issuer or the successor
Trustee, such predecessor Trustee will, upon payment of its reasonable
charges, if any, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the predecessor
Trustee, and will duly assign, transfer and deliver to such successor
Trustee all property and money held by such predecessor Trustee hereunder
with respect to all or any such series, class or tranche, subject
nevertheless to its lien, if any, provided for in Section 807. Upon request
of any such successor Trustee, the Issuer will execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee with
respect to the Notes of one or more (but not all) series, classes or
tranches, the Issuer, the predecessor Trustee and
104
each successor Trustee with respect to the Notes of any applicable series,
class or tranche will execute and deliver a supplemental indenture which
will contain such provisions as will be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Notes of any series, class or tranche as to
which the predecessor Trustee is not being succeeded will continue to be
vested in the predecessor Trustee, and will add to or change any of the
provisions of this Indenture as will be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture will constitute such Trustees co-trustees of the same trust and
that each such Trustee will be Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Trustee.
No successor Trustee with respect to any series, class or tranche
of Notes will accept its appointment unless at the time of such acceptance
such successor Trustee will be qualified and eligible with respect to that
series, class or tranche under this Article.
SECTION 812. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee will be a party,
or any corporation succeeding to all or substantially all of the corporate
trust business of the Trustee, will be the successor of the Trustee
hereunder, provided such corporation will be otherwise qualified and
eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. The Issuer
will give prompt written notice of such merger, conversion, consolidation
or succession to the Rating Agencies. In case any Notes will have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes.
SECTION 813. Preferential Collection of Claims Against Issuer. If
and when the Trustee will be or become a creditor of the Issuer (or any
other obligor upon the Notes), the Trustee will be subject to the
provisions of Section 311 of the Trust Indenture Act. A Trustee who has
resigned or been removed will be subject to Section 311(a) of the Trust
Indenture Act to the extent provided therein.
SECTION 814. Appointment of Authenticating Agent. At any time
when any of the Notes remain Outstanding the Trustee, with the approval of
the Issuer, may appoint an Authenticating Agent or Agents with respect to
one or more series, classes or tranches of Notes which will be authorized
to act on behalf of the Trustee to authenticate Notes of such series,
classes or tranches issued upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 305, and Notes so
authenticated will be entitled to the benefits of this Indenture and will
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Notes by the Trustee or the Trustee's
certificate of authentication, such reference will be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by an Authenticating
105
Agent. Each Authenticating Agent will be acceptable to the Issuer and will
at all times 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 act as an Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and, if
other than the Issuer itself, subject to supervision or examination by
Federal or State authority. If such Authenticating Agent 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 Authenticating Agent will
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 an Authenticating
Agent will cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent will resign immediately in the manner
and with the effect specified in this Section. The initial Authenticating
Agent for the Notes of all series, classes and tranches will be Citibank,
N.A.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent will be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
will continue to be an Authenticating Agent, provided such corporation will
be otherwise eligible under this Section, without the execution or filing
of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and, if other than the Issuer, to the Issuer.
The Trustee may at any time terminate the agency of an Authenticating Agent
by giving written notice thereof to such Authenticating Agent and, if other
than the Issuer, to the Issuer. Upon receiving such a notice of resignation
or upon such a termination, or in case at any time such Authenticating
Agent will cease to be eligible in accordance with the provisions of this
Section, the Trustee, with the approval of the Issuer, may appoint a
successor Authenticating Agent which will be acceptable to the Issuer and
will mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Notes of the series, classes or tranches with
respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Note Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder will become vested with all
the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent will be appointed unless eligible under the provisions
of this Section.
The Trustee agrees to pay to each Authenticating Agent (other
than an Authenticating Agent appointed at the request of the Issuer from
time to time) reasonable compensation for its services under this Section,
and the Trustee will be entitled to be reimbursed for such payments,
subject to the provisions of Section 807.
If an appointment with respect to one or more series, classes or
tranches is made pursuant to this Section, the Notes of such series,
classes or tranches may have endorsed
106
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Notes of the series, classes or tranches
designated therein referred to in the within-mentioned Indenture.
[NAME OF INDENTURE TRUSTEE], as Trustee
By:_________________________
As Authenticating Agent
By:_________________________
Authorized Signatory
ARTICLE IX
Noteholders' Meetings, Lists, Reports by Trustee,
Issuer and Managing Beneficiary
SECTION 901. Issuer To Furnish Trustee Names and Addresses of
Noteholders. The Issuer will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not more than 15 days after each Record Date,
in each year in such form as the Trustee may reasonably require, a
list of the names and addresses of the Holders of Notes of such
series, classes or tranches as of such date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than 15 days
before the time such list is furnished,
excluding from any such list names and addresses received by the Trustee in
its capacity as Note Registrar.
SECTION 902. Preservation of Information; Communications to
Noteholders. (a) The Trustee will preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Notes
contained in the most recent list furnished to the Trustee as provided in
Section 901 and the names and addresses of Holders of Notes received by the
Trustee in its capacity as Note Registrar. The Trustee may destroy any list
furnished to it as provided in Section 901 upon receipt of a new list so
furnished.
(b) If three or more Holders of Notes of any series, class or
tranche (hereinafter referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each such
applicant has owned a Note of such series, class or tranche for a period of
at least six months preceding the date of such application, and such
application states that the
107
applicants desire to communicate with other Holders of Notes of such
series, class or tranche or with the Holders of all Notes with respect to
their rights under this Indenture or under such Notes and is accompanied by
a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee will, within five Business Days after
the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 902(a), or
(ii) inform such applicants as to the approximate number of
Holders of Notes of such series, class or tranche or all Notes, as the
case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
902(a), and as to the approximate cost of mailing to such Noteholders
the form of proxy or other communication, if any, specified in such
application.
If the Trustee will elect not to afford such applicants access to
such information, the Trustee will, upon the written request of such
applicants, mail to each Holder of a Note of such series, class or tranche
or to all Noteholders, as the case may be, whose names and addresses appear
in the information preserved at the time by the Trustee in accordance with
Section 902(a), a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless, within five days
after such tender, the Trustee will mail to such applicants and file with
the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders of Notes of
such series, class or tranche or all Noteholders, as the case may be, or
would be in violation of applicable law. Such written statement will
specify the basis of such opinion. If the Commission, after opportunity for
a hearing upon the objections specified in the written statement so filed,
will enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the
Commission will find, after notice and opportunity for hearing, that all
the objections so sustained have been met and will enter an order so
declaring, the Trustee will mail copies of such material to all Noteholders
of such series, class or tranche or all Noteholders, as the case may be,
with reasonable promptness after the entry of such order and the renewal of
such tender; otherwise the Trustee will be relieved of any obligation or
duty to such applicants respecting their application.
(c) Every Holder of Notes, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee will be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Notes in
accordance with Section 902(b), regardless of the source from which such
information was derived, and that the Trustee will not be held accountable
by reason of mailing any material pursuant to a request made under Section
902(b).
SECTION 903. Reports by Trustee. (a) The term "reporting date" as
used in this Section means [__________]. Within 60 days after the reporting
date in each year, beginning in
108
[2001], the Trustee will transmit to Noteholders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such reporting date if required by Section 313(a) of the
Trust Indenture Act.
(b) In addition to any reporting requirements of the Issuer under
the TIA, the Trustee will mail each year to all registered Noteholders,
with a copy to the Rating Agencies a report concerning:
(i) its eligibility and qualifications to continue as trustee
under this Indenture;
(ii) any amounts advanced by the Trustee under this Indenture;
(iii) the amount, interest rate and maturity date or indebtedness
owing by the Issuer to the Trustee in the Trustee's individual
capacity;
(iv) the property and funds physically held by the Trustee as
Trustee;
(v) any release or release and substitution of Collateral subject
to the lien of this Indenture which has not previously been reported;
and
(vi) any action taken by the Trustee that materially affects the
Notes and that has not previously been reported.
(c) The Trustee will comply with Sections 313(b) and 313(c) of
the Trust Indenture Act.
(d) A copy of each such report will, at the time of such
transmission to Noteholders, be filed by the Trustee with each stock
exchange upon which the Notes are listed, and also with the Commission. The
Issuer will notify the Trustee when the Notes are admitted to trading on
any national securities exchange.
SECTION 904. Meetings of Noteholders; Amendments and Waivers. (a)
The Trustee may call a meeting of the Noteholders of a series, class or
tranche at any time. The Trustee will call a meeting upon request of the
Issuer or the Holders of at least 10% in aggregate Outstanding Dollar
Principal Amount of the Outstanding Notes of such series, class or tranche.
In any case, a meeting will be called after notice is given to the
Noteholders pursuant to Section 106.
(b) Except for any consent that must be given by the Holders of
each Outstanding Note affected or any action to be taken by the Issuer as
holder of the Collateral Certificate, any resolution presented at any
meeting at which a quorum is present may be adopted by the affirmative vote
of the Majority Holders of that series, class or tranche, as the case may
be. For any vote, request, demand, authorization, direction, notice,
consent, waiver or other action provided by the Series 2000 Supplement to
be given or taken by the holder of the Collateral Certificate, any
resolution presented at any meeting at which the Majority Holders of all
Outstanding Notes is present may be adopted by the affirmative vote of the
Majority Holders
109
of all Outstanding Notes. However, any resolution with respect to any
consent, waiver, request, demand, notice, authorization, direction or other
action which may be given by the Holders of not less than a specified
percentage in aggregate Outstanding Dollar Principal Amount of Outstanding
Notes of a series, class or tranche or all Notes may be adopted at any
meeting at which a quorum is present only by the affirmative vote of the
Holders of not less than the specified percentage in aggregate Outstanding
Dollar Principal Amount of the Outstanding Notes of that series, class or
tranche or all Notes, as the case may be. Any resolution passed or decision
taken at any meeting of Noteholders duly held in accordance with this
Indenture will be binding on all Noteholders of the affected series, class
or tranche.
(c) The quorum at any meeting will be persons holding or
representing a the Majority Holders of a series, class or tranche or all
Notes, as the case may be; provided, however, that if any action is to be
taken at that meeting concerning a consent, waiver, request, demand,
notice, authorization, direction or other action that may be given by the
Holders of not less than a specified percentage in aggregate Outstanding
Dollar Principal Amount of the Outstanding Notes of a series, class or
tranche or all Notes, as applicable, the persons holding or representing
such specified percentage in aggregate Outstanding Dollar Principal Amount
of the Outstanding Notes of such series, class or tranche or all Notes will
constitute a quorum.
(d) (i) The ownership of Registered Notes will be proved by the
Note Register. (ii) The Ownership of Bearer Notes will be proved as
provided in Section 104(c)(ii).
(e) The Issuer may make reasonable rules for other matters
relating to action by or a meeting of Noteholders not otherwise covered by
this Section.
SECTION 905. Reports by Issuer. The Issuer will:
(a) file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Issuer may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act; or, if the Issuer is not
required to file information, documents or reports pursuant to either
of said Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act in respect of a security
listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
110
(c) transmit by mail to all Holders of Registered Notes, as their
names and addresses appear in the Note Register, and notify all
Holders of Bearer Notes of such series, class or tranche, by
publication of such notice in an Authorized Newspaper or as otherwise
provided in the applicable terms document, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Issuer pursuant to
paragraphs (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 906. Reports by Trustee. The Trustee will report to the
Issuer with respect to the amount on deposit in the Accounts, and the
identity of the investments included therein, as the Issuer may from time
to time reasonably request which, absent the occurrence of an Event of
Default hereunder, will not occur more often than monthly.
SECTION 907. Issuer's Report. Each month, the Issuer will deliver
to the Trustee (with a copy to each Rating Agency) an Issuer's Report.
SECTION 908. Payment Request to Master Trust. From time to time,
the Issuer will deliver a Payment Request to the Master Trust as necessary
to request the payments required or targeted to be made hereunder.
SECTION 909. Monthly Computation Statement. (a) Promptly after
the receipt by the Issuer of the Monthly Servicer Report under the Series
2000 Supplement, the Issuer, in collaboration with the Servicer of the
Master Trust, will complete a Monthly Computation Statement and deliver a
copy thereof to the Trustee.
(b) From time to time, the Issuer will notify the Servicer under
the Series 2000 Supplement of the information necessary to be provided by
the Issuer under Section 5.01 of the Series 2000 Supplement to calculate
the Invested Amount of the Collateral Certificate and the Series 2000
Adjusted Invested Amount of the Collateral Certificate.
ARTICLE X
Supplemental Indentures; Amendments to the Pooling and
Servicing Agreement and Amendments to the Trust Agreement
SECTION 1001. Supplemental Indentures Without Consent of
Noteholders. Without the consent of the Holders of any Notes, the Issuer
and the Trustee, at any time and from time to time, may amend this
Indenture or enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Entity to the Issuer,
and the assumption by any such successor of the covenants of the
Issuer herein and in the Notes; or
111
(b) to add to the covenants of the Issuer, or to surrender any
right or power herein conferred upon the Issuer, for the benefit of
the Holders of the Notes of any or all series, classes or tranches
(and if such covenants or the surrender of such right or power are to
be for the benefit of less than all series, classes or tranches of
Notes, stating that such covenants are expressly being included or
such surrenders are expressly being made solely for the benefit of one
or more specified series, classes or tranches); or
(c) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions
arising under this Indenture; or
(d) to add to this Indenture such provisions as may be expressly
permitted by the TIA, excluding, however, the provisions referred to
in Section 316(a)(2) of the TIA as in effect at the date as of which
this Indenture was executed or any corresponding provision in any
similar federal statute hereafter enacted; or
(e) to establish any form of Note, as provided in Article II, and
to provide for the issuance of any series, class or tranche of Notes
as provided in Article III and to set forth the terms thereof, and/or
to add to the rights of the Holders of the Notes of any series, class
or tranche; or
(f) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to
one or more series, classes or tranches of Notes and to add to or
change any of the provisions of this Indenture as will be necessary to
provide for or facilitate the administration of the trusts hereunder
by more than one Trustee, pursuant to Section 811; or
(g) to add any additional Early Redemption Events or Events of
Default in respect of the Notes of any or all series, classes or
tranches (and if such additional Events of Default are to be in
respect of less than all series, classes or tranches of Notes, stating
that such Events of Default are expressly being included solely for
the benefit of one or more specified series, classes or tranches); or
(h) to provide for the consolidation of the Master Trust and the
Issuer into a single Entity after the termination of all series of
Investor Certificates (other than the Collateral Certificate); or
(j) if one or more additional Sellers under (and as defined in)
the Pooling and Servicing Agreement are added to the Pooling and
Servicing Agreement, or one or more additional Beneficiaries under the
Trust Agreement are added to the Trust Agreement, to make any
necessary changes to the Indenture or any other related document; or
112
(k) to make any other amendment that could not reasonably be
expected to have an Adverse Effect.
No amendment of this Indenture or supplemental indenture for the
purposes identified in clauses (b) or (c) may be entered into if to do so
would adversely affect in any material respect the interests of the Holders
of Notes of any series, class or tranche. Except for supplemental
indentures entered into for purposes identified in clause (e), no
supplemental indenture under this Section may be entered into except upon
delivery of a Master Trust Tax Opinion and an Issuer Tax Opinion and with
written confirmation from each applicable Rating Agency that there will be
no Ratings Effect.
The Issuer may, without consent of the Noteholders, merge with
the Master Trust upon (i) written notice to the Trustee and each Rating
Agency, (ii) delivery by the Issuer to the Trustee of an Issuer Certificate
to the effect that the Issuer reasonably believes that such merger will not
have an Adverse Effect and is not reasonably expected to have an Adverse
Effect at any time in the future and (iii) delivery by the Issuer to the
Trustee and the Rating Agencies of a Master Trust Tax Opinion and an Issuer
Tax Opinion.
SECTION 1002. Supplemental Indentures with Consent of
Noteholders. With written confirmation from each applicable Rating Agency
that there will be no Ratings Effect and the consent of the Majority
Holders of the Outstanding Notes of each series, class or tranche affected
by such amendment of this Indenture or supplemental indenture or
indentures, by Act of said Holders delivered to the Issuer and the Trustee,
the Issuer and the Trustee may enter into an amendment of this Indenture or
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of
the Holders of the Notes of each such series, class or tranche under this
Indenture; provided, however, that no such amendment or supplemental
indenture will, without the consent of the Holder of each Outstanding Note
affected thereby:
(a) change the scheduled payment date of any payment of interest
on any Note, or change the Expected Principal Payment Date or Legal
Maturity Date of, any Note;
(b) reduce the stated principal amount of, or the interest rate
on, any Note; or change the method of computing the Outstanding Dollar
Principal Amount, the Adjusted Outstanding Dollar Principal Amount or
the Nominal Liquidation Amount in a manner that is adverse to the
Holder of any Note;
(c) reduce the amount of a Discount Note payable upon the
occurrence of an Early Redemption Event or other optional or mandatory
redemption or upon the acceleration of its Legal Maturity Date;
(d) impair the right to institute suit for the enforcement of any
payment on any Note;
113
(e) reduce the percentage in Outstanding Dollar Principal Amount
of the Outstanding Notes of any series, class or tranche, the consent
of whose Holders is required for any such supplemental indenture, or
the consent of whose Holders 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;
(f) modify any of the provisions of this Section or Section 718,
except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Note affected
thereby;
(g) permit the creation of any lien or other encumbrance on the
Collateral that secures any tranche of Notes that is prior to the lien
in favor of the Holders of the Notes of such tranche;
(h) change any Place of Payment where any principal of, or
interest on, any Note is payable, unless otherwise provided in the
applicable terms document;
(i) change the method of computing the amount of principal of, or
interest on, any Note on any date; or
(j) make any other amendment not permitted by Section 1001.
An amendment of this Indenture or supplemental indenture which
changes or eliminates any covenant or other provision of this Indenture
which has expressly been included solely for the benefit of one or more
particular series, class or tranche of Notes, or which modifies the rights
of the Holders of Notes of such series, class or tranche with respect to
such covenant or other provision, will be deemed not to affect the rights
under this Indenture of the Holders of Notes of any other series, class or
tranche. No amendment or supplemental indenture under this Section may be
entered into except upon delivery of a Master Trust Tax Opinion and an
Issuer Tax Opinion and with written confirmation from each applicable
Rating Agency that there will be no Ratings Effect.
It will not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed amendment or
supplemental indenture, but it will be sufficient if such Act will approve
the substance thereof.
SECTION 1003. Execution of Supplemental Indentures. In executing,
or accepting the additional trusts created by, any amendment of this
Indenture or supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee
will be entitled to receive, and (subject to Section 801) will be fully
protected in relying upon, an Opinion of Counsel stating that the execution
of such amendment or supplemental
114
indenture is authorized or permitted by this Indenture and that all
conditions precedent thereto have been satisfied. The Trustee may, but will
not (except to the extent required in the case of an amendment or
supplemental indenture entered into under Section 1001(d) or 1001(f)) be
obligated to, enter into any such amendment or supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
SECTION 1004. Effect of Supplemental Indentures. Upon the
execution of any amendment of this Indenture or supplemental indenture
under this Article, this Indenture will be modified in accordance therewith
with respect to each series, class or tranche of Notes affected thereby, or
all Notes, as the case may be, and such amendment or supplemental indenture
will form a part of this Indenture for all purposes; and every Holder of
Notes theretofore or thereafter authenticated and delivered hereunder will
be bound thereby to the extent provided therein.
SECTION 1005. Conformity with Trust Indenture Act. Every
amendment of this Indenture or supplemental indenture executed pursuant to
this Article will conform to the requirements of the TIA as then in effect.
SECTION 1006. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any amendment of
this Indenture or supplemental indenture pursuant to this Article may, and
will if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Issuer will so determine, new Notes so modified as to conform, in the
opinion of the Trustee and the Issuer, to any such amendment or
supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding
Notes.
SECTION 1007. Amendments to the Pooling and Servicing Agreement.
By their acceptance of a Note, the Noteholders acknowledge that the Sellers
and the Master Trust Trustee may amend the Pooling and Servicing Agreement
and any supplement thereto without the consent of the Holders of any
Investor Certificates (including the Issuer) or any Noteholder, so long as
such amendment or supplement would not materially adversely affect the
interests of the Holders of any Investor Certificates.
(a) For purposes of any vote or consent under the Pooling and
Servicing Agreement:
(i) that requires the consent or vote of each Investor
Certificateholder, each Noteholder will be treated as an Investor
Certificateholder under the Pooling and Servicing Agreement;
(ii) that requires the consent or vote of any series of Investor
Certificates, each series of Notes will be treated as a series of
Investor Certificates under the Pooling and Servicing Agreement; and
115
(iii) that requires the consent or vote of any class of Investor
Certificates, each class of Notes of a Single Issuance Series and each
tranche of Notes of a Multiple Issuance Series will be treated as a
class of Investor Certificates under the Pooling and Servicing
Agreement.
SECTION 1008. Amendments to the Trust Agreement. (a) Without the
consent of the Holders of any Notes, the Issuer Trustee (at the written
direction of the Managing Beneficiary) and the Banks may amend the Trust
Agreement so long as such amendment will not adversely affect the interests
of the Noteholders in any material respect and the Rating Agencies confirm
in writing that the amendment will not cause a Ratings Effect.
(b) With written confirmation from each applicable Rating Agency
that there will be no Ratings Effect and the consent of the Holders of not
less than 662/3% in Outstanding Dollar Principal Amount of the Outstanding
Notes affected by such amendment, by Act of said Holders delivered to the
Master Trust Trustee, the Banks and the Issuer Trustee (at the written
direction of the Managing Beneficiary) may amend the Trust Agreement for
the purpose of adding, changing or eliminating any provisions of the Trust
Agreement or of modifying the rights of those Noteholders.
SECTION 1009. Notice. If the Issuer, as holder of the Collateral
Certificate for the benefit of the Noteholders, receives a request for a
consent to any amendment, modification, waiver or supplement under this
Indenture, the Pooling and Servicing Agreement, the Trust Agreement or
other document contemplated herein, the Issuer will forthwith provide
notice as provided in Section 106 of such proposed amendment, modification,
waiver or supplement, to each Noteholder as of such date that is entitled
to vote on a consent to such matter. The Issuer will request from such
Noteholders directions as to (i) whether or not the Issuer should take or
refrain from taking any action which the holder of the Collateral
Certificate has the option to direct, (ii) whether or not to give or
execute any waivers, consents, amendments, modifications or supplements as
a holder of such Collateral Certificate and (iii) how to vote the
Collateral Certificate if a vote has been called for with respect thereto;
provided, that such a request for Noteholder direction will have been made,
in directing any action or casting any vote or giving any consent as the
holder of the Collateral Certificate, the Issuer will vote or consent with
respect to such Collateral Certificate the applicable series, class or
tranche, as the case may be, in the same proportion as the Notes were
actually voted by Holders thereof as notified by such Noteholders to the
Issuer at least two Business Days before the Issuer takes such action or
casts such vote or gives such consent.
ARTICLE XI
Representations, Warranties and Covenants of Issuer
116
SECTION 1101. Payment of Principal and Interest. With respect to
each series, class or tranche of Notes, the Issuer will duly and punctually
pay the principal of and interest on such Notes in accordance with their
terms and this Indenture, and will duly comply with all the other terms,
agreements and conditions contained in, or made in this Indenture for the
benefit of, the Notes of such series, class or tranche.
SECTION 1102. Maintenance of Office or Agency. The Issuer will
maintain an office, agency or Paying Agent in each Place of Payment where
Notes may be presented or surrendered for payment, where Notes may be
surrendered for transfer or exchange and where notices and demands to or
upon the Issuer in respect of the Notes and this Indenture may be served.
The Issuer will give prompt written notice to the Trustee of the location,
and of any change in the location, of such office or agency. If at any time
the Issuer will fail to maintain such office or agency or will fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Issuer hereby appoints the Trustee its
agent to receive all such presentations, surrenders, notices and demands.
SECTION 1103. Money for Note Payments to be Held in Trust. The
Paying Agent will make distributions to Noteholders from the Collection
Account or other applicable Account pursuant to the provisions of Article V
of this Indenture or any supplement thereto and will report the amounts of
such distributions to the Trustee. Any Paying Agent will have the revocable
power to withdraw funds from the Collection Account or other applicable
Account for the purpose of making the distributions referred to above. The
Trustee may revoke such power and remove the Paying Agent if the Trustee
determines in its sole discretion that the Paying Agent has failed to
perform its obligations under this Indenture or any supplemental indenture
in any material respect. The Paying Agent upon removal will return all
funds in its possession to the Trustee.
The Issuer will cause each Paying Agent (other than the Trustee)
for any series, class or tranche of Notes to execute and deliver to the
Trustee an instrument in which such Paying Agent will agree with the
Trustee (and if the Trustee acts as Paying Agent, it so agrees), subject to
the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of principal of or
interest on Notes of such series, class or tranche in trust for the
benefit of the Persons entitled thereto until such sums will be paid
to such Persons or otherwise disposed of as herein provided;
(b) if such Paying Agent is not the Trustee, give the Trustee
notice of any default by the Issuer (or any other obligor upon the
Notes of such series, class or tranche) in the making of any such
payment of principal or interest on the Notes of such series, class or
tranche;
117
(c) if such Paying Agent is not the Trustee, at any time during
the continuance of any such default, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by
such Paying Agent;
(d) immediately resign as a Paying Agent and, if such Paying
Agent is not the Trustee, forthwith pay to the Trustee all sums held
by it in trust for the payment of Notes if at any time it ceases to
meet the standards described in this Section required to be met by a
Paying Agent at the time of its appointment; and
(e) comply with all requirements of the Internal Revenue Code
with respect to the withholding from any payments made by it on any
Notes of any applicable withholding taxes imposed thereon and with
respect to any applicable reporting requirements in connection
therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to any series,
class or tranche of Notes or for any other purpose, pay, or by Issuer
Certificate direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer or such Paying Agent in respect of each and every
series, class or tranche of Notes as to which it seeks to discharge this
Indenture or, if for any other purpose, all sums so held in trust by the
Issuer in respect of all Notes, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Issuer or
such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent will be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Issuer, in trust for the payment of the principal of or
interest on any Note of any series, class or tranche and remaining
unclaimed for two years after such principal or interest has become due and
payable will be paid to the Issuer upon request in an Issuer Certificate,
or (if then held by the Issuer) will be discharged from such trust; and the
Holder of such Note will thereafter, as an unsecured general creditor, look
only to the Issuer for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of
the Issuer as trustee thereof, will thereupon cease. The Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Issuer mail to the Holders of the Notes as to which the
money to be repaid was held in trust, as their names and addresses appear
in the Note Register, a notice that such funds remain unclaimed and that,
after a date specified in the notice, which will not be less than 30 days
from the date on which the notice was first mailed to the Holders of the
Notes as to which the money to be repaid was held in trust, any unclaimed
balance of such funds then remaining will be paid to the Issuer free of the
trust formerly impressed upon it.
The Issuer initially authorizes Citibank, N.A., to act as Paying
Agent for the Notes on its behalf. The Issuer may at any time and from time
to time authorize one or more Persons (including the Trustee) to act as
Paying Agent in addition to or in place of Citibank, N.A. with respect to
any series, class or tranche of Notes issued under this Indenture.
118
Each Paying Agent will at all times, have a combined capital and
surplus of at least $50,000,000, and be subject to supervision or
examination by a United States Federal or State authority or be regulated
by or subject to the supervision or examination of a governmental authority
of a nation that is a member of the Organization for Economic Co-operation
and Development. If such Paying Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such Paying Agent will be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published.
SECTION 1104. Statement as to Compliance. The Issuer will deliver
to the Trustee, within 120 days after the end of each fiscal year,
beginning in 2001, a written statement signed by the Issuer, stating that:
(a) a review of the activities of the Issuer during such year and
of the Issuer's performance under this Indenture and under the terms
of the Notes has been made under his supervision; and
(b) to the best of his knowledge, based on such review, the
Issuer has complied with all conditions and covenants under this
Indenture through such year, or, if there has been a default in the
fulfillment of any such obligation (without regard to any period of
grace or requirement of notice), specifying each such default known to
him and the nature and status thereof.
SECTION 1105. Legal Existence. The Issuer will do or cause to be
done all things necessary to preserve and keep in full force and effect its
legal existence.
SECTION 1106. Further Instruments and Acts. Upon request of the
Trustee, the Issuer will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
SECTION 1107. Compliance with Laws. The Issuer will comply with
the requirements of all applicable laws, the noncompliance with which
would, individually or in the aggregate, materially and adversely affect
the ability of the Issuer to perform its obligations under the Notes or
this Indenture.
SECTION 1108. Notice of Events of Default. The Issuer agrees to
give the Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder and each default on the part of the Master Trust
or the Sellers of their respective obligations under the Pooling and
Servicing Agreement, and any default of a Derivative Counterparty.
SECTION 1109. Certain Negative Covenants. The Issuer will not:
119
(a) claim any credit on, or make any deduction from the principal
or interest payable in respect of, the Notes (other than amounts
withheld in good faith from such payments under the Internal Revenue
Code or other applicable tax law);
(b) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien in favor of the Trustee created by 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;
(c) permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien in favor of the
Trustee created by this Indenture) to be created on or extend to or
otherwise arise upon or burden the Collateral or any part thereof or
any interest therein or the proceeds thereof; or
(d) permit the lien in favor of the Trustee created by this
Indenture not to constitute a valid first priority security interest
in the Collateral; or
(e) voluntarily dissolve or liquidate.
SECTION 1110. No Other Business. The Issuer will not engage in
any business other than as permitted under the Trust Agreement.
SECTION 1111. No Borrowing. The Issuer will not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for
any indebtedness except for the Notes.
SECTION 1112. Excluded Series. The Issuer will notify the Master
Trust with respect to each Due Period of the extent to which any series of
Notes constitutes an Excluded Series under the Series 2000 Supplement.
SECTION 1113. Rule 144A Information. For so long as any of the
Notes of any series, class or tranche are "restricted securities" within
the meaning of Rule 144(a)(3) under the Securities Exchange Act, the Issuer
agrees to provide to any Noteholder of such series, class or tranche and to
any prospective purchaser of Notes designated by such Noteholder, upon the
request of such Noteholder or prospective purchaser, any information
required to be provided to such Holder or prospective purchaser to satisfy
the conditions set forth in Rule 144A(d)(4) under the Securities Exchange
Act.
ARTICLE XII
Early Redemption of Notes
SECTION 1201. Applicability of Article. Pursuant to the terms of
this Article, the Issuer will redeem and pay, provided that funds are
available, each affected series, class or tranche of
120
Notes upon the occurrence of any Early Redemption Event. The following are
"Early Redemption Events":
(a) the occurrence of the Expected Principal Payment Date of any
Note;
(b) the occurrence of any Amortization Event as defined in the
Pooling and Servicing Agreement with respect to the Collateral
Certificate;
(c) mandatory prepayment of the entire Collateral Certificate
resulting from a breach of a representation or warranty by the Banks
under the Pooling and Servicing Agreement;
(d) at any time a Payment Request with respect to a requested
payment of Available Investor Principal Collections (as defined in the
Series 2000 Supplement) has been issued with respect to such series,
class or tranche of Notes, the Portfolio Yield (as defined in the
Pooling and Servicing Agreement) for any Due Period will be less than
the Weighted Average Interest Rates for all tranches of Notes of that
Group as of the last day of such Due Period;
(e) the amount of Surplus Finance Charge Collections averaged
over any three consecutive Due Periods will be less than the Required
Surplus Finance Charge Amount for the last of such three consecutive
Due Periods;
(f) with respect to a series of Notes, the aggregate Nominal
Liquidation Amount of the Class B Notes of the affected series is
reduced to 1% or less of the Initial Dollar Principal Amount of all
Notes of that series;
(g) with respect to any series, class or tranche of Notes, any
event specified in the terms document for such series, class or
tranche as applying to such series, class or tranche;
(h) if such series, class or tranche benefits from any Derivative
Agreement, any applicable Derivative Counterparty defaults on any
payment obligation under the related Derivative Agreement and the
continuance of such default for the period established in the related
Derivative Agreement;
(i) if such series, class or tranche benefits from any Derivative
Agreement, the occurrence of any default specified in the terms
document for such series, class or tranche relating to the credit
rating of the counterparty to such Derivative Agreement;
121
(j) the Issuer becomes an investment company within the meaning
of the Investment Company Act; or
(k) with respect to any tranche of Notes (other than a tranche of
RSP Notes) that has funds on deposit in the Principal Funding
sub-Account, with respect to any Due Period, the product of
(i) the total amount of Principal Receivables in the Master
Trust as of the last day of such Due Period,
(ii) the Series 2000 Allocation Percentage (as defined in
the Series 2000 Supplement) for such Due Period, expressed as a
decimal, and
(iii) the difference of 100% minus the Floating Allocation
Percentage (as defined in the Series 2000 Supplement) for such
Due Period, expressed as a decimal,
shall fail to equal at least the amount on deposit in the Principal
Funding Account of all tranches of Notes (other than tranches of RSP
Notes) as of the last day of such Due Period.
SECTION 1202. Optional Repurchase. (a) Unless otherwise provided
in the applicable terms document for a tranche of Notes, the Issuer has the
right, but not the obligation, to redeem a tranche of Notes of a Multiple
Issuance Series in whole but not in part on any day on or after the day on
which the aggregate Nominal Liquidation Amount of such tranche is reduced
to less than 5% of its Initial Dollar Principal Amount; provided, however,
that if such tranche of Notes is of a subordinated class, the Issuer will
not redeem such Notes if it will leave the senior classes of Notes of that
series with less than the applicable Required Subordinated Amount. If the
Issuer elects to redeem a tranche of Notes of a Multiple Issuance Series,
it will notify the Holders of such redemption at least 30 days prior to the
redemption date. The redemption price of a tranche so redeemed will equal
the Outstanding Dollar Principal Amount of such tranche, plus interest
accrued and unpaid or principal accreted and unpaid on such tranche to but
excluding the date of redemption, the payment of which will be subject to
Article V.
(b) Unless otherwise provided in the applicable terms document
for a series of Notes of a Single Issuance Series, the Issuer has the
right, but not the obligation, to redeem Notes of a Single Issuance Series
in whole but not in part on any day on or after the day on which the
aggregate Nominal Liquidation Amount of such series is reduced to less than
5% of its Initial Dollar Principal Amount. If the Issuer elects to redeem
Notes of a Single Issuance Series, it will notify the Holders of such
redemption at least 30 days prior to the redemption date. The redemption
price of a series so redeemed will equal the Outstanding Dollar Principal
Amount of such series, plus interest accrued and unpaid or principal
accreted and unpaid on such tranche to but excluding the date of
redemption, the payment of which will be subject to Article V.
122
If the Issuer is unable to pay the redemption price in full on
the redemption date, monthly payments on such tranche of Notes will
thereafter be made until the Outstanding Dollar Principal Amount of such
tranche, plus all accrued and unpaid interest, is paid in full or the Legal
Maturity Date occurs, whichever is earlier. Any funds in the Principal
Funding Account and Interest Funding Account for a redeemed tranche will be
applied to make the principal and interest payments on that tranche on the
redemption date. Principal payments on redeemed tranches will be made first
to the Class A Notes until paid in full, then to the Class B Notes until
paid in full and finally to the Class C Notes until paid in full.
SECTION 1203. Notice. Promptly after the occurrence of any Early
Redemption Event or a redemption pursuant to Section 1202, the Issuer will
notify the Trustee and the Rating Agencies in writing of the identity,
stated principal amount and Outstanding Dollar Principal Amount of the
affected series, class or tranche of Notes to be redeemed. Notice of
redemption will promptly be given as provided in Section 106. All notices
of redemption will state (a) the date on which the redemption of the
applicable series, class or tranche of Notes pursuant to this Article will
begin, which will be the Principal Payment Date next following the end of
the Due Period in which the applicable Early Redemption Event or redemption
pursuant to Section 1202 occurs, (b) the redemption price for such series,
class or tranche of Notes, which will be equal to the Outstanding Dollar
Principal Amount of such series, class or tranche plus interest accrued or
principal accreted and unpaid (if any), the payment of which will be
subject to Article V and (c) the series, class or tranche of Notes to be
redeemed pursuant to this Article.
ARTICLE XIII
Collateral
SECTION 1301. Recording, Etc. The Issuer intends the Security
Interest granted pursuant to this Indenture in favor of the Secured Parties
to be prior to all other liens in respect of the Collateral. Subject to
Section 1303, the Issuer will take all actions necessary to obtain and
maintain a perfected lien on and security interest in the Collateral in
favor of the Secured Parties. The Issuer will from time to time execute and
deliver all such supplements and amendments hereto and all such financing
statements, continuation statements, instruments of further assurance and
other instruments, all as prepared by the Issuer, and will take such other
action necessary or advisable to:
(a) grant a Security Interest more effectively in all or any
portion of the Collateral;
(b) maintain or preserve the Security Interest (and the priority
thereof) created by this Indenture or carry out more effectively the
purposes hereof;
123
(c) perfect, publish notice of or protect the validity of any
grant made or to be made by this Indenture;
(d) enforce the Collateral Certificate, the Derivative Agreements
and each other instrument or agreement included in the Collateral;
(e) preserve and defend title to the Collateral and the rights of
the Secured Parties in such Collateral against the claims of all
persons and parties; or
(f) pay all taxes or assessments levied or assessed upon the
Collateral when due.
The Issuer will from time to time promptly pay and discharge all
financing and continuation statement recording and/or filing fees, charges
and taxes relating to this Indenture, any amendments thereto and any other
instruments of further assurance. The Issuer hereby designates the Trustee
its agent and attorney-in-fact to execute, upon the Issuer's failure to do
so, any financing statement, continuation statement or other instrument
required by the Trustee pursuant to this Section. The duty of the Trustee
to execute any instrument required pursuant to this Section will arise only
if the Trustee has knowledge of the type described in Section 701(c) of any
default of the Issuer in complying with the provisions of this Section.
SECTION 1302. Trust Indenture Act Requirements. The release of
any Collateral, from the lien created by this Indenture or the release of,
in whole or in part, such liens, will not be deemed to impair the Security
Interests in contravention of the provisions hereof if and to the extent
the Collateral or liens are released pursuant to the terms hereof. The
Trustee and each of the other Secured Parties acknowledge that a release of
Collateral or liens strictly in accordance with the terms hereof will not
be deemed for any purpose to be an impairment of the Security Interests in
contravention of the terms of this Indenture. To the extent applicable,
without limitation, the Issuer and each other obligor on the Notes will
cause TIA ss. 314(d) relating to the release of property or securities from
the liens hereof to be complied with. Any certificate or opinion required
by TIA ss. 314(d) may be made by an officer of the appropriate obligor,
except in cases in which TIA ss. 314(d) requires that such certificate or
opinion be made by an independent person.
SECTION 1303. Suits To Protect the Collateral. Subject to the
provisions of this Indenture, the Trustee will have power to institute and
to maintain such suits and proceedings as it may deem expedient to prevent
any impairment of the Collateral by any acts which may be unlawful or in
violation of this Indenture, and such suits and proceedings as the Trustee
may deem expedient to preserve or protect their interests and the interests
of the Trustee and the Holders of the Notes in the Collateral (including
power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid
if the enforcement of, or compliance with, such enactment, rule or order
would impair the Security Interests or be prejudicial to the interests of
the Holders of the Notes or the Trustee). No counterparties to a Derivative
Agreement may direct the Trustee to enforce the Security Interest. Each
124
counterparty's rights consist solely of the right to receive Collections
allocated for its benefit pursuant to Article V.
SECTION 1304. Purchaser Protected. In no event will any purchaser
in good faith of any property purported to be released hereunder be bound
to ascertain the authority of the Trustee to execute the release or to
inquire as to the satisfaction of any conditions required by the provisions
hereof for the exercise of such authority or to see to the application of
any consideration given by such purchaser or other transferee; nor will any
purchaser or other transferee of any property or rights permitted by this
Article to be sold be under any obligation to ascertain or inquire into the
authority of the Issuer or any other obligor, as applicable, to make any
such sale or other transfer.
SECTION 1305. Powers Exercisable by Receiver or Trustee. In case
the Collateral will be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article upon the Issuer or any
other obligor, as applicable, with respect to the release, sale or other
disposition of such property may be exercised by such receiver or trustee,
and an instrument signed by such receiver or trustee will be deemed the
equivalent of any similar instrument of the Issuer or any other obligor, as
applicable, or of any officer or officers thereof required by the
provisions of this Article.
SECTION 1306. Determinations Relating to Collateral. In the event
(i) the Trustee will receive any written request from the Issuer or any
other obligor for consent or approval with respect to any matter or thing
relating to any Collateral or the Issuer's or any other obligor's
obligations with respect thereto or (ii) there will be due to or from the
Trustee under the provisions hereof any performance or the delivery of any
instrument or (iii) the Trustee will become aware of any nonperformance by
the Issuer or any other obligor of any covenant or any breach of any
representation or warranty of the Issuer or any other obligor set forth in
this Indenture, then, in each such event, the Trustee will be entitled to
hire experts, consultants, agents and attorneys to advise the Trustee on
the manner in which the Trustee should respond to such request or render
any requested performance or response to such nonperformance or breach (the
expenses of which will be reimbursed to the Trustee pursuant to Section
807). The Trustee will be fully protected in the taking of any action
recommended or approved by any such expert, consultant, agent or attorney
or agreed to by the Majority Holders of the Outstanding Notes.
SECTION 1307. Release of Collateral. (a) Subject to the payment
of its fees and expenses pursuant to Section 807, the Trustee will, at the
request of the Issuer or when otherwise required by the provisions of this
Indenture, execute instruments to release property from the lien of this
Indenture, or convey the Trustee's interest in the same, in a manner and
under circumstances which are not inconsistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Trustee as
provided in this Article will be bound to ascertain the Trustee's
authority, inquire into the satisfaction of any conditions precedent or see
to the application of any funds.
125
(b) Upon delivery of an Issuer Certificate certifying that the
Issuer's obligations under this Indenture have been satisfied and
discharged by complying with the provisions of this Article, the Trustee
will (i) execute and deliver such releases, termination statements and
other instruments (in recordable form, where appropriate) as the Issuer or
any other obligor, as applicable, may reasonably request evidencing the
termination of the Security Interests created by this Indenture and (ii)
not be deemed to hold the Security Interests for the benefit of the Secured
Parties.
(c) The Banks and the Noteholders will be entitled to receive at
least 10 days written notice when the Trustee proposes to take any action
pursuant to clause (a), accompanied by copies of any instruments involved,
and the Trustee will also be entitled to 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.
Counsel rendering any such opinion may rely, without independent
investigation, on the accuracy and validity of any certificate or other
instrument delivered to the Trustee in connection with any such action.
SECTION 1308. Certain Actions by Trustee. Any action taken by the
Trustee pursuant to this Article in respect of the release of Collateral
will be taken by the Trustee as its interest in such Collateral may appear,
and no provision of this Article is intended to, or will, excuse compliance
with any provision hereof.
SECTION 1309. Opinions as to Collateral. (a) On the Effective
Date, the Issuer will furnish to the 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 create, continue, perfect and maintain the
first priority of the Security Interest granted by this Indenture in favor
of the Secured Parties and reciting the details of such action, or stating
that, in the opinion of such counsel, no such action is necessary to do so.
(b) On or before [ ] in each calendar year, beginning in 2001,
the Issuer will furnish to the Trustee an Opinion of Counsel with respect
to each Uniform Commercial Code financing statement which has been filed by
the Issuer either stating that, (i) in the opinion of such counsel, such
action has been taken with respect to the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any
other requisite documents and with respect to the execution and filing of
any financing statements and continuation statements as is necessary to
maintain the first priority lien and security interest created by this
Indenture and reciting the details of such action or (ii) in the opinion of
such counsel no such action is necessary to maintain such lien and security
interest. Such Opinion of Counsel will also describe the recording, filing,
re-recording and refiling of this Indenture, any indentures supplemental
hereto and any other requisite documents and the execution and filing of
any financing statements and continuation statements that will, in the
opinion of such counsel, be required to maintain the lien and security
interest of this Indenture until [ ] in the following calendar year.
126
SECTION 1310. Delegation of Duties. The Issuer may contract with
or appoint other Persons (including the Banks and their Affiliates) to
assist it in performing its duties under this Indenture, and any
performance of such duties by a Person identified to the Trustee in an
Issuer Certificate will be deemed to be action taken by the Issuer.
ARTICLE XIV
Miscellaneous
SECTION 1401. No Petition. The Trustee, by entering into this
Indenture, each Derivative Counterparty, by designating that the
obligations of the Issuer pursuant to the applicable Derivative Agreement
are secured by the Collateral, and each Noteholder, by accepting a Note,
agrees that it will not at any time institute against the Banks or the
Issuer, or join in any institution against the Banks or the Issuer of, 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 Derivative Agreement.
SECTION 1402. Trust Obligations. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer on
the Notes or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) the Issuer
Trustee in its individual capacity, (ii) any owner of a beneficial interest
in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Issuer Trustee in its individual
capacity, any holder of a beneficial interest in the Issuer or the Issuer
Trustee or of any successor or assign of the Issuer Trustee in its
individual capacity, except as any such Person may have expressly agreed
(it being understood that the Issuer Trustee has no such obligations in its
individual capacity).
SECTION 1403. Limitations on Liability. (a) It is expressly
understood and agreed by the parties hereto that (i) this Indenture is
executed and delivered by the Issuer Trustee not individually or personally
but solely as Issuer Trustee, in the exercise of the powers and authority
conferred and vested in it, (ii) each of the representations, undertakings
and agreements herein made on the part of the Issuer is made and intended
not as personal representations, undertakings and agreements by the Issuer
Trustee but is made and intended for the purpose of binding only the
Issuer, (iii) nothing herein contained will be construed as creating any
liability on the Issuer Trustee individually or personally, to perform any
covenant of the Issuer either expressed or implied contained herein, all
such liability, if any, being expressly waived by the parties to this
Indenture and by any Person claiming by, through or under them and (iv)
under no circumstances will the Issuer Trustee be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Issuer under this Indenture or any related
documents.
127
(b) Neither any Trustee nor the Banks, nor any other beneficiary
of the Issuer nor any of their respective officers, directors, employers or
agents will have any liability with respect to this Indenture, and recourse
may be had solely to the Collateral pledged to secure the Notes issued by
Citibank Credit Card Issuance Trust.
SECTION 1404. Notes Treated as Debt. The Issuer and the
Noteholders agree that the Notes are intended to be debt of the Banks for
federal, State and local income and franchise tax purposes and agree to
treat the Notes accordingly for all such purposes, unless otherwise
required by a taxing authority.
SECTION 1405. Actions Taken by the Issuer. Any and all actions
that are to be taken by the Issuer will be taken by either the Managing
Beneficiary or the Issuer Trustee on behalf of the Issuer.
128
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
CITIBANK CREDIT CARD ISSUANCE TRUST,
by THE BANK OF NEW YORK
(DELAWARE), as Issuer Trustee
by: ----------------------------------
Name:
Title:
Attest:
---------------------------
BANKERS TRUST COMPANY, as Trustee
by:----------------------------------
Name:
Title:
Attest:
---------------------------
STATE OF DELAWARE )
) ss:
COUNTY OF NEW CASTLE )
On [ ], 2000, before me personally came , to me known, who, being
by me duly sworn, did depose and say that he/she resides at ; that he/she
is of The Bank of New York (Delaware), not acting in its individual
capacity but solely as Issuer Trustee of Citibank Credit Card Issuance
Trust, one of the parties described in and which executed the above
instrument; and that he/she signed his/her name thereto by authority of the
board of directors of the Issuer Trustee.
------------------------------
Name
-----------------------
[Notarial Seal]
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On [ ], 2000, before me personally came , to me known, who, being
by me duly sworn, did depose and say that he/she resides at ; that he/she
is of Bankers Trust Company, one of the parties described in and which
executed the above instrument; that he/she knows the corporate seal of said
corporation; that the seal affixed to that instrument is such corporate
seal; that it was affixed by authority of the board of directors of the
corporation; and that he/she signed his/her name thereto by like authority.
------------------------------
Name
-----------------------
[Notarial Seal]
ANNEX I
Threshold Conditions
Characteristics of Tranches of Notes
Not Needing Separate Tax Opinions
on Issuance Date
1. At the time of issuance, the tranche of Notes will be rated no lower
than the following ratings categories by at least one Rating Agency:
Note Rating
------------------ -------------------------------------
Class A AAA or its equivalent for
long-term Notes, or A-1+/P-
1 or its equivalent for
commercial paper Notes
Class B A or its equivalent
Class C BBB or its equivalent
2. The tranche of Notes does not have a yield (based on its initial yield
in the case of a tranche of floating rate Notes) in excess of the
yield of United States Treasury obligations for a comparable maturity
plus [500] basis points.
3. The Initial Dollar Principal Amount of the tranche of Notes is less
than [$500] million for Class A Notes, [$250] million for Class B
Notes, or [$250] million for Class C Notes.
4. The Expected Principal Payment Date of the tranche of Notes is no more
than ten years after the issuance date for Class B Notes or Class C
Notes, or twelve years after the issuance date for Class A Notes.
5. The tranche of Notes has a single Expected Principal Payment Date on
which all principal of that tranche is expected to be paid.
6. The Legal Maturity Date of the tranche of Notes is no more than two
years after its Expected Principal Payment Date.
7. Unless the Expected Principal Payment Date of the tranche of Notes is
within one year of the issuance date, all interest is payable at least
annually.
8. If the tranche of Notes does not bear interest at a single fixed rate,
the tranche bears interest at a floating rate, reset at least
annually, equal to (i) 100% of a single market- based interest index
such as LIBOR, the federal funds rate, or the prime rate, (ii) plus or
minus a single fixed spread, if desired, and (iii) subject to a single
fixed cap and/or single fixed floor, if desired. However, the interest
rate for the first period may be set at a rate approximating the rate
that would be set by the formula.
9. No payments of principal of or interest on the tranche of Notes are
subject to any contingencies other, with respect to principal, than
the availability of funds pursuant to the Indenture and subordination.
10. The issuance price of the tranche of Notes is at least 90% of the
principal amount, and no more than [102%] of the principal amount.
11. The Notes of the tranche are in registered (not bearer) form.
12. Provisions for payments of the tranche of Notes after an Event of
Default relating to a Derivative Agreement are as described in base
Prospectus contained in the original effective registration statement
filed with respect to the Notes.
13. At the time of issuance of the tranche of Notes, as to then
Outstanding Notes or outstanding Master Trust investor certificates,
no Notes or Master Trust investor certificates have been downgraded
(and continue to have the downgraded rating) or are on credit watch
with negative implications by any Rating Agency that rates the Notes
or the Master Trust investor certificates; (ii) no series or class of
Master Trust investor certificates has had an Early Amortization Event
(as defined in the Pooling and Servicing Agreement), and no event has
occurred that, with the passage of time, would become an Early
Amortization Event of any series or class of Master Trust investor
certificates; (iii) no series, class or tranche of Notes has had an
Early Redemption Event or Event of Default, and no event has occurred
that, with the passage of time, would become an Early Redemption Event
or Event of Default of any series, class or tranche of Notes; (iv) no
unreimbursed draws have been made on any reserve account or cash
collateral account for the benefit of any tranche of Notes or series
of Master Trust investor certificates; and (v) neither the Issuer nor
the Master Trust is in default of any payment owed by it to a
Derivative Counterparty or other derivative counterparty or
third-party enhancer; provided, however, that clauses (i), (ii), (iii)
and (iv) will not apply if (x) the event described therein is due
solely to the credit of a Derivative Counterparty or other derivative
counterparty or third-party enhancer and/or the default of such Person
in a payment obligation to the Issuer or the Master Trust, and (y)
such Person is not a Derivative Counterparty, other derivative
counterparty or third-party enhancer with respect to the new issuance
of Notes.
2
14. The tranche of Notes has no material terms not described in the base
Prospectus contained in the original effective registration statement
filed with respect to the Notes, and that tranche's subordination
features, acceleration provisions and remedies are as described in
that Prospectus.
15. The tranche of Notes meet any other conditions that may be added from
time to time by a Rating Agency then rating the Notes of the Issuer.
Any of the foregoing conditions may be eliminated or relaxed with the
consent of the Rating Agencies then rating the Notes.
3
EXHIBIT A
[FORM OF] PAYMENT REQUEST
From: Citibank (South Dakota), N.A., as
Series 2000 Certificate
Representative under the Series 2000
Supplement and as Managing
Beneficiary of the Citibank Credit
Card Issuance Trust
To: Citibank (South Dakota), N.A., as
Servicer under Citibank Credit Card
Master Trust I
Date:
Citibank Credit Card Master Trust I
Series 2000 Certificates
Due Period ending [ ], 20__
Reference is made to the Series 2000 Supplement, dated as of [ ] (the "Series
2000 Supplement"), among Citibank (South Dakota), N.A., as Seller and Servicer,
Citibank (Nevada), National Association, as Seller, and Bankers Trust Company,
as Trustee on be half of the Certificateholders, and the Indenture, dated as of
[ ] (the "Indenture"), among Citibank Credit Card Issuance Trust, as Issuer, and
Bankers Trust Company, as Trustee on behalf of the Noteholders. Terms used
herein have1 the meanings provided in the Series 2000 Supplement or the
Indenture, as applicable.
The Series 2000 Certificate Representative requests the following payments with
respect to the Series 2000 Certificates be made on the following dates:
A. Allocations of Investor Finance Charge Collections available pursuant
to Sections 4.02(a)(i), 4.02(a)(ii)(B) and 4.02(a)(iii) of the Series
2000 Supplement.
1. Required pursuant to Section 501(a) of the Indenture (to pay
accrued and unpaid fees and expenses of, and other amounts due
to, the Indenture Trustee pursuant to Section 807 of the
1
Indenture, to be paid as soon as practicable after the end of
the applicable Due Period)........................$________
2. Required pursuant to Section 501(b) of the Indenture (to make
the targeted deposits to the Interest Funding Account pursuant
to Section 503 of the Indenture, to be paid on the applicable
Interest Deposit Date)
Tranche Interest Deposit Date Amount
$
$
$
$
$
Total.....................$________
3. Required pursuant to Section 501(c) of the Indenture (to make
the targeted deposits to the Class C Reserve Account pursuant
to Section 518 of the Indenture, on the applicable Monthly
Interest Date)
Tranche Monthly Interest Date Amount
$
$
$
$
$
Total.....................$________
4. Required pursuant to Section 501(d) of the Indenture (to
increase the Invested Amount of the Series 2000 Certificate
or reimburse any Receivables Sales Proceeds Deposit Deficit
pursuant to Section 527 of the Indenture, to be paid to the
Servicer as soon as practicable after the end of the
applicable Due Period).............................$________
5. Balance of the Investor Finance Charge Collections to be paid
to the Issuer pursuant to Section 501(e) of the Indenture as
soon as practicable after the end of the applicable Due
Period.............................................$________
2
B. Allocations of Available Investor Principal Collections available
pursuant to Section 4.02(b)(i) and (b)(ii) and Section 4.02(c)(i)
and (c)(ii) of the Series 2000 Supplement.
1. Required pursuant to Section 502(a) of the Indenture (to be
reallocated to pay deficiencies in (i) accrued and unpaid fees
and expenses of the Indenture Trustee pursuant to A1 and (ii)
targeted deposits to the Interest Funding Account pursuant to
A2, subject to the limitations set forth in the Indenture, to
be paid on the applicable Interest Deposit Date)
Tranche Interest Deposit Date Amount
$
$
$
$
$
Total.....................$________
2. Required pursuant to Section 502(b) of the Indenture (to make
the targeted deposits to the Principal Funding Account
pursuant to Section 508 of the Indenture, to be paid on the
applicable Principal Deposit Date)
Tranche Principal Deposit Date Amount
$
$
$
$
$
Total.....................$________
3. Balance of the Available Investor Principal Collections
available pursuant to Section 4.02(b)(ii) of the Series 2000
Supplement to be paid to the Master Trust to be reinvested in
the Invested Amount of the Series 2000 Certificate pursuant
to Section 502(c) and Section 520(c) of the Indenture to be
paid as soon as practicable after the end of the applicable
Due Period........................................$________
3
IN WITNESS WHEREOF, each of the undersigned has duly executed and
delivered this Payment Request on , 20 .
CITIBANK CREDIT CARD ISSUANCE
TRUST, as Issuer
By: CITIBANK (SOUTH DAKOTA),
N.A., as Series 2000 Certificate
Representative and as Managing
Beneficiary
By: __________________________
Name:
Title:
By: CITIBANK (SOUTH DAKOTA), N.A.,
as Servicer
By: __________________________
Name:
Title:
4
EXHIBIT B
[FORM OF] MONTHLY COMPUTATION STATEMENT
Date:
Citibank Credit Card Master Trust I
Series 2000 Certificate
Due Period ending [ ], 20__
Reference is made to the Series 2000 Supplement, dated as of [ ] (the "Series
2000 Supplement"), among Citibank (South Dakota), N.A., as Seller and Servicer,
Citibank (Nevada), National Association, as Seller, and Bankers Trust Company,
as Trustee on be half of the Certificateholders, and the Indenture, dated as of
[ ] (the "Indenture"), among Citibank Credit Card Issuance Trust, as Issuer and
Bankers Trust Company, as Trustee on behalf of the Noteholders. Terms used
herein have1 the meanings provided in the Series 2000 Supplement or the
Indenture, as applicable.
The following computations are as of the end of the Due Period ending [ ], 20__
(the "applicable Due Period"):
A. Increases in the components of the Series 2000 Invested Amount, the
Series Adjusted Invested Amount for Series 2000 and the principal
amount of the Series 2000 Certificates, as of the end of the applicable
Due Period
1. The cumulative sum of the Initial Dollar Principal Amount of
each tranche of Notes as of the end of the applicable Due
Period pursuant to Section 5.01(a)(x)(i) of the Series 2000
Supplement and clause (a) of the definition of "Nominal
Liquidation Amount" in the Indenture
From all prior Due Periods..................$________
From the applicable Due Period..............$________
Total...............................................$________
2(a). The cumulative sum of accretions of principal on Discount
Notes targeted to be deposited in the Interest Funding Account
pursuant to Section 503(f) of the Indenture and Section
5.01(a)(x)(ii)(A) of the Series 2000 Supplement, whether
1
or not actually deposited and paid by the Issuer to the Master
Trust pursuant to Sections 507(b) and 520(a) of the Indenture
for reinvestment in the Series 2000 Invested Amount pursuant
to Sections 4.03(e)
From all prior Due Periods.................$________
From the applicable Due Period.............$________
Total..............................................$________
2(b). The cumulative sum of accretions of principal on Discount
Notes actually paid by the Issuer to the Master Trust for
reinvestment in the Series 2000 Invested Amount pursuant to
Sections 4.03(e) and 5.01(a)(x)(ii)(B) of the Series 2000
Supplement and Sections 5.07(b) and 520(a) of the Indenture
From all prior Due Periods.................$________
From the applicable Due Period.............$________
Total..............................................$________
3. The cumulative sum of principal collections paid by the Issuer
to the Master Trust for reinvestment in the Series 2000
Invested Amount pursuant to Sections 4.03(f) and
5.01(a)(x)(iii) of the Series 2000 Supplement and Sections
502(a) and 520(c) of the Indenture
From all prior Due Periods.................$________
From the applicable Due Period.............$________
Total..............................................$________
4. The cumulative sum of reimbursements of Series 2000 Invested
Amount Deficit from Allocable Miscellaneous Payments retained
by the Master Trust for reinvestment in the Series 2000
Invested Amount pursuant to Sections 4.03(b)(ii) and
5.01(a)(x)(iv) of the Series 2000 Supplement and Section
527(e)(i) of the Indenture
From all prior Due Periods.................$________
From the applicable Due Period.............$________
2
Total..............................................$________
5. The cumulative sum of reimbursements of Series 2000 Invested
Amount Deficit made pursuant to Sections 4.02(a)(iii)(C),
4.03(c) and 5.01(a)(x)(v) of the Series 2000 Supplement and
Sections 520(b) and 527(f)(i) of the Indenture
From all prior Due Periods.................$________
From the applicable Due Period.............$________
Total..............................................$________
B. Decreases in the components of the Series 2000 Invested Amount, the
Series Adjusted Invested Amount for Series 2000, and the principal
amount of the Series 2000 Certificates as of the end of the applicable
Due Period
1. The cumulative sum of all Principal Collections paid to the
Issuer pursuant to Section 4.02(b)(ii) or Section 4.02(c)(ii)
of the Series Supplement which are reallocated pursuant to
Section 502(a) of the Indenture and Section 5.01(a)(y)(i) of
the Series 2000 Supplement to pay accrued and unpaid fees and
expenses of, and other amounts due to, the Indenture Trustee
and to make targeted deposits to the Interest Funding Account
From all prior Due Periods.................$________
From the applicable Due Period.............$________
Total..............................................$________
2(a). The cumulative sum of all payments of principal collections
paid to the Issuer (other than those referred to in item B1
above) on deposit in the Principal Funding Account or
withdrawn from the Principal Funding Account pursuant to
Section 511(a), (b) or (c) of the Indenture and Section
5.01(a)(y)(ii) of the Series 2000 Supplement
From all prior Due Periods.................$________
From the applicable Due Period.............$________
Total..............................................$________
3
2(b). All payments of principal collections by the Master Trust to
the Issuer (Sum of Items B1 and B2(a)).............$________
2(c). With respect to all tranches of Notes with a Nominal
Liquidation Amount of zero (including all tranches of RSP
Notes), the cumulative sum of all payments of principal
collections to the Issuer (other than those referred to in
item B1 above) on deposit in the Principal Funding Account or
withdrawn from the Principal Funding Account pursuant to
Section 511(a), (b) or (c) of the Indenture
From all prior Due Periods.................$________
From the applicable Due Period.............$________
Total..............................................$________
3. With respect to each tranche of RSP Notes, an aggregate amount
equal to the Nominal Liquidation Amount of each such tranche
immediately before giving effect to the applicable sale of
Receivables pursuant to Sections 4.01(a)(y)(iii) 7.03 of the
Series 2000 Supplement and Section 523 of the Indenture
From all prior Due Periods.................$________
From the applicable Due Period.............$________
Total..............................................$________
4. Investor Charge-Offs allocated to the Series 2000 Certificate
pursuant to Sections 4.03(a) and 5.02(a)(y)(iv) of the Series
2000 Supplement, to the extent that such Investor Charge-Offs
reduce the aggregate Nominal Liquidation Amount of the Notes
pursuant to Section 526(e)(i) of the Indenture
From all prior Due Periods.................$________
From the applicable Due Period.............$________
Total..............................................$________
4
C. Series 2000 Invested Amount and aggregate Nominal Liquidation Amount of
the Notes (sum of Items A1, A2(b), A3, A4 and A5, less Items B1,
B2(a), B3 and B4)...........................................$________
D. Series Adjusted Invested Amount for Series 2000 (sum of Items A1,
A2(b), A3, A4 and A5, less Items B1, B2(b), B3 and B4)......$________
E. 1. Principal amount of the Series 2000 Certificates and aggregate
Adjusted Outstanding Principal Amount of the Notes (sum of
Items A1, A2(a) and A3, less Item B2) (but subject to Section
5.01(c) of the Series 2000 Supplement).............$________
2. Aggregate amount on deposit in the Principal Funding
Account............................................$________
3. Aggregate Outstanding Dollar Principal Amount of the Notes
(sum of Items E1 and E2)...........................$________
F. Amount of Finance Charge Collections (and amounts to be treated as
Finance Charge Collections) available pursuant to Section 501(c) of the
Indenture to fund Class C Reserve sub-Accounts..............$________
G. Principal Payment Rate for the applicable Due Period (from Item A4 of
the Series 2000 Monthly Performance Statement for the applicable Due
Period).......................................................______%
H. Portion of the Series 2000 Invested Amount to be considered as an
Excluded Series.............................................$________
I. The aggregate amount on deposit in the Principal Funding Account for
each tranche of Notes, other than any tranche of RSP Notes (equal to
the Sellers' Interest)......................................$________
5
IN WITNESS WHEREOF, each of the undersigned has duly executed and
delivered this Monthly Computation Statement on , 20 .
CITIBANK (SOUTH DAKOTA), N.A.,
Servicer of Citibank Credit Card Master
Trust I,
By:___________________________________
Name:
Title:
CITIBANK CREDIT CARD ISSUANCE
TRUST, as Issuer
By: CITIBANK (SOUTH DAKOTA),
N.A., as Series 2000 Certificate
Representative and as Managing
Beneficiary
By:___________________________________
Name:
Title:
6
EXHIBIT C
[FORM OF] ISSUER'S REPORT
From: Citibank (South Dakota), N.A., as
Managing Beneficiary of the Citibank
Credit Card Issuance Trust
To: [Rating Agencies]
Date:
Citibank Credit Card Master Trust I
Due Period ending [ ], 20__
Reference is made to the Series 2000 Supplement, dated as of [ ] (the "Series
2000 Supplement"), among Citibank (South Dakota), N.A., as Seller and Servicer,
Citibank (Nevada), National Association, as Seller, and Bankers Trust Company,
as Trustee on be half of the Certificateholders, and the Indenture, dated as of
[ ] (the "Indenture"), among Citibank Credit Card Issuance Trust, as Issuer and
Bankers Trust Company, as Trustee on behalf of the Noteholders. Terms used
herein have1 the meanings provided in the Series 2000 Supplement or the
Indenture, as applicable.
The following computations are as of the end of the Due Period ending [ ], 20__
(the "applicable Due Period"), as follows, after giving effect to all deposits,
allocations, reallocations and payments to be made under the Indenture in the
month after the end of the applicable Due Period.
A. Interest to be paid on next Interest Payment Date following the end of
the applicable Due Period
Amount of
Interest Rate interest due on
Series, Class Basis and next Interest Next Interest
Tranche Interest Rate Period Payment Date Payment Date
-------------------------------------------------------------------------------
[Fixed]
[__- month
LIBOR plus
____ ]
1
B. Targeted deposits to Interest Funding sub-Accounts
Targeted Actual
Deposit to Deposit to
Interest Interest
Funding Funding
sub-Account sub-Account Shortfall
Series, for for from Shortfall
Class, Applicable Applicable applicable from earlier Cumulative
Tranche Due Period Due Period Due Period Due Periods Shortfall
C. Targeted deposits to Class C Reserve sub-Accounts
Targeted Actual
Deposit to Deposit to
Class C Class C
Reserve sub- Reserve sub- Shortfall
Series, Account for Account for from Shortfall
Class, Applicable Applicable applicable from earlier Cumulative
Tranche Due Period Due Period Due Period Due Periods Shortfall
D. Targeted deposits to Principal Funding sub-Accounts
2
Targeted Actual
Deposit to Deposit to
Principal Principal
Funding Funding
sub-Account sub-Account Shortfall
for for from Shortfall
Applicable Applicable applicable from earlier Cumulative
Series, Class, Tranche Due Period Due Period Due Period Due Periods Shortfall
E. Stated Principal Amount, Outstanding Dollar Principal Amount and
Nominal Liquidation Amount*
[Series, Class, Tranche]
As of end of Changes after giving effect to all deposits, allocations,
applicable payments and reallocations after end of applicable Due
Due Period Period
Increases Decreases
from other from other
sources sources
Increases (Nominal (Nominal
from Liquidation Liquidation
accretion Amount Decreases Amount Balance
(Discount only) -- see from only) -- see after giving
Notes Note 1 payments Note 2 effect to
Only) below of principal below changes
Stated Principal
Amount
Outstanding
Dollar Principal
Amount
----------------------
* Repeat table for each Series, class and tranche of Notes.
3
[Series, Class, Tranche]
As of end of Changes after giving effect to all deposits, allocations,
applicable payments and reallocations after end of applicable Due
Due Period Period
Increases Decreases
from other from other
sources sources
Increases (Nominal (Nominal
from Liquidation Liquidation
accretion Amount Decreases Amount Balance
(Discount only) -- see from only) -- see after giving
Notes Note 1 payments Note 2 effect to
Only) below of principal below changes
Nominal
Liquidation
Amount (plus
Amounts on
deposit in
applicable
Principal Funding
sub-Account)
Note 1: [Explain any increases in the Nominal Liquidation Amount from
reimbursements of earlier reductions.]
Note 2: [Explain any decreases in the Nominal Liquidation Amount from
allocation of Investor Charge-Offs or reallocations of Principal
Collections to pay interest on a senior class, etc.]
4
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Issuer's Report on , 20 .
CITIBANK CREDIT CARD ISSUANCE
TRUST, as Issuer
By: CITIBANK (SOUTH DAKOTA),
N.A., as Managing Beneficiary
By:__________________________________
Name:
Title:
5
EXHIBIT D
[FORM OF] INVESTMENT LETTER
[Date]
Bankers Trust Company,
as Trustee,
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Citibank Credit Card Issuance Trust
c/o Citibank (South Dakota), N.A., as Managing Beneficiary
000 Xxxx 00xx Xxxxxx, Xxxxx
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000
Attention: General Counsel
Citigroup, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Law Department
Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Corporate Trust Department
Re: Purchase of $___________* principal amount of Citibank
Credit Card Issuance Trust Series [ ] Class [ ]
Notes.
Ladies and Gentlemen:
In connection with our purchase of the above Notes (the
"Notes") we confirm that:
(1) We understand that the Notes are not being registered
under the Securities Act of 1933, as amended (the "Securities Act"),
and are being sold to us in a transaction that is exempt from the
registration requirements of the Securities Act.
----------------
* Not less than $250,000 minimum principal amount.
1
(2) Any information we desire concerning the Notes or any
other matter relevant to our decision to purchase the Certificates is
or has been made available to us.
(3) We have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of
an investment in the Notes, and we (and any account for which we are
purchasing under paragraph (iv) below) are able to bear the economic
risk of an investment in the Notes. We (and any account for which we
are purchasing under paragraph (iv) below) are an "accredited investor"
(as such term is defined in Rule 501(a)(1), (2) or (3) of Regulation D
under the Securities Act).
(4) We are acquiring the Notes for our own account or for
accounts as to which we exercise sole investment discretion and not
with a view to any distribution of the Notes, subject, nevertheless, to
the understanding that the disposition of our property shall at all
times be and remain within our control;
(5) We agree that the Notes must be held indefinitely by us
unless subsequently registered under the Securities Act or an exemption
from any registration requirements of the Securities Act and any
applicable state securities law is available;
(6) We agree that in the event that at some future time we
wish to dispose of or exchange any of the Notes (such disposition or
exchange not being currently foreseen or contemplated), we will not
transfer or exchange any of the Notes unless:
(a)(i) the sale is of at least U.S. $250,000 principal amount
of Notes to an Eligible Purchaser (as defined below), (ii) a letter to
substantially the same effect as paragraphs (1), (2), (3), (4), (5) and
(6) of this letter is executed promptly by the purchaser and (3) all
offers or solicitations in connection with the sale, whether directly
or through any agent acting on our behalf, are limited only to Eligible
Purchasers and are not made by means of any form of general
solicitation or general advertising whatsoever; or
(b) the Notes are transferred pursuant to Rule 144 under the
Securities Act by us after we have held them for more than three years;
or
(c) the Notes are sold in any other transaction that does not
require registration under the Securities Act and, if the Issuer, the
Servicer, the Trustee or the Note Registrar so requests, we theretofore
have furnished to such party an opinion of counsel satisfactory to such
party, in form and substance satisfactory to such party, to such
effect; or
(d) the Notes are transferred pursuant to an exception from
the registration requirements of the Securities Act under Rule 144A
under the Securities Act; and
2
(7) We understand that the Notes will bear a legend to
substantially the following effect:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS NOTE NOR ANY
PORTION HEREOF MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES
ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES
LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH PROVISIONS. THE
TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE
INDENTURE REFERRED TO HEREIN."
This legend may be removed if the Issuer, the Trustee and the Note Registrar
have received an opinion of counsel satisfactory to them, in form and substance
satisfactory to them, to the effect that the legend may be removed.
"Eligible Purchaser" means either an Eligible Dealer or a corporation,
partnership or other entity which we have reasonable grounds to believe and do
believe can make representations with respect to itself to substantially the
same effect as the representations set forth herein. "Eligible Dealer" means any
corporation or other entity the principal business of which is acting as a
broker and/or dealer in securities. Capitalized terms used but not defined
herein shall have the meanings given to such terms in the Indenture dated as of
[ ], 2000, between Citibank Credit Card Issuance Trust and Bankers Trust
Company, as trustee.
Very truly yours,
__________________________
(Name of Purchaser)
By________________________
(Authorized officer)
3
EXHIBIT E-1
[FORM OF CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE TRUSTEE BY
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG FOR
DELIVERY OF DEFINITIVE NOTES IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL NOTE]
CITIBANK CREDIT CARD ISSUANCE TRUST,
Series [ - ] Class [ ] Notes
[Insert title or sufficient description
of Notes to be delivered]
We refer to that portion of the Temporary Global Note in respect of the
Series [ - ] Class [ ] Notes to be exchanged for definitive Notes (the
"Submitted Portion") pursuant to this certificate (the "Notes") as provided in
the Indenture dated as of [ ], 2000 (as amended and supplemented, the
"Indenture") in respect of such issue. This is to certify that (i) we have
received a certificate or certificates, in writing or by tested telex, with
respect to each of the persons appearing in our records as being entitled to a
beneficial interest in the Submitted Portion and with respect to such person's
beneficial interest either (a) from such person, substantially in the form of
Exhibit E-2 to the Indenture, or (b) from [ ], substantially in the form of
Exhibit E-3 to the Indenture, and (ii) the Submitted Portion includes no part of
the Temporary Global Note excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
We understand that this certificate is required in connection with
certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in such
proceedings.
Dated: , 20__ * [Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the
Euroclear System]
[Clearstream, Luxembourg]
--------------------
* To be dated on the date of the proposed exchange.
1
By_____________________________________
2
EXHIBIT E-2
[FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
BY [ ] WITH RESPECT TO REGISTERED NOTES SOLD TO
QUALIFIED INSTITUTIONAL BUYERS]
CITIBANK CREDIT CARD ISSUANCE TRUST,
Series [ - ] Class [ ] Notes
In connection with the initial issuance and placement of the Series [ -
] Class [ ] Notes (the "Notes"), an institutional investor in the United States
(an "institutional investor") is purchasing [U.S.$/(pound)/(U)/SF ] aggregate
principal amount of the Notes hold in our account at [Xxxxxx Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear System]
[Clearstream, Luxembourg] on behalf of such investor.
We reasonably believe that such institutional investor is a qualified
institutional buyer as such term is defined under Rule 144A of the Securities
Act of 1933, as amended.
[We understand that this certificate is required in connection with
United States laws. We irrevocably authorize you to produce this certificate or
a copy hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered by this certificate.]
The Definitive Notes in respect of this certificate are to be issued in
registered form in the minimum denomination of [U.S.$/(pound)/(U)/SF ] and such
Definitive Notes (and, unless the Indenture or terms document relating to the
Notes otherwise provides, any Notes issued in exchange or substitution for or on
registration of transfer of Notes) shall bear the following legend:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933. NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE OFFERED OR
SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS
(EACH AS DEFINED HEREIN), EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH
REGISTRATION PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO
CERTAIN CONDITIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN. THIS
NOTE CANNOT BE EXCHANGED FOR A BEARER NOTE ."
Dated: , 20__
[ ]
1
By___________________________________
Authorized officer
2
EXHIBIT E-3
[FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
BY A BENEFICIAL OWNER
OF NOTES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER]
CITIBANK CREDIT CARD ISSUANCE TRUST,
Series [ - ] Class [ ] Notes
This is to certify that as of the date hereof and except as provided in
the third paragraph hereof, the Series [ - ] Class [ ] Notes held by you for our
account (the "Notes") (i) are owned by a person that is a United States person,
or (ii) are owned by a United States person that is (A) the foreign branch of a
United States financial institution (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v)) (a "financial institution") purchasing for its own
account or for resale, or (B) a United States person who acquired the Notes
through the foreign branch of a financial institution and who holds the Notes
through the financial institution on the date hereof (and in either case (A) or
(B), the financial institution hereby agrees to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by a financial
institution for purposes of resale during the Restricted Period (as defined in
U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)). In addition,
financial institutions described in clause (iii) of the preceding sentence
(whether or not also described in clause (i) or (ii)) certify that they have not
acquired the Notes for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
We undertake to advise you by tested telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the Notes in
bearer form with respect to such of the Notes as then appear in your books as
being held for our account.
This certificate excepts and does not relate to [U.S.$/(pound)/(U)/SF ]
principal amount of Notes held by you for our account, as to which we are not
yet able to certify beneficial ownership. We understand that delivery of
Definitive Notes in such principal amount cannot be made until we are able to so
certify.
We understand that this certificate is required in connection with
certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in such
proceedings. As used herein, "United States" means the United States of America,
including the States and the District of Columbia, its territories, its
possessions and other areas subject to its jurisdiction; and "United States
Person" means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States, or any political subdivision thereof, or
1
an estate or trust the income of which is subject to United States federal
income taxation regardless of its source.
Dated: , 20__* By______________________________
Name:
As, or as agent for, the beneficial
owner(s) of the interest in the
Notes to which this certificate
relates.
-----------------------
* This certificate must be dated on the earlier of the date of the first
payment of interest in respect of the Notes and the date of the delivery of
the Notes in definitive form.
2